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Mr. Cash : I hope that the hon. Gentleman will be able to answer my question in that case. Does he believe that
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those parts of the treaty that are not included for the purposes of the Court of Justice are titles that give rise to international legal obligations? In other words, title I would give rise to international legal obligations. Is that right or not, because the hon. Gentleman is making quite a lot of play of this?Mr. Robertson : I am not making play of that at all. The Law Officers--one floated into the Chamber a short while ago and floated out again--who are paid large amounts of money, who have immense qualifications, who, it would appear from the bill they gave the Chancellor, charge rather a lot of money for them--and who will no doubt give the Minister a bill tonight simply for floating through the Chamber, asking how he is getting on and telling him that their invoice will be in the post, so to speak--can bend their minds to that question.
A real question has been posed this evening : what international legal obligations have been entered into under the Maastricht treaty? That, however, is not what we are principally involved in with this amendment. I am sure that the hon. Member for Stafford will be able to persuade his colleagues to give that clarification, even if they send him a bill for it.
Sir Russell Johnston : If I understand the hon. Member for Hamilton (Mr. Robertson) correctly, he is saying that we must not have too much unnecessary legislation, and that the Bill contains what is necessary for the adjustment of domestic law. In other words, he seems to be saying that, if title I is included, it will not make that much difference, whereas the Minister is saying that, if it is included, it will make an awful lot of difference. Which is right?
Mr. Robertson : I will come to the next part of my argument. The hon. Member for Inverness, Nairn and Lochaber (Sir R. Johnston) and I have shared so many debates that he thinks he can read my mind, but I am enunciating a principle that applies to this legislation and which I think is a good principle--that from these treaties that the Government care to sign we should put the minimum legal requirement into the legislation and we should not enter into anything else that is not required. I will come to the point of title I and whether it breaches my principle and whether it might create even more serious problems for the objectives that I have set out. This is where I come to the issue of the pillar structure.
The hon. Member for Inverness, Nairn and Lochaber and his party did not agree with the pillar structure ; they wanted the European tree, with all decisions to come through the one institutional structure, with the right of the Commission to be involved in it. But that is not what was eventually agreed at Maastricht. The structure agreed there was precisely what I and my party officially wanted--that the elements within the treaty that require to be part of the European Community pillar, the EC pillar, should be that way, but that aspects such as foreign and security policy, with all its implications, and home affairs and justice should be separate, intergovernmental pillars.
Who knows what the future will bring about? Things may develop by way of negotiations, by way of the next intergovernmental conference, but we have to live with what we have now. I favour it ; I think that it was the right outcome, and 12 Governments agreed that it was the best outcome in the circumstances.
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In that respect, it is no different from the Single European Act that I and the hon. Member for Inverness, Nairn and Lochaber sat through in 1986, because that created an institution called European political co-operation ; it was not part of the European Communities (Amendment) Bill that we discussed at such length at that time, because it was decided that it would remain an embryonic intergovernmental process that might perhaps build up eventually to a common foreign policy machinery. It has become that, but, as yet, the Community governments have not agreed that it should still be part of the full pillar.That is what we have at present : three major pillars that will co-exist. It appears that title I, if folded into the Bill, will complicate the structure that has been created. I disagree with the way in which the Minister seemed to suggest that title I was the pillar structure and that, by folding it in, we would complicate what was coming afterwards ; that is the impression he gave. What title I does, especially in Article C, is to talk about a general principle that does not relate to two of the pillars and, in not relating to them, will complicate not European Community law, which can live with complications and blurred edges, but British domestic law, which works on the basis of minimum legislation where it is required by any external treaty such as the Maastricht treaty.
I worry, therefore, that it will complicate the situation and will in practice lead to something which I do not believe the Liberal party would consider healthy and which my own party certainly does not consider healthy ; encroachment on the principle of automaticity. Over the years, I have listened to my right hon. Friends the Members for Chesterfield (Mr. Benn) and for Bethnal Green and Stepney (Mr. Shore) going on about section 2 of the European Communities Act 1972. Section 2 is the one that they wanted suspended because it provides for the automatic implementation in Britain domestic law of European Community law as established through the principles of the EC treaty of 1972, subsequently amended by the Single European Act. That automaticity is extremely important. It has given a status to European Community law in this country which is of great and sometimes controversial importance, as we found in the matter of the Spanish fishing boats. We choose ; the Government in the first instance, when they sign the treaties, and eventually the House, when it considers the treaties in detail, make a conscious, precise and limited decision about what areas will be subject to the automaticity rule, because to do so is to give supreme importance to any law that is determined at European level in the British domestic context.
Mr. Benn : I have listened with great care to what my hon. Friend has said about section 2, but I hope that he has not missed the point, which is that laws that are brought into effect automatically under section 2 are laws assented to by the royal prerogative itself. The whole point about section 2 is that it has a domestic relevance quite apart from Europe ; for the first time since 1649, a Minister can make a law that applies in Britain without the consent of Parliament. So it has changed the balance of power in Britain vis-a-vis Ministers, hon. Members, and electors. That is an issue which my hon. Friend should also address.
Mr. Robertson : I was not around in 1642. Nor was I around in 1972, but my right hon. Friend the Member for
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Chesterfield was. It is a long time since then and a lot of changes have taken place, but no change has taken place in the important principle that he has just enunciated. He is right to say that it is a very important principle. In some ways it has been unnoticed. He was in the Cabinet for many of those years and had the chance, if he wanted, to change it, if change was possible. Perhaps it was not possible because the decision had been taken in 1972 and subsequently endorsed by a referendum that my right hon. Friend invented for the British people.7.30 pm
I am making the point now that we want to be as sparing as possible about the areas in which that royal prerogative will be exercised. That is a principle with which I am sure my right hon. Friend would agree absolutely. If we are to be sparing we have to be careful about what might come out of an amendment such as amendment No. 93, putting title I into this Bill. We could be opening the door to automaticity of the law as determined at the European level in the other two pillars being put into British law.
The Minister made an attempt at an explanation, but was not allowed by his hon. Friends to finish it. It is possible that, under the intergovernmental pillar on home affairs and justice, a new law, perhaps on a common immigration and asylum policy, could be agreed by all 12 Governments in the Community. Under the pillar structure as it stands now, that would require separate legislation in each of the 12 countries before it could be implemented. If, however, it came under the single pillar of construction, the decision taken by Ministers sitting behind closed doors in the Council of Europe, perhaps by majority vote, would have automatic effect in British law. I am not saying whether that is right or wrong. Some people would say that a common European immigration policy would be a good thing. I do not agree with that, but anyway it should not at this stage be susceptible to the possibility that it could automatically become British law.
Mr. Maclennan : I wonder if the hon. Member is right in his acceptance of the Government's view that these pillars are as separate as he makes out. It appears to me that under article C of title I, to which he referred, there are powers, exercisable by the Commission and indeed by the Council, which enable the institutions of the Community, as opposed to the union, to act in pursuance of the objectives described in title I but utilising the powers they enjoy under the treaty of Rome as amended in other articles. That appears to me to be the meaning of
"building upon the acquis communautaire' ".
It also appears to be what is intended by the granting of power to the Commission to ensure consistency in respect of external relations. If the institutions of the Community, in exercise of these powers under title I, introduced regulations, directives, or whatever, would these not be self- executing in this country under the provisions of the European Communities Act 1972? And, if that is the case, why should not title I itself be incorporated in the Bill?
Mr. Robertson : This is probably the only place where one can tangle with lawyers and not receive a bill. I am therefore grateful for the opportunity to cross my amateur sword with these great legal brains. But if the hon. Gentleman reads the last sentence of article C, he will see :
"They"--
that is, the Council and the Commission--
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"shall ensure the implementation of these policies, each in accordance with its respective powers."Of course, there are bloodings involved, quite deliberate bloodings, between the Council and Commission in relation to the pillars, but as they stand at the moment they are still discrete. The Council does not have the single and unique right of initiation when it comes to proposals, and the automaticity rule does not apply. Further and separate legislation would still be required in these areas so long as these pillars exist.
That might start not to be the case if title I were folded into the Bill and title IV, the pillar on home affairs and justice, were there. It is a door which is beginning to open and I do not believe that the Committee would want it to open at this stage, although certain hon. Members might want to go in that direction.
Mr. Denzil Davies : Does my hon. Friend not agree that the hon. Member for Caithness and Sutherland (Mr. Maclennan) has a point, and it is the same point as my right hon. Friend the Member for Chesterfield (Mr. Benn) made in an intervention? It is arguable that, once title I is ratified under the prerogative, no internal legislation is needed. A court of England and Wales, and probably a court of Scotland as well, would enforce any directives coming under title I despite the fact that there is no legislation here, because, as a result of the prerogative, it is part of English law. That is the real worry and the real problem.
Mr. Robertson : Here we have another QC telling me
Mr. Denzil Davies : I am not a QC ; I am a Member of Parliament.
Mr. Robertson : I know that my right hon. Friend is a Member of Parliament. We will wait and see whether the Law Officers of the Crown can give us absolute clarification, but, in terms of what I have been able to read and the information provided to me by the House of Commons Library, it seems that the interpretation that I place upon it is correct.
These common provisions, like the common provisions of the Single European Act, which were never included in their entirety in the European Communities (Amendment) Act 1986, may well have some force in law, because they have a status ; they have been ratified. But because they are not specifically inserted into United Kingdom law, they remain in a completely different situation from those aspects that would fall under section 2 of the European Communities Act 1972. The advice that I had from the House of Commons Library was : "It would perhaps be inconsistent to include Title I in the EC (Amendment) Bill and not the CFSP"--
common foreign and security policy--
"and Justice and Home Affairs Titles, V and VI, which also do not require UK legislation for implementation."
Perhaps I am going on too long, and undoubtedly other hon. Members will do so, but it is an extremely important subject. I am trying to help my hon. Friends and hon. Gentlemen by developing a thought process which is of some significance, I believe, in interpreting what is happening.
I did not think that the hon. Member for Inverness, Nairn and Lochaber, when he went down the road of
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amendment No. 93--all these amendments were tabled in June this year--was likely to be enthralled with the idea of folding in title I as an absolute matter of principle. I simply suggest to him that perhaps it is opening doors that he does not want opened. It is taking the House and the country in a direction on which they have not yet made a decision. Therefore it might be appropriate for him to withdraw his amendment. If he chooses to press the amendment, the official Opposition will not vote for it.Mr. Cash : We have had a long discussion about whether title I should be inserted in the Bill. I believe that we have covered most of the ground that needs to be covered on that point. It does not seem to me that it will make as much of a difference as the Government have implied, for this reason. It is an international legal obligation either way. The fact that it is not within the precincts, as it were, of the Court of Justice has certain consequences, but in terms of what is contained in title I, articles A to E, if one asks oneself how this will affect the daily lives of the people of the United Kingdom, the whole thing takes on a completely different dimension.
I am rather surprised that, so far, no discussion has taken place about what is contained in title I and the impact that it will have on our constituents. Whether it is to be justiciable under article L, which itself is a prerogative power, or whether it is to be under the Court of Justice in part, is a good esoteric argument and has certain quite important implications. This is not a game, but a provision in a legally binding treaty, which we have solemnly signed and which, under the Ponsonby rules, will be ratified by prerogative at the end of the Bill.
The Minister of State kindly wrote to me some months ago when I asked the same question about the Ponsonby rules as the hon. Member for Newham, South (Mr. Spearing). The bottom line is that, if this is a prerogative treaty, it comes into effect but parts of it need to be enacted to fall within the provisions of the European Communities Act and the competence of the European Court. This is all very interesting stuff, but I am interested in what impact it will have on the British people.
I tabled a number of amendments to article A. I was extremely grateful to The Chairman for listening to my representations yesterday and for agreeing to select the amendments, which I hope will give an opportunity to explain to the people of this country and perhaps to some other people the real implications of the treaty. If amendment No. 93 were made, the courts would have an opportunity to consider some of the issues in due course, but judging from the way in which the argument has developed, there appears to be little prospect of that. The article is important ; it will still affect people, it will still be binding on our Government and it will still be implemented. Therefore, it will have a direct effect on the daily lives of the people of this country.
There is little information on article A in the Government's pamphlet "Britain in Europe". I have read it pretty carefully, but it makes no reference to European union. That is the usual sleight of hand that we have become used to. There has been no White Paper, despite there having been one in 1970, or statement of Government policy on what the treaty involves. Article A says :
"By this Treaty, the High Contracting Parties establish among themselves a European Union, hereinafter called the Union'."
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That sets up a legal union that is binding upon the people of this country and, as I said in a book that I wrote recently entitled "Against a Federal Europe", is indistinguishable from a federation.Mrs. Edwina Currie (Derbyshire, South) : Is my hon. Friend saying that the term "European union" has suddenly appeared out of the blue under the treaty, or am I right that the treaty of Rome talked about the
"ever closer union of the peoples"
and the Single European Act, passed by the House, talked about "transforming relations as a whole among their states into an European Union"--
capital "E" and capital "U".
Mr. Cash : I shall quote Stuttgart, Hanover and all the rest. It is in the treaty of Rome and the preamble. The phrase is "ever closer union". I remind my hon. Friend that, in the debate last June on the Luxembourg draft, the Foreign Secretary gave the same quote as my hon. Friend, but I produced the draft. It appeared that I was the only hon. Member to have it, because, unfortunately, it was put in the Library only at 1.30 pm that day. There has been a considerable attempt to ensure that people do not know what is going on. The words "ever closer union" are not what we are debating. We are debating the words with which I began :
"The High Contracting Parties establish among themselves a European Union".
That is what it means. It is a legally binding provision.
Mr. Bill Walker : Will my hon. Friend cast his mind back to the debate on the Single European Act, when Unionist Members such as myself--I was a Unionist before I was a Conservative, which was not odd in Scotland-- asked Ministers what union meant. We were proved right : union was what was meant in the preamble to the Act. Greater union has followed, as we have seen in decisions taken by the Commission and the European Court. When anyone questions whether we understand the meaning of the union, we point out that we were questioning what it meant some time ago.
7.45 pm
Mr. Cash : Absolutely : these matters have been going on for hundreds of years, but the bottom line is that the treaty creates a legally binding union within Europe, which is quite different from the treaties that are normally transacted between countries.
Mr. Edward Garnier (Harborough) : My hon. Friend has made a number of assertions without supplying any evidence for them. Will he provide us with the details that underscore the assertion that he has just made?
Mr. Cash : If my hon. Friend reads the treaty, which clearly specifies the nature of the union, he will find the answers to the questions that I have just put.
Mrs. Currie : Come on : my hon. Friend is fudging.
Mr. Cash : No, I am not fudging.
Mr. Budgen : Is not the difficulty that the European Court of Justice takes into account the title and preamble, whereas the House of Lords does not, and that we simply do not know whether my hon. Friend's assertions or those of the Government are correct? Unless the Government
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invite one of the institutions of the Community to give objective advice on how the treaty is likely to be viewed by the European Court, we are stumbling in the dark.That is disgraceful, because the Government have made many scandalous assertions about the treaty--for example, that it had nothing to do with immigration, one which they have subsequently retracted.
Mr. Richard Shepherd : And that it was decentralising.
Mr. Budgen : And that it was decentralising. If the
Attorney-General is too busy, we want some objective advice from the European Community. Otherwise, we shall be thrashing around in the dark. My hon. Friend is doing his best, but many other Members are completely unequipped.
Mr. Cash : I am delighted to be able to respond not only to my hon. Friend the Member for Wolverhampton, South-West (Mr. Budgen) but to my hon. Friend the Member for Harborough (Mr. Garnier). According to the Government, the original treaties aimed to achieve an "ever closer union among the peoples of Europe" ;
but, according to article A, "the High Contracting Parties" become ever closer and establish an actual European union.
The Government's position is based on the following proposition : whereas previously the peoples of Europe were engaged in trying to achieve an ever closer union among themselves, they now establish the European union itself. That clearly shows what is being done under these articles, yet, even though the European union is established by the first paragraph of article A, the second paragraph contradicts that assertion by stating that the
"Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe."
Logically, if the union had already been established, as article A, paragraph 1, says that it has, the process of creating an ever closer union is superfluous as one cannot get closer than union itself. The process has reached its conclusion with the establishment of the union, which means that the process has ceased, although the second paragraph suggests that there is some way still to go. That raises the next question : is the European union of article A, paragraph 1, the
"ever closer union among the peoples of Europe"
aimed at under earlier treaties and continued by article A, paragraph 2 of the treaty? Apparently not. The ever closer union is to be a union among the peoples. That is established under paragraph 1, which states that it is to be a union among the "High Contracting Parties".
Mr. Garnier : I am becoming deeply confused by my hon. Friend's argument. Paragraph 1 of article A says :
"By this Treaty, the High Contracting Parties establish among themselves a European Union, hereinafter called the Union' ". According to my hon. Friend's argument, that suggests something central. Paragraph 2 says :
"This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as closely as possible to the citizen."
My hon. Friend did not read out the latter part of that paragraph, which suggests moving away from the centre. How does he deal with those two paragraphs set together?
Mr. Cash : They can be dealt with simply as follows. Paragraph 2 of article B deals with
"the establishment of economic and monetary union, ultimately including a single currency",
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which presupposes the central bank arrangements that follow later. For practical purposes, nothing is more centralising than a central bank. Furthermore, the implications of that are that decisions on economic and monetary affairs, made by unelected, unaccountable bankers, will be taken away from the citizen. Those are the bases upon which people enter polling booths and vote in general elections. [Interruption.]Therefore, if we are to set up a central bank under those arrangements, as part of economic and monetary union and a single currency, we shall take away from the citizen his most important right--his right to vote. All decisions on economic and monetary affairs, which are currently the basis on which people vote in general elections, will be handed over to unelected, unaccountable bankers.
Mr. Budgen : May I help my hon. Friend ? While my hon. Friend the Member for Derbyshire, South (Mrs. Currie) was saying in her usual charming and tactful way that my hon. Friend's argument was poppycock, the Attorney- General entered the Chamber. Had he put his mind to the matter, he could have given us his view about the meaning of those articles. We are all floundering around trying to understand, and getting extremely angry. We require an objective analysis, if not from the Attorney-General, better still from one of our new masters from Europe, who could tell us how he will proceed by high command in Brussels.
The First Deputy Chairman : Order. I remind the hon. Member for Wolverhampton, South-West that he has repeated himself two or three times. The point that he has just made was exactly the same as those that he made in previous interventions. It is becoming tedious repetition.
Mr. Cash : A further question arises under article C, which says : "The Union shall be served by a single institutional framework which shall ensure the consistency and the continuity of the activities carried out in order to obtain its objectives". The creation of that single institutional framework is also part of the creation of that legal union, so we have central banking arrangement, which are about as centralising as anything can be and remove power from the citizen because decisions on economic and monetary affairs are taken by unelected bankers. That is clear to anyone who takes the faintest interest in the matter. We also have the creation, under article C, of a single institutional framework. Clearly, a legal union being created. It is not simply a question of ever closer union, as my hon. Friend the Member for Harborough was trying to assert, but the creation of a union in itself.
Mr. Jim Marshall : Although I am opposed to the treaty, the more I hear the hon. Gentleman's arguments against it, the more I am tempted to support it.
The hon. Gentleman is misleading the House by seeking to imply that institutions will be created in a way that gives increased competence to the Commission. The point of the institutional framework developed at Maastricht was to limit the Commission's competence specifically in home affairs and foreign and security policy. That being so, how can the hon. Gentleman square that circle with the arguments that he is now developing?
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Mr. Cash : The Commission's powers are already set out under the treaty of Rome. Further competences are granted to the Commission under the Maastricht treaty. Indeed, some 64 new majority voting arrangements will be associated with the Commission. The idea that the Commission will not gain new powers under the treaty simply shows that the hon. Gentleman has not read the treaty carefully. Even within the so-called "separate pillars" of foreign and security policy, the treaty says that the Commission will be fully associated with those tasks.
Clearly, the Commission will have an enhanced role. It may not be the role that it originally wanted, but that is not the point. It will have an enhanced role both within the provisions relating to the treaty of Rome and with regard to the so-called "separate pillars".
Mr. Jim Marshall : I am sorry, Mr. Lofthouse--I hope that my intervention does not become repetitious. I hear what the hon. Gentleman says. He accuses me of not having read the treaty, but I assure him that I have. I sometimes think that he has not read it, for he is led by his own point of view.
Within the two intergovernmental pillars, the Commission has a right to attend meetings of Ministers. That is fair, and limits the Commission's responsibility by making crystal clear the Commission's competence and Ministers' field of responsibility. The hon. Gentleman misunderstands the fact that Ministers at intergovernmental meetings have a right to call on the expertise of the Commission in seeking information that they may need to reach correct decisions. That does not imply increased responsibility for the Commission but ensures that the Council of Ministers is adequately prepared to make correct decisions in the light of the union.
Mr. Cash : Article D specifies the new arrangements for the European Council and for bringing together heads of state. The President of the Commission is included in that. It is not simply a question of bringing him along as an amateur observer : he is given a completely new status under the European Council.
Mr. Garnier : My hon. Friend has just made a number of assertions without providing us with the evidence for them. Where in article 1 does it say that the President of the Commission has a new status? 8 pm
Mr. Cash : Article D clearly states :
"The European Council shall provide the Union with the necessary impetus for its development and shall define the general political guidelines thereof."
It goes on to say :
"The European Council shall bring together the Heads of State or of Government of the Member States and the President of the Commission."
At the moment, the European Council operates in an informal manner and under the arrangements--
Mr. Cash : Yes, it does. My hon. Friend obviously has no understanding of the basis on which these things operate. At the moment, the arrangements are not within the precise legal framework which is prescribed by title I ; otherwise, there would be no need for the provisions in the first place. They are being incorporated in this way to give
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them that status within the framework of the Maastricht treaty which they did not have beforehand. Surely that is the reason for doing it.Mr. Ian Taylor : My hon. Friend, who is an expert in these matters, knows only too well that the European Council has given proper status in the Single European Act. If one goes further, the arrangements for foreign policy which took place as a result of the changes in the Single European Act took place in European political co-operation, in which the Commission was also intimately involved. It did not have the power of initiation. There is nothing more intergovernmental than the European Council which, by definition, is a meeting of the Heads of State and Prime Ministers. My hon. Friend voted for the Single European Act. Now what is he worried about?
Mr. Cash : The short answer is that the Single European Act was a good Act, because it was based upon political co-operation. I voted for it because I believed that it was important to try to improve the quality of political co-operation within Europe, and because of its potential for increasing trade within Europe. Those were good reasons for voting for it. It is also true that it contained enhanced powers for the Commission. But the difference between the Single European Act and the Maastricht treaty was that the former was primarily about co-operation and trading, whereas the latter is primarily about the manner in which we are governed. That is the fundamental difference between the two.
That is why I emphasised the centralising process of the central bank. It is that which transfers powers which at the moment belong to the British voter. It is important that people should bear that in mind when they are considering the assertions that the treaty is a decentralising process. It is not.
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