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Mr Cash: The investigation order has not yet been debated in the European Standing Committee, as far as I am aware, so we should bear it in mind that although the Minister made a statement-on 15 June, I think-it is none the less still subject to scrutiny.
Chris Heaton-Harris: I thank the Chairman of the European Scrutiny Committee for correcting me. He knows that I am often wrong, so he corrects me quite regularly. I appreciate the help and assistance that he gives me, as a new Member in this place.
In the simplest terms, on the JHA ratchets, the Government have wisely looked at article 86 of the TFEU and have closed down in the Bill many of the policy areas that could be taken up to European level. Article 86 deals with the European public prosecutor, as I think the hon. Member for Wolverhampton North East (Emma Reynolds) alluded to earlier. However, it does not pay attention in the same way to the justice and home affairs criminal law ratchets, because those are contained in article 83. Is there a reason for that? Essentially, I am seeking from the Minister an idea of how we will deal in this place with matters similar to the European investigation order when the Bill is enacted.
The criminal ratchet clauses are often very important, but some, while important in themselves, would not be as important to the British people on the whole. It would be a very daring move for anybody-a Eurosceptic, a pro-European, or any Minister-to recommend such matters for a referendum. I am quite happy to think that we could deal with this by putting before both Houses of Parliament a motion or Bill that could be amended to include a referendum clause, should the need arise. However, we can do justice and home affairs scrutiny a lot better. Although the written ministerial statement goes some way in that regard, could the Minister give us some real-life examples to explain how such matters will be dealt with in future?
I do not want to detain the Committee further. I have explained the reasons for my amendments on family law-I will not be pressing those to a vote-and on the JHA ratchets, which I hope I will not need to press to a vote. All parties should be able to agree in general terms to better parliamentary scrutiny of justice and home affairs opt-ins-or, indeed, opt-outs. This is the right place for that to be done, and I look forward to the Minister's comments.
Emma Reynolds: It is a pleasure to serve under your chairmanship as I make my first speech on the European Union Bill, Ms Primarolo. It is also a great pleasure to follow the hon. Member for Daventry (Chris Heaton-Harris). He and I have something in common, because I, too, worked in the European Parliament for a number of years. He was an MEP for a decade and I congratulate him on his speech today.
I wish to place on the record my gratitude to the European Scrutiny Committee and congratulate it on several reports on the Bill, particularly the one it published last week. I particularly wish to place on the record my thanks to its Chair, the hon. Member for Stone (Mr Cash), whose eloquence and expertise on these matters is exemplary. The report certainly gave me some work to do this weekend. It kept me awake because it was a
riveting read, and it was so enlightening that I shall draw on its infinite wisdom in my contribution this afternoon.
In his Second Reading speech, the Foreign Secretary was at pains to stress the importance of clause 6 and the referendum triggers on the so-called "passerelle" clauses, as was the Minister for Europe in his letter to his own Back Benchers. If the Government's commitment not to transfer power to the EU is genuine and is a cast-iron guarantee-we have heard that before-and the passerelle clause actually requires unanimous agreement in order to move to qualified majority voting, why do the Government not simply veto any move to QMV? Can the Minister tell the House why it is necessary to make provision in clause 6 for a technical device that the Government have the power to block? Is it because the Government's own Back Benchers do not trust the Government Front-Bench team or, perhaps, some officials in the Foreign Office?
This matter was considered in the European Scrutiny Committee's report. One of its witnesses, the UK's former permanent representative to the EU, Sir John Grant, confirmed in his evidence that member states rarely agree to passerelles. He said:
"The point about the passerelles is that-they're significant in a way, of course they are, they're there for a reason-but it's very difficult to use them, whether or not there is a referendum Bill...but the reason passerelles aren't used very much is that everybody's got to agree that some of them are going to be outvoted."
"it is in reality unlikely that most of the Treaty provisions which attract a referendum under the Bill will ever successfully be invoked".
As I have said, the Government claim that each and every passerelle clause is within the scope of the Bill, but I understand that that is not the case and I believe that the hon. Member for Daventry was making the same point. Indeed, the Minister for Europe's letter to his own Back Benchers states:
"To be clear, it is not the exercise of unanimous decision-making that would require a referendum"-
"but the shift in any significant area from unanimity to qualified majority voting."
Can the Minister explain to the House what he means by "significant area"? How will that significance be judged? Is there a test for it? Does this approach not fall short of what the Foreign Secretary promised the House on Second Reading, when he committed that the Bill would cover every possible move to QMV in the treaties?Does the Bill not cover all those areas? If not, why not? I would appreciate the Minister's clarification on that point.
I also wish to ask the Minister for clarification on the implications of clause 6(4)(j) and whether the enhanced co-operation procedure on the EU patent would trigger an Act of Parliament or a referendum. Labour Members judge that this measure, if successful, would be an extremely important move to help British business protect its intellectual property rights, at least within the 12 member states entering into the enhanced co-operation procedure,
as it stands. We would not like to see the negotiations delayed any further on this important matter, so can the Minister tell the House if and how the current negotiations would be affected? For that reason, we have tabled amendment 100. The Minister has said that if it were included, it would put the matter beyond any doubt. I therefore urge that there be a Division on the amendment, so that we can have that guarantee in the Bill.
There is also a loophole in clause 6 that it is important to underline. The Government state that the aim of the clause 6 is to capture any change from unanimity to QMV, but as outlined by another witness, Professor Dougan, clause 6(4)(j) does not apply to the UK deciding to join an existing enhanced co-operation procedure whose members have already decided to move to QMV. Does the Minister agree that it is illogical not to include such a move that involves a shift from unanimity to QMV? Will he clarify the Government's thinking on the issue? Why does clause 6(4)(j) fail to account for that scenario? Does he agree with the recommendation of the European Scrutiny Committee's report that
"a decision by the UK to enter enhanced cooperation where the voting procedure has been changed from unanimity to QMV be subject to a referendum lock"?
Other inconsistencies and elements have been illogically left out of clause 6. Again, the Government claim that clause 6 should include any move to qualified majority voting. The hon. Member for Daventry has pre-empted my speech on this matter, because it is surely a logical conclusion of the Government's argument that decisions by the Government to opt in to the field of justice and home affairs legislation should be included in clause 6. When he was asked about that point on Second Reading, the Foreign Secretary pointed out that there was only a three-month window for member states to opt in to the start of negotiations. That point was well made by the hon. Member for Daventry. However, why not put the opt-ins, when they are decided, to a vote in the House?
I take into account the Minister's written ministerial statement on this subject, which was made last week. Welcome though its contents are, does it go far enough? Does it allow proper parliamentary sovereignty over those significant decisions? The Irish Government manage to consult their Parliament within the time frame and to have a vote on these issues. Would it not be a good thing for this House to have a greater say?
Mr Clappison: I am grateful to the hon. Lady for giving way. She is making a very good case in a very cogent way. As a member of the European Scrutiny Committee, however, may I gently say to say to her that although I will have certain points to make about the written ministerial statement, it goes much further than anything that was permitted under her party's Government? For 13 years, we had no votes on opt-ins or anything else to do with these matters and, by and large, we had scrutiny without votes at the end of it.
That is certainly true, but I remind the hon. Gentleman that both the Single European Act and the Maastricht treaty involved a much greater transfers of powers than anything we have seen since and the Foreign Secretary voted against a referendum
on such matters. Let us talk not only about consistency on this side, but about consistency by those on the Treasury Bench, too.
The Government have decided to opt in to eight pieces of justice and home affairs legislation since the general election. The hon. Member for Daventry has mentioned one of them-the European investigation order. The Opposition would have liked to have had a say on the Government's decision not to opt in to the EU directive to combat human trafficking. Indeed, we judge the Government's decision not to opt in to be a dereliction of duty as regards combating this modern form of slavery. I imagine that some Back Benchers sitting behind the Minister-as I have said, the hon. Member for Daventry has mentioned this-would have liked more time on the Floor of the House to discuss not only the European investigation order but the other seven measures that the Government opted into.
Another area that the Government have totally neglected to mention in the Bill is the wholesale transfer of the body of justice and home affairs legislation to the jurisdiction of the European Court of Justice. The decision that the Government have to take in 2014 either to opt in to the body of legislation in its entirety or not to do so was also referred to in the Minister's written ministerial statement last week, but it is not mentioned in the Bill and is surely of equivalent significance to many of the changes in clause 6. In fact, the Conservative party manifesto stated that the Conservatives wanted to repatriate powers in employment and social affairs and criminal justice.
In his ministerial written statement, the Minister said there would be a vote in the House on the decision in 2014-we welcome that. However, I am sure that some of his Back Benchers will tell him that it is his best chance to repatriate powers in the field of criminal justice. Such a move would be unilateral and could be carried out with relative ease. The Government will not be able to do the same in the field of employment and social affairs without the unanimous agreement of all the other 26 member states. Given that this is the Government's only chance to fulfil that manifesto commitment, are they minded to take up this opportunity? Are not these changes more important than those in clause 6?
Emma Reynolds: We are not in favour of repatriating power; I am simply pointing out that according to their manifesto, the Conservatives committed to doing so. Far be it from me to intrude on private grievances, but I am simply trying to point out that there may be disagreement on these issues between those on the Government Front and Back Benches.
The hon. Lady has been talking with great eloquence about opt-ins and the number of opt-ins that have taken place and she has referred to the excellent amendments of my hon. Friend the Member for Daventry (Chris Heaton-Harris), which reflect the views of the European Scrutiny Committee. In the light of her eloquence and determination, and the expressions of support she
has given to my hon. Friend and therefore to the Committee, I should like to know whether the Opposition would be interested in voting on these matters.
Chris Heaton-Harris: I thank the hon. Lady for being so kind to me and I congratulate her on her first contribution from the Front Bench; she is doing a sterling job. I very much appreciate the tone in which she is delivering her words. Given the welcome for last week's written ministerial statement, I wonder whether there is a chance, bizarrely, for some collaborative work to break out across the divide on how we should deal with justice and home affairs opt-ins and opt-outs. Perhaps we could all, together with our Lib Dem colleagues, come to a better arrangement for the future.
Emma Reynolds: I certainly agree with the hon. Gentleman, who makes the point well. There are elements of agreement regarding last week's written ministerial statement with which we can work. The Opposition favour any greater parliamentary scrutiny of the opt-in decisions that the Government make in this area. So, yes, there is quite a lot of agreement between us.
The Conservative party has come on a long, tortuous and at times destructive journey regarding the European Union. A Conservative Prime Minister took us into the then European Community and subsequent Conservative Prime Ministers signed up to the Single European Act and the Maastricht treaty-the biggest transfers of power from Westminster to Brussels in our history. There were no referendums on those issues. The Foreign Secretary has been part of that long and tortuous journey. He was not so keen on referendums in the early 1990s, when he and the hon. Member for Stone were on different sides of the argument during the long and heated debate on the Maastricht treaty that went through the night. The Foreign Secretary opposed a referendum on the treaty and the hon. Member for Stone consistently argued for one.
Mr Lidington: Does the hon. Lady acknowledge that there is an important distinction to be made here? With the UK's accession under Edward Heath and with the treaties she has mentioned that were agreed to by Conservative Governments, those policies were made clear in the Conservatives' manifesto when they sought the people's confidence at a general election. The difference with the Lisbon treaty is that, for the first time, referendums had been promised but were not given by the party that won office at the general election.
I thank the Minister for Europe for that intervention. I will say two things about it. The first is that I do not remember the 1983 Conservative party manifesto. The second is that the Single European Act involved a massive transfer of power with the introduction of the four freedoms-goods, capital, people and services. The Maastricht treaty also involved a massive transfer of power from Westminster to Brussels through the inclusion of justice and home affairs within the competence of the European Union treaties. I would argue that both those treaties were much more significant than the
Lisbon treaty. We will not take lessons from a party which has never, within my lifetime, granted a referendum to this country on-
"the longest suicide note in history".
On the treaties, the Maastricht treaty indeed represented a massive transfer of powers. As Professor Simon Hix confirmed, in his view it should have been subject to a referendum. There are very few on the Conservative Benches now who do not agree that we were right when we pressed for one at the time. However, the Lisbon treaty contains the ingredients of the Maastricht treaty. That is where the problem lies. A referendum was required on that because of the things that are now entrenched in the Lisbon treaty which come out of Maastricht, Amsterdam and Nice, plus all the add-ons that the Front-Bench team of the Labour party in government put through.
Emma Reynolds: I know that the hon. Gentleman is disappointed that back in 1993 he did not manage to win the vote on securing a referendum on the Maastricht treaty. I would like to look forward, rather than look back. I shall continue and conclude my remarks.
The changes outlined in clause 6 and other parts of the Bill pale into insignificance compared with the wholesale transfers of power in the Maastricht treaty and the Single European Act, as I outlined. In the House, on the Second Reading, both the Foreign Secretary and Minister for Europe reiterated the Government's commitment, as set out in the coalition agreement, not to agree to any transfer of power from Westminster to Brussels for the duration of this Parliament. If the Government are so committed not to transfer power, why do we need the Bill? Is it that their own Back- Benchers do not trust them to keep to the text of the coalition document?
Tim Farron (Westmorland and Lonsdale) (LD): I thank the hon. Lady for being so generous. Does she agree that the Bill recognises the mood of the country? I am an enthusiastic supporter of the European Union, but the mood of the country is not the same as mine towards the European Union. Parliament needs to make a statement that guarantees that this place is sovereign, and that the public's power over our membership of the European Union is ultimate and paramount. The compromise in the Bill is surely intended to achieve that confidence among the public and to ensure that we do not wrap ourselves up in so much red tape that we cannot have a meaningful relationship with the European Union.
Emma Reynolds: I thank the hon. Gentleman for that contribution, and I will say two things in response. First, European Union legislation can, by its nature, be deregulatory if it is framed precisely and well. Several pieces of European Union legislation replace 27 sets of national legislation. A number of business organisations recognise that fact and are in favour of it.
On the hon. Gentleman's wider point, I will say this: I am new to the House, but since last May I have not had a single constituent bring that subject up, either in a surgery or on the doorstep, and I was knocking on doors on Saturday. My constituents are more concerned about their jobs, the trebling of tuition fees and the risks from overhauling the NHS than about technical procedures called passerelles, which, I wager, none of them has heard of.
In conclusion, the Bill is a political gesture that has not succeeded in calming the Eurosceptic wing of the Conservative party. In fact, it seems to have inflamed the passions of the Eurosceptics on the Benches behind the Minister. I am sure that that will be demonstrated today, as it was yesterday and in previous consideration of the Bill. In the words of the right hon. Member for Wokingham (Mr Redwood), the Bill is "shadow-boxing". According to the hon. Member for Clacton (Mr Carswell), it is a "piece of legislative PR". This political device has not only backfired, but resulted in a Bill that is confused, contorted and contradictory.
I rise to speak to amendment 81, which stands in my name, but first I would like to make a wider point. I fundamentally believe that it is a landmark piece of legislation. I have strong and clear views on Europe and on our relationship with it. It is fair to say that since 1972 this country has seen what I would describe as open-door encroachment on our sovereignty and decision making. When I speak to my constituents about all matters related to Europe, and when they raise those with me, one of the fundamental questions they ask is who governs this country. Is it Britain, or Parliament or Europe? I think that the Bill will bring some clarity to some of those questions and issues.
Mike Gapes: Given the tone of the hon. Lady's remarks, should she not be calling for an in/out referendum, and is she not disappointed that the Government have come up with such a weak and ineffective measure?
Priti Patel: I have spoken previously about various clauses in the Bill and have made it abundantly clear that I welcome it. There is no doubt about that. On the hon. Gentleman's point about an in/out referendum, I would like to see a referendum on many, many issues, some of which are in the Bill. I will now speak to one fundamental issue that I think should be in the Bill.
Chris Bryant: The hon. Lady has just said that we should have a referendum on many, many issues. Does that mean many, many referendums, or one referendum on many, many issues? If it is the latter, how would one know on what one was voting yes or no?
As the debate has proved, many issues to do with the way in which we do business in this country are related to the laws and the decision-making powers
of this House and the judgments exercised by Europe, and reflect the views of members of the public. Fundamentally, the British people have a right to vote on where we stand with Europe and on our relationship with Europe. I have been clear on that and consistently maintained that view.
Chris Bryant: The hon. Lady is being generous in giving way, for which I am grateful. She has just used rather Treasury Bench words. That is intended not to promote her, but to denigrate her, I am afraid, because those words seem rather woolly-I am merely recognising my previous sins. Does she mean in or out?
Priti Patel: I would be very happy if the country had a referendum on in or out of Europe, and I have consistently maintained that view. That is my personal view, but it is not the subject of debate on the Bill.
Amendment 81 would guarantee a referendum in the event that the EU proposed to reduce our powers over our inshore territorial waters up to the 12 nautical mile limit. I therefore ask the Minister and the Committee, through this debate, to put that safeguard in place. The amendment would not solve all the historical problems with the common fisheries policy, but importantly it would protect many of the efforts that this Government and the devolved Administrations are making in our sovereign territorial waters.
Mr Wayne David (Caerphilly) (Lab): On that point about the devolved Administrations, is the hon. Lady as concerned as I am about the evidence that the Scottish Parliament submitted, in which it worries that the devolved dimension is not being considered properly?
As it stands, the Government and the devolved Administrations collectively exercise control and restrictions in our territorial waters up to the 6 nautical mile limit, and access is for British fishermen only. Access to our territorial waters between the 6 and 12 nautical mile limit is restricted to a handful of neighbouring countries. Those arrangements exist only by regulation, so at any time they could be amended by qualified majority voting and Britain could effectively lose control over access to its territorial waters within the 12 nautical mile limit of our shoreline.
The current regulation, passed in 2002, details the common fisheries policy arrangements for national territorial waters, and it expires at the end of 2012. As we know, the EU has plenty of flexibility to determine the future of our territorial waters, and I fundamentally believe that that is not in our national interest. The European Commission is, however, consulting on the post-2012 arrangements, and my significant concern is that through either that reform or future measures the majority of our European counterparts in the European Parliament or in the Council of Ministers will be able to determine the future of our territorial sovereignty.
I have been in touch with the Minister for Europe about the issue, and he has very kindly written to me to confirm that currently the Commission has no plans to change the arrangements, but I do not believe that we should leave it to chance, as it is simply not in our national interest to have other EU countries determining the future of access to our territorial waters.
Mr Cash: Will my hon. Friend bear it in mind that the infamous Merchant Shipping Act was taken through the House in 1988? It was struck down by the House of Lords for not being in compliance, it argued, with the European Communities Act 1972. I do not want to trespass too much on her speech, but I think she may appreciate that she is in what I would describe as extremely sensitive and, in my view, very sensible waters.
The Bill is significant and designed to protect Britain's interest, and now and in future we must think about the safeguarding of our territorial waters. We know about the state of fishing in this country, and I seek from the Minister an assurance that we will not concede more powers but consider the implications when changes come to the fore affecting our sovereignty and decision making in this House.
I shall touch on a couple of other issues. During the debate a fortnight ago on clause 8, the Minister for Europe, when challenged at length by my hon. Friend the Member for Stone (Mr Cash) and others, gave a very strong reassurance that this Parliament is sovereign on all matters. On this narrow issue regarding the common fisheries policy, however, my amendment would allow Parliament to exercise its constitutional power and disapply EU law that in my view is clearly not in our national interests.
As my hon. Friend says, these are sensitive issues, and I am not advocating a bust-up with Europe over them, but the amendment is about asserting our parliamentary sovereignty, on which many Members will agree. I seek the Minister's assurance that the Government are listening to the points that I have made. To summarise, I hope that they will safeguard the powers that we have over our territorial waters and that they are prepared, come what may, to defend the country's interests on this issue.
Chris Bryant: I congratulate the hon. Member for Witham (Priti Patel) on her speech, but it exemplified the fundamental problem that I have with clause 6 and, for that matter, schedule 1. The Euroscepticism at the heart of the clause is a classic example of our exaggerated understanding of our own significance-in particular the significance of Britain and of our parliamentary tradition. That has been exemplified in many speeches this afternoon.
I always think it is ironic when people inveigh against other Europeans, often misquoting John Bright to say that this Parliament is the mother of all Parliaments, when he actually referred to England as the mother of all Parliaments. It is particularly ironic when people then refer to the first summoning of commoners to a royal Parliament-Parliament is of course a French word, not an English word-by Simon de Montfort. They quite often forget that he was in fact a Frenchman, and a profoundly anti-Semitic one at that. Incidentally, we only know the names of those who attended the 1258 Parliament because they had their expenses paid.
We are enjoying the hon. Gentleman's speech, but I thought I would mention that although he is right about what John Bright said-I have just finished
writing a book about him-John Bright was defending democracy. Given the problem of the democratic deficit that we so often have, he would have been appalled at clause 18 and absolutely appalled at the manner in which power has been accumulated and moved away from the people of this country, particularly those who are less well off.
Chris Bryant: I think that John Bright would have been appalled by nearly every economic decision that has been taken by the coalition Government since they came to power, so I do not think that the hon. Gentleman is on good territory in summoning him up in support.
I also point out that the first royal to build on this site was King Canute, who, of course, was Danish. We must therefore take a less effortlessly superior approach to the European Union in our discussions.
Mr Nigel Dodds (Belfast North) (DUP): The hon. Gentleman said that Euroscepticism lies at the heart of the Bill. However, he will have heard the hon. Member for Westmorland and Lonsdale (Tim Farron), who is ardently pro-European, also supporting the Bill. What is the hon. Gentleman's take on that?
Chris Bryant: The attitude of the hon. Member for Westmorland and Lonsdale (Tim Farron) is rather different from that before the election, as is that of the Liberal Democrat party. That will not surprise many Conservative or Labour Members. The hon. Gentleman seemed to suggest that a vast army of people are constantly campaigning on Europe and our relationship with the European Union. In my time in this House, which is coming up to 10 years, I think that I have received four letters from my constituents about our relationship with the European Union. I have received quite a lot of letters from other people's constituents, but remarkably few from my own. I agree completely with the hon. Member for Daventry (Chris Heaton-Harris) about the failure in the way in which we scrutinise the mandate that Ministers think they are taking to meetings of the Council of Ministers and the legislation that comes from the European Union. I have made that point many times to the House.
Mr David: My hon. Friend is making an important point about scrutiny, but does he agree that it is reprehensible that we did not have a statement and a debate in the House before the last European Council, and possibly the one before that?
Chris Bryant: I do. It is unfortunate that the Leader of the House has adopted the approach of insisting that pre-Council debates have to be provided for by the Backbench Business Committee from its allocation. Those debates are about the Government's mandate, and they should be in Government time. I hope that at some point the Leader of the House will change his position on that. We may well not need a full day's debate-two and a half hours might be sufficient. Having participated in nearly every one of them since 2001, along with my hon. Friend and neighbour from the south Wales valleys, I can fairly safely predict who will take part in them. I can pretty much guess exactly what they will say, as quite a few of us have single transferrable speeches.
I wish to refer specifically to some of the amendments in this group, and my points will be made against the background of my belief that the whole of clause 6 is nonsense. It will harm the power of the British Government to negotiate on behalf of the British people and advance the British interest. It will make Parliament look like a body that is not genuinely interested in significant economic or trade advances. To Indian, Chinese, Russian, Brazilian and Mexican potential counterparts, we will look like the country that is standing in the way of the means of enhancing trade with their economies. I believe that that is a mistake.
The hon. Member for Bury North (Mr Nuttall) tabled amendment 54 and referred to it earlier. As he knows, it would ensure that there could be no extension of the rights afforded to members of the EU by virtue of article 25 of the TFEU, which is related to article 20(2). I say to him that in the middle of the general election campaign earlier this year, as Europe Minister, I had to go to a meeting-I cannot remember whether it was in Brussels or Luxembourg-to agree to the paper on the founding of the European External Action Service that Baroness Ashton had brought forward as High Representative. Many member states were keen for the paper to contain specific provision for consular services, because as I said earlier, many of the smaller countries in the EU have no representation in many of the 190 or so countries in the world. They frequently use the consular services of other EU member states, and most of the larger member states, such as France, Germany, Italy, Spain and ourselves, are perfectly happy to extend the hand of friendship in that way. Sometimes it is paid for by the country concerned and sometimes it is not, but there is give and take between different member states, so we are perfectly happy for that arrangement to exist.
Mr Nuttall: Does the hon. Gentleman agree that such a give-and-take arrangement would be perfectly possible even without the existence of the EU? It would also be possible for countries outside the EU to make such an arrangement.
Chris Bryant: The hon. Gentleman is absolutely right, of course. I referred earlier to the fact that we have no representation in Laos. The Australians use our old embassy and residence-I am not sure whether they have bought them now-and provide consular support to Brits who get into trouble in Laos. Indeed, last year I had to visit Vientiane to try to sign a prisoner transfer agreement with Laos. We were eventually successful, and a couple of people have come back to the UK and are now serving their sentences in British jails.
The hon. Gentleman is absolutely right that we would not have to invent the EU for that, but there are different expectations of consular services in each member state. When we had the ash cloud during the general election campaign, British newspapers were just about the only ones in the world to campaign for the Government to intervene. They wanted the Government to bring British nationals back to the UK, but French newspapers, for example, thought that getting French nationals back was entirely the responsibility of the French people and their airlines, travel agents and insurers. As more people across the EU exercise their right to the freedom of travel within it, citizens' expectation of their consular rights will change.
I remember talking to my German counterpart. He said that he expected to close possibly half of all German embassies and consular services around the world over the next five years. Other member states may well do the same. There might come a point when there is an enhanced desire for a shared EU consular service around the world, but I was keen in the negotiations with him to ensure that Britain did not sign up to something that had not gone through a full process of consultation in each member state.
I was also keen to say that the main actions of the EAS should be far more concerned with extending our influence with the BRIC economies, ensuring that we had a shared attitude to the middle east and Russia, and ensuring that we enhanced our action in the Balkans to protect our security, rather than with matters such as consular services, which could involve significant additional costs. Obviously, if the EU acts to introduce its own consular services, the danger is that a significant amount of the cost will be borne by the UK.
I think the Minister would be happy with the agreement that I eventually signed at that time. He is studiously ignoring me and not listening, but I think he, too, would have been happy to sign up to that agreement, notwithstanding the fact that the Conservatives did not originally want the EAS to come into existence because they were opposed to the Lisbon treaty- [ Interruption. ] I think the Minister is nodding-certainly with his eyes if not his whole head-but without being contradicted, I will assume that he would have been happy.
Under amendment 54 tabled by the hon. Member for Bury North, that agreement would have required a referendum, but that would have been a mistake. It was perfectly possible to achieve the outcome that the UK wanted-namely, that the EU should not be extended to provide consular services, except in the way that is already laid down in unanimously endorsed treaties-and consequently, amendment 54 would have limited the Government's power to negotiate.
King Canute was trying to prove to his consiliare that he could not hold back the waters, but the Bill is like the King Canute of myth-the one who actually tried to hold back the waters. However, in seeking to create a bulwark, there is a danger that the Government have so limited Ministers in what they can give away that they will be unable to achieve anything on behalf of the British interest in other matters. In the long term, and indeed quite possibly in the short term, that will lead to significant dangers for us.
In particular, amendment 13 is misguided because it applies to the whole of enhanced co-operation, which would mean that Britain would never be able to sign up to an existing area of enhanced co-operation or initiate a new area of enhanced co-operation. Enhanced co-operation is an entirely voluntary process, so I cannot see how it could possibly be in the British interest to put such a dramatic brake on the power of the British Government to enhance their co-operation in a particular area.
Amendment 8, which refers to the European financial stability mechanism, says that it is all right to extend it to Ireland but not to any other country. That misses the point. If it is right to be able to extend it to Ireland
without a referendum-I presume that the argument would be that it is in our direct economic interest because of our historic ties with Ireland-why would it not be the same if we obtained direct economic benefits from ensuring that the Spanish, Portuguese or French economies do not collapse? Why should that require a referendum, whereas the situation in Ireland does not?
Mr Cash: The hon. Gentleman refers to an amendment that I hope to address shortly. Part of my argument will be that that financial mechanism is unlawful. It was entered into by a former Chancellor of the Exchequer and endorsed by the coalition Government in circumstances that I shall describe. It is also still subject to scrutiny by the European Scrutiny Committee.
Chris Bryant: I look forward to hearing the hon. Gentleman's arguments. However, I do not understand why it is okay to support Ireland without a referendum, but impossible to provide such support to another country without a referendum.
Chris Bryant: Indeed. Obviously, a referendum would also incur significant costs. The Government are trying to argue that holding the alternative vote referendum on any day other than 5 May this year would cost some £30 million. I presume that any referendum under the amendment would also cost some £30 million, and I think that that is inappropriate. The clause refers to "a common EU defence", and although I do not want to hand over the setting up of a standing army to the European Union, I acknowledge that there is already a European army, because there are troops from member states acting in Kosovo-and they have done so in Bosnia-as well as Swiss troops under an EU banner. I am reluctant to say that a referendum would be needed on any aspect of a common defence policy, because that would be a mistake in our national security.
Mr Cash: The hon. Gentleman referred to the cost of a referendum, but my amendment provides that a referendum would be held on the mechanism if the decision involved £5 billion or more. That is a vast amount, and that is why it should not go off to Spain or Portugal. I shall explain why if I get the chance to speak.
My final point is that my anxiety about the drafting of this Bill, and in particular this clause and its attendant schedule, is that it is a lawyers' paradise. There will be constant judicial review of decisions made by Ministers. For instance, in the case of the agreement on the external action service, the eventual format would have been agreed by a Minister from any political party in this House, but it could well be subject to judicial review under the amendment. It is also true of many other
elements of the clause, and it means that Ministers' actions at meetings in Europe will constantly be subject to judicial review. Rather than increasing the power of Parliament, that will actually increase the power of the judges in this country, which I consider to be a very big mistake.
Mr David: My hon. Friend makes an important point, but is he aware that the European Scrutiny Committee, when considering the issue of judicial review, concluded that the clause, which has been projected by the Government as an apparent safeguard, was an illusory protection, because, in its view, a decision on a referendum would be a political decision and therefore not subject to judicial review?
Chris Bryant: Indeed, I have read the Committee's report. I thought it was interesting, not least because the Committee includes significant Eurosceptics on both sides of the House. Much as I admire and respect-and almost adore-the Minister for Europe, I fear that the Bill is a complete and utter chimera. It does not do what it seeks to do, it will not do what many hon. Members on the Government Back Benches hope it will do, and in the end, it will damage the country's interests.
Neil Carmichael (Stroud) (Con): It is a great honour to follow so many excellent speeches, including, obviously, those from the hon. Member for Rhondda (Chris Bryant), my hon. Friend the Member for Witham (Priti Patel) and especially-to be honest-the shadow Minister, the hon. Member for Wolverhampton North East (Emma Reynolds), the style and structure, if not always the content, of whose speech were particularly impressive. It was absolutely first class-except in content.
I want to talk first about the general purpose of the Bill to remind us what we are trying to do, which is to restore the trust between the electors and any Government over their relationship with the European Union. It is really important to restate that, because we can get so confused about the detail, as I have noticed during today's and yesterday's debates It is a matter of restoring trust. The second important thing about the Bill is that it is all about ensuring we have clear decisions that can, and should, be made by a referendum where appropriate.
We are arguing not so much about the useful lists in the Bill, but about some of the areas that might require more clarification. My key point is that the Bill addresses the transfer of power and competence: it is neither a retrospective measure on things we might not necessarily agree with nor an opportunity to tear up things already in place. We have to understand that and the Bill's limitations. Of course, its value lies in the fact that it ensures that, from now on, we as a country will have a clear capacity to decide whether we want powers and competences transferred. We have to get that clearly understood during these discussions.
Graham Stringer (Blackley and Broughton) (Lab): The hon. Gentleman gets to the heart of the Bill. It strikes me that a theoretical key test for the Bill-I would like him to apply his mind to this-is whether, had it been passed in 1996, the previous Labour Government would have had a referendum on the Lisbon treaty. Had it been law, would it have guaranteed a referendum? I have the greatest doubt, given the composition of the Commons at the time.
Neil Carmichael: I thank the hon. Gentleman very much for that helpful intervention, to which I will give an emphatic answer: yes, we would have had to have a referendum to ratify the treaty of Lisbon. That is the whole point of the Bill: to prevent such decisions-decisions such as the one by the previous Government not to have a referendum on such an important measure-from ever being made again. So the answer is yes, absolutely, and quite rightly so. The hon. Gentleman's question is a good one-and my answer is good too.
Graham Stringer: The hon. Gentleman is being generous in giving way again. I participated in the debate on the Lisbon treaty and I voted for a referendum, but I had no doubt in my mind that whatever was in the three parties' manifestos, there was a majority in this House against having one. That majority was so strong that it would have simply repealed a Bill such as this, and therefore it would not have applied.
Neil Carmichael: I really cannot imagine a Government repealing such a Bill-or Act, as it would be-in order to deny the country a referendum. That would be a recipe for attracting an incredible amount of unpopularity, because nobody would trust such a Government ever again. They would have to repeal such an Act in order not to consult the people, which is a highly improbable course of action-certainly by a Conservative Government and even, I would suggest, a Labour Government-so the hon. Gentleman should not worry about that. When this Bill is passed, it is likely to be in place for generations to come, because it will act as a powerful bulwark against the very machinations to which he has referred.
Neil Carmichael: Oh, I believe in parliamentary democracy. I made that clear when we discussed clause 18. I pointed out just how important it is to recognise that we are in the European Union because of an Act of Parliament. I stand by that, because I think it is vital. The Bill does not seek to undermine parliamentary power or parliamentary sovereignty, however we want to define it; it would simply ensure that we consulted the people over such major decisions as, for example, extending the European Union's power over us.
Mike Gapes: If the hon. Gentleman believes in parliamentary democracy as strongly as he says he does, how on earth can he say that the Bill would act as a bulwark for generations to come? Surely a House of Commons of a different composition could and should have the right to repeal any Act with which it disagrees. The Bill would not act as a bulwark, because if the people elected a different Parliament, that Parliament should have the right to make such decisions, rather than have them made through an ephemeral referendum, held on one particular day, which is then apparently binding for generations.
The Second Deputy Chairman:
Order. Before the hon. Gentleman responds, may I gently remind him that this is not a Second Reading debate about the entire Bill?
We are discussing specific amendments to clause 6, to which I am sure he is about to return, as he said he would.
Neil Carmichael: You are absolutely right, Ms Primarolo. I have been taken down this track by others. I am very keen to answer any questions, because it is important that questions are answered-I would not want to be accused of ignoring them-so I am going to respond quickly to that one. I did not say that the Bill could not be repealed; I simply said that it would not be repealed, because no Government in their right mind would be keen to deny a referendum in that way.
The Second Deputy Chairman: Order. Mr Carmichael, I would like you to refer to the amendments. You have been speaking for some time now, and you keep saying that you are coming to the amendments. I would now like you to talk about them and not the general principles of the Bill.
I have four amendments that I want to talk about, on three subjects. They are linked to what I was saying before, because there are key themes that emerge, and I would like briefly to canter through them. I want first to talk about amendments 100 and 13, which in many ways are similar, because they are about enhanced co-operation. I said in my opening remarks that it was important to talk about the fact that the Bill was all about transferring power and competences and ensuring that we had approval for that. Enhanced co-operation is not necessarily that, however; it involves co-operation between countries, although not necessary all EU countries. That is the nature of enhanced co-operation, but it also requires unanimity. We have to ask what would happen if we ever moved away from unanimity towards qualified majority voting, however, because that would be a different matter. While the process is simply a matter of nation states co-operating to implement or enhance a policy, it is perfectly acceptable. That is why I do not think it wise to accept amendments 100 and 13, and I suggest that the Minister recommend that the Committee reject them. That was the point I was trying to make about the importance of understanding what we are talking about, which is power and competence.
Chris Bryant: I think the hon. Gentleman is disagreeing with himself. If he supports amendment 13, he surely cannot support amendment 100, and vice versa. It is a matter of quid pro quo, or perhaps quid pro euro.
Neil Carmichael: My position is that neither of them needs to be supported. I believe that the present situation is perfectly acceptable, and we need to concentrate on the question of power and competence.
I turn now to the European financial stabilisation mechanisms, which are also very important. The critical point is that we are not in the euro, and that ECOFIN makes the decisions through the qualified majority voting procedure, so any attempt to make changes in that regard would not necessarily have the desired effect. We have no plans to join the euro. Amendment 8 would be necessary only if we decided to join it, which we certainly do not intend to do. I might add that this legislation will make it a necessity, for the first time, to have a referendum before we are able to join the euro. That is really useful.
Mr Cash: My hon. Friend is talking about my amendment, but I am afraid that he really does not seem to understand what it says. I say that with great respect. It has nothing to do with the euro; it relates to a financial mechanism that was brought in by the previous Chancellor of the Exchequer on 9 May last year and endorsed by our own Government. I can assure him that the amendment has nothing to do with the euro, so he can relax.
Neil Carmichael: But it has got something to do with ECOFIN and with our interest in ensuring that the euro remains strong, because we must remember that 50% of our trade is with the euro area. That is not to say that we should join the euro; we should not. I am simply reflecting our economic position.
Chris Bryant: I agree with the hon. Gentleman's last point about ensuring that the euro is strong; otherwise, there could be enormous impacts on the UK economy, not least because we are, in many regards, the banker for the rest of Europe. However, I think he is wrong to say that clause 6 means that a future Government could not join the euro without holding a referendum. All that a future Government would have to do would be to pass an Act of Parliament saying that, notwithstanding the provisions in this Bill, we were none the less going to join the euro.
Neil Carmichael: I anticipated that point, which is why I made so much effort in response to the interventions by the hon. Member for Ilford South (Mike Gapes). I just do not believe that any Government would repeal this legislation, because it would be suicidal to do so. I am therefore absolutely confident that the provisions in the Bill will be implemented, because no Government would ever decide to go against public opinion so flagrantly. That would be tantamount to postponing a general election for years and years. It would simply not be an acceptable step.
I come now to amendment 81, tabled by my hon. Friend the Member for Witham (Priti Patel). The first thing to say about the common fisheries policy is that it does not really work very well. We want to find ways to protect fish and fishermen, but the CFP is not an effective tool. Let me say a few words about it. The CFP was introduced to this country in the early '80s after the 10-year moratorium agreed and negotiated under the original Act of Parliament that brought Britain into the European Union in the first place. It was the late Lord Walker who, as the Minister for Agriculture, Fisheries and Food negotiated it in the early 1980s. Our Margaret Thatcher, the Prime Minister of the day, pointed out, as I saw on a memorandum released under the 30-year rule, that "these are our fish" and so forth. There was a lively debate about how the CFP was constructed.
We cannot be retrospective about this issue, however. What we must do instead is make sure that an empowered British Government demand the reform of the CFP. Having a referendum on it now will not be effective. A ruthless approach to reforming the CFP so that it reflects the interests of Britain, the interests of fishermen and, indeed, the interests of fish is the most urgent and necessary requirement. I do not think that amendment 81 is particularly helpful, although I recognise and understand that all the amendments I have mentioned are in this grey area, where some clarification is required.
The Bill helps us in many ways; so, too, do the explanatory notes. We should rely on the list set out in schedule 1 and on the details of clause 6, as these provisions set out the substantive issues that we need to debate-and the British public will expect us to vote on them, as these are the areas that have been neglected in the past, as a result of which we have lost the trust of British people.
In summary, it is critical to remember that the Bill is about having referendums on the transfer of power and competence. It is not about tinkering with policy, which is the job of Ministers in the various Councils in the European Union. It is the job of this Parliament to secure and protect the capacity of the British people to be able to say no to a transfer of power from Britain to Europe. I believe that that is an acceptable position, and it is the right one for us to support. It is, I think, captured very well in the Bill.
The Second Deputy Chairman: Order. Before we proceed, I want to say to Members that given the breadth of the debate on this group of amendments, I am not minded, under the Standing Orders, to take a clause stand part debate. I hope that hon. Members will bear that in mind when they make their contributions-although those who have already spoken do not appear to have done so.
I begin by following up a comment of the hon. Member for Stroud (Neil Carmichael) when he said that the former Prime Minister had said, "They are our fish". One thing about fish is that they do not stay in one place; they can move. If they do not move, they may be over-fished, and there may be a need to have some kind of collective policy to protect "our fish". It is very easy to say that these are "our fish", but the fish might swim away and not come back another day.
Mike Gapes: That is very true. The hon. Gentleman should therefore welcome the fact that I am a signatory to an early-day motion on this very issue, which was tabled recently by one of his colleagues.
Mr Redwood: I am sure that the hon. Gentleman has been here long enough to know that signing an early-day motion never succeeds in doing what we wish. Does he have any better ideas for saving our fish? I am with him in wanting to do so.
We need a general approach that recognises that the planet's resources are finite, so we need to try our best to conserve them. In saying that, however, I am
sure that I am moving well away from a clause stand part debate or indeed from a debate on any of the amendments to clause 6.
The hon. Member for Westmorland and Lonsdale (Tim Farron), who is no longer in his place, tried to explain why the Liberal Democrats support the Bill and clause 6 in particular. I was struck by the fact that the real reason for that support was not explained. The real reason lies in the fact that a party that is allegedly pro-European-and whose Chief Secretary to the Treasury used to work for the European Movement-has become very European in the sense of taking on the Stockholm syndrome.
The Liberal Democrats have been captured by their partners to such an extent that they have signed up to making a gesture towards the Eurosceptics, giving the impression to the hon. Member for Witham (Priti Patel) and others who would rather have an in/out referendum-she said as much in response to an intervention-that the proposals before us are highly significant. I suspect that, in many respects, they are not significant, but if they were, and if many referendums were to be triggered in respect of the list of items set out in the Bill, and particularly those in the amendments in the group, the cost of having them would be enormous. I refer not just to the costs of running the referendums, but to the costs of the litigation and judicial reviews that would be incurred-as usual, it would be the lawyers, not the British people, who reaped the financial benefit out of the provisions. We would simply have to pay for the processes brought about by these measures being incorporated into the Bill.
The hon. Member for Stone (Mr Cash), the Chairman of the European Scrutiny Committee, and I had an exchange about these issues on Second Reading. He seemed to agree that there are dangers in bringing about a large amount of litigation and in conferring extra powers on the courts, taking them away from our parliamentary democracy. What we face today is the potential for this to become a dog's breakfast and a lawyers' paradise.
Amendment 8, tabled by the Chairman of the European Scrutiny Committee, deals with the European financial stability mechanism. This would not only be costly; it would not be in this country's national interest. As the hon. Member for Stroud pointed out, more than half our trade-I think it is 60%-is with our fellow EU member states. We therefore have a national interest in the success of the euro; we have a national interest in growth in the German, French, Danish, Dutch, Spanish and Portuguese economies, for example; and we have a national interest in the prosperity of the European region.
It follows that measures will be required to stabilise the financial institutions in the EU, to stop the collapse of banks, to deal with a crisis such as we have seen in Greece, and to deal with the change in the Irish Government that is likely to happen in the next few weeks or perhaps to respond to the welcome return to government of a man who was a Finance Minister under the excellent Labour Government in Ireland, Ruairi Quinn. In light of that, it will be in our national interests to assist the stability and success of the other European economies. Amendment 8 should be opposed vigorously, because it is not in the interests of this country.
Mr Cash: As the hon. Gentleman knows, I tabled amendment 8. He has described the apparent tremendous advantages of the eurozone to us, and indeed the Government sometimes say much the same. The problem is that as a result of the failures of European economic governance and the failure to repatriate the regulations that are imposed, there is no growth in the EU as a whole. We are in the process of being enmeshed in an imploding European Union. So I do not entirely agree with the hon. Gentleman, although the reasons for my amendment are not directly connected with that.
Mike Gapes: The hon. Gentleman and I have been debating these issues for nearly 20 years. We have never agreed on matters relating to the European Union, and I do not think that we are going to do so now.
I do not believe that it will benefit our country if the European Union and the European economies implode, as the hon. Gentleman seems to wish them to do. Certainly there are problems in some-not all-European Union economies, and some, including the German economy, are growing quite rapidly. At the same time, the world's economic centres are shifting, overwhelmingly to Asia but also to other parts of the world, and as a result we as Europeans will face a very difficult period in the coming years and decades. We need to think carefully about what will happen if the British economy is speculated against in the next 10, 15 or 20 years, and-given that the coalition Government are presiding over a return to recession-about what will happen to the long-term future of the economy if, as the hon. Gentleman wishes, the European economies fail and the European Union implodes.
Mr Redwood: I certainly do not want those economies to fail. However, if, according to the hon. Gentleman's analysis, it is right to involve ourselves in economic governance and in mutual subsidies to protect our trade in physical goods with euroland, should we involve ourselves in the same way with the rest of the English-speaking world? Should we aim for stronger economic governance and more transfer of subsidies to protect our extremely important trade in services, most of which takes place outside Europe?
Mike Gapes: I was about to seek your advice, Mr Caton. I would love to become involved in a debate on the merits of European co-operation and a new Bretton Woods, and numerous other such issues, but I do not think that they are covered by clause 6.
The questions with which the Bill confronts us are "Is it necessary?", "Does it do what it says on the tin?", and "What will be the effects of it and, in particular, of the amendments and clause 6 if they become law?" In my opinion, either this is a recipe for litigation and a lawyers' paradise, as others have said both on Second Reading and today, or it is irrelevant. Indeed, it may be both: it may be irrelevant in essence, but may none the less serve as a mechanism enabling people to opt for
judicial reviews and litigation when referendums are not proposed on certain aspects of decisions made in the European Union and the Council of Ministers.
We are experiencing a difficult period in this country. Very few politicians have had the courage to stand up to the Murdoch press and the Eurosceptic media, and the capitulation of the Liberal Democrats over the last few months, as they have changed their previous approach to the one to which they have signed up in the coalition, further weakens the voice of pro-European people in the country.
Stephen Gilbert: I note the accusation of Stockholm syndrome, but I suspect that the hon. Gentleman is suffering from amnesia. The Liberal Democrat manifesto was clear: it said that there would be a referendum
"the next time a British government signs up for fundamental change in the relationship between the UK and the EU."
Mike Gapes: Perhaps when he makes his own speech the hon. Gentleman will be able to clarify whether the Liberal Democrats are still in favour of a "big bang referendum", as was suggested on some occasions, whether-as happened with the Lisbon treaty-they will vote in three separate ways on any of the issues that arise from clause 6, and whether the Liberal Democrats in the other place will vote in line with their Front-Bench colleagues here or will also be split in three directions.
I believe that the measures before us are not necessary and should be rejected. I shall vote against clause 6 and the amendments concerning, in particular, the European financial stability mechanism, which I think would be positively damaging to the future of our country.
Mr Cash: Excellent amendments have been tabled by my hon. Friends the Members for Daventry (Chris Heaton-Harris), for Witham (Priti Patel) and for Hertsmere (Mr Clappison), and perhaps by others whom I have omitted to mention. There are quite a few amendments here which deal with matters raised by the European Scrutiny Committee, and which relate in particular to gaps-as we described them in our report-in the control mechanisms of part 1. Those matters, which have been discussed quite extensively, involve extensions of European Union competence in criminal law and procedure and in family law, opt-in decisions, and enhanced co-operation in internal passerelles. The amendments deal comprehensively with those issues, and in doing so demonstrate their necessity.
The proposal relating to criminal procedure has been raised by the European Scrutiny Committee in the past. In particular, the Committee has raised the issue of serious crime with a cross-border dimension. Despite denials over the past decade or so that there would be any serious engagement in the field of criminal law, there has been an increasing encroachment on it. There are serious problems, which are often procedural. We should also consider the manner in which criminal justice is activated and operated in other member states. We do not want to assume that everything that we do is perfect; indeed, we have plenty of evidence that it is not. However, there are certain basic principles that go to the heart of the manner in which trial by jury operates and the manner in which people are arrested. I could continue at great length.
Mr Clappison: My hon. Friend is making an extremely powerful speech about a very important point. He has referred to the rationale behind the proposals from the European Union, and has cited serious crime with a cross-border dimension. Can he confirm that when jurisdiction is given to the European Union through an opt-in, it applies not just to cross-border crime but to all criminal law, and brings all the criminal law in this country within the jurisdiction of the European Court of Justice and future proposals from the European Commission?
I do not wish to use the word "bogus" or the word "misleading", but the European Union's rationale is apt to mislead. The creation of a common European criminal justice system is profoundly significant.
Mr Cash: Indeed. I pay tribute to my hon. Friend, who, as a member of the European Scrutiny Committee, played an important role in the preparation of its report. As I am sure he will speak in the debate, and given his expertise as a member of the Select Committee on Home Affairs, I shall restrict my own remarks, and leave it to him to deal with these questions in his own time and his own way.
I simply make the point that these are well-founded concerns, and I can think of no reason on earth why the Minister would not want to accept these amendments. Perhaps he will, but while the Government have had regard to what the European Scrutiny Committee has said in a report that has been universally welcomed-by both Front-Bench teams and by all those with the competence to understand these matters-they have tended to ignore that almost entirely in considering our recommendations. I shall return to that issue later, but not today.
"To be consistent with the extension of shared competence under clause 4"-
"the application of both of these provisions"-
"should be premised on a referendum and Act of Parliament, as in clause 6; not an affirmative vote before the Government's opt-in decision and an Act of Parliament before it agrees to the adoption of the legislation."
"is...of similar if not greater importance to social or environmental policy and ought to come within clause 6, triggering a referendum as well as an Act."
"would seem to us consistent with the aim of Part 1...for all opt-in decisions to be subject to formal Parliamentary approval."
My hon. Friend the Member for Witham referred to fishing, and there she was in sensitive and deep waters. She explained very well the six-mile limit, the fisheries limit of up to 12 miles, the 2002 regulation and the associated issues, but that does not alter the fact that this is a serious problem for the fishermen of the United Kingdom. In considering the idea that there should be
any restriction of our sovereignty and territorial limits in these matters, we should remember that the entire fisheries policy, which we shall not debate in detail today, I can assure you, Mr Caton, is a complete travesty. There is no question about it: it constitutes the most monumental waste of good fish, which are thrown away and literally left to rot. It is pathetic, and I need say no more than that. That we should regain a degree of sovereignty and territorial competence in relation to fishing is to my mind a given.
Mr Redwood: My hon. Friend has made a very powerful comment. Many of us have felt for many years that the fisheries policy was a scandal. Successive Governments have said that they would do something about it; none have yet succeeded. Does this not show why we are also worried about the surrender of criminal justice powers? We are surrendering them to the very people who have made such a mess of our fisheries.
Mr Cash: Absolutely, and the same problem permeates so much of what goes on in the European Union. I am anxious not to get into discussing the merits of the European Union as a whole, and I shall certainly ensure that I keep to the amendments; but I entirely agree with my right hon. Friend. I will come on in a moment to the financial stability mechanism, and try to demonstrate exactly how wrong I think the hon. Member for Ilford South (Mike Gapes) is about the broad questions attached to it. I shall also deal with the mistaken remarks of the hon. Member for Rhondda (Chris Bryant) regarding the necessity for my amendments.
"that a decision by the UK to enter enhanced cooperation where the voting procedure has been changed from unanimity to QMV be subject to a referendum lock."
To my mind, the very idea of such a change is enough to fill me with absolute horror. One aspect that has not been discussed at all during these proceedings is what is euphemistically and rather foolishly known as the ordinary legislative procedure, which I objected to all those years ago when discussing the Maastricht treaty, and which was then described as co-decision. Even in those days, it became apparent that it would be a severe invasion of the sovereignty of this House. Indeed, now we are faced with decisions that are virtually taken away from us by the use of this procedure. It would be invidious of me to go into all that now, but I want to place on the record that this is what is going on, and it is a very dangerous invasion.
My objections regarding sovereignty, which I expressed, I hope, with some clarity in my speech on clause 18, therefore also apply to the manner in which mechanisms in the Bill and mechanisms already provided for under treaties from Maastricht right the way through to Lisbon have, by their very nature, taken away from this House massive powers. People outside just do not know it, and I severely criticise those in the media who do not give enough attention to the extent to which representatives in their own Parliament are being inhibited in the democratic process of exercising the right to make decisions on behalf of those whom they represent. That is the essence of the problem.
I commend the speech made by Mr Speaker last week, in which he dealt with two vital matters: the sovereignty of this House and the reasons for it; and scrutiny, including of European business. I wonder whether the Government have really understood the perils to which they are subjecting the British people through the democratic deficit they are creating, despite the talk of a referendum. The Minister for Europe has already told us that the Bill's referendum provisions will not be implemented during this Parliament-heaven alone knows what will have happened between now and then anyway-and that includes the treaty arrangements that Monsieur Fillon is putting forward. We have got used to the whiff of grapeshot. We hear these things and he comes over, has a meeting with the Prime Minister and the Prime Minister has a press conference in which he does not rule out a treaty. He says that we will not be lured into the same arrangements as theirs, but my goodness, we will be locked into them sooner or later. The same applied to the Maastricht treaty and to the treaties of Amsterdam and Nice. Same old story, same old solution-but unfortunately, it is not a solution that is to the benefit of the people whom we represent in this House.
I am deeply worried about that. Of course, if we were told that the treaty was going to be vetoed, we would be extremely pleased, but we have not heard that. Some will say, "Oh, it's just speculation", but I am afraid that I do not think it is. The treaty deals with social policy, fiscal policy, political decision making and the whole question of economic governance. I therefore strongly recommend that the Government adopt the amendments I have mentioned. I leave it to those who have proposed them to decide whether they will press them to a vote.
On enhanced co-operation, I simply recommend that people read the evidence from Professor Dougan of Liverpool university. It is referred to in paragraphs 52 to 55 of our report. He cogently demonstrates the reasons and the necessity for the proposals in our report.
I shall now discuss my amendment 8, on which I need to set out a bit of the history attached to it, because the House of Commons and the people of this country are confronted by a strange situation. I am being given the opportunity to set this out with clarity, because neither this Government, nor the previous Government have done what they should have done at the appropriate time. The British taxpayer has thereby been unnecessarily exposed, and we are talking about billions and billions of taxpayers' money. I will explain why the amounts in question are as they are and how it happened. I ought also to add that this relates to the European financial stability mechanism, which was the mechanism that was partly used for the Irish bail-out. I need not go into the provisions of the Loans to Ireland Bill, because we dealt with that. This was a bilateral loan and that was my suggestion to the Chancellor when the matter first came up on the Floor of the House-perhaps it was a case of minds working alike. I can say only that I am glad that I at least got it on the record that we should opt for a bilateral loan, if anything, and if it were in our national interest. However, on 9 May, after the general election but before the coalition agreement was entered into, the previous Chancellor agreed at an extraordinary ECOFIN meeting that he would engage in this process. A discussion took place, and it is referred to in the explanatory memorandum supplied by the Government.
The subject will be debated by European Committee B on 1 February-the Financial Secretary to the Treasury has come into the Chamber and I suspect that he will be answering that debate.
Mike Gapes: Just for the record, is it not a fact that the outgoing Chancellor would have consulted the then shadow Chancellor, who was about to become Chancellor, at that time? So rather than inadvertently giving the wrong impression, perhaps we should put it on the record that in that transition period it would have been necessary and proper for the previous Chancellor to be in discussion with his successor, so that there would be no ambiguity about what would happen.
Mr Cash: The hon. Gentleman is absolutely right on that important point, and I was immediately coming to it-I have in my hand the explanatory memorandum, to which I referred before he intervened, precisely for that purpose. It stands in the name of the Economic Secretary to the Treasury. A scrutiny matter is still outstanding, so paragraph 26 comes under the heading of "Other observations" and states:
"The Government regrets that the Scrutiny Committees"-
"did not have time to consider this document before it was agreed at Council."
"It should be noted that whilst agreement on behalf of the UK was given by the previous administration, cross-party consensus had been gained."
Austin Mitchell (Great Grimsby) (Lab): I am following the discussion with great interest and some concern. As I understand it, we are talking about a decision that could have been taken, and was being taken, by a majority vote, and our outgoing Chancellor could not have stopped it anyway. Is that correct?
Mr Cash: People keep saying that, but let us examine the actual operation of the European financial stability mechanism. The final decision is taken under the regulations concerned-this is what happened in the context of Ireland-only after the request has been made by the member state. I do not know whether this is one of the reasons why the current Taoiseach-only for the time being, it appears-is in deep trouble, but that is possible. What I do know for certain is that the prescribed procedure laid down under the regulations made under article 122 of the treaty on the functioning of the European Union was infringed by the manner in which the International Monetary Fund, the European Central Bank and others moved into Dublin before a request had been made. As we can recall, the Irish Government were saying that they had not made a request and that they did not need the money. It is also true to say that Mr Socrates is saying much the same at the moment.
The hon. Gentleman is being very patient with us and the serious explanation he is giving is well worth considering. I also understood that article 122 was intended to apply to a destabilisation of the euro because of some kind of natural disaster. The destabilisation
that took place was caused by the inherent faults in the euro, so why has article 122 been extended to cover a destabilisation resulting from the cracks and failures of the euro itself, given that it should have applied only to natural disasters?
Mr Cash: The hon. Gentleman and I have engaged in debates on the European question since we first met. I have the greatest respect for him and he has hit the nail right on the head here, because this problem does not just arise because of our exposure to what happens in Portugal and Spain in the future; it also arises from the lack of a sound legal base for the decision taken in the first place by the outgoing Chancellor and endorsed subsequently by the incoming Chancellor. We know that there was a consensus and that an agreement was reached-that answers the question put by the hon. Member for Ilford South. I would not be going about this if I did not believe that substantial matters of principle and of huge cost to the taxpayer are involved.
Mr David: The hon. Gentleman has raised an extremely important point. I wish to emphasise that he is correct to say that there was a consensus between the outgoing Chancellor and the incoming Chancellor-proper discussions and consultation took place-but that was not the impression given to this House by the current Chancellor of the Exchequer.
Mr Cash: I was not necessarily here when an impression was being given one way or the other. What I do know is that I have an accurate record of what did take place. I also have with me an article from Monday 10 May containing what are clearly accurate descriptions of the position of the then Chancellor-I believe he was just still the Chancellor then, because the coalition agreement had not been entered into. I recall writing to the Prime Minister on that day, suggesting, among other things, that he should go for a minority Government. I also said that if he was determined to go down the route of a coalition, he should require the Liberal Democrats to abstain on any matters relating to Europe that came up. That possibly explains some of my concerns as matters have developed and more and more European decisions, roadblocks and other difficulties in respect of the decisions we took in our manifesto have emerged.
Austin Mitchell: I am grateful to the hon. Gentleman for giving way; he is very patient. I normally agree with his views, even though I usually express them in rather shorter compass. He still has not answered my question, however, about whether what was agreed at the meeting was a distortion of the original purpose of the machinery, which was intended for coping with natural disasters and should never have been extended to destabilisation and problems caused by the euro.
Absolutely, and I shall elaborate on that very quickly. Article 122 concerns matters of emergency and natural disasters, and its use for the purposes of financial stability is clearly-as the European Scrutiny Committee has said-not based on a sound legal footing. That is the issue. I had made that point, but I am happy to repeat it. However, it goes further: because of the failure of the legal base, the whole deal is vitiated. That is the problem. The deal was done in an interregnum and by consensus between the two Chancellors, but it
ends up being vitiated as a matter of law. That is very serious given that the whole deal is for €60 billion-£52 billion-but according to the right hon. Member for Edinburgh South West (Mr Darling), the United Kingdom is exposed to a risk of £8 billion.
Mr Redwood: Although we must ask the former Chancellor and the Chancellor to speak for themselves, as I understand it the former Chancellor quite properly consulted the then shadow Chancellor, who said, "You are the Chancellor"-he could not be sure at that point that he was about to become the Chancellor, because there was no coalition agreement-"and it is for you to make the decision." It is also fair to say that I do not think that the present Chancellor objected to the proposal or sought to block it. I think he felt that it was not his decision to make. It was not a co-decision; it was a decision by the former Chancellor, which the present Chancellor knew about.
Mr Cash: It was indeed. Furthermore, this is not just a bit of esoteric dancing on the head of a pin. The Select Committee on Political and Constitutional Reform has examined the matter and I happened to be watching its proceedings when there was a discussion involving Professor Hennessey and two other eminent professors, Professor Hazell and Professor McLean. My hon. Friend the hon. Member for Isle of Wight (Mr Turner) asked a perceptive question about the status of the arrangement in the context of the Cabinet manual, which, as we know, is now out in the open and being discussed by that Committee in relation to caretaker Governments. The conclusion was that it was within the province of the incoming Chancellor to enter into such a bilateral arrangement in that context, in which he made his decision based on the information he was given by the outgoing Chancellor. My right hon. Friend the Member for Wokingham (Mr Redwood) is right. The problem is that, if that was unlawful, there was no basis on which either of them should have come to that conclusion.
Mr Redwood: As I understand it, the current Chancellor refused to make a decision. It was not a co-decision. He did not object or support it, but said that it was for the outgoing Chancellor to make the decision. Of course, in practice, if he had not agreed he would have unscrambled it when he got into office, because he had the majority and the outgoing Chancellor did not.
Mr Cash: I am very happy for that matter to be looked into further. My right hon. Friend might well be right, but I have an article that quotes the outgoing Chancellor of the Exchequer on the BBC's "Today" programme, saying:
"Overall it is a very good deal for all of us in Europe but also for the wider world. It is"-
"Our exposure for the additional amount of money could be £8 billion".
"confirmed he had spoken to Shadow Chancellor George Osborne and Lib Dem Treasury spokesman Vince Cable about...responsibility for it"
"All three had agreed 'there was no way Britain was going to underwrite the euro'."
"I am not going to disclose the conversations we had, because we had them on the basis that they were private and confidential."
"A statement issued after the talks confirmed that the new fund placed the potential risk squarely with the eurozone."
I hope that the Select Committee on the Treasury will look to considering all that. We are talking about substantial sums of money, about an interregnum period and about a rather unusual situation. We might be talking about errors of judgment involving considerable exposure for the taxpayer. For all those reasons, it is very important that we get to the bottom of this. We do not need to turn it into a witch hunt-I do not believe in those sort of things-but as regards scrutiny and accountability, this is an important matter that needs to be resolved properly and efficiently.
Proper answers need to be given, the Treasury needs to put forward the arguments that it presented and it should disclose the papers. We know perfectly well that, in the kerfuffle of 9 May and the days leading up to it, the then Chancellor might understandably have had a lot on his mind. In the circumstances, all sorts of things could have gone wrong. That is the moment, as I see it, when important strategic decisions involving enormous amounts of money and affecting the taxpayer on what I would term an unlawful basis-a basis that certainly is not legally sound-need to be considered very carefully.
It might not surprise some hon. Members that I tabled amendment 8. In all such circumstances, other than the situation vis-à-vis the Republic of Ireland, attention should be drawn to these matters, but under no circumstances whatsoever should we give money to Portugal or Spain when there is a facility, agreed at around the same time, for €400 billion to be available for the eurozone. Now a new arrangement has emerged which will be made available permanently after March 2013. If Portugal and Spain are going to go under, however, they will definitely go under before March 2013.
Mr Redwood: On the important point raised by the hon. Member for Great Grimsby (Austin Mitchell), is it not the case-my hon. Friend the Member for Stone (Mr Cash) would know-that the German Government are so worried about the legality of what was done under article 122 that they think we need a new treaty to cover that point?
My hon. Friend is absolutely right. I have here an incredibly interesting article from this week's edition of Newsweek. It is headlined, "To Rule the Euro Zone". Hon. Members will know that I have tried to take a mild interest in European matters since I came to the House-I notice that one or two people are quite surprised-and I do so for good reasons. Indeed, in the first book I wrote on the subject, "Against a Federal Europe", I drew attention to what I then perceived to be a significant danger that Germany would take a disproportionate and predominant role in European affairs, for which I received a great deal of censorship and some abuse. It was suggested that I was talking about the Germans in rather disrespectful terms, which
was quite untrue. However, the sub-heading to an extremely interesting article by Stefan Theil, dated 23 January 2011, reads:
"The unified currency was supposed to limit German power. Now the Germans are in charge-and no one is happy, not even the Germans."
Mr Clappison: I am listening to my hon. Friend with great interest. In his analysis, if the events that he predicts were actually to occur, how would they be covered by the Bill as it stands, without the benefit of his amendment, or would they not?
Mr Cash: The short answer is not at all-that is the problem. That is why I tabled the amendment. I am very sad that more people do not have the opportunity to listen to this, because we are talking about a grand total of £8 billion of British money, which is a vast amount given the austerity that is expected of people. After the Irish bail-out payment has been excluded from the same zone, there is also the completely unwarrantable notion to which the decision commits us, unless it is unlawful and is challenged. I invite the Government to challenge it in the European Court-that is the route they should be adopting. That is what I have recommended to the Chancellor. I said, "You must vote against this and challenge the legality of it." Whether or not he entered into some understanding at the time is a matter to be unravelled, but what is certain, to come back to the point made by the hon. Member for Great Grimsby (Austin Mitchell), is that the decision does not come within the framework of article 122-and the European Scrutiny Committee believes the same.
Austin Mitchell: I am puzzled, because the hon. Gentleman is attaching his faith to the €400 billion fund, which would mean that the new arrangement, which was agreed by the then Chancellor and the European Council on 9 May, would not be necessary. That is a puny fund compared with the scale of the problems. If Portugal goes and Spain follows, all that fund will be absorbed and will be necessary, and we will have to fall back on the provisions of article 122. The Irish loan has been portrayed by the hon. Gentleman and the Chancellor as a one-off loan between friends and business partners, but it must have been paid under the article 122 arrangement, so we have already sold the pass.
Mr Cash: The hon. Gentleman is not wrong to say that the situation has already taken place for Ireland, but that must be seen in light of what has yet to be established-whether or not it was lawful. More investigation is needed on whether that payment would ultimately be ultra vires, or beyond the law, and therefore reclaimable. I do not want to go too far down that route other than to say it needs to be looked into. Furthermore, the financial stability mechanism has not yet passed the scrutiny of the European Committee that is meeting on 1 February, so it is still subject to a decision of the House, although some might argue that the Rubicon has already been crossed.
This is an important amendment for which I shall certainly vote, and I hope that the hon. Gentleman pushes it to a Division so that I have that opportunity. The legality of the decision and the use of article 122 in this way-for a purpose for which it was
not intended-is subject to a decision by the European Court, which is a federal institution and always rules in favour of the federal side of the argument. So, I am afraid that his hope that the decision will be ruled illegal will not prevail.
Mr Cash: That is a general proposition with which one might agree in many instances, but analysis of the use of article 122 in this case, if it is examined as carefully as it should be, would give rise to so many uncertainties that the Court would have grave difficulty in trying to justify its use. However, that is looking to the future.
We are here in this House and I am suggesting, as is obvious from my amendment, that the provisions that should apply to the balance, beyond the Republic of Ireland, before any decision is taken to provide such facilities to Portugal and/or Spain, and/or any other country for that matter, should fall within clause 6. Let me remind the Committee that clause 6 says:
"A Minister of the Crown may not vote in favour of or otherwise support a decision to which this subsection applies"-
"unless...the draft decision is approved by Act of Parliament, and...the referendum condition is met."
There are substantial questions, and if the British people knew about this they would demand a referendum at least. It might be that an Act of Parliament is required in most unusual circumstances to rectify this situation, but all that is without prejudice to my general concern about the manner in which this has happened, the unlawfulness of the deal in the first place and the extent to which various Chancellors entered into the agreement. I understand how it could have happened; let us be sensible and practical. It was in the middle of the setting up of a coalition and huge discussions were going on in which the Chancellor-indeed the two Chancellors-must have been totally saturated in discussion. I can see how this could be slipped through. The Chancellor flew over to ECOFIN and made a decision; I do not want to criticise him, but his eye might not have been as firmly on the ball as one might normally expect.
"Did the right hon. Gentleman take legal advice on whether, as I said at the time, the use of the financial stability mechanism was an unlawful deal? Article 122 of the treaty on the functioning of the European Union deals with natural disasters, energy supplies and so on, and it has absolutely nothing to do with financial mistakes or misjudgments. Really, the whole thing should never have gone through, and he should have repudiated it on those grounds."
"Yes, but as I said earlier, because of QMV, the deal would have gone through anyway."
"I also do not agree with the hon. Gentleman's analysis or"-
"that the legal position was that clear-cut."-[ Official Report, 15 December 2010; Vol. 520, c. 955.]
I found that response interesting, because he knew there had been serious doubts about legality and he did not say that he took legal advice. Nor did he say whether any legal advice that was given-if any was given-assured him that what was decided was right. There is a powerful reason for this whole matter to be looked at properly. Our Committee has looked at it and we think that any other Committee that thinks it desirable to do the same should do so.
It is important to include this matter in the Bill by a vote today-both as a matter of principle and because it might otherwise look as though the Government seek somehow to cover it up. That would be disastrous for them, because this involves many billions of taxpayers' money in a time of austerity and difficulty, so it has to be sorted out. The matter has yet to go before the European Committee that I have mentioned on 1 February. No doubt the Minister and his colleagues are hoping that the scrutiny issue will have gone by then, that there will probably be no vote in the Committee and that the scrutiny reserve will be taken off. They may think they will get off scot-free, but I am afraid that my intervention in this debate might throw a spanner in the works, because the Committee now has notice of the points I have made. I hope I have made them in a temperate way with regard to the difficulties and decisions of the Chancellors in question. I do not want to engage in a witch hunt or to be unnecessarily difficult. It is a matter of accountability and of scrutiny. It is a matter of the Government coming clean about the whole situation, and of making certain that we deal with it properly.
I believe that it is down to the Government to go to the European Court by way of the equivalent of what we call an action for a declaration. Sometimes in the courts, when a difficult legal problem arises, one does not wait for someone else to act. One goes to the court for the equivalent of an action for a declaration. The Government could start the process in our own courts and put the question whether what was done was within the vires of article 122 or not. I do not believe it is, but it is incumbent on the Government to do that. In the meantime, for reasons other than the question of legality, I believe the issue is of such importance that it ought to be subjected to the provisions of clause 6, and should therefore be made subject to both an Act of Parliament and a referendum in these special circumstances.
Mr Clappison: It is a pleasure to follow my hon. Friend the Member for Stone (Mr Cash), who made an important contribution. Having had the opportunity to hear the argument that fleshed out the bare bones of the amendment, I believe it requires a detailed response from the Government when the time comes.
My hon. Friend's amendment is a good illustration of a point that has been apparent throughout the consideration of the Bill. Although the Bill is worth while, covers events that may or may not arise in the future, and is a great step forward, we must not lose sight of the things that could take place in the meantime which would amount to a transfer of power from this country and this Chamber to the European Union, undermining our self-government.
The example that my hon. Friend gave the Committee this evening is a good example of that because, as I
understand it, it does not involve a transfer of competence. The competences of the European Union, as we know, are very wide already. There is a long list of them in the treaty of Lisbon. My hon. Friend referred particularly to article 122, which is in the treaty of Lisbon. It is an example of an important decision which has an effect on the exercise of power in this country and on our economic policy, and which takes place under the existing treaty.
I hope that when my right hon. Friend the Minister for Europe sums up, he will explain how the eventuality that my hon. Friend the Member for Stone described would be covered by the Bill, and what his view is on article 122, which seems to be another example of the way in which the competences of the European Union and the existing provisions can be stretched considerably to encompass decisions and policies that seem to be very far from the original intention of the clause on initial reading.
I shall speak to my amendment 13, before turning to amendments 36, 37 and 38 tabled by my hon. Friend the Member for Daventry, which cover some of the ground I hope to cover in another group of amendments on the same subject, but on a different clause. The hon. Member for Rhondda (Chris Bryant) said that amendment 13 was misguided. The hon. Gentleman is no longer in his place, so I do not want to say too much about him, but I do not think he had entirely grasped what I was trying to achieve with my amendment.
I had not planned to press amendment 13 to a Division, but I would like to hear the Government's response to it, particularly on this point: my amendment seeks to deal with enhanced co-operation which, as was suggested earlier, is an important step indicating that member states engaging in enhanced co-operation are moving on to a higher level of integration than other member states of the European Union, are adopting qualified majority voting in place of unanimity, and are going ahead of the other states. I should have thought that that was something that we wanted to cover by way of an Act of Parliament and a referendum, if there was a proper list of events that should be covered.
Would all examples of enhanced co-operation that could take place within the terms of the treaty of Lisbon be covered by the Bill? I know that some of them are, but can my right hon. Friend give me an assurance that if there is a move to enhanced co-operation, it will be covered by the provisions of the clause? I hope he will deal with that later.
Amendments 36, 37 and 38 are extremely important. I respect the way in which my hon. Friend the Member for Stone spoke to them. I am in full sympathy with the points that he made and with what he is trying to achieve. He has taken three examples from the chapter on freedom, security and justice under Title V of the treaty of Lisbon. As he knows, there is a whole chapter that contains similar provisions from which other important elements could be taken. To be fair to my hon. Friend, he has been diligent and chosen three important examples, but there are other equally important examples in a long chapter on freedom, security and justice in the treaty of Lisbon.
My hon. Friend made the case for his amendments, and I have no problem with that. He has selected items from the field of family law, minimum rules of criminal procedure to which new directives may relate, and identification of further areas of crime to which directives adopted under the ordinary legislative procedure may relate. Inserting these in clause 6 would require them to be approved by a referendum and an Act of Parliament.
I am interested in the whole field of freedom, security and justice, which used to be called the justice and home affairs pillar, and all the matters contained within that, from which, as hon. Members know, this country currently enjoys an opt-out. I hope that the case I am trying to make will be without prejudice to the later arguments I hope to make on a different clause that these items be dealt with by way of a vote in the House each time an opt-in takes place. In this clause we are debating whether in each case they should be subject to an Act of Parliament and a referendum. Some of the matters covered are so serious that that would be justified.
It is worth while looking at the history of the provisions. We have had reference to the single market. At the time of the single market, these matters were dealt with by informal meetings of Home Affairs Ministers of member states. Things were put on a more formal footing by the treaty of Maastricht, under which these matters were included in what was called the third pillar, in order to keep them separate from the other provisions of the treaty of Maastricht, which dealt with the single market on a quite different basis.
Under the treaty of Amsterdam, which was passed in 1997, three or four years after the treaty of Maastricht, that pillar began to be dismantled, and the European Union moved these matters from the third pillar to the first pillar, where they were subject to a separate regime, a different system of voting and the jurisdiction of the European Court of Justice. That was a very significant step indeed. It continued until the pillar collapsed as a result of the treaty of Lisbon, under which the area of justice and home affairs was renamed freedom, security and justice.
The important point for the House and the United Kingdom is that we enjoy an opt-out from the freedom, security and justice provisions, as we have always done. That was important to this country. The then Labour Government argued at the time that the constitutional treaty differed from the treaty of Lisbon. Because we enjoy the benefit of the opt-out, we have to take a decision whether to opt in when particular measures arise. It is rather different from what happens when directives or other legislative proposals relating to other part of the treaties come before Ministers because we have an opt-out, which means that we do not need to vote, take part or do anything. We enjoy that opt-out unless we choose to opt in.
Martin Horwood (Cheltenham) (LD): I just want to clarify the practicality of the hon. Gentleman's suggestion. He mentioned minimum judicial procedural rights as one of the home affairs subjects that relate to this. We opted in to that because it is important, for instance, for British citizens arrested abroad to be protected. Is he seriously suggesting that if that issue came up in future he would want it to trigger a referendum, even though it is within the existing competence that we have already conceded to the European level of government?
Mr Clappison: The hon. Gentleman is furrowing his brow, so perhaps I can help him. We have heard it argued so many times that because a measure has merit we should opt in to it, whether it relates to victims, tackling crime, or this, that and the other. He must come clean and see it, as I have been arguing, as all of a piece, because it is part of a programme of the European Union. It is set out in the treaty of Lisbon as one of the objectives of the EU, and the European Commission is forever coming forward with proposals. It has a whole programme for creating what it describes as an EU area of freedom, security and justice. On the example of judicial procedural rights, the issue is where we determine which judicial procedures should apply in what country. Do we decide that our judicial and criminal procedures should be determined here in this House, or do we hand it to the EU so that it is decided on qualified majority voting and subject to the European Court of Justice?
We have heard those arguments many times. I draw the hon. Gentleman's attention to the fact that this is part of a programme from the EU, and it was set out in the EU's 2011 work programme as one of its five main political priorities. President Barroso set that out in his state of the Union address to the European Parliament on 7 Sept 2010. The third main priority, after dealing with economic matters, was building an area of freedom, security and justice. We must take it as a whole, rather than picking compartmentalised issues one by one and looking at them judiciously because doing so might make an improvement here or there. It is part of an overall programme for building a European area of freedom, security and justice.
Martin Horwood: I appreciate that the hon. Gentleman is making a point of principle and that what he has described adds up to a general direction of travel that he is legitimately concerned about. However, I would ask him to consider the practicality of it. If we have an uncontentious and pretty technical issue that is relatively minor in the great scheme of things and that no one particularly objects to it, such as the minimum judicial procedural rights that are intended to protect British citizens abroad, would he really want that to trigger a referendum or, as is more likely because of the fear of a referendum being lost, for it simply not to happen?
Mr Clappison: I am afraid that the hon. Gentleman is again quite wrong. None of the items being put forward by the EU are being put forward because they are minor, technical changes that will make little difference; they are being put forward precisely because the EU believes they will make a difference and will help to build a European area of freedom, security and justice.
So much of this is bogus. Much has been said about what will happen in different countries and about the cross-border dimension, but the decisions will affect every single criminal and civil case that takes place in this country in so far as we have adopted the European directive in question. The EU is trying to introduce its jurisdiction in civil and criminal matters in this country into the whole of our legal system on the basis of what might happen in cross-border cases. I think that individual members states should decide on their criminal and civil legal systems for themselves, as that is a characteristic of a member state and part of its nature. If the hon.
Gentleman has so little confidence in what takes place in other member states, he could start by relying on the fact that we are all signatories to the European convention on human rights, as are a number of other countries.
Martin Horwood: The hon. Gentleman is being generous with his time. My point is not really about the point of principle that he is labouring. He should imagine a hypothetical situation that would apply in this case, in which a matter is important but not massively so in the great scheme of European government and the whole European project and is something that everyone agrees should happen and that is uncontentious. In such a situation in which even he supported the practical step, would he really want to put the UK to the vast expense of a referendum on something that everyone supported?
Mr Clappison: It is difficult in the field of civil and criminal procedure to disconnect one step from another. The European Court of Justice, whose jurisdiction will be opened up, can always come along and make a decision that goes far beyond what was originally envisaged. We must look at the whole system of civil and criminal justice, including whether decisions are taken in this House, or whether we abnegate self-government and hand those decisions over to the EU.
The hon. Gentleman can make his case, but I am concerned about the scrutiny and decision making that take place each time we take one of these decisions. He referred to technical matters, but in the course of this short Parliament we have already had two very important directives in the field of freedom, security and justice: the European investigation order and the draft directive on the right to information. I do not know whether he or his colleagues took part in the debate we had in the European Committee, but it was accepted on both sides-it was put forward by the Secretary of State for Justice-that it was an important step in itself. I am not sure what his party's participation in that was, but that was the basis of the decision. That process took place under the existing scrutiny of this House.
The European Commission has an ambitious programme for the year ahead, and the Minister has conceded that there are 30 or 40 more such measures coming along from the EU. In Mr Barroso's work programme, "Pursuing the citizens' agenda: freedom, security and justice", the first three items listed are: a legal instrument on European contract law; a regulation on improving efficiency and enforcements on judgments in the European Union; and a directive on the rights of and support for victims of crime. With respect to the hon. Gentleman, I do not think any of those could be described as minor or technical.
My hon. Friend the Member for Hertsmere is not only an expert on this matter, but knows what he is talking about. The reality is that every time one of those decisions is taken-I say this with great respect to the hon. Member for Cheltenham (Martin Horwood), when he starts talking about comparative advantage-it relates to people and justice. It is about whether they get a fair trial and matters of that kind, which are matters that his constituents would be concerned about. It is terribly important to remember that one paragraph of one of these directives, or even one line, is equivalent to an entire Act of Parliament that we might spend the
best part of six months discussing in both Houses. Does my hon. Friend agree that under the proposals such matters will just go whistling through?
Mr Clappison: The hon. Member for Cheltenham (Martin Horwood), whose opinions differ from mine, has made his case very honourably, and it is one that might attract many people outside this House. I have to ask whether he is happy with the ways in which those matters are currently dealt with before this House. The amendment tabled by my hon. Friend the Member for Stone seeks to make those matters subject to an Act of Parliament and a referendum. My own humble amendment, which we will come to later-I hope that this debate will not prejudice its consideration-would make matters within the area of freedom, security and justice subject to approval by a vote of this House, which I hope is not too radical a step to propose.
On any view of it, these are matters that will come before the House, whether as my hon. Friend describes, or, as I shall try to argue later, as a minimum, in the way I am seeking. The hon. Gentleman must look at the system that we have in place for scrutiny of these matters as they come before the House. When they come before the House, as in the case of the investigation order and the right to information order, which we have already had, it is very hard for the House to express its view on those important issues.
My right hon. Friend the Minister has brought forward some proposals and made a statement last week on how to improve scrutiny of opt-ins to the area of freedom, justice and security. If I may pay my right hon. Friends the Minister and the Foreign Secretary a compliment, I should say that they have made a real step forward with their proposals, but we need to find out just how far that step forward is going to go.
The following questions are relevant to amendments 36, 37 and 38, because they cover the same area. In each case, when the opt-in to certain European areas such as freedom and security is exercised, a decision will be taken whether the United Kingdom is going to opt into specific measures that the European Union has brought forward. There have been half a dozen already, and there are another 30 or 40 down the track, but, under my right hon. Friend the Minister's scrutiny proposals, will the House have an opportunity to vote on each occasion? That is very important.
How will the scrutiny override proposals work? I hope the hon. Member for Cheltenham agrees on this point, because he would want to make his case about what a good idea such measures were, and what benefits they would bring. I should want to make my case that such measures should be decided in the House, but we could each make our case and have a vote in the traditional way. I should hope that that was not too dramatic a step for any hon. Member.
"As currently, the Government will not override the scrutiny process unless an earlier opt-in decision is essential. Where the Government consider an early opt-in to be necessary, it will explain its reasons to Parliament through the statement set out above. In these circumstances, it would usually be appropriate for the statement to be made orally."-[ Official Report, 20 January 2011; Vol. 521, c. 52WS.]
I am not sure that we should put the administrative matters that lie behind the decision, the timetable of the European Union and whatever interminable administrative processes have to be gone through in the Foreign Office before the House's approval. It really does not put us in a very good place-behind what are termed "essential" decisions. The House should have an opportunity to express its view on the decision first, so I invite my right hon. Friend to go away and think about that. It is all very well having a statement after a decision has been taken, but the House would like the opportunity to express its view through a vote before such a decision is taken.
I have taken part in European Scrutiny Committee debates, and decisions have been taken, the Government have agreed to a legislative measures and then we have had the debate in a European Committee. We do not have any opportunity to inform the Minister's thinking or to debate the matter before the decision is taken, let alone to take a vote on it. Under the current procedures of the House, we cannot do so; it is very difficult to have a substantive vote on security matters. The most that the European Scrutiny Committee can do is to hold a matter in reserve until it has been debated in a European Committee, but neither those nor debates on the Floor of the House provide for a vote to approve or disapprove of particular legislation.
Martin Horwood: I return the compliment. The hon. Gentleman is spending a lot of time talking about the existing scrutiny process in this place and the importance of having a substantive vote. There is a real debate to be had about that, and I am certainly in favour of proper parliamentary scrutiny, but as I read the substance of his amendments I find that their potential impact is to trigger a referendum. That is of a wholly different order of cost and complexity, and it is likely to discourage the very act that we are discussing. In fact, his proposals would probably stop any measure coming before the House for a vote at all, because it would be deemed impractical to go through a referendum.
Mr Clappison: The hon. Gentleman makes a fair point, and my hon. Friend the Member for Daventry, who made an extremely good case, will have heard what he said and decide whether to press his amendment to a vote. I take it from what the hon. Gentleman says about proper parliamentary scrutiny that that would include approval for a vote in the case of opt-in, however, because it is no use having just scrutiny, talk and the expression of opinions; we need to have a vote each time an opt-in takes place. I am open to correction from him through another intervention, but I take great heart from what I think he says about regarding a vote on an opt-in as a part of scrutiny, because there is not much point in scrutiny unless we can vote. I think that he agrees, so that is a great step forward. He made some very good points-fair points-about referendums, and I ask my right hon. Friend the Minister to reflect on those matters, because they are important decisions.
In the manifesto on which I stood at the general election, I promised, as did the rest of my party, to seek to repatriate powers from the European Union. I always thought it would be quite a big ask, but I was going to try to do it. Given the circumstances that have arisen with the coalition, however, the measure in the Bill is in the coalition agreement, and I completely understand the reasons behind that, the need to seek compromise with the Liberal Democrats' entirely honourable position and to examine each opt-in on a case-by-case basis.
I hope that, first, we consider the case for staying out and retaining the benefits of the opt-out, because that is the best possible solution. If a decision is taken to opt-in, however, I hope also that proper parliamentary scrutiny and a vote are possible on each occasion. Personally, I probably would go as far as my hon. Friend the Member for Stone has gone in some of his proposals, but I hear the comments that have been made about them. We really need to take the matters before us seriously, however, given the scrutiny that my hon. Friend the Member for Daventry has undertaken through his amendments, because the decisions are profound ones.
Do we wish to have our criminal justice and civil justice system-our legal system-determined in this House, or do we want to hand it over to the European Union, the European Commission, the European institutions and the European Court of Justice for them to rule on?
Austin Mitchell: I rise to speak for two reasons. First, I do not want all the speeches from Opposition Members to be an unremitting chorus of euro-enthusiasm. My hon. Friend the Member for Luton North (Kelvin Hopkins) and I are stalwart opponents, and I do not want the chorus from the Opposition Benches to be like the slaves chorus from "Nabucco", singing the praises of the instrument of our own punishment-the European Union. Secondly, I support some of the amendments-81, 8 and 79, in particular.
I am very supportive of amendment 81, which was tabled by Members representing two glorious ports-I did not know they were fishing ports-in Essex, because it involves an important principle. There are constant attempts to remove our national limits, which were agreed when we entered the common fisheries policy in 1972. A few months before we began our entry negotiations, the policy was stitched together to get European hands on our fish, but we managed to preserve some national limits: the 6 nautical miles around most of the English coast, and the 12 nautical miles around north Britain and Scotland. We police the waters up to the median line, or 50 miles.
When I went out on a fisheries protection vessel, I was distressed to find that when the crew detected European vessels over-fishing, they did not have the right of hot pursuit, so all the European vessel had to do was to beetle across the median line and it was safe. My suggestion that the protection vessel should shell and sink the European vessel was taken as an unfriendly act towards Europe and, for some reason, discounted, but it is important to preserve our waters.
My concern arises from the recent Hugh Fearnley-Whittingstall programmes, which provided a very good service by highlighting the problem of discards. They
are inherent among fish allocated by catch quotas. Indeed, if one allocates fish by catch quotas in mixed fisheries, one is always going to get discards. The discards increase as the quotas go down, because fishermen are bound to catch fish that are not in their current quota.
Indeed, I wrote to Fearnley-Whittingstall, suggesting that it would be a brilliant idea to establish a very expensive restaurant on a cruise ship that went round picking up Grimsby fishing vessel discards and cooking them for an exclusive clientele at enormously high prices. He does not seem to have implemented it yet, but it is a viable idea. It is very difficult to stop discards when there is equal access to a common resource, but that is the basis of the common fisheries policy to which Ted Heath unfortunately agreed in 1972 as the price of entry into the EU. He was so desperate to go in that he accepted that condition.
We certainly have to work to control our waters, as amendment 82 suggests, and to stop or reduce discards. There are various ways to do that. I am hoping that Fearnley-Whittingstall will come along to the all-party parliamentary fisheries group to tell us his ideas. I will not tell the Committee mine, because I would go off the subject.
Kelvin Hopkins: As my hon. Friend knows, I agree entirely with everything he is saying. Does he agree that we could operate British waters in the way that Norway operates its waters? It controls its own fishing grounds, every fishing boat is monitored, there are no discards and there is no over-fishing. It protects its fish in a proper way. That can be done only if countries husband their own resources in their own fisheries. That is the only way forward.
Austin Mitchell: My hon. Friend is absolutely right, as usual. The key is the ability of a nation to control its own waters up to the 200-nautical-mile limit, which it would have been sensible to retain, and which we could have retained had we negotiated harder in 1972, but we did not. Only a nation can conserve its own national resource-what is handed on to the next generations of fishermen. The Heath Government made a tragic decision from the point of view of the fishing industry. I want to reverse that, and we should work to do so. I still want to pull out of the common fisheries policy. Perhaps it would require a few gunboats around the coast to establish that.
Martin Horwood: I understand the hon. Gentleman's point, but does he not fear that if we returned fisheries entirely to national competence, not every nation would be quite as observant of their own rules as the Norwegians, and there might be a free-for-all that would fatally damage the British fishing industry?
Austin Mitchell: That, of course, is nonsense, because nations that have taken control of their own waters and their own 200-nautical-mile limit, such as Iceland, have operated very good and effective conservation policies. It is only nations that have to admit other nations into their waters, under force of European law, that cannot do that.
Kelvin Hopkins: I support my hon. Friend, yet again. Clearly, it is simple to monitor what is landed in one's own country, but impossible to monitor what is landed in another country. If we had our own fishing waters with our own fishing vessels-
Austin Mitchell: My hon. Friend is absolutely right. The Liberal Democrats are slavish in their idealism of Europe at any price, and will abdicate any British interest to express their devotion to the nefarious construction called the European Union.
Martin Horwood: I am just intrigued about precisely what method the hon. Gentleman would use to defend our waters. The Icelanders use gunboats. Is he advocating gunboat diplomacy from the Labour Benches?
Austin Mitchell: Frankly, yes. However, I am sure that the hon. Gentleman is not so distrustful of our European partners and friends that he believes that if we took legal control of our waters, they would come in and try to steal our fish. Is that his estimation of their character? Is he telling us that there are nations of thieves that would come in and steal our fish if we took our own waters, as is our right? Is that what he is saying? Apparently not.
Amendment 81 expresses an important principle that we need to express and defend constantly. The amendment is a way of defending that principle, so I shall certainly vote for it if it is put to the vote.
I shall move on to amendments 8 and 79. I congratulate the hon. Member for Stone (Mr Cash) in drawing the attention of the Committee to this situation, because it is extremely dangerous from a British point of view. He said essentially that we will be liable, under article 122 of the treaty on the functioning of the European Union, for difficulties produced by the failure of the euro, and that we will have to make a contribution. That will be decided on by qualified majority voting. If correct, that is an appalling situation. It is important for the Government to tell us tonight whether it is correct.
In my view, one of the greatest achievements of the previous Prime Minister was that he kept us out of the euro when he was Chancellor, against the overwhelming enthusiasm of the then Prime Minister, who saw joining the euro as a romantic gesture of support for Europe-almost an emotional spasm of support for Europe-against the wishes of the majority of the Cabinet, and against the pressure of the Liberal party, which has always been slavishly devoted to any European instrument, however damaging the consequences.
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