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Mr. Garel-Jones : I give way to the right hon. Member for Llanelli.
Mr. Davies : As I understand the right hon. Gentleman's argument, title I refers to a separate pillar, which is not justiciable--the nasty European Court cannot consider it and nor can the Commission ; it is intergovernmental. In that case, why does the treaty refer to the "acquis communautaire", which is the corpus or body of EC law which has been built up until now and which will continue to be built up? Title I is made subject to all that.
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Mr. Garel-Jones : The right hon. Gentleman will be aware that title I refers not only to the intergovernmental aspects of the treaty but to the whole treaty. That is the point that I am seeking to make. We are seeking to give effect to the Maastricht treaty in our domestic legislation, to create a framework within our domestic law, recognising Community rights and obligations which arise from the treaty. That is what we did when we introduced the Single European Act.
Mr. Dalyell : I shall intervene once again and then I shall be quiet. As a Member of the House for more than 30 years, I do not think that it is merely a question of parliamentary amour propre. I ask the Minister, gently and seriously, what more pressing business the Attorney-General could have than to be present on the Front Bench while we are discussing such matters. Former Attorneys-General would have been here automatically. My second Attorney-General was Sir John Hobson. [Interruption.] Yes, one could say that. Another was Lord Dilhorne. At least they would have been present on the Front Bench. Apart from anything else, this is playing down Parliament. There could be no more urgent occasion for the Attorney- General to support his hon. Friends.
Mr. Garel-Jones : I accept what the hon. Gentleman has said, both because he is a senior Member of Parliament and because I know that he said it out of the affection that he and I have for each other, and that he did not mean any disrespect. I assure him that not only has everything that I say been agreed and cleared by the Law Officers but that if I or other Ministers felt that it was necessary for my right hon. and learned Friend the Attorney-General to be here, I would certainly ensure that he came to give his advice.
Sir Richard Body (Holland with Boston) : I am trying to offer some perfunctory advice. The hon. Member for Linlithgow (Mr. Dalyell) and others will remember that a Law Officer was present throughout the proceedings on the original Bill 20 years ago, and we made remarkable progress as a result. At that time the former Solicitor-General, now Lord Howe, was in charge of almost all the amendments and therefore was well equipped to answer some of the finer points that we seem to be making this afternoon. I ask my right hon. Friend to bear that in mind. I am trying to be helpful. Perhaps we would make more progress if a Law Officer were present throughout the proceedings.
Mr. Garel-Jones : My hon. Friend the Member for Holland with Boston (Sir R. Body) is a senior Member of the House, and I will bear in mind what he said. It is true that in 1972 my hon. Friend and the hon. Member for Linlithgow (Mr. Dalyell) were present when we discussed the accession of Britain to the Community and our adherence to the treaty of Rome--I am not seeking in any way to minimise the importance of that debate--which was a momentous decision. Nevertheless, I take the point that my hon. Friend made.
Several Hon. Members rose --
Mr. Garel-Jones : I want to make a little more progress if I may. I have not finished my response to my hon. Friend. I listened respectfully to what he said, If, at any time, the Treasury bench feel that it is necessary for my
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modest efforts to be supplemented by the presence of my hon. and learned Friend the Solicitor-General, I will certainly ask him to advise the Committee.Sir Nicholas Bonsor : I do not think that my right hon. Friend understood the point that I was trying to make in my previous intervention, which would explain why he did not answer it. Article L(a) says that the European Court of Justice will have jurisdiction over the
"provision amending the Treaty establishing the European Economic Community with a view to establishing the European Community,". It appears that title I does precisely that. Does my right hon. Friend not share my fear that the European Court of Justice, when asked whether it has the right to intervene in such matters, will take a pro-European--pro-federal--stance, as it always has, and will decide that the interpretation of that clause enables it to decide matters which arise out of title I?
Mr. Garel-Jones : I shall make a general point first.
Sir Nicholas Bonsor : I want an answer.
Mr. Garel-Jones : Underpinning what my hon. Friend said was the belief--I think well founded--that a number of judgments that the European Court has made in the past 30 years tended, in their thrust, to be centripetal. One of the outcomes of the way in which not only the treaty but article 3(b)--which the Committee will examine in some detail in due course--has been structured is that the court's judgments will be influenced in the future. I am not alone in my belief that the court's judgments are likely to be more centrifugal during the next 30 years than they have been in the past. I turn to the specific issue raised by my hon. Friend the Member for Upminster (Sir N. Bonsor) . As he will have observed, the wording that he referred to in article L is identical to the wording in article A of the common provisions. The European Court is able to act in those matters contained in the treaty of Rome, as amended by the treaty that we are discussing--to quote from the Bill
"so far as they relate to those Titles."
So far as the titles relate to the provisions in the amended treaty, the European Court will act as a result of the articles in the treaty, not as a result of the common provisions.
Mr. Marlow rose--
6.45 pm
Mr. Garel-Jones : I want to make a little more progress before I give way to my hon. Friend the Member for Northampton, North (Mr. Marlow).
We need to legislate domestically to incorporate those EC treaty provisions which can have a direct effect in the United Kingdom on Acts under which provisions may be adopted, and we must be able to make subordinate legislation to give effect to EC obligations. That means predominantly and overwhelmingly the provisions of titles II, III and IV plus the protocols which will become an integral part of the EC treaty. That is why those three titles are referred to in clause 1 of the Bill.
The position on the preamble to title I, the common provisions, and the position on title VII, the final
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provisions, are different. The titles do not give rise to Community rights and obligations, but the preamble in the common provisions may play a role in interpreting other provisions in titles II, III and IV under which rights and obligations can arise. Thus the obligations are created elsewhere in the treaty. However, the preamble to title I may relate to the relevant provisions in some way. Article B is a good example as it sets in context the operational provisions elsewhere in the treaty.The final provisions in title VII confer no powers to adopt Community Acts, but they clearly have an effect on the way in which the Community will operate. After all, the provisions are in many respects the same as the final provisions in the treaty of Rome, suitably amended for incorporation in a treaty on union. The arrangements for enlargement, article N, or further treaty amendment, article O, clearly fall into the category of being related to the treaty of Rome.
To return to the issue raised by my hon. Friend the Member for Upminster, article L clearly relates to the treaty of Rome since it delineates the jurisdiction of the European Court of Justice, including within that treaty. Therefore, the article needs to be within the scope of the Bill. By contrast, article D in the common provisions, which refers to the make-up of the European Council, does not. To a large extent, it reproduces the equivalent article in the Single European Act--article 2 in title I--which was not included within the scope of the Single European Act. There is no reason to depart from that precedent.
Several Hon. Members rose --
Mr. Garel-Jones : I want to make three points relating directly to the issues raised by my hon. Friend the Member for Upminster, and then I shall give way to my hon. Friends, starting with my hon. Friend the hon. Member for Northampton, North.
The Bill covers the common provisions, the preamble and titles I and VII, only as they relate to titles II, III and IV. Thus, the structure of the treaty is reflected in the Bill. To incorporate all the provisions from the intergovernmental pillars and the common provisions into the scope of the Bill--which amendment No. 93 seeks to do--would create a legal anomaly at the heart of the domestic legislation required to give effect to Community obligations. To all intents and purposes, it would drive a coach and horses through the domestic legal framework that we have developed over the past 20 years for our Community membership. It would create confusion and is absolutely not necessary in terms of United Kingdom law. Indeed, it could be taken to mean that the intergovernmental agreements on, for example, asylum and immigration might have a direct effect in the United Kingdom, bypassing the House of Commons ; it could be a first step in that direction.
Furthermore, it would give a false impression of the nature of the treaty provisions, suggesting that they are capable of having an effect that the terms of the treaty do not allow. It would mean that the United Kingdom moved in a more federal direction than the treaty of Maastricht seeks to do --a matter of concern to some of my hon. Friends. It would ultimately ignore the treaty's structure--with the clear differences between the treaty of Rome and intergovernmental provisions--that the Community and the union reflect, as negotiated at Maastricht.
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Mr. Marlow : The Bill seeks to bring various parts of the treaty into United Kingdom law. Title I is not at present one of those parts. My right hon. Friend the Minister has said that title I is not justiciable by the European Court, but he also said that it would have impacts on other aspects of the Bill, some of which are to be incorporated in United Kingdom legislation. Will my right hon. Friend tell the Committee in detail how title I would be used, by whom and to influence what?
Mr. Garel-Jones : Title I is descriptive. It describes the framework within which the treaty operates. Because it seeks to describe the breadth of the union's action, it describes some elements that are within the treaty of Rome and some that are without. Therefore, the Bill uses the words
"together with the other provisions of the Treaty"--
elements in the common provisions and others--
"so far as they relate to those Titles, and the Protocols adopted at Maastricht on that date and annexed to the Treaty establishing the European Community".
Mr. Walter Sweeney (Vale of Glamorgan) : Instead of reading from his prepared brief, will my right hon. Friend answer one simple question? Why cannot we have a full debate on clause 1, which I am sure the British public expect us to do? If we do not have a full debate on it, the public will suspect that we are trying to sweep something under the carpet. May we please have an answer?
Mr. Garel-Jones : I do not know whether my hon. Friend has been present all afternoon--perhaps he has--but I hope that it has not escaped his notice that we are in the process of debating that issue. When I have finished speaking, a number of hon. Members will speak, no doubt I shall intervene in their speeches, and the Committee's debates will be illuminating, not just for the Committee, but for the country.
Sir Russell Johnston : I thank the Minister, who is being generous in giving way. He said that, if title I were included, it would create an anomalous legal position, but he did not tell us in what way. The only example that he produced was something to do with immigration. Surely, if the position is as anomalous as he said--he also said that it would "drive a coach and horses" through the provision--he should be able to give umpteen examples. However, he has been somewhat delphic so far.
Mr. Garel-Jones : I shall try to be a little more helpful to the hon. Gentleman. As he will be aware, the Single European Act sought to amend the treaty of Rome where necessary so that legal decisions could be taken in the United Kingdom--to give legal force in the United Kingdom to provisions of the Single European Act. That is how we have proceeded in the United Kingdom when faced with such treaties. We are seeking to incorporate into British law those aspects of the Maastricht treaty that require amendment to the European Communities Act 1972.
The amendment seeks to incorporate into the Bill--and therefore directly into British law--those elements of European activity that we have specifically sought to separate from the treaty of Rome to ensure that the Commission should not have the sole right of initiative and to ensure that such matters are not justiciable in the European Court of Justice. In one sense, the effect of the amendment would be that our domestic British law was more federal than the treaty of Maastricht.
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Mr. Rowlands rose --Mr. Garel-Jones : That was the very point that the hon. Member for Merthyr Tydfil and Rhymney was seeking to make when he intervened--and I agree with him. I shall not give way to him.
Mr. Spearing : I think that the Minister will agree that, although he may take a different view on the request that I made to the Chairman on a point of order, it is germane to what we are now discussing. The Minister is seeking to tell us that the writ of the European Court is excluded from his famous intergovernmental pillars. However, article L specifically gives three instances where the Court of Justice writ will run--the foundation treaties under L(a), article K.3, 2(c) relating to possible conventions on justice and home affairs, and the final provisions of the treaty, L to S, which are intergovernmental.
We are discussing article E--under title I--which specifically mentions the Court of Justice. It states :
"the Court of Justice shall exercise powers on the one hand"-- the title then mentions the foundation treaties of Rome, Brussels and Paris--
"and, on the other hand, by the other provisions of this Treaty". The other provisions must be outside the trunk, and be part of the intergovernmental section of which the Minister is so proud. Why is the second part of that section in article E? If the Court of Justice has nothing to do with title I, why is article L so phrased as to give it that power?
Mr. Garel-Jones : I believe--no doubt the hon. Gentleman will correct me if I am wrong--that I answered the question on article L when I said that I recognised that there were a number of articles, such as articles O and N, that referred directly to the treaty of Rome. The common provisions and the provisions at the tailend of the treaty are, in one sense, hybrid because they refer to provisions within and without the treaty.
Several Hon. Members rose --
The First Deputy Chairman of Ways and Means (Mr. Geoffrey Lofthouse) : Will the Minister indicate to whom he is giving way
Mr. Garel-Jones : My hon. Friend the Member for Coventry, South-West (Mr. Butcher).
Mr. Butcher : In his first comment on article L, my right hon. Friend said that title I would never be justiciable by the European Court. In a second comment, which he said that he had cleared with the Government's legal advisers, he said that in some circumstances title I might be justiciable by the European Court. My hon. Friend earlier spoke of incorporation in the corpus of the law of Europe. I appreciate entirely his willingness to help us in this interrogative process, but surely other Committees provide a precedent--I turn to the Chairman for advice on the matter. I believe that in other Committees judgments of the Law Officer have been circulated. That would be particularly helpful, as it is the first time that the Committee has heard the interpretation on which hinges so much of our subsequent discussion. We are now at the heart of the issue of what is and is not to be justiciable in the treaty, whether through the Government's bilateral arrangements outside the treaty or within it.
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The Committee is not entirely sure whether title I ever will be justiciable. There is a hint that it may be, and if it is so, other parts of the treaty may be affected. We should get this clear before we proceed, because so much of the Government's case has depended on it hitherto.7 pm
Mr. Garel-Jones : I think I have answered that already.
Rev. Ian Paisley (Antrim, North) : Is the Minister not undermining title I when he says it is only descriptive? Is it not definitive? Does it not go right to the heart of the matter and is not merely descriptive?
Mr. Garel-Jones : No, I do not agree with the hon. Gentleman. What we--
Mr. Benn : The Minister will appreciate that there is no filibustering going on ; we are trying to explore a central question. What he is saying is that there are two sorts of law--parliamentary law and a prerogative law. My understanding is that whatever the provision may be under which laws can be made in Britain is irrelevant. For example, if the country goes to war, it does so under the prerogative. It is no use saying that, it is not justiciable in domestic courts, that because we are at war and the courts will recognise it. If we sign a treaty, it is the law.
Surely the European Court is bound to take account of the fact that, with the solemnity of the royal prerogative, the Prime Minister has ratified, in the name of the Crown, title I. We cannot go to the European court and say, "I'm awfully sorry but that is not quite the sort of law you thought it was". Similarly, if there is any prerogative power in this country, that is also the case. We cannot question who the Archbishop of Canterbury is, because it has not been in legislation ; it is a prerogative power of appointment. Without meaning to--that is why I desperately wish he would take our advice and have a Law Officer here--the Minister is pretending to the House, quite innocently, that there are two sorts of law, one which is justiciable and the other which is not. In fact, all law is justiciable because we are bound by all law, by prerogative, by statute, by custom and practice, and by judge-made law. All are capable of interpretation and appeal to any court that has any ro le in the matter.
Mr. Garel-Jones : I have done my best to explain this to the right hon. Gentleman once--in fact, more than once.
Sir Richard Body rose --
The First Deputy Chairman : Order. Before the hon. Gentleman puts his question to the Minister, may I remind the House that, while I appreciate this is an important debate, many of the interventions are very long and are not directed to the Minister. If hon. Members bear that in mind, progress will be much sharper.
Sir Richard Body : I appreciate that we must make progress, but perhaps before the Committee sits again tomorrow my right hon. Friend will make inquiries of the Law Officers about this because the European Court of Justice does interpret legislation differently from our own image. I do not know about Scottish courts but that certainly applies to English courts. In the English courts,
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there is what is called the golden rule, whereby the judges can look only at the section itself, and interpret that, whereas in the European Court of Justice on numerous occasions, in interpreting a section, the judges have gone back to the preamble of the Bill to assist them in interpreting the section--in other words, doing something which our own courts do not do.Perhaps my right hon. Friend will ascertain whether he is absolutely right in what he has just told the Committee, because he may find that the advice he has received is mistaken and that what he says applies to the English courts but not to the European Court of Justice.
Mr. Garel-Jones : The advice I have received, of course, is from the Attorney-General himself, the legal adviser to the Government. The Bill is drafted in order to be compatible with our domestic legislative framework and with our domestic precedents and domestic practice. That is the principal reason why the Government will be unable to accept amendment 93--
Several Hon. Members rose --
Mr. Garel-Jones : I am perfectly happy to discuss the many questions which hon. Members will raise in the course of the debate arising out of the general structure of the treaty. That is the debate which the amendment has prompted. I am happy to discuss the issues which it raises so far as the distinction goes between the treaty and the union and the way it is reflected in the legislation. To the extent that the provisions of title I need to be incorporated in the Bill, they are so incorporated. Therefore, I hope that the hon. Member for Inverness, Nairn and Lochaber will not press the amendment. If he does, I must invite the Committee to vote against it.
Mr. George Robertson : May I start, not by following the Minister's somewhat beleaguered speech but by making my own speech in which I shall try to look at the issue from a slightly different angle from that of the Minister. I may come to a similar conclusion, but I hope for different reasons.
I welcome the way in which the Chairman of Ways and Means has structured this debate, because it is very welcome. Once we are beyond this group of amendments it might be slightly more comprehensible to anybody who looks in from the outside world. We are also grateful for the split that took place to the proposed group of amendments on the general provisions which has allowed us to have this interesting and valuable debate on title I.
Opposition Members--I am sure that this applies to most others--want this debate on this lengthy Committee stage. I underline the fact that the length of Committee stage is determined by the Government and the Prime Minister's promise to the hon. Member for Great Yarmouth (Mr. Carttiss) and not by any intention by the Opposition or, indeed, by the other side of the House to prolong the debate beyond what is necessary.
The debate will be exhaustive, but so it should be. The provisions of this treaty are enormously important and penetrate into very intimate parts of British life. It is right that the House gives proper debate and scrutiny to what has been agreed on the country's behalf and to what, if the House so consents, will be incorporated into British law.
The Government will find the experience uncomfortable. The Minister, I think, has tasted only a sample of what is to come during the weeks and months ahead. I
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have to say that, for some crime of which I have not yet discovered the nature, this is the second European Communities Amendment (Bill) on which I have been an Opposition spokesman. I can scarcely imagine what the crime was. It may have escaped my notice, but it must have been extremely serious for me to have to go through this again. As we went through the expressions that pass for English but sound very foreign, the expression "deja vu" came to my mind.The amendment in the name of the leader of the Liberal Democratic party suggests that we should incorporate title I of the Maastricht treaty into the Bill. I judge it by a number of tests : why should we put it in? Is it necessary that we should put it in? Is there a benefit from putting it in today?
I have given considerable thought to the amendment, because I knew that it was likely to be the first one of the Committee stage ; it was a laborious exercise, embarked on not easily, but by way of punishment.
There seemed to be immediate attractions to including title I in the Bill. One that struck me was the fact that the definition of "subsidiarity" in title I was better than the definition in article 3B, to which we shall come in due course. The subject of subsidiarity has been mentioned by a number of hon. Members. The subject is close to the hearts of those of us from north of the border, because the Government seem enthusiastic about subsidiarity in the European Community but reluctant and grudging towards subsidiarity and decentralisation in the United Kingdom.
Article 3B is indeed complex. I cannot see that it is constructed in such a way that subsidiarity will be real--my hon. Friend the Member for Newham, South (Mr. Spearing) makes the point endlessly--because it refers to it purely in terms of the exclusive competencies of the Community. On the other hand, subsidiarity is dealt with differently in title I, which refers to decisions being taken "as closely as possible" to the citizen.
I hope that when the Minister replies to the debate, he will confirm that what we are discussing is a formulation on subsidiarity that is attractive to the British Government, and that when we come to consider article 3B, that might be taken as being a part of title I and will be considered relevant to the provisions of titles II, III and IV which will be incorporated in the Bill. As I say, that seemed an attractive aspect of title I which suggested that perhaps we should support the Liberal amendment.
Mr. Spearing : I will not follow my hon. Friend into discussing the advantages or disadvantages of subsidiarity, which he rightly says applies only to outside exclusive competence. Has he realised that the amendment would move title I into line 9 on page 1 of the Bill? The Liberals are using the series of amendments to discuss the merits or demerits, and some of the content, of title I. Indeed, my hon. Friend is doing just that.
Does my hon. Friend not realise that the place in the Bill where the amendment would appear--this was relevant to the point of order that I raised at the beginning of the proceedings--would add the obligations, be they justiciable or not, of the European Communities Act 1972, but would not add them to the Bill in respect of ratification? So although it might be good to debate the subject, the consequences would probably not be all that great.
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Mr. Robertson : My hon. Friend anticipates me, because, perhaps laboriously, I was about to explain that while there seemed to be attractions to incorporating title I, we should not support the Liberal amendments, as those immediate attractions would not necessarily apply. In other words, I come to the same conclusion as my hon. Friend the Member for Newham, South but by a different route.
Mr. Marlow : Will the hon. Gentleman be kind enough to have a crack at the point that I put to the Minister, who has not yet had time to answer it? Titles II and III will become part of British law, and we know that. Title I will not become part of British law and it will not be justiciable by the European Court. On the other hand, it will have an impact on our law, as has been pointed out. What will that impact be, how will it be used and to what instruments will it apply?
Mr. Robertson : If the hon. Gentleman wants to have a crack at his right hon. Friend, he should not try to use me to do it. His right hon. Friend is paid much more and, being a Minister, has more expert advice than is available to me-- [Interruption.] If not expert advice, the advice available to him is more extensive than that available to me.
I am sure that the Minister will eventually get round to answering the point that the hon. Member for Northampton, North (Mr. Marlow) put to him, and to all the other awkward questions that Conservative Members are raising. I am a mere humble toiler on the Opposition Benches, forced by the inadequacies of the Short money to work these matters out for myself. I am sharing with hon. Members in all parts of the House the results of my cogitations. I put them forward for their perusal, and I shall be interested to hear whether they agree with my conclusions.
The second superficial attraction of title I is the area to which an amendment of mine, No. 108, would apply-- [Interruption.] I am grateful for the help of Conservative Members, but I gather that I need not move that amendment. It seems that my information, about that and other matters, is superior to that of the Minister and his hon. Friends.
That amendment is concerned with article F of the European convention on human rights. There seems to be a superficial argument for saying that if we incorporated title I in the Bill, by the back door we should have achieved the legal implementation into this country of the European convention on human rigths. In an environment in which the Government are hostile to taking that course, there is a superficial argument for taking that step--
Several Hon. Members rose--
7.15 pm
Mr. Robertson : I must get on, because I am anxious to limit my remarks to less than the hour that seems to be the average for speeches so far.
Mr. Butcher : The hon. Gentleman has referred to certain changes that may occur by the back door as a result of incorporating title I. Does he believe in Scottish devolution? There is an interpretation of subsidiarity that suggests that, if one takes decisions as closely as possible
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to the people in relation to national institutions, one gets regional government, otherwise known in Scotland as devolution.Mr. Robertson : If applied, the principle of subsidiarity leads to decentralisation, in the United Kingdom and throughout Europe. I believe in decentralisation. I do not believe in a unitary state in Europe. Europe can develop properly according to a principle which happens to be called subsidiarity--for the purposes of the treaty and the jargon of the moment-- but it is a healthy and efficient principle which we should apply in the European Community. Britain would also be the better for having that principle applied to the way in which we take decisions.
Are the superficial attractions of title I real? The Chairman of Ways and Means made it clear at the outset that we, in the Committee of the whole House, are not engaged in the ratification of the Maastricht treaty. That may be a difficult concept for people outside to appreciate, but it should be fully comprehensible to hon. Members. We do not ratify treaties. We apply to British law, by separate legislation, whatever is necessary to implement the treaties that have been signed by royal prerogative.
I have complained about that method of legislating over the years. In the 10 years that I have been a Labour spokesman on foreign affairs, the only opportunity that I have had to debate major treaties signed on behalf of this country in the sphere, say, of arms control, has been when a statutory instrument has occasionally trickled down to the House giving diplomatic immunity to inspectors appointed under those treaties.
I had been in the House for only a year when Labour was last in power, but I have always made the point that something should be done about the Ponsonby rules and the way in which the House deals with treaties. Some of my hon. Friends, and certainly some Conservative Members who have been in government, could have done something about that over the years. Perhaps this is not the time to start complaining about it. We are taking the Maastricht treaty and removing from it those elements that require legislation in this country. We should ensure that the minimum legislation necessary is put into effect in British law.
We should not be trying to put into effect in British domestic law more than is absolutely necessary under the terms of the treaty. What we are concerned with here are purely and simply the rights and obligations imposed upon this country by the treaty signed at Maastricht. That would appear to include titles II, III and IV, but not the other titles, except in respect of certain key areas some of which have come up already in the debate and others of which I hope will be fleshed out.
Mr. Cash rose --
Mr. Robertson : In a spirit of pure nostalgia, because we have gone through these debates so often, and since the hon. Member for Stafford (Mr. Cash), known as "the loose change of European politics", is someone who cannot possibly allow a speech to go by without contributing to it, I will give way to him.
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