House of Commons Hansard Debates for 22 Feb 1993

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way in which the Government are constrained by statute in respect of the protocol, even if it had technically and legally been open to them to use the royal prerogative in this case, they would have been wrong to do so, given the immense political implications of this matter. It would be an arrogant Government who ignored the clearly expressed views of Parliament.

I echo what my hon. Friend the Member for Hamilton said. It would not only have been wrong, practically, to ignore the will of Parliament, but it would fly in the face of the whole argument that the Prime Minister has used, rightly in my view, against a referendum relating to the Bill. The right hon. Gentleman has relied on parliamentary sovereignty. The final decision must rest with the House. One cannot clasp the doctrine of parliamentary sovereignty to one's chest as it suits, and reject it when it does not, as in this case. That is another cogent argument why the Government should listen to the voice of Parliament.

I was considering the way in which the law can be brought into disrepute when those who cannot find a convenient opinion look for another one elsewhere that may be a little more convenient. In doing so I was reminded of a jingle in relation to that great Welshman and Liberal, Lloyd-George--I hope that it will not be said of the Government :

"Count not my legal opinion as fine

I meant it as I meant it at the time."

Mr. Cash : We have now reached a stage in the Lewis Carroll saga when we should recall "Through the Looking Glass", when Humpty Dumpty spoke of words meaning what he chose them to mean :

" The question is,' said Humpty Dumpty, which is to be master--that's all.' "

That summarises our position. There are conflicting opinions and words, but the whip, the bludgeon, the heavy instrument is driving the Bill through, irrespective of its impact on people, or their opinions or wishes. Therefore, to paraphrase Lewis Carroll, we are now in a position where opinions appear to mean what we or others choose them to mean, and the question is, when is Maastricht to be passed--that is all.

We have now moved beyond the purely technical questions on the social chapter, and the issue before the Committee is much greater. That is why it is the subject of the motion. The relationship between hon. Members and Parliament is rapidly moving into a black hole. If amendment No. 27 had been passed--or if it is passed in future--that will amount to Parliament instructing the Executive that the provision of the social chapter must be excluded from the treaty. If that were done, irrespective of the argument about whether one may or may not ratify a treaty by prerogative, we should have to ask what the position would be if Parliament's views, arguments, determinations and will were to be overridden after Parliament had decided to exclude the social chapter. If that happened, we would face a new sort of constitutional problem.

Let us apply the same criteria to any other treaty. Let us suppose that Parliament decided that it did not want a treaty and passed a resolution to that effect. Anyone could immediately see that overriding that decision would constitute a defiance of Parliament. We would rapidly return to a position not far from that of James II, when he turned to the people of this country and said that he had

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got the loot from Louis XIV and did not need Parliament, so Parliament could get lost. He said that he would suspend or dispense with the law, according to his prerogative. I am not sure whether the Government have realised the dangerous hole in their flank that they have opened up by their handling of the short-term issue of the social chapter.

At the beginning of our procedings on the Bill, I raised the issue of the Ponsonby rule. I wanted to elicit from the Minister of State the exact relationship between the prerogative and Parliament in relation to the Bill. I did so because, as I said then, only certain titles of the treaty-- titles II, III and IV--together with the other provisions of the treaty so far as they relate to those titles, and all the protocols adopted at Maastricht on 7 February 1992, would be incorporated in the consolidated treaty arrangements of the European Community legislation. The Bill was a proposed addition to that. Therefore, I wanted to know the position in respect of those other provisions--the so-called invisible and illusory pillars that the Government have erected through their prerogative. I wanted to know the position under the Ponsonby rule if, within 21 days of the treaty and the protocols being laid before the House, we legislated and then discovered that some parts of the provisions that were being dealt with by prerogative required express parliamentary approval. The argument cuts both ways. If Parliament were to pass an amendment that overrode the use of prerogative, Parliament's views would not only have to be accepted, but would be imposed on the Executive by Parliament. A Government who decided to take such a step would be unwise. If amendment No. 27 excluding the social chapter were passed, we would be in exactly the same position as we are in respect of the prerogative provisions contained in the so-called pillars. There is a profound difference between the provisions presently contained in clause 1(1) (k) of the Bill and the position towards which we are moving. I do not believe that the Government have entirely understood how dangerous the position has become. That problem has now been compounded by the competing legal opinions. As has been rightly said, it hardly matters which opinion is chosen. Some might wish to defer to the opinion of the Attorney-General and any external advisers that he had chosen. Others-- I make no secret of the fact that I am included in the group--have been working out how best to address such important matters, and have been obtaining opinions and seeking advice from external sources.

About two or three weks ago in Committee--before the latest saga--I said that I had been involved in matters relating to the Constitution Act 1982, when I advised Quebec. That issue eventually made its way to the Supreme Court in Canada, and the views that some of us--myself included--had proposed were accepted by the Supreme Court. The Foreign Office advice that had been relied upon during the proceedings was found wanting. I could give many other such examples.

It is by no means unusual to discover that Foreign Office legal advice is wrong. We now have the authority of no less a person than the Foreign Secretary. He had to say that the advice was wrong. On 15 February, he said :

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"I regret that the legal advice then given to the House was not correct we intend to press forward with the Bill so that we can ratify the treaty which I, my right hon. Friend the Prime Minister and my right hon. Friend the Chancellor of the Exchequer negotiated at Maastricht, and which won an overwhelming majority on Second Reading in this House."--[ Official Report, 15 February 1993 ; Vol 219, c.28.]

In the light of what I said earlier, it would be a massive defiance of the House if amendment No. 27 were passed and proceedings on the Bill continued despite the view that had been expressed by the whole Committee.

I do not take issue with the fact that there was, in numerical terms, an overwhelming majority on Second Reading ; but the Prime Minister pointed out in an interview in a newspaper article about our scuttling out of the exchange rate mechanism, for good reasons, when it got hot that, when circumstances change, one has to change with them. Of course, circumstances have changed.

The "overwhelming" majority on Second Reading was obtained on the basis of the political landscape at that point. The circumstances have changed with the Danish referendum results, so the consideration that we should apply to amendments such as amendment No. 27 has changed.

In a letter to The Times which appeared in that paper only on Saturday, the hon. Member for Hamilton (Mr. Robertson) seemed to know that there would be an intergovernmental conference shortly, at which amendments would be passed to the Maastricht treaty. The hon. Gentleman will correct me if I am wrong.

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Mr. George Robertson : The amendments to which I referred were to the EC treaties. They are consequential on the outcome of the Edinburgh summit. A decision was made to create a European investment fund. That requires a change to the statutes of the European investment bank, an institution which already exists. That requires a formal treaty amendment. The week before last, the European Parliament gave formal agreement for an intergovernmental conference to take place this week or next week. It is a technical change : it requires no huge fuss or constitutional chaos. I used it as an example in my letter to The Times to show that precisely the same thing could happen with the social chapter. But the amendments will be not to the Maastricht treaty but to the full EC treaties.

Mr. Cash : The letter left some uncertainty, and I am grateful to the hon. Gentleman for explaining the context in which he wrote it. However, it would be possible, although highly improbable, that an intergovernmental conference such as those convened at great expense at Birmingham and elsewhere would provide an opportunity to come together to resolve some of the other questions which have arisen, and dispatch the Maastricht treaty with it.

If the 12 Governments are to convene, they might just as well recognise the point which I made to my right hon. Friend the Foreign Secretary shortly after he made his statement. We have reached a position in which the treaty should be consigned to the dustbin of history, because the circumstances have so changed, and the likelihood that the treaty, in not only its present but its implemented form, would create turmoil throughout Europe, has grown so much that it should be dealt a final blow in a statesmanlike manner by the statesmen of Europe.

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Mr. Michael Spicer (Worcestershire, South) : Is not the position which the hon. Member for Hamilton (Mr. Robertson) described in his intervention even worse than the one which my hon. Friend describes? My hon. Friend was describing the possibility of an amendment to the treaty of Maastricht, which has not yet been ratified. The hon. Member for Hamilton was talking about a mini-Maastricht behind our backs. The position is worse than my hon. Friend outlines to us.

Mr. Cash : My hon. Friend the Member for Worcestershire, South (Mr. Spicer) would be the first to discover something even worse than I described. I am grateful to him for showing how the appalling nature of the whole exercise has been compounded.

My hon. Friend the Member for Southend, East (Sir T. Taylor) made a point about the administrative costs which will arise under the social chapter as it now stands. As I said in a point of order, and in an intervention in the speech of my hon. Friend the Member for Aylesbury (Mr. Lidington), the 12 high contracting parties have agreed to the protocol on social policy. To some extent, some people have missed the wood for the trees. Certainly, 11 member states are the participants in the agreement within that protocol, but the same 12 high contracting parties which have entered into the treaty have agreed to the social protocol. They have decided that it will not apply to the United Kingdom.

However, from the long title of the Bill and its scope, and to the provisions of clause 1, it is perfectly clear that for the treaty to have effect it must do so as it has been put together by the 12 high contracting parties throughout. The ingredients of the agreement between the 11 parties is another, but important, question. Therefore, whatever advice my right hon. and learned Friend the

Attorney-General might have received, there is a large question mark over whether the original advice should now be discounted. Even if we knocked out provisions of a treaty to which the 12 member states had signed up, even though any protocol contained an exclusion--for example, for the United Kingdom on economic and monetary union--they are all part and parcel of one grand but dreadful treaty. One may say that the treaty is awesome in the powers that it will transfer away from the House.

The consequences of leaving out any one part of the treaty, if amendment No. 27 was passed, would be that the Committee had instructed the Executive not to include those provisions. Therefore, I would argue that we would immediately run into the problem of whether it was possible partially to ratify a treaty. One cannot partially ratify a treaty.

I am not referring to the agreement between the 11 member states. I am referring to the fact that the 12 high contracting parties have agreed to the protocol. On that argument, it would wreck the treaty to pass an amendment such as amendment No. 27. Of course, I should be delighted about that. On that point alone, a large question mark remains.

There is also an issue of administrative costs. If we excluded the social protocol by amendment No. 27, presumably the administrative costs would fall to be paid by virtue of the prerogative. According to the Government, that is the only basis upon which they would then be in a position to proceed. I should like to have the following question answered : would the Public Accounts

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Committee be able to inquire into the manner in which the administrative costs were levied? Would such matters be within the remit of the Select Committee on the Treasury?

As some hon. Members have said, there are profound questions as to whether such matters would be Community obligations. If they were pushed through by prerogative alone, they would be not Community obligations but impositions on the British people. There would be a charge upon them through tax as a contribution towards the cost. The fundamental principle applying to the constitutional arrangements of the United Kingdom is that no such provision may be made without the full authority of Parliament. It cannot be done by prerogative. I spoke earlier about James II. In this instance the Executive would tell Parliament what to do, and if we passed an amendment, Parliament would be defied if the Executive went ahead with the prerogative. That touches another of the central planks of the constitutional relationship between Executive, Parliament and people, that a charge or tax may not be imposed upon the people without their consent and the approval of their Parliament.

As I said when speaking about overriding the prerogative, only an unwise and imprudent Government would imagine that this matter is not central to the running of our affairs. In the past, some people thought that nothing much depended on that, but Pym and Hampden and others--not little Englanders but people who stood up for our citizens when they were faced with absolutism and authoritarianism--understood the principles upon which we then operated and on which we must still operate if we wish to sustain freedom of speech and the principles of free government. I wonder whether the Government appreciate the extent to which their arguments have dislodged that plank. The explanatory memorandum says that the Bill will have no direct financial effect in the United Kingdom. Some hon. Members, including my hon. Friend the Member for Southend, East (Sir T. Taylor), have spoken about administrative costs and the prerogative. There is also the issue if title I, article F3, which deals explicitly with whether it would be right to use the prerogative. That title is not included in section 1(1) (k) of the Bill. Title I, article F3 would give the Community the power to provide resources to achieve the objectives of the "Union" without any apparent reference to Parliament. I shall not labour that point as it has already been made but it is important to add it to the discussion about the administrative costs of the social chapter. The two matters are linked and are symptomatic of a deeper problem.

Defiance of Parliament by the Executive in relation to the prerogative and the overriding of the principle of parliamentary approval to the payment of moneys representing a charge on the people are symptomatic of the draining away of the soul of Parliament. That is because the treaty represents a failure of political will to say no to the demands of Germany and France about economic and monetary union. Further, we did not refuse to accept the nostrums and the intellectual baggage that have developed over time. Circumstances changed when the Berlin wall came down, and there were changes when we had to leave the exchange rate mechanism.

The European framework that is being designed has a corrosive effect upon our parliamentary system. Policies, including the social chapter and the issue of whether we

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should be excluded from it, are being dictated by Governments, influences and circumstances which are no longer as valid as they seemed to be when the whole business of the European Community, which as a whole I support, was being devised in the early 1950s. 6.15 pm

"German comments", published in July last year contained a simple reference by the editor. It is a publication by Konrad Adenauer Siftung, to which I have referred before. That reference stated : "Voting has become an instrument of protest. This will make governing even more difficult than it was in the past."

That was published after the Danish referendum, and it is a chilling observation.

A similar problem is arising in this debate. I agree that it is difficult to govern--no one has any serious doubt about that--but the way in which it is done and the extent to which we have regard to the procedures, manners and customs of Parliament and the necessity to ensure that we do not do anything to enable the prerogative to override Parliament, whether in relation to administrative costs or an amendment, remain critical.

My hon. Friend the Member for Southend, East referred briefly to another problem. I was astonished by the extent to which those of us who have taken a certain position about the treaty were smeared--I think that that is the right word--with the charge that we wanted the social chapter to be imposed upon British business. First, we never did ; secondly, that is impossible ; and thirdly, I understand that the smear was being put around even after the Foreign Secretary had made his statement. Some people, probably because they do not understand, have continued to say that.

Perhaps some further retraction is required of that smear, because we never intended what was alleged, and nobody is certain about what will happen to amendment No. 27. We were criticised for something that we had not done and, with few exceptions, nobody has declared his intention. Above all, the impression was given that we were about to do something that was not even possible. The Government and the Foreign Secretary have conceded that we were right ; that in itself is of no little importance for the reputation of hon. Members and is the basis upon which we approach our opposition to the treaty and the Bill.

Mr. Stephen Milligan (Eastleigh) : I am interested in what my hon. Friend says about what is possible, and his claim that he would not support anything that was impossible. Does he go along with his supporter in another place, who said that he would be prepared to support the proposition that the moon was made of blue cheese if that would destroy the treaty of Maastricht? Would that not explain why some of us thought that my hon. Friend was prepared to vote for the amendment on the social chapter, the imposition of which might have had that effect?

Mr. Cash : I do not always take the advice of other people, however distinguished and eminent--I make up my own mind. But my preference is for Shropshire cheese rather than cheese that comes from the moon. My hon. Friend should not get too excited about what we may or may not do, because time will tell. The point is, first, that

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we knew what the words meant, and secondly, that we made them clear. We explained to people why we were doing what we were doing. It was only because other advice was being tendered about the imposition of the social chapter, as opposed to whether it would wreck the treaty--I make a distinction between the two--that we were led to the view that we would not be imposing the social chapter on British business. The Government have now conceded that, and it is important that it should be on record. That has little to do with cheese, from the moon or from anywhere else, or even with the opinions of some of my noble and distinguished Friends in the House of Lords.

Another issue that arises in the principles that are beginning to come out in the debate is the referendum. It is clear that, if the people were to find that the Government were ignoring Parliament and people, the case for a referendum would become unanswerable. The more that the debate continues day by day, the more complex and confused it becomes, the more the contradictions are revealed and the more the case for the referendum grows. Opposition Members are witnessing a travesty of procedure. They are watching, I have no doubt, with concern, the way in which an opinion goes one way and then another--the switching, the ducking and the weaving. One opinion is as good as another. The legal advice on which the treaty is based is now in serious doubt.

I would go further. When my right hon. Friend the Prime Minister came to the House after the Danish vote, I expected him to say that, because of that vote, the Government would have to reconsider the matter. We heard nothing of the kind. My right hon. Friend said that we were going to press ahead, and that has been the basis on which the matter has been treated since then. I put it to him then, on the basis of what seemed to me to be clear from the treaty--nobody has ever argued with me about this--that it is a centralising treaty. Therefore, I must conclude that, when he replied that I was wrong in every particular, that reply must have been based on the same legal advice that he had received from the Foreign Office in respect of this matter as well.

Therefore, I wonder why people should believe--not only in respect of the centralising realities of the Bill, including the concept of the central bank, subsidiarity and all that goes with it, and a whole raft of other stuff based on legal advice--that the legal advice underpinning the treaty is any more valid that that given about the social chapter. The answer is that it is not. That raises yet another question. I am glad to see him here today, but why is it that my right hon. and learned Friend the Attorney- General has deigned to indulge us with his presence for the first time only today? We have repeatedly asked him to come to answer the questions that I have asked over and over again. Answer came there none--nor did the Attorney-General.

We are dealing here not with a bilateral treaty but with a system of law, which is a legal framework. That is why questions of legal interpretation continually arise. I see my right hon. and learned Friend smiling and looking at his watch and, to go back to Lewis Carroll, he might do so before he slips down the black hole. The legal advice that lies at the heart of the treaty is wrong and imperfect. The agruments with which we are being presented cannot be evaluated against policy because there is no White Paper and no basis on which to form a judgment about the

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connection between policy and the legal advice that underpins the relationship that will be created between the British people and their Eurogovernment.

For example, in relation to the social chapter, if a matter relating to the administrative costs of the institutions of which the British people would be paying under the Government's propositions, to be implemented solely by the prerogative, were to arise, and the Chancellor of the Exchequer were to appear before the Treasury Select Committee, he would be no more responsible for those decisions than he would be for the entire British Budget. It would be almost a waste of his time turning up.

He might have had some influence on the outside looking in but, for practical purposes, if the central bank provisions went ahead--that is the legal advice given by the Foreign Office, which has led to the treaty being made in line with policies that have not yet been explained--he would not have to give any answers that meant anything to the Select Committee, because the main decisions would be taken by the unelected, unaccountable central bankers.

The Foreign Office has also given legal advice about the European Monetary Institute in stage 2. There is no doubt that, under article 8 of the protocol, the Governor of the Bank of England would effectively be under the thumb of the monetary institute. He would not have to take advice or instructions from the Chancellor of the Exchequer and the House. It would be of no value for the Select Committee on the Treasury to call him before it, because he would have nothing to say to it. He would say, "I cannot seek instructions ; I cannot take instructions." Therefore, under stage 2, before we get to 1 January 1994, which is less than a year away, we shall be moving into the transitional phase. That is the basis on which advice is being given.

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We so often find that we fall back upon statements that are made as a matter of policy by Ministers. Only the other day, I heard my right hon. Friend the Foreign Secretary imply that practical considerations were more important than legal considerations. I heard him say much the same when the Danish referendum took place. To paraphrase him, he said that what the people of Denmark may think is more important than what might be contained in the treaty. I remember that pretty well. It is that approach that lies at the heart of the issue.

It must be recognised that there is a legal framework. It is no good Ministers hiding behind the privilege of the House of Commons and hoping that there are no legal implications in what is being done. The legal advice that is being tendered is fundamental. In the past couple of months, the House of Lords made a ruling which, combined with Factortam, raises an important issue.

As I said to my right hon. and learned Friend the Home Secretary only the other day, it is open to the courts as part of the travaux pre paratoires to examine what is said in parliamentary proceedings in deciding the balance of their judgment in the context of the legislators' intention. I see that the shadow Attorney-General, the right hon. and learned Member for Aberavon (Mr. Morris), is nodding his head. He knows that what I say is true. He and I know also that there are difficulties for the Government.

When it comes to interpretation, including the provisions of the social chapter, centralising or not, and legal opinions that have underpinned the basis of the policy on which the Maastricht treaty has gone through, to

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be considered also are the various remarks that have been made by Ministers. The time will come when the record is read. The history of the Bill will be mulled over against the background of many speeches that may now be regarded as beyond the pale because they are made by individuals who bitterly oppose the provisions contained in the treaty. As and when history unfolds and these matters are judged against the background of what happened, as compared with what it was said would happen, it will be realised that it was the underpinning legal advice that was at fault.

When we consider the treaty's provisions against the background of a massive transfer of power within a predetermined European policy that has drained away the will of the House of Commons and that of the Government to allow the British people to determine their own affairs within the European Community, it is clear that the umbilical cord has been broken by the sort of advice that is being presented. For example, stage 2 of the treaty would enable decisions to be taken on the basis of that advice by unelected and unaccountable persons that would be at variance with the constitutional usages and practices of the House of Commons.

Mr. George Robertson : I am grateful to the hon. Gentleman for giving way, because I know that he is just about to bring his remarks to an end. I am sure that he, like the rest of us, wants to hear the Attorney- General, who I understand will speak shortly. We certainly want the right hon. and learned Gentleman to answer some of the questions that have been put by the hon. Gentleman as well as by other hon. Members. In the hon. Gentleman's concluding sentences, will he bear in mind the fact that these matters have little or nothing to do with the law and everything to do with the political convenience of a Government who are facing defeat on amendment No. 27?

Mr. Cash : I am extremely interested in the hon. Gentleman's last remark. Without wanting to cast aspersions on the Government's motives, I must say that political convenience is frequently at the heart of major decision-making. It would, of course, be unfair in any way to suggest, or even to think, that legal advice has been tailored to suit political convenience.

The principle has been enunciated that we should go ahead. That is what my right hon. Friend the Foreign Secretary appears to be prepared to do, along with the rest of the Government, including my right hon. Friend the Prime Minister. The Executive, or the Government, seem prepared to go ahead with the social chapter irrespective of whether the Government effectively give an instruction that that should not be done. It seems that the Government are prepared to go ahead by prerogative alone. If that is so, I am bound to say that the same principle could be applied to all legislation that flows from the European Communities Act 1972. The same can be said of the treaty. I am bound to concede that there is no good reason, according to our constitutional practice, why it should not go through by prerogative.

The distinction that I am drawing--again I notice that the shadow Attorney- General is nodding in agreement--is that which lies between the ordinary prerogative treaty, which is simply laid before the House, and prerogative treaties that have the effect of incorporating rights, duties and obligations into our domestic law, which have to be

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passed by way of Act of Parliament in order to have effect on the people of this country. It is crucial that that distinction is remembered.

The issue turns not on the arcane theological argument about the ratification of treaties but on the extent to which rights, duties, obligations, functions and powers are created that have an impact on the people by virtue of enactment in the House of Commons. That is why I said at the beginning that the Government have opened up a dangerous flank. If they were to persist with the view that legislation can be taken through the House of Commons merely by prerogative, they would be saying, in effect, "We do not need Parliament."

If that were to be the position, why should we bother with all the legislation that emanated from the European Communities Act and the treaty of Rome back in 1971-72? The answer is that there would be no need for it. That, however, is at variance with the facts, the law, custom, practice and realities. There must be passage through the House of Commons ; otherwise, we shall not create obligations, duties and powers.

Baroness Chalker of Wallasey recently made an interesting and revealing speech in the House of Lords. She said that the treaty does not impose any specific duties. This harks back to another question that I put to my right hon. Friend the Minister of State. I asked him about the whole question of citizenship and about the rights accorded to and the duties imposed upon the people of this country. The answer that I received was just the same as the one given by the noble Baroness.

But what I was told does not answer the legal question that lies at the heart of my intervention in the speech of the Minister of State. The people of this country need to know what duties are being imposed upon them and what powers are being accorded to them. Otherwise, their status as citizens of the United Kingdom will be uncertain. They will not know where they are. Are they to be part British and part European, or are they to be made exclusively European? These questions of citizenship must be addressed. They arise from the legal advice that has been tendered with regard to citizenship--a matter with which the noble Baroness did not deal.

The noble Baroness said that, in effect, this was a modest measure about which we should not get too exercised. But if we do not get exercised about the way in which we are governed, about our Parliament, about whether we are to be taxed without consent, if we do not bother ourselves about whether the executive can railroad provisions irrespective, and possibly in defiance of Parliament, we shall deserve the fate which will befall us.

Mr. Hoon : If the judges of the European Court of Justice, in their efforts to elucidate parliamentary intention, look at the speeches of Members of Parliament, I wish them every success in their researches into the undergrowth of the contributions of the hon. Member for Stafford (Mr. Cash).

My recollection is that we are debating the legal and constitutional effects of amendment No. 27, which specifically excludes the protocol on social policy from United Kingdom domestic law. Originally, Opposition Members understood that amendment No. 27 would prevent the Government from ratifying the Maastricht treaty without recourse to a new intergovernmental

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conference. That is what the Minister of State told the House repeatedly and perhaps not in his most careful and considered manner, but rather gleefully--not carefully relaying legal advice, but obviously revelling in what he thought was a political bombshell for the Opposition. In the following days it became clear that it was the Government who were suffering the fallout from the bombshell when they realised that they were likely to lose the vote on amendment No. 27. Only then did their legal advice appear to change.

Last week, the Foreign Secretary's argument was that the passing of amendment No. 27 would have no effect on ratification, as ratification was a matter for the Crown. It was argued that, as the protocol on social policy had no direct effect in United Kingdom law, it would not have to be incorporated in United Kingdom legislation. Of course, that applies to any obligation under an international treaty. It is possible for the Crown to ratify without reference to Parliament. Any such international obligation would have to be put before Parliament in the form of a Bill only if the treaty concerned created obligations involving changes in United Kingdom law--changes which had to be incorporated in national legislation.

The Foreign Secretary was not stating anything new when he said that nothing in the protocol on social policy required United Kingdom legislation and that, as amendment No. 27 would remove the protocol on social policy--it was a negative--it would not create rights in the United Kingdom.

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That is all very clear and unexceptionable, except that, until that point, it had been assumed--not least by the Minister of State--that, if amendment No. 27 were passed, it would require a new intergovernmental conference. The Minister's point was that such a conference would open up the treaty and all the carefully worked out compromises made when the treaty was signed. His threat was that that would allow other countries to change their positions and would enable other considerations to be introduced and therefore raise the question of a fundamental change in the nature of the

agreement--indeed, by implication, prevent any agreement at all. The Government argued further that as some countries had already held referendums and thereby completed the process of ratification that their constitutions required, it would not be possible subsequently to change the terms of the treaty and the protocol without reopening the question of ratification in those countries. The Government were therefore deliberately raising the spectre of a re-run of the referendums in France and Ireland, knowing that the Opposition would be concerned about the prospect of a defeat in either of those countries allowing the Government to blame the Opposition for the collapse of the Maastricht treaty.

That is why there was such political glee about the legal opinion which was relayed to the House. This entire constitutional and legal debate arose simply because the Opposition wanted a means whereby Parliament could vote on the social chapter. They wanted a specific vote on whether the Government's opt-out from the social chapter was or was not a matter that the House of Commons could consider. Surely, in a parliamentary democracy, it is appropriate that legislators should have an opportunity to debate in Committee the detail of a treaty. That, after all, is what we

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have been doing. We have been considering in detail the provisions of the Maastricht treaty. However, we now understand the Government's position to be that there will be no opportunity to debate specifically whether or not the United Kingdom should adhere to the social chapter, and no opportunity to vote on that matter other than on Third Reading.

It appears that the Government's position and the Foreign Secretary's view is that, when the House votes on Third Reading, it will, in effect, be voting on the social protocol. In a parliamentary democracy, that cannot be acceptable. It must be open to us to consider specifically what was agreed at Maastricht and to vote upon it. That is why the explanation about ratification which has been given is not satisfactory.

Ratification means confirmation. Historically, it was not necessary--or not significant--for a treaty to be ratified. Essentially, a treaty was signed by the monarch, and ratification was no more than a formality. The significant process was the signature. In modern international law, the reverse is the case : the signature of an international treaty is, generally speaking, no more than a formality--ratification is the key process.

The reason is that, in most parliamentary democracies, ratification follows a parliamentary process whereby some democratic approval is given to the content of an international agreement. This makes possible a democratic veto on Executive action. Thus the practice has developed in virtually every parliamentary democracy, except our own. In the United States, it is necessary to have democratic approval before ratification.

Mr. Budgen : Does the hon. Gentleman agree that it is especially necessary to have democratic approval for a treaty which envisages a common defence policy and, possibly, the emergence of a common army? It is possible that, in future, people may be found guilty of treason if they do not want to fight in a Eueopean war. Therefore, the consent of people throughout the country is no small matter ; it goes to the heart of whether the country consents to be governed in the way envisaged by the treaty.

Mr. Hoon : That is right. We have a representative democracy, so it is right that those decisions should be carefully considered by the House-- or, at the moment, by the Committee. That is why I have argued that the Committee should have an opportunity specifically to vote on whether the United Kingdom should adhere to the social protocol. The Government's argument has always been that because, in the Maastricht treaty negotiations, they opted out of the protocol, it is not necessary to put that before the Committee and, eventually, the House. The difficulty is that the social protocol binds the high contracting parties ; it binds all 12 member states, including the United Kingdom. Even if the content of a protocol affects only one member state or fewer than the full 12 members, nevertheless it binds all 12, whatever its content. Each of the 12 member states agreed to the protocol on Denmark, which directly affects only the needs and concerns of that country. All agreed to allow the United Kingdom to opt out of economic and monetary union. Similarly, the protocol on social policy is, legally, made by the high contracting parties, which means all 12 member states, and it is necessary that all of them ratify it.

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Mr. Cash : Does the hon. Gentleman agree that it would be almost fraudulent for an informal decision or agreement, outside the legal arrangements that he has described of 12 high contracting parties agreeing on a treaty, to give the Danes a special arrangement for matters which cover the whole range of the treaty? In other words, the opt-outs do not add up to a row of beans.

Mr. Hoon : The hon. Gentleman tempts me to stray from the specific debate, but I shall resist the temptation to join him in speculation along the lines that he suggested.

Where, in a parliamentary democracy, Parliament has specifically said that a certain provision of an international agreement should not be translated into United Kingdom law--which would be the effect of passing amendment No. 27--it would be hard to envisage how the Government could go ahead and ratify that specific provision. Yet if I understood the Foreign Secretary correctly, that is what he has invited us to do. He is saying that, in effect, even if Parliament agrees to amendment No. 27 and states specifically that the protocol on social policy should not become part of the United Kingdom Bill or United Kingdom law, nevertheless the Government will still ratify because there is nothing in the protocol on social policy that requires it to be translated into British law.

In one sense, that is a political rather than a legal point. Legally, it is possible for the Government to do that, but politically and democratically it is hard to envisage how the Government could argue against what would be the clearest signal from Parliament that they should not ratify on the basis of a provision that Parliament has specifically resisted.

Mr. Iain Duncan-Smith (Chingford) : Will the hon. Gentleman enlighten us on his view on the supremacy of the European Court of Justice, which has a bearing on this matter? It is feasible that the Executive could ratify under the prerogative, knowing full well that various parts of the treaty make it possible, in a clash between national and Community law, for the European Court to force us to adopt this or other provisions that we have deliberately excluded. There is a very good case of that happening in German basic law.

Mr. Hoon : So far, I have been dealing with what I consider to be the international law implications of the action that the Foreign Secretary appeared to suggest last week. I want now to deal with some of the domestic implications of passing amendment No. 27. Paragraph 2 of the social protocol was included at the behest of the Government's lawyers. That paragraph specifically excludes the United Kingdom from the terms of the protocol. Why was that paragraph included? Last week, the Foreign Secretary said that it was a tidying up exercise to ensure the avoidance of doubt. His lawyers had advised him which expression to use. If the Foreign Secretary was right, why was it necessary to include the paragraph in the first place? What would be the effects of its absence from the protocol?

That paragraph could have been drafted only by the Government's lawyers. There would be no advantage in a European Commission lawyer or a lawyer from France, Germany or Italy drafting that exclusion for the United Kingdom. It must have been negotiated by the United Kingdom, having been drafted by United Kingdom lawyers. In those circumstances, why did they think it necessary?

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The reason is clear, and it was alluded to in the question to which I deferred responding a few minutes ago. It is because the Government want paragraph 2 as a defence, available in the event of anyone challenging the opt-out on the social chapter before either a United Kingdom court or the European Court of Justice. They want to be able to say, "Paragraph 2 includes a specific provision excluding the United Kingdom from the operation of the social chapter." The Government created legal difficulties by negotiating the opt-out from the social chapter, which in effect allowed the creation of two quite separate legal systems within the European Community. They allowed for a system which would bind 11 member states, which could then produce directives under the social chapter--and eventually lead to cases before the European Court--and also for a system which would bind all 12 member states, which is the conventional legal system to which we are all accustomed.

What the Government never explained--I hope that the

Attorney-General will consider doing so--is the legal position of the European Court of Justice when dealing with directives made under the social chapter. Directives will be issued and at some stage a provision in one of them will be challenged. Eventually, the case will go to the European Court. When the court considers such a case, it will not look simply at the narrow provisions of a particular directive ; it will look at the directive, the treaty and a whole wealth of decided cases, and will then reach a conclusion. If it is dealing with a particular interpretation of a directive made under the social chapter, will it say to the European Community "Ah, because this arises under the social protocol, the particular case binds only the 11 member states that signed the social protocol"? Can the European Court say that provision will be binding on only 11 member states? As someone trained in the legal profession in the United Kingdom, it is difficult to imagine a court saying, "This provision binds only some member states and not others."

Mr. Cash : Will the hon. Gentleman give way?

Mr. Hoon : I want to make progress and to allow the

Attorney-General to answer some of my questions. I shall be grateful for the right hon. and learned Gentleman's advice. Essentially, the Government created the situation and it is they who must explain what it is that they are trying to achieve. The Government negotiated the opt-out and created considerable legal confusion in international and domestic law-potentially. It is appropriate for the Government to offer clarification, and I look forward to hearing the

Attorney-General's explanation.

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