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The Second Deputy Chairman of Ways and Means (Dame Janet Fookes) : I call Mr. Peter Luff.
7 pm
Mr. Luff : I have to say that I agree--
The Attorney-General : On a point of order, Dame Janet. I have been asked specially to listen to my hon.
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Friend before I answer. I said out of courtesy that I would do so. I do not anticipate that my hon. Friend will take very long.Mr. Luff : I shall first make the observation that-- [Interruption]
The Second Deputy Chairman : Order. The hon. Gentleman has the Floor, and I ask other right hon. and hon. Members to listen.
Mr. Luff : Many right hon. and hon. Members on both sides of the Committee occasionally complain that the Government do not listen enough. I welcome how carefully my right hon. and learned Friend the Attorney-General is listening to all the valuable comments made in all parts of the House on this occasion. One cannot have it both ways. If the Government do not listen, they are accused by some of arrogance and of not considering an alternative point of view. If they listen, they are criticised by others for doing that. The same is happening in the debate on railway privatisation. In the early stages of that debate, the Government were again accused of not being prepared to debate the matter. They launched a debate through a series of consultation papers and the Transport Select Committee criticised them for not having a clear view of their objectives. I thank my right hon. and learned Friend for paying such close attention to today's debate.
I agree with the hon. Member for Swansea, East (Mr. Anderson) that Parliament is not always at its best when it debates closely argued points of law. In common with my hon. Friend the Member for Aylesbury (Mr. Lidington), I am not a lawyer, so it was with some trepidation that I ventured to intervene in such a careful, legal debate. I refer in particular to the speech of my hon. Friend the Member for Stafford (Mr. Cash), which drew widely on historical allusions. His allusion to Humpty Dumpty was particularly valuable, powerful and relevant. Many of us feel that this debate is being used by some as another opportunity to have Humpty Dumpty fall off his wall and experience more difficulty in being put back together again in the shape of the Maastricht treaty.
My hon. Friend the Member for Stafford confused the purpose of the Bill. In the early part of his speech, he seemed to suggest that the Bill seeks to ratify the treaty, when it does not : it seeks only to introduce into British law those elements of the Maastricht treaty which must be incorporated into British law. It is eminently sensible to propose that a particular amendment to a social protocol which will not affect Britain need not be incorporated.
While waiting to be called, I glanced briefly through the appendices on the protocols in Cm. 1934 and identified a number of protocols which surely would not significantly impede ratification of the treaty were we disinclined to integrate them in British law. I refer, for example, to the protocol on page 89 about the acquisition of property in Denmark, the protocol on Denmark on page 113, the protocol on Portugal on page 114, the protocol on certain provisions relating to Denmark on page 116, the protocol on France on page 117, and the derogation to Spain and Portugal on page 126 in relation to pollution from large combustible plants. None is central to ratification of the treaty by the British Government, and it is right that none should be incorporated into British law. The same is true of the social protocol.
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Mr. Marlow : I wonder whether my hon. Friend has read in Hansard a written answer given to me by my right hon. Friend the Member for Watford (Mr. Garel-Jones) on Friday :
"The social protocol is an annexe to the treaty of Rome" not an annexe to the Maastricht treaty--
"and is therefore an integral part of that treaty. It has been the United Kingdom's consistent legislative practice to incorporate all amendments to the Community treaties into domestic law."--[ Official Report, 19 February 1993 ; Vol. 219, c. 364. ]
Why should we change?
Mr. Luff : My hon. Friend is entirely right. Maastricht is essentially an appendix to the treaty of Rome, as it seeks to amend that treaty in conjunction with it. The fact remains that the social protocol does not apply to and therefore there is no need to incorporate it into British law.
Tonight's debate exposes my central concern about the Bill's passage through the House. Many right hon. and hon. Members, while professing to stand for Parliament's practices and history, are using a series of parliamentary tactics in an attempt to destroy the Bill and to prevent the Government from ratifying the treaty. That is deplorable.
I am puzzled when I hear some of my hon. Friends and some Opposition Members vehemently defend Parliament's privileges and accuse the Government of riding roughshod over it when many of those same hon. Friends and Opposition Members are calling strongly for a referendum. Nothing would more fundamentally undermine the privileges, traditions and power of Parliament than a referendum on this issue.
Sir Teddy Taylor : Rubbish. Power to the people. Trust the people.
Mr. Hugh Dykes (Harrow, East) : I agree very much with my hon. Friend the Member for Worcester (Mr. Luff). Is it not worse still that the hon. Members to whom he refers are not only espousing a referendum, which would totally undermine the central sovereignty of this institution, but going further? They would undermine Parliament in an additional, reprehensible fashion, by saying that we must wait for Denmark's parliamentary decisions, legislation and referendum before agreeing to proceed. Is that not in stark contrast with the notion put forward by hon. Members that we should wait for the judgment or opinion of the European Parliament? That would be described by the same hon. Members as gross
The Second Deputy Chairman : Order. I remind the hon. Gentleman and other right hon. and hon. Members that this is a dilatory motion directed at one particular point. We do not want a general, discursive debate.
Mr. Luff : I shall, of course, respect your ruling, Dame Janet, but I agree with my hon. Friend the Member for Harrow, East (Mr. Dykes). I make no secret of the fact--this is the thrust of my speech--that I want the Bill to make the most rapid progress possible. If I have any criticism of the Government, it is that progress has not been made fast enough. I want the Bill to pass through the House at the earliest possible date. It has always been my view that Parliament need not wait on the result of the Danish referendum.
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I want to express my strongest possible support for my right hon. and learned Friend the Attorney-General and my right hon. Friend the Foreign Secretary in their revised legal judgment on amendment No. 27. There is always more joy in heaven over one sinner who repenteth, and I am always delighted when the Government have the courage to admit that they may have got something wrong. I can think of a number of issues affecting my constituents where I would welcome a similar change of heart by the Government. However, I am not one to join in the hue and cry of U-turn and scandal when the Government produce a revised opinion.Opposition Members have difficulty in accepting unpalatable truths. First, they were led to believe that they could incorporate amendment No. 27 in such a way that it would not wreck the treaty. They were led into taking that view by their socialist friends in other European member states, yet they seemed prepared to continue to risk the possibility of wrecking the Bill, despite the advice of my right hon. Friend the Minister of State.
Mr. Edward Garnier (Harborough) : My hon. Friend says that Opposition Members have attempted to wreck the Bill by introducing the amendment. Does he agree that, if the social chapter were introduced into domestic law, it would wreck the economy of this country?
Mr. Luff : My hon. Friend is absolutely right. We have heard comments from a number of foreign Governments--and from Mr. Delors--about the likely impact of the incorporation of the social protocol, and the social chapter, into domestic law. It is no coincidence that we now hear noises from other member
states--especially Spain and Greece--suggesting that they are having second thoughts about the wisdom of the social charter, and are recognising the social and economic penalties that they could pay for incorporating it into their domestic law.
Amendment No. 27 does not achieve what Opposition Members hoped that it would achieve. They hoped that it would force the British Government back to the negotiating table at a new intergovernmental conference. Now, they are disillusioned and disappointed.
Mr. Bob Cryer (Bradford, South) : The hon. Gentleman keeps saying that the amendment will not achieve what Opposition Members wanted. In column 27 of Hansard, 15 February 1993, the Minister of State is quoted as saying, on 20 January,
"that if amendment No. 27 were carried, United Kingdom law would not conform to the provisions of the treaty and that the United Kingdom would therefore be unable to ratify the treaty."--[ Official Report, 15 February 1993 ; Vol. 219, c. 27.]
It is nothing to do with Opposition Members ; the Minister of State said that. The Government were in a desperate plight looking around for another legal explanation--and, like all lawyers, they got hold of a lawyer to give them the explanation that they wanted. That lawyer happened to be the Attorney-General. I will give the hon. Member for Worcester (Mr. Luff) some guidance : he should be wary of trusting any lawyer, especially the lawyer sitting on the Front Bench whom he says he is going to trust.
Mr. Luff : Some Conservative Members might give similar advice to the hon. Gentleman about the lawyer who leads his party. He should be similarly distrustful of that lawyer. It must be extremely disappointing for the hon. Gentleman to discover that an amendment drafted by
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a party led by a distinguished lawyer will not have the effect that his party hoped that it would have and will not force the Government into the social charter against the will of the people of this country.Treaties are difficult to negotiate, and I find it surprising that the Committee should seek to compound the difficulties. Already this country operates the most thorough scrutiny of Government proposals for treaties and of their successful negotiations. I do not think that any other European Community state has such detailed procedural methods of scrutinising treaties. A clear choice faces the Committee. The suggestion that amendment No. 27 is the be-all and end-all of parliamentary sovereignty is ludicrous. Plainly, a further choice faces the House--Third Reading. If Opposition Members feel that the omission of the social charter from the Bill, and therefore from the treaty that we ratify, is such a serious point of principle, they have the option of voting against it.
I believe that a meeting of the parliamentary Labour party took place last week. I pay tribute to some Opposition Members : according to press reports of that meeting, the Labour party will not make it its policy to seek to wreck the treaty. I welcome that, but I find it surprising that the Opposition have again sought to delay progress, using the device of a debate on amendment No. 27. We all remember the debate on the paving motion before Christmas, and the cynical contortions performed by some Opposition Members in order to reach the appropriate position.
I agree with my hon. Friend the Member for Southend, East (Sir T. Taylor) who, in a passionate rejoinder to a comment by me, reminded the House that the country faced more important issues than ratification of the Maastricht treaty. I believe that the treaty should be an uncontroversial piece of legislation, and that it should pass quickly on to the statute book, enabling hon. Members to debate the other crucial issues affecting our country. Later, we shall have an opportunity to debate many of those issues : I am thinking particularly of the development co-operation section.
The Second Deputy Chairman : Order. The hon. Gentleman now seems to be making a very general point. Will he either return to the subject or resume his seat?
7.15 pm
Mr. Luff : Let me turn specifically to the question of amendment No. 27. [Hon. Members :-- "Filibuster."] I do not think that I need to take lessons in filibustering from some of the hon. Members who surround me tonight.
As I have said, I am not a lawyer, but I believe that the statement made to the House by the Foreign Secretary of 15 February has the great merit of common sense. I thought that what he said was true even before he said it to the House. I was surprised, in a way, to hear my right hon. Friend the Minister of State suggest that the amendment would wreck the treaty ; I did not think that it would. My right hon. Friend said :
"Any amendment that would render United Kingdom law incompatible with the treaty would have the effect of making it impossible for the treaty to be ratified. Thus, from the Government's point of view, it is necessary for such amendments to be defeated. Other amendments, while we
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may oppose them as undesirable, do not render United Kingdom law incompatible with the terms of the treaty."--[ Official Report, 15 February 1993 ; Vol. 319, c. 20.]I think that many hon. Members on both sides of the House can think of a number of such amendments which would be profoundly undesirable--such as the referendum amendment--but we shall resist them. What the Foreign Secretary said is clear.
Mr. Milligan : Does my hon. Friend agree that the reason for the frustration over the incompetence of amendment No. 27 is its support by the wholly bogus alliance of those who wish to destroy the Maastricht treaty with those who wish to insert the social chapter although there is no majority in the House for either proposition? The reason for the anger is not what the Government have done. The Government have behaved honestly and honourably in coming forward with clear legal advice, when it might have been more convenient to wait until the amendment was voted on ; the anger and frustration result from the fact that the scheme has not worked.
Mr. Luff : My hon. Friend has put his finger on an important point, but there is a third category in the unholy alliance that he has cited : those who seek to undermine the very future of the European Community.
The hon. Member for Hamilton (Mr. Robertson) accused the Government of incompetence. I think that that charge rests far more fairly and squarely on his shoulders, and on those of his hon. Friends who have failed to draft the amendment successfully. I rejoice in that, however, because it means that we do not now face the incorporation of the social charter in British law.
I am anxious for the treaty to make rapid progress, and for the Bill to pass through its stages quickly. [ Hon. Members-- : "Sit down."] I shall sit down shortly. I am eager for the due process of law to be completed, so that we can return to the more pressing matters that confront the House.
The Attorney-General : Those who have been present throughout the debate will have observed that the interest generated in the Committee has fluctuated. A great deal of interest was rightly shown when the hon. Member for Hamilton (Mr. Robertson) opened the debate by posing a number of careful and detailed questions of legal relevance, which I hope to be able to answer. Later, interest seemed to wane.
I had looked forward to the speech of my hon. Friend the Member for Stafford (Mr. Cash), on the assumption that, as an experienced lawyer, he would ask a number of detailed questions ; unfortunately, however, the piece of paper on which I noted them down is less full than anyone who knew my hon. Friend might expect. Indeed, I am not sure that he asked me any real legal questions in his 50-minute speech. Consequently, observers outside will realise that, although this is an important legal occasion, it is also a political one--and the politics and the tactics of the debate seem to have fluctuated from time to time.
I have some serious questions to answer on the legal aspects. Many hon. Members from both sides of the Committee have asked whether the Government would be willing to publish the Law Officers' legal advice in this matter. In answering no, I owe the Committee a clear explanation and I shall give one. I have been a Law Officer
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for rising six years and I know that Law Officers advise the Government on a variety of issues every week--the variety is fascinating and remarkable.Only one standard will do for legal advice--the best and the most careful opinion that the adviser can give, on the information available. Drawing on the six years that I have been a Law Officer and the six years or more that I spent as Parliamentary Private Secretary to Sir Michael Havers when he was Attorney-General, I am not aware of any precedent for the publication of Law Officers' advice to the Government, although I stand to be corrected. Occasionally the Law Officers come before the House or a Committee of the House to give prepared advice on an issue.
Mr. Donald Anderson : Were there not exceptional circumstances in this case? Shortly after the Minister of State gave his opinion on advice from Foreign Office legal advisers, the Attorney-General came back with a wholly contradictory view. Does not the House therefore have a right to a view of the opinion?
The Attorney-General : That is important, but the hon. Gentleman does not put his finger on the heart of the matter. If the Committee is given an important statement--such as that made by my right hon. Friend the Minister of State on 27 January, on amendment No. 27--which is later scrutinised in greater detail and the Law Officers' advice sought upon it, as happened in this case, and if the advice of myself and the Lord Advocate is different from that given to the Committee by my right hon. Friend, it is our duty to come before the Committee at the earliest opportunity to correct the matter. We must do so to enable important issues, such as those raised by amendment No. 27, to be debated on the correct basis.
It is not the first time that legal advice has turned out to be different. I cannot recall any occasion when the Law Officers' advice has been disclosed and nor can the hon. Member for Swansea, East (Mr. Anderson), and I shall not break precedent.
Mr. Maclennan : Does not the Attorney-General recognise that his experience of practice during the past six years has, to some extent, been overtaken by a recent decision of the House of Lords to treat what is said by Ministers at the Dispatch Box as evidence for the interpretation of what a Bill intends? By his performance tonight, the Attorney-General has therefore contributed to subsequent law-making processes in the courts. By denying the Committee the written opinion, which he might have put in the Library before the debate began, he has denied it the opportunity to examine the advice critically, with the benefit of other advice, which could have enabled our debate to be better informed.
The Attorney-General : I am well aware of the case that the hon. Gentleman referred to because I argued it in the House of Lords.
The Attorney-General : I do not think that the hon. Gentleman has paid a great deal of attention to what was argued in that case or to the issues before the House.
Mr. Tam Dalyell (Linlithgow) : Although I am not a lawyer, I have been listening to Attorneys-General since the time of Sir Reginald Manningham-Buller. Forgive me for being sceptical, but the Attorney-General used the
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phrase, "in greater detail". Apparently the matter was considered in greater detail. If it had been a trivial matter, we would of course accept that explanation, but the issue is central. Cannot lay people among us ask why the issue was not considered in the greatest detail in the first place? At best, the situation can be described as casual, but I do not think that that is how the Attorney-General's office or his officers operate. They are extremely careful civil servants. Are we really to believe that the "greater detail" altered the substance of the opinion?The Attorney-General : I am sure that the hon. Gentleman would not wish to suggest that the legal advice was anything other than careful or accurate. It certainly was careful and accurate--it was the best legal advice that I and my noble and learned Friend the Lord Advocate could give and I believe that it is the right advice.
The Foreign Office has excellent legal advisers, who advise carefully on a host of matters and since I have had to give some thought to the matter, I have had the benefit of their views. The hon. Member for Hamilton asked about the substance of the advice given by the Lord Advocate and myself. When addressing the hon. Member for Caithness and Sutherland (Mr. Maclennan), I referred to Hansard because my right hon. Friend the Foreign Secretary made it absolutely clear that, in expressing the legal view in his statement last Monday, he was expressing the views of the Lord Advocate and myself. The hon. Member for Newham, South (Mr. Spearing) asked me to clarify that advice. It is exactly as stated in columns 27 and 28 of Hansard by my right hon. Friend the Foreign Secretary when he addressed the House at this time last week.
The hon. Member for Hamilton also asked about the timing of the advice. I received the request for my advice on 9 February and I understand that my right hon. Friend the Foreigh Secretary asked his officials to obtain advice on 25 January. I did not receive the request or instructions until Tuesday 9 February. The Lord Advocate and I advised on Wednesday evening, and the Foreign Secretary received the advice the following morning, Thursday 11 February. That is the chronology of the matter.
Mr. George Robertson : In the light of that answer, I have two questions for the Attorney-General. First, was any approach made to his Department--at any level--during the 10 months that amendment No. 27 lay on the Table? Secondly, given that his and the Lord Advocate's advice was given to the Foreign Secretary on Thursday morning, did it go to the Cabinet, and if not, why not?
The Attorney-General : I cannot answer the last part of the question --[ Hon. Members :-- "Why not?"] Because I am not a member of the Cabinet. [ Hon. Members :-- "Ah!"] That is quite straightforward. As to the hon. Gentleman's first question--about whether advice was from those who help me in the legal secretariat to the Law Officers in my chambers--to the best of my knowledge, advice was not sought until the dates that I gave. Previously, advice was given by Foreign Office legal advisers.
That takes me on to the way in which I can best assist the Committee with amendment No. 27 and other amendments along the same lines that it will have to consider. I seek to give some guidance about amendments that, if passed, might prevent ratification. I shall make a number of points, and I shall try to make them rather
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deliberately so that they can be not only listened to but read coherently if anybody should wish to refer to them in future debates on the Bill.The first point, as the Committee will appreciate, is that the Maastricht treaty must be ratified as a whole. Parliament can prevent its ratification by refusing to enact the Bill--by refusing to give it a Third Reading--but it cannot in any way modify the provisions of the treaty.
7.30 pm
The Committee will also have in mind the fact that the Maastricht treaty contains provisions of at least two different types. It contains some provisions that are intergovernmental in nature--one has in mind titles V and VI--and some that amend Community treaties. Here, those who have studied the Bill will have in mind titles II and IV. There is no need to incorporate into our domestic law the intergovernmental aspects of the treaty contained in titles V and VI.
Any amendment to the Bill that, by preventing incorporation of a treaty provision into our domestic law, makes it impossible for the United Kingdom to implement its Community obligations would cause us to regard ourselves as unable to ratify the treaty and would mean that if we did ratify we should be in breach of our treaty obligations as soon as the treaty came into effect. That is the key test. That is the heart of the matter that we are discussing. More generally, amendments that seek to omit or amend provisions on Community treaties must be strongly resisted. It is important --this is not a matter of the tightest law but it is very important as a matter of legislative practice--to preserve consistency between our domestic law and Community law as it is applicable to the United Kingdom. That is best achieved by following the United Kingdom's consistent legislative practice of incorporating in domestic law not only all amendments to Community treaties but any protocols annexed to those treaties. The Government therefore continue to oppose deletion of the social protocol from the proposed revised list of Community treaties in section 1(2) of the European Communities Act 1972.
Mr. Bernard Jenkin (Colchester, North) : My right hon. and learned Friend speaks of the importance of conformity between the Act and the treaty of Rome, as amended by the treaty of Maastricht. If it subsequently emerged that we had implemented the treaty incorrectly in our legislation, it would not matter because the European Court would direct us to rectify any clash between Community law and our own law. Indeed, if we failed so to amend the law we could be fined under article 171 of the Maastricht treaty.
The Attorney-General : My hon. Friend is half right. He says that it would not matter, but it would matter, because we would be in breach of our Community obligations. After we had been the subject of infraction proceedings, and if the European Court ruled against us--we do our best not to be in that position--it would be necessary for us to come back to the House and move amending legislation to render our domestic law in conformity with Community law. I think that my hon. Friend the Member for Colchester, North (Mr. Jenkin) understood that point.
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Mr. Budgen : Let us assume that the Government take a chance and decide that they will go ahead with the treaty without the protocol. If that situation arose and the matter were brought before our domestic courts on judicial review, would not that give rise to the risk of a conflict between Parliament and the judges?
The Attorney-General : Not in the way that my hon. Friend may have in mind, no, but I shall deal with that a little later.
Mr. Denzil Davies (Llanelli) : Will the Attorney-General give way?
Mr. Davies : I have the answer here.
The Attorney-General : I am most grateful, but it is just possible that I have it, too.
The Committee will recall that, since the social protocol expressly states that acts adopted under the agreement of the other 11 member states shall not be applicable to the United Kingdom, the deletion of the social protocol from the Bill and consequently the failure to incorporate it in our domestic law would not render the United Kingdom incapable of fulfilling its obligations under the treaty of union and would not therefore prevent ratification. It is a double negative. We would not be incorporating something which expressly by its terms provides that acts done under it shall not be applicable to us--a double negative.
Amendments that seek to incorporate provisions of the intergovernmental pillars as Community obligations would produce a nonsense in our domestic law. Provisions in the intergovernmental titles are not Community law obligations and it would be quite wrong to incorporate them in our law as if they were. Some amendments may affect only our domestic--
Mr. Gould : Will the Attorney-General give way?
The Attorney-General : May I finish the point? I should like to get this on the record, and then I shall give way.
Some amendments may affect only our domestic procedures for implementing the treaty obligations. An example might be amendment No. 28 on the Committee of the Regions, which the House was about to reach until the dilatory motion was moved. If these amendments were passed, we should have to examine carefully whether our law would still be consistent with our international obligations. But provided this condition were met, amendments in that category would not be fatal to ratification.
Application of those principles will, I think, make it clear into which category particular amendments fall. The great majority would be likely to prevent ratification. There are, however, some other parts of the treaty such as the Danish protocol on second homes--here I have in mind the point that was put to me by my hon. Frend the Member for Worcester (Mr. Luff), who mentioned that protocol and a number of similar protocols--where it is hard to see that non-incorporation would prevent ratification. As I have said, certain amendments relating to purely domestic procedures may fall into the same category because they are not inconsistent with our Community obligations.
If, however, it is not clear how to apply those principles to particular amendments in the future, I am willing to
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examine the matter carefully and give the Committee further advice. I hope that that is helpful as a broad way of looking at it. Mr. Maclennan rose --Mr. Denzil Davies rose --
Mr. Gould rose --
The Attorney-General : I see that three hon. Members are anxious to ask me questions, but, with respect, I see that the hon. Member for Hamilton also wishes to intervene.
Mr. George Robertson : I am not certain whether the
Attorney-General is clarifying the point. He is reading from a piece of paper that deals with different issues and he moves smartly from the area about which there is controversy to bits about which there is no controversy. He said that the Maastricht treaty must be ratified as a whole, but then he said that exclusion of the social protocol would not affect ratification. If that is the case, he will ratify that part of the Maastricht treaty by a means other than that which was intended when the Committee stage began. Will the Attorney-General confirm whether the Government will ratify the social protocol, which may by a vote of the House have been missed out of the Bill in which it is presently situated, by using the royal prerogative, because there is no other way of doing it?
The Attorney-General : The hon. Gentleman confuses the two quite different processes of ratification and incorporation of a particular provision into our domestic law. I see that the hon. Member for Ashfield (Mr. Hoon), who understands these matters, is nodding, and I am surprised that the hon. Gentleman does not understand them himself.
Mr. Gould : The Attorney-General's argument rests on the proposition that the omission of the social protocol would make no difference in domestic law, but has he considered the possibility that the explicit disclaimer of any obligations under the social agreement might help a domestic court to decide the extent of our obligations, not necessarily under the social agreement but under the general provisions of the treaty of Rome, requiring us to provide conditions of free competition? If that were the case--and I should be happy to argue that in a domestic court--the absence of that disclaimer would equally make a difference to domestic law and would run contrary to the Government's purposes in putting the disclaimer into domestic law in the first place, which is their intention under the Bill as drafted.
The Attorney-General : The hon. Gentleman is a sufficiently good lawyer to be able to recognise the different way in which the argument threads its way through what he said. Whether or not what he said is true, it has nothing to do with whether we can ratify the treaty. I think that the hon. Gentleman, who is kindly nodding, recognises that, so we shall leave his point.
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