House of Commons Hansard Debates for 22 Feb 1993

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horrible feeling--perhaps some of the lawyers will confirm it--that that applies not just to amendment No. 27 and the Committee of the Regions, the two matters on which the Government appear likely to be defeated, but that wider considerations may be involved. It would be unthinkable for the Committee to proceed to a vote without clarification of the issue. I accept that the Foreign Secretary's remarks appear to be correct in relation to the principal amendment that we may have to consider, but we must think carefully about what the issues really are.

I am glad to have been called early to ask my three specific questions. Let me tell the Attorney-General in all sincerity that he is a man whom we respect : he is one of the decent, straight guys. I do not think that I have ever heard him make one of those clever political remarks which attempt to distort figures or turn the facts on their heads. He must be well aware that something very nasty has happened on this occasion.

We know that the Attorney-General's views will not be published. I am sorry about that, as I am sure that they would be interesting and clearly expressed. We also know that the alleged legal opinions given to the Minister of State will not be published. That is unfortunate, but I think that the Minister will be aware that something nasty has happened in Parliament--something that is not consistent with the standards of integrity that many of us, irrespective of our views, expect of a Conservative Government.

The right way for the Minister to proceed--I am sure that he will do so because he is a straight guy--is not to try to make any "bashing" points, saying that Labour is silly or that the Liberals are worse, but to answer specific questions fairly and precisely, so that we know the facts. That is the way to make progress in the European debate--by telling people the truth, rather than trying to distort the issues. The powers of the House of Commons, which some people consider important, should be clarified and not confused by what appear to be political purposes.

Mr. Maclennan : The House is indebted to you for your decision, Mr. Morris. It has enabled the debate to take place.

I say at the outset that it is a matter for regret that the Attorney- General has not tabled the advice on which the Government base their construction of amendment No.27. Is it desirable for the opinions of legal advisers to the Foreign Office--on which the right hon. Member for Watford (Mr. Garel-Jones), the Minister of State, Foreign and Commonwealth Office, based his earlier and entirely contradictory advice--not to be made public? Admittedly, it is not common practice to publish the advice of legal advisers to Departments of state--although, interestingly, they are a source of public international law. After the passage of time, they are cited in courts as indicative of the legal position of the time. The Committee would be assisted by the publication of earlier advice as well as that of the Attorney-General.

Mr. Spearing : Does the hon. Gentleman think it not only suspicious but undesirable, and to some extent unparliamentary, for the Attorney- General not to seek to follow the speech of my hon. Friend the Member for Hamilton (Mr. Robertson), and tell us directly what that advice was and whether it was parallel with the advice that he gave the Prime Minister?

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His failure to do so and the difficulties in which that places hon. Members on both sides of the Committee is unparliamentary and wrong. We hope that the Chair will take notice of that when a closure is moved, so that some of us may speak again if we have spoken before the Attorney-General.

Mr. Maclennan : I regret that the Attorney-General did not publish his advice and that he did not place it in the Library before the beginning of today's debate. It is unsatisfactory that the debate should proceed on the basis of the Foreign Secretary's interpretation of that advice and that many hon. Members may speak before the Attorney-General chooses to intervene to explain his position, which presumably is that on which the Government rest their case. As he has not chosen to do so, it is best if I repeat the questions that my right hon. Friend the Member for Yeovil (Mr. Ashdown) asked the Prime Minister--[ Hon. Members :-- "We want answers."] I want specific answers to specific questions, and that is why I am speaking. 5 pm

My right hon. Friend questioned the Prime Minister on the basis of advice that he sought and was given by Mr. Anthony Lester QC, a distinguished authority on international public law and European law, who has taken the view that, if the social protocol is to be given international effect--as a treaty to which this country has subscribed as a high contracting party--it must be ratified by the proper procedures of our constitution. That is explicit in article R of the Maastricht treaty and is a necessary implication of the language in section 6(2) of the European Assembly Elections Act 1978, which introduced a provision to limit the powers of the Executive in this country--the Crown--to ratify any treaty, including

"any international agreement and any protocol or annexe to a treaty."

Section 6(1) provides that any increase in the powers of the European Assembly, such as a treaty, cannot be ratified unless it has been approved by an Act of Parliament. The Foreign Secretary did not deal with that issue when he made his famous statement.

Mr. Marlow : I am interested in the hon. Gentleman's argument, and I read about Mr. Lester's advice in the newspapers. How does the hon. Gentleman react to clause 1(2) of the Bill, which states : "For the purposes of section 6 of the European Parliamentary Elections Act 1978 (approval of treaties increasing Parliament's powers) the Treaty on European union signed at Maastricht on 7th February 1992 is approved"?

Mr. Maclennan : I shall deal with that, but it is best if I do so in a logical order.

From reading section 6(1) and (2) of the European Assembly Elections Act 1978, it is clear that the protocol requires explicit enactment or approval of the House, since the protocol and the annex to it enlarge the power of the European Parliament. It follows that we cannot accept, as an adequate expression of the law, the Foreign Secretary's statement that it would be desirable, but not strictly necessary, to ratify the social protocol by the approval of the House.

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The Foreign Secretary seemed to focus on the incorporation of the protocol into our domestic law, but has the protocol been properly ratified as a treaty to which we have signed our names? That question affects not only our domestic law, but whether the social protocol will come into effect. Likewise, that treaty is required to be approved by the procedures of section 6(1) and (2) of the 1978 Act. If it has not been so approved by the House, the country will have failed to ratify the treaty and the protocol will lack effectiveness. The treaty will fail for lack of ratification.

Mrs. Gwyneth Dunwoody (Crewe and Nantwich) : I have followed the hon. Gentleman as well as I am able ; I am non-legally minded. May I ask him one simple question? Since to ordinary men and women the situation is obtuse and seems to show that all sorts of decisions are being taken without any elected Member being fully aware of the implications, would it not be much simpler if the Attorney-General told us now exactly what he has advised the Government, so that we can proceed with a much more informed debate?

Mr. Maclennan : I realise that the hon. Lady would prefer to hear the Attorney-General rather than listen to me.

Mrs. Dunwoody : Never.

Mr. Maclennan : I have already made plain my view that it would have been preferable for the Attorney-General to speak, but he has not done so and I must therefore continue with my questions to him. I hope that the hon. Lady shares an interest in the questions and the answers that we shall get.

Mrs. Dunwoody : I should like to hear the answers.

Mr. Maclennan : The hon. Lady must possess herself in patience, as I am trying to do.

The Attorney-General must say how he seeks to distinguish between the necessary requirements of ratification for the Maastricht treaty and for the social protocol. Why is he prepared to tell the House and the Government that it is necessary for the House to approve specified parts of the treaty in clause 1(1) and (2) of the Bill, but that it is not necessary --although it would be desirable for reasons of incorporation--to enact the social protocol?

Mr. Bryan Gould (Dagenham) : I am listening carefully to the hon. Gentleman. I wish that he was right, but I do not think that he has a good case. I believe that the provisions of clause 1(2) are conclusive. Does he accept that, if he is to prove his argument, he will have to extend it not merely to the social protocol but to titles I, V, VI and VII and to every other part of the treaty that is not incorporated into domestic law by virtue of the Bill?

Mr. Maclennan : I hope that I shall deal with that aspect to the hon. Member's satisfaction before I conclude. It also relates to the remarks made by the hon. Member for Northampton, North (Mr. Marlow). I suggest to the Government that it is important to ensure that we enact the social protocol properly, to enable it to come into effect, even if it is merely to achieve the Government's objective of keeping Britain out of the

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operation of that protocol--although that may seem paradoxical. If the agreement is to have effect, we must enact it according to our procedures.

A non-legal argument is that United Kingdom electors have a substantial interest in the manner in which the European Parliament exercises the increased powers provided by the social protocol. On those grounds, we are entitled to some say in the matter--and not only on grounds of legal necessity.

As I understand it, the hon. Member for Northampton, North was saying that clause 1(2) would approve the entire treaty for the purposes of the 1978 Act, including the social protocol, that, since amendment No. 27 relates to clause 1(1) the House will be enacting the social protocol as required and that, in effect, those who drafted amendment No. 27--the official Opposition--failed to recognise that it might have been better to amend clause 1(2) to achieve the total deletion of the social protocol. There is a clear answer to the point. Clause 1(2) refers only to the treaty and not to the protocol. The social protocol, unlike other protocols to the treaty, expressly states :

"this Protocol and the said Agreement are without prejudice to the provision of the Treaty.

That emphasises its independent character as an international agreement for the purposes of section 6 of the 1978 Act. It must therefore be separately and explicitly approved by the House. Clause 1(1), in defining the Community treaties in section 1(2) of the European Communities Act 1972, refers to

"Titles II, III, and IV of the Treaty on European Union together with the other provisions of the Treaty so far as they relate to those Titles, and the Protocols adopted at Maastricht and annexed to the Treaty establishing the European Community."

The use of the word "and" is important to emphasise, because it shows that, for the purposes of clause 1(1), the protocols are required as additional to the treaty rather than being an integral part of it.

The reference in clause 1(2) to the treaty of European union must be construed in the light of the provisions of the Bill as a whole, including clause 1(1). Even without amendment No. 27, there is an obvious difference between the reference to the treaty and the protocol in clause 1(1) and the reference to the treaty alone in clause 1(2). As Mr. Anthony Lester put it in his advice to us, clause 1(1) refers to bacon and eggs ; clause 1(2) refers to bacon. If amendment No. 27 is passed, the fact that clause 1(1) will deliberately exclude the social protocol will make it even more difficult to argue that the reference to the treaty in clause 1(2) is to be construed to include the social protocol.

As I understand the Government's approach, it involves inserting in clause 1(2) after the reference to the treaty the words

"and the Protocols adopted at Maastricht on that date and annexed to the Treaty establishing the European Community."

It is our legal view that unless those words are added by amendment, it will leave great uncertainty about whether Britain has validly ratified the social protocol, and hence whether the protocol can lawfully take effect.

I put it to the Attorney-General that that view is a weighty one and if it remains unanswered--it has not been answered so far in the exchanges between my right hon. Friend the Member for Yeovil and the Prime Minister-- it will be open to others to seek judicial review and

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clarification in the European Court of Justice. It is beholden upon the Government to avoid that uncertainty by ensuring that there is no doubt that Britain has properly ratified the social protocol if it wishes to avoid the inevitable political uncertainties that will flow from pursuance of that legal action in our courts or the courts of Brussels.

5.15 pm

Mr. David Lidington (Aylesbury) : As a non-lawyer, I have followed with care today's debate and the statement made by my right hon. Friend the Secretary of State for Foreign and Commonwealth Affairs. It has always been clear to me that the Bill is designed not to ratify the Maastricht treaty but to bring into force in United Kingdom domestic law those aspects of the treaty agreed at Maastricht that require such legal implementation. The treaty has therefore always embodied two categories of measure--those that traditionally it has been the right of the Executive, using the prerogative powers of the Crown, to decide on behalf of the nation, and those that have required legislative embodiment in the corpus of our domestic law. Our debates have covered both categories of measure. The Government have rightly decided that the Committee should be given an opportunity to debate matters that essentially have been of an intergovernmental nature, such as co-operation on foreign policy, even though, strictly speaking, it was not necessary to debate or vote on them before the Government could ratify the treaty.

Mr. Geoffrey Hoon (Ashfield) : Is the hon. Gentleman saying, therefore, that it would not be appropriate for the Committee to debate and subsequently vote on the question whether the United Kingdom should be bound by the social chapter?

Mr. Lidington : I am grateful for the hon. Gentleman's intervention. I made no such assertion. The Committee has every right to express a view to the Government on matters that require amendment to our domestic law and on matters for which the Government are using prerogative powers. I would oppose the Committee declaring itself in favour of the social chapter by some amendment other than amendment No. 27, but if it did so, the Government would have to take account of that view.

Having listened to the statement made by my right hon. Friend the Foreign Secretary last week and having read the Official Report and subsequent accounts published outside the Committee, I asked myself three questions. The first was whether amendment No. 27 would embody the social chapter in British law and bind Britain by the obligations that the other 11 voluntarily undertook. I am clear in my own mind--I believe that this view is generally accepted--that amendment No. 27, if passed, would not have that effect.

Mr. Cash : My hon. Friend is traversing a matter of some legal interest, and is asserting that he understands it. No doubt I am not alone in thinking that the confusion that has been generated would only be compounded by his remarks. The social chapter says that the "High Contracting Parties herein" agree. The 12 member states, including the United Kingdom, are parties to the inclusion of the social chapter in the treaty. It must therefore follow that it is part of the treaty. Any attempt

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to exclude it would automatically go outside the treaty, and what my hon. Friend has said would conflict with the provisions of clause 1, which says :

"the protocols adopted at Maastricht on that date"--

7 February 1992--

"and annexed to the Treaty establishing the European Community" shall be regarded as part of British domestic law. I have much difficulty in understanding how my hon. Friend can argue that the amendment could exclude Britain from the social chapter.

Mr. Lidington : As always, I am grateful to my hon. Friend the Member for Stafford (Mr. Cash) for his remarks. He has identified the next question with which I was about to deal, but I pray in aid the Library's research paper, which was compiled and published a month before my right hon. Friend the Foreign Secretary's statement last week. The paper makes clear the Library's view that

"if an amendment made provision in the European Communities Act 1972 for the UK to take full part in the Protocol on social policy at a later date, then the Government would still have the legislative underpinning necessary for the ratification of the Treaty in its present form."

I do not accept--and I do not believe that those on the Opposition Front Bench accept--that passing amendment No. 27 would compel the United Kingdom to accept the social chapter.

My hon. Friend the Member for Stafford touched on the second question that I ask myself, which is whether the refusal of the British Parliament to pass the Bill as drafted, and our acceptance of amendment No. 27, would prevent the other 11 countries from going ahead with the social protocol, and would therefore bring down the entire edifice. That is certainly an outcome that my hon. Friends the Members for Southend, East (Sir T. Taylor) and for Stafford and others wish devoutly to secure.

I await with interest the comments of my right hon. and learned Friend the Attorney-General but it seems implausible to me, as a non-lawyer, for us to argue that paragraph 1 of the protocol on social policy would cease to have any effect if the British Parliament tried to exclude it from our domestic law.

Paragraph 1 is the agreement that the Community authorises the 11 member states who wish to use the social protocol to do so. If we were to assert that the acceptance of amendment No. 27 would make it impossible for the other 11 to proceed, the same principle would presumably have to apply to each of the other protocols which refer to groups of countries of individual countries but not the United Kingdom, to the protocol that safeguards the provision in the Irish constitution which covers the abortion law and to that which gives the Danes the right to stop Germans buying second homes in their territory.

I stress that I speak as a non-lawyer, but it seems that amendment No. 27, in as far as it deletes paragraph 1 of the protocol on social policy, would not prevent the Government from ratifying the treaty and, through their prerogative powers, enabling such ratification to authorise the other countries to proceed within the bounds of the treaty as negotiated.

Another question that I ask myself is whether, therefore, the amendment means anything. If the amendment does not compel Britain to accept the social

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chapter and does not prevent the other 11 from proceeding, what is the point of the Government continuing to object to it?

Mr. Marlow : My hon. Friend is comparing the amendment with the Danish protocol, which stops the Germans buying second homes. Is not one of the main differences the fact that it allows the use of Community resources and institutions? If the House says no, through amendment No. 27, would it be proper for the Government to proceed and to allow Community resources and institutions to be used among the other 11 countries?

Mr. Lidington : The issue of Community resources is the one aspect about which I remain troubled, and I look forward to hearing what my right hon. and learned Friend the Attorney-General has to say. The expenditure involved and alluded to in paragraph 2 of the protocol on social policy concerns the administrative expenses of the institutions themselves, for whose costs there is already a subvention in our membership of the Community in any case. Before my hon. Friend's intervention, I was wondering whether there is any reason why Conservative Members should continue to oppose amendment No. 27. I believe that there is, and it was mentioned by the hon. Member for Ashfield (Mr. Hoon) in a question to my right hon. Friend the Foreign and Commonwealth Secretary last week : how might the courts--the British courts or the European Court of Justice--seek to interpret the legislation if amendment No. 27 were passed? The wording of the protocol, especially paragraph 2, explicitly excludes the United Kingdom from the remit of the social chapter.

In the light of a recent judgment, the House of Lords is willing to examine Parliament's intentions, and the European Court of Justice has traditionally tried to discern the intentions of legislators before it reaches a decision. In view of those facts, it is only common sense for my colleagues who believe that the social chapter would gravely damage this country's prosperity to ensure that the British exclusion from the social chapter is made clear in any legislation.

For that reason, I shall certainly oppose amendment No. 27, and I hope that members of my party who share my view of the social chapter will also act accordingly.

Mr. Spearing : On a point of order, Mr. Lofthouse. May I consult you on an issue relating to the conduct of the Committee and, in particular, the circumstances of its conclusion on a motion to report progress? I understand that it is entirely within the

Attorney-General's discretion to decide when to speak. However, some of us have difficulty in deciding whether to speak before him. Clearly, we have come prepared to comment on the opinion that he has given to the Secretary of State for Foreign and Commonwealth Affairs, but we are not able to do so until he endorses it.

The debate is due to finish at 10 pm, whether or not there is a closure motion. If the Attorney-General speaks towards the end of the debate and the Government move a closure motion near 10 pm, there will be little opportunity for further comment after the Attorney-General has spoken. Therefore, I submit that there will be no proper debate, as there should be in the tradition and working of the parliamentary democracy of this place.

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Will you please confirm, Mr. Lofthouse, that what I have said is certainly a possibility? If so, the Attorney-General is condemned by his own silence.

The First Deputy Chairman of Ways and Means Mr. Geoffrey Lofthouse): The hon. Gentleman will know that if the Attorney-General attempts to catch my eye, I shall consider calling him. It is not up to the Chair to decide when the Attorney-General or any other hon. Members rise to be called.

Mr. Winnick : Further to that point of order, Mr. Lofthouse. We are grateful for your advice. There are, of course, times when a Minister is not especially welcome. However, you may not be aware that then Mr. Morris was in the Chair, my hon. Friend the Member for Hamilton (Mr. Robertson) asked the Attorney-General a number of pointed questions. We are at a tremendous disadvantage. I accept what you said about an hon. Member trying to catch your eye, but the Attorney-General knows that we are at a disadvantage because of the conflicting advice. He has been asked some important questions. It is extremely discourteous of the Attorney-General, who is not normally discourteous--I am not sure whether he wants praise from an Opposition Member--

The First Deputy Chairman : Order. I have listened to the monitor earlier and I heard the Chairman of Ways and Means deal with the question, with which I shall deal again. If the Attorney-General wishes to catch my eye, he will no doubt attempt to do so. It is not for the Chair to decide when the Attorney-General wishes to speak.

Mr. Marlow : Further to that point of order, Mr. Lofthouse. You are a decent chap and a distinguished servant of the House. You know how important this debate is, so you agree, I am sure, that it will be a rum old do, as the debate is largely about what the Attorney-General is going to say, if the debate is not allowed to continue for some considerable period after he has spoken.

The First Deputy Chairman : Whom the hon. Gentleman agrees with is not a matter for me.

5.30 pm

Mr. Spearing : Further to that point of order, Mr. Lofthouse. If there was any asperity in my submission a few moments ago, it was not in respect of the Chair, but in respect of the behaviour of the Government, who are accountable here. You said correctly--we all know this--that when the Attorney-General wishes to rise to catch your eye is within his initiative. However, will you cofirm--this is a point of absolute order-- that if the Attorney-General chose to rise between 7 pm and 8 pm, or even a little later, the time available for subsequent speakers--this would probably rule out those who had already spoken--would be limited by the fact that the debate would continue either until 10 pm, when it would conclude automatically, or until there was a closure motion just before 10 pm? The opportunity for any hon. Member, including my right hon. and learned Friend the Member for Aberavon (Mr. Morris), to wind up the debate would therefore be limited. All I ask is that you confirm that that is the potential procedural position.

The First Deputy Chairman : The hon. Gentleman's points are all speculative. I shall repeat what I have said,

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after which I shall take no further points of order on the subject. Whether or not the Attorney-General wishes to catch my eye is a matter for him.

Mr. Donald Anderson : I quote :

"Confusion now hath made his masterpiece!"

The hon. Member for Aylesbury (Mr. Lidington) made a number of interesting points. He said that amendment No. 27 either means something or means nothing ; either it would have an effect or it would not have an effect ; even if it were to mean something and to have an effect, no one knows what that meaning would be. In any event, the hon. Gentleman will support the Government. That gives some idea of the fog of obfuscation hanging over our debate.

With the best will in the world, the Committee is not at its best when it tries to come to a conclusions on what may be a narrow technical and legal point. There is a whole host of witnesses--"a cloud of witnesses", as the old book would say, and the word "cloud" may be relevant in the context. Sir Anthony Lester has said one thing and the gentleman who writes research notes for the Library has said another. Mr. Alan Watkins, the lawyer manque of the Observer, has written a third thing. Everyone gives us the benefit of his views. What is the correct view?

It is important to get the matter right because there could be profound consequences if the Government proceeded incorrectly. It could take a long time to determine matters if they were put before the courts, either our own courts by way of judicial review, or before the European Court of Justice. We know from the Sunday trading legislation saga, for example, how long the learned judges of the European Court can take to reach a decision. The average time for preliminary judgments is close to 12 months. We could have a rather interesting time while we waited for the tablets to be brought down from Luxembourg.

Mr. Ian Taylor : The hon. Gentleman is right to say that there are many legal judgments on the matter. Will he confirm that the House has already shown, by an overwhelming majority of 244, its support for the Bill? Does he also agree that the House would probably not endorse the social chapter if there were a vote on it? That is what the public want to know. We should make progress. Many factors affecting this country's interests are at stake in the period in which we continue the debate.

Mr. Anderson : I acknowledge that this is a matter of considerable importance to our country, not least in terms of the confidence that comes from inward investment and the way in which we are perceived by our partners in the Community. Clearly that is part of the problem caused by the Government having tried to play it both ways. They have said that they want to be in, but not quite in. They give some sops to Members such as the hon. Member for Esher (Mr. Taylor), who is a believer in Europe, yet they give other sops to the more nationalist wing of their party. The problem is entirely of the Government's making.

If the Government had said that they would introduce a Bill simply to enact the Maastricht treaty, there would have been no difficulties--certainly not from my party, because there was a clear vote in favour of that at our party conference. But the Government have not introduced a Bill to enact the Maastricht treaty. The Bill seeks to enact the deformation of the treaty, which the Conservatives have brought about by the dual opt-out. The way in which

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the Government are trying to play it, being partly in and partly out, is the reason behind the legal, technical and profoundly practical and political problems we now face.

Sir Russell Johnston : Will the hon. Gentleman make the point to the hon. Member for Esher that, if we had a genuinely open a free vote in Committee on the social chapter, it would also be carried?

Mr. Anderson : That is a matter of opinion. It could well be. The nearest that the Committee has been able to come to devising an amendment that shows support for the social chapter is amendment No. 27. If the Government, for technical reasons, choose to ignore that, they do so at their peril. They display the same arrogance that they have shown over the years. It would be profoundly anti-democratic for them to ignore the view of the Committee if it were, as I believe that it would be, in support of amendment No. 27.

What is the history of the saga? You will recall, Mr. Lofthouse, that on 20 January, the Minister of State came to the Committee with the authorised version of the Government's then view about the legal effect of agreeing to amendment No. 27. On 15 February, the Foreign Secretary came to the House with the revised standard version of what the legal effect would be. Why was there a profound and total contradiction between the two interpretations of the effect? How can two Government views be at such variance?

Mr. Winnick : I thank my hon. Friend, who is courteous as always, for giving way. Does he agree that it is extremely frustrating that the debate is taking place now, without the Attorney-General having been involved? My hon. Friend asks questions about the conflict of the advice given to the Committee by the Minister of State with the advice given by the Foreign Secretary last Monday. We pressed the Attorney-General to come to the House, which he has done now, but he refuses to speak until the wind -up. Would it not have been a far more informative debate if the Attorney- General had spoken at the earliest opportunity after the speech by my hon. Friend the Member for Hamilton (Mr. Robertson)? On the basis of what the right hon. and learned Gentleman has said, we could then have debated the matter. As my hon. Friend the Member for Newham, South (Mr. Spearing) pointed out, we shall not be able to do that because, once the right hon. and learned Gentleman has spoken, the chance of debate, except for interventions in his speech, will be slight. That is discourteous. Whatever pressure the Whips have put on the Attorney-General, it is unfortunate that he has not risen and responded to the wishes of hon. Members of all parties. I include those who are in favour of the treaty as well as those who are opposed to it.

Mr. Anderson : I agree wholeheartedly. I believe that, on reflection, the Attorney-General would probably concur that it would have been for the convenience of the Committee if, immediately following the speech of my hon. Friend the Member for Hamilton, he had responded to the questions raised and given the Committee the benefit of his views. A debate could then have taken place in response to that speech and the platform that the right hon. and learned Gentleman had provided. Under the

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procedures of the Committee and with its leave, he could then have responded to the debate as it progressed. Alas, the point raised by my hon. Friend the Member for Walsall, North (Mr. Winnick), though proper, is no longer relevant because the Attorney-General has chosen, for ill reasons, not to speak.

It is worth examining what happened between 20 January and 15 February. It is clear that the Government had adequate time to work out their response to amendment No. 27 and what the legal effect of passing it would be. After all, that amendment was tabled in the summer of 1992, and the Foreign Office legal advisers had plenty of time between then and January to examine it carefully.

It is important to compare the weight of the opinion of the Foreign Office legal advisers with that of the Attorney-General. Those advisers are a cadre of specialist lawyers who spend their time dealing simply with matters of this nature. Those who resort to law know that it is always appropriate to go to specialist chambers for advice and to someone who is an acknowledged expert in a particular subject of learning. If one wishes to seek advice on the import of the meaning of a particular treaty or the relevance of the implementation of a particular clause relating to that treaty, who better to go to than those Foreign Office legal advisers, whose job and whose expertise relate to such matters? After all, they spend all their time looking at the construction of treaties.

Mr. Budgen : Before Foreign Office lawyers give their advice to Ministers debating a treaty and a Bill such as this, would it not be their practice to give a copy of that advice to Ministers and the Attorney- General, in the knowledge that the Attorney-General might be called to the House and required to justify the opinion, which was, essentially, the opinion of those lawyers?

Mr. Anderson : The hon. Gentleman has raised an important point. In the generality of cases, Foreign Office legal advisers, because of their expertise, would not need to go outside for advice. However, given the certainty that this subject would be debated in Committee and its profound implications, it is likely that the advice that they tendered, or a draft form of it, would have been conveyed to the Attorney-General for concurrence. My first question, therefore, is whether, between May 1992, when amendment No. 27 was tabled, and 20 January, when the Minister of State made his statement, Foreign Office legal advisers consulted the Attorney-General. If so, did he concur with the opinion that they then gave?

5.45 pm

Mr. Andrew Rowe (Mid-Kent) : I am listening carefully to the hon. Gentleman, and he seems to be making a subversive argument. I am not a lawyer, but the law of our country is based on the fact that specialist lawyers, however expert, may argue their case as well as they can, but, at the end of the day, it is subject to the opinion of people who may not be specialists in that point of law but who, by reason of their office-- whether they be in the Court of Appeal, a judge or the Attorney-General-- make the appropriate decision. It seems that the hon. Gentleman is arguing that, if one has a sufficiently "expert" expert, no other authority is required.

Mr. Anderson : I was not putting the Attorney-General in the role of a judge of appeal or whatever. The expertise

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in this subject is more likely to be found among Foreign Office legal advisers than in the office of the Attorney- General. He has a generality of expertise and is not necessarily expert in this matter. With all respect to the Attorney-General, the fact that the strongly held view of Foreign Office legal advisers, decided upon after a long period of reflection and conveyed to the Committee on 20 January, was then undermined so quickly raises important questions.

The traditional role of the Attorney-General is to act as someone who is part in and part out of the Government. Although he is elected, he is there to give independent advice to the Government. It is a bad thing for the country if the impression is given, rightly or wrongly, that the Attorney- General has entered into a partisan role. He does not wear a partisan hat when he makes a great many decisions, and part of the strength, historically, of the office of the Attorney-General has been that, to some extent, it is above the party fray.

The speed with which the opinion offered on 20 January was changed raises questions. One hon. Member referred to the smell surounding this issue. I would not use that argument, because I have great respect for the Attorney- General, but he must accept that the issue raises questions that must be answered. I hope that the right hon. and learned Gentleman will give those answers when he speaks. For example, was the Attorney-General consulted prior to 20 January and did he concur with the opinion that was delivered to the Minister of State?

My next question, which follows chronologically, is in what circumstances was the question that had been answered so confidently by the Minister of State referred to the right hon. and learned Gentleman's office for a further opinion? Further, did he go outside his office to seek opinion or did he do so in-house, from the lawyers around him? They are probably not particularly expert in this matter. It is important for the health of our government that the lid is taken off these matters and that they are clarified.

I have already mentioned the problem that faces the Committee. We are all experts in our own way, but many in the Committee are not lawyers. We are being invited to address a profound legal question. For that reason, I raised the serious point--I was not seeking to be humerous--about the difference beteween our proceedings and those of a Standing Committee. When such a matter arises before a Standing Committee, one has the opportunity to call senior lawyers who can give the Committee the benefit of their views. We might even call Mr. Alan Watkins, who holds strong views on this matter. At the moment, we are unprepared when we give the Committee the benefit of our views. We can only probe the chronology of events in respect of the Attorney-General.

I have posed the key questions that I wished to raise, but there is another question, in part a legal one, but with practical implications, that needs to be considered. It is possible that the Government could have ratified many titles in the Bill through the Executive process and the royal prerogative. Whatever the constitutional experts may say about the technical and legal possibility of doing that, I believe that the political implications of such an act should be paramount. The Government should never lightly ignore the expressed views of Parliament.

Leaving aside what the hon. Member for Caithness and Sutherland (Mr. Maclennan) said about the construction of the European Assembly Elections Act 1978, and the

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