House of Commons Hansard Debates for 22 Feb 1993

Mr. Maclennan : Will the Attorney-General deal with the question of ratification of the treaty and section 6 of the European Assembly Elections Act 1978, which requires the approval of Parliament? The social protocol is a treaty like any other. Will he state whether, in his view, clause 1(2), which refers to the treaty, not to the treaty and the protocol, is referring to the protocol, because the

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advice that I gave earlier is that it does not? Therefore, the protocol cannot under domestic law be ratified if amendment No. 27 is passed.

The Attorney-General : The hon. Gentleman would be taking me slightly off course if I answered that question immediately, but I shall answer it, and clearly. Just to give the hon. Gentleman a quick foretaste, I am absolutely satisfied that clause 1(2) covers that matter comprehensively, but I shall return to it in more detail. I shall give way to the hon. Member for Ashfield, because I mentioned him earlier.

Mr. Hoon : Does the Attorney-General believe that it is possible for the Government to ratify the protocol on social policy if Parliament has specifically excluded it from incorporation into domestic law?

The Attorney-General : Yes is the answer. The hon. Gentleman will know that that must be my answer. Our obligation is to incorporate into domestic law those portions of the treaty that give rise to obligations on the United Kingdom. As the hon. Gentleman will realise, the social protocol expressly states that it does not affect domestic law.

Sir Teddy Taylor : As the Attorney-General has answered fairly, can he help the House by saying when there was a precedent of the Government ratifying part of a treaty which the House of Commons has specifically voted to exclude? It would be helpful if we knew when that last happened.

The Attorney-General : My hon. Friend has probably given more thought than anyone else to the Bill, but, with respect, he should think more precisely. He said that the House has voted to exclude the social protocol from the treaty. That is not correct. If the Committee were to pass amendment No. 27 it would have voted merely not to incorporate the social protocol into domestic law. It must be clear to my hon. Friend and to the Committee--I say this with all respect--that nothing we can do in the Committee can amend the treaty. The treaty can only

Sir Teddy Taylor : When did it last happen? Has it ever happened? Several hon. Members rose --

The Second Deputy Chairman of Ways and Means : Order. If the right hon. and learned Member who has the floor does not give way, other hon. Members know that they must resume their seats.

Sir Teddy Taylor : Has it ever happened before?

The Attorney-General : I do not know the answer to that question, but I do not believe that it is of constitutional importance.

Mr. Cash : Will my right hon. and learned Friend give way?

The Attorney-General : No, if my hon. Friend will forgive me, I must make a little progress. I want to deal with three other points, including that raised by the hon. Member for Caithness and Sutherland.

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7.45 pm

A number of hon. Members asked about the obligation to share administrative costs of action by the other 11 countries, which is referred to in the social protocol. My view is that the obligation to share those administrative costs is covered by the listing of the own resources decision in section 1 (2) of the European Communities Act 1972--I believe that this point is of some interest to the House--assuming that such expenses are included, as seems likely, within the Community budget.

If, however, such expenses were not called forward in the Community budget as a whole, in which case there would be the authority that I have just mentioned, expenditure could be made on the authority of votes and on the authority of the annual Appropriation Act alone. In giving authority for that particular expenditure in relation to a treaty obligation, the House will be following exactly the same practice as we follow, for example, in relation to payments to NATO and similar treaties.

The second point is that there is no constitutional impropriety in continuing with ratification if amendment No. 27 is passed. My answer to my hon. Friend the Member for Southend, East (Sir. T. Taylor) made it clear that Parliament cannot pick and choose which treaty obligations to accept, but it can prevent ratification of the entire treaty by refusing to enact the Bill.

I deal now with the issue raised by the hon. Member for Caithness and Sutherland who mentioned the opinion received by the right hon. Member the Member for Yeovil (Mr. Ashdown). There can be no question of increasing the powers of the European Parliament without prior approval from the United Kingdom in accordance with the European Parliamentary Elections Act 1978. However, I draw to the hon. Gentleman's attention the fact that clause 1(2), if enacted, would approve the entire Maastricht treaty for that purpose. I invite all hon. Members to read the extremely clear and broad terms of clause 1 (2). I am satisfied that they cover that particular point.

Mr. Maclennan : This is the heart of the question. The matter is not as clear as the Attorney-General has sought to make out. In the terms of clause 1(2), the reference to the "Treaty on European Union" is to be interpreted as including the protocol. I say that because it is clear from clause 1(1), which includes the protocol, that the language is explicit and refers to all the protocols adopted at Maastricht. That is a key question.

It is also clear from the language of the treaty that the protocol was adopted as a separate instrument and was annexed to the treaty. Passage was to be considered to be without prejudice to the treaty. I find the Attorney -General's rather glib answer on the point wholly unconvincing, as I believe will many lawyers.

It is not satisfactory to suggest that the Committee has abided properly by the requirements of section 6 of the European Assembly Elections Act 1978. All that the Attorney-General is doing is inviting others to table amendments similar to those tabled for clause 1(1) in respect of clause 1(2) to put the matter beyond any doubt. The Attorney-General does not escape from the trap that he has sprung for himself.

The Attorney-General : I am not sure that the hon. Gentleman is in a good position to start talking about traps being sprung for people. He will be aware that his

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right hon. Friend the Member for Yeovil has now sent my right hon. Friend the Prime Minister three letters on this matter. From the first letter, it seemed pretty clear that the right hon. Member for Yeovil had not read the Bill. Neither the letter nor the advice appended to it made any reference to clause 1(2).

I remind the Committee that clause 1(2) says :

"For the purpose of section 6 of the European Parliamentary Elections Act 1978 (approval of treaties increasing the Parliament's powers) the Treaty on European Union signed at Maastricht on 7th February 1992 is approved."

The protocols were signed at Maastricht on 7 February 1992. They were all signed at the same time.

Mr. Maclennan : There were separate signatures.

The Attorney-General : Yes, it is true that there were separate signatures. The hon. Gentleman should also bear it in mind that the protocols signed at Maastricht are expressly annexed to the treaty of Rome. He should also bear it in mind that article 239 of the treaty of Rome says :

"The Protocols annexed to this Treaty by common accord of the Member States shall form an integral part thereof."

As my right hon. Friend the Prime Minister, who has written to the right hon. Member for Yeovil on more than one occasion, has endeavoured to explain in his letter, the provisions of clause 1(1) and the provisions of clause 1(2) perform entirely different functions.

Clause 1(1) deals with the provisions of the treaty that require to be incorporated into our domestic law. It is clause 1(2) which provides the necessary parliamentary approval, for the purpose of section 6 of the European Assembly Elections Act 1978, for the whole of the treaty on European union. I emphasise that it is for the whole of that treaty.

Mr. Maclennan : I am grateful to the Attorney-General for giving way and I shall not weary him or the Committee again on this point. The Attorney-General cites the case of the treaty of Rome and the protocols thereto being integral. By so doing, he underlines the precise difference between the treaty of Rome and its protocols and the treaty of Maastricht and its protocols. There is no statement in the treaty of Maastricht that its protocols are integral. Indeed, the treaty expressly says :

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

That emphasises the independent character as an international agreement for the purposes of section 6 of the 1978 Act. I am afraid to say that the Attorney-General, far from clearing up the matter, has left the position more confused.

The Attorney-General : I say with respect to the hon. Gentleman that the situation may be worse confounded in his mind. I believe that the position will be clearer to those who look at the matter carefully and dispassionately. I simply point out that the protocol on social policy says at item 3 :

"This Protocol shall be annexed to the Treaty establishing the European Community."

If the hon. Gentleman reads that in conjunction with article 239, which I have just quoted to the Committee, he will see that it becomes an integral part of the treaty of Rome on ratification. I believe that that matter puts the question beyond doubt. There are a number of other arguments that I could deploy, but it would probably be unhelpful for me to go further at this moment.

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Mr. Calum Macdonald (Western Isles) : Is the Attorney-General saying that, if clause 1(2) were to be amended specifically to exclude the protocol on social policy, it will be impossible for the Government to ratify that protocol?

The Attorney-General : The hon. Gentleman asks a hypothetical question. I have said that if amendments are tabled and if the Committee needs assistance in future, I shall be prepared to consider the matter and to give what help I can. The position must be clear from what I have already said. If the hon. Gentleman had been in the Chamber and listening, he would have heard me say that if the great majority of amendments were passed, they would render it possible for the Government to ratify the treaty. It is not altogether surprising that the hon. Gentleman may be able to dream up one or two others which would make it possible to wreck the treaty, if that was his intention and that of his hon. Friends.

Mr. Macdonald : The question is not hypothetical because I tabled such an amendment earlier this evening. If the amendment is selected, voted on and agreed to by the Committee, would it be impossible for the Government to ratify the protocol on social policy, if that protocol were specifically to be excluded from clause 1(2)?

The Attorney-General : I have sufficient respect for the hon. Gentleman's amendment to say that I should have to look at it before expressing an opinion. He will, of course, have to consider how popular his amendment is with his hon. Friends and whether it is a matter that he wishes to press to a conclusion.

I have covered many points this evening. If I look quickly at my notes, I can see whether any other matters have been raised.

Mr. John Fraser (Norwood) : The Attorney-General is arguing that the social protocol does not affect British domestic law. Let us take the example of a United Kingdom national working for a United Kingdom company who acquires rights while working for that company in one of the other 11 states. Let us suppose that that person returns to the United Kingdom and wishes to enforce in the United Kingdom rights that have come as a result of the social chapter. Surely that means that the social chapter would have created rights that were enforceable in British domestic law. Surely what the chapter does is to exclude the United Kingdom Government from implementing matters in the social chapter. What it does not do is to exclude the creation of rights inside the Community which may be enforceable in the United Kingdom domestic courts. It therefore has an effect on British domestic law.

The Attorney-General : I recommend the hon. Gentleman to look once again at the social protocol. He will realise that the hypothetical position that he has proposed would have been a result of acts adopted by the Council under the social chapter. The protocol on social policy says absolutely expressly :

"Acts adopted by the Council and any financial consequences other than administrative costs shall not be applicable to the United Kingdom of Great Britain and Northern Ireland."

I believe that that answers the hon. Gentleman's question perfectly clearly.

I have just a few more points to make before I sit down. My hon. Friend the Member for Worcester asked whether

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there were other protocols which, if we did not annex them, might not render it impossible for us to ratify the treaty. I have given an indication of a certain number of those. I have given a general indication as to the guidance which the Committee might seek in deciding upon particular amendments, and I hope that that is of assistance.

Mr. Donald Anderson : The Attorney-General has given a very learned and weighty opinion. Has that opinion convinced the Foreign Office legal advisers of the error of their original opinion?

The Attorney-General : I think that that is unkind, and I can tell the House that I have had an enormous amount of assistance from the Foreign Office legal advisers. They agree with the opinion that the Lord Advocate and I have given to the Committee.

Mr. George Robertson rose in his place and claimed to move, That the Question be now put.

Question put, That the Question be now put :--

The House proceeded to a Division :--

Mrs. Jacqui Lait (Hastings and Rye) (seated and covered) : On a point of order, Dame Janet. I should like to protest most strongly, because I wanted to take part in this debate of prime constitutional importance, but the Labour party has denied me that opportunity.

The Second Deputy Chairman : I have accepted the closure, so there is no further discussion.

The Committee proceeded to a Division ; but no Member being willing to act as Teller for the Noes, The Second Deputy Chairman-- declared that the Ayes had it.

Question put accordingly and agreed to.

Committee report progress

The Second Deputy Chairman : To sit again what day?--

[Interruption.] I repeat, Committee what day? [Hon. Members :-- "Now"] No, it cannot be now. Thursday?

Mr. Don Dixon (Jarrow) : Thursday week.

The Second Deputy Chairman : We must have an answer from an hon. Member who acts on behalf of the Government.

Sir Teddy Taylor : Christmas Day.

Mr. Andrew Mitchell (Gedling) : Tomorrow.

The Second Deputy Chairman : I hope that we are now clear that the Committee will sit again tomorrow.

Committee to sit again tomorrow.

Statutory Instruments, &c.

Motion made, and Question put forthwith pursuant to Standing Order No. 101(5) (Standing Committees on Statutory Instruments, &c.).

Public Path Orders

That the draft Local Authorities (Recovery of Costs for Public Path Orders) Regulations 1993, which were laid before this House on 18th January, be approved.-- [Mr. Andrew Mitchell.]

Question agreed to.

Motion made, and Question put forthwith pursuant to Standing Order No. 101(5) (Standing Committees on Statutory Instruments, &c.).

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Fish (Pollution)

That the Food Protection (Emergency Prohibitions) (Oil and Chemical Pollution of Fish) (No. 2) Order 1993 (S.I., 1993, No. 143), dated 27th January 1993, a copy of which was laid before this House on 28th January, be approved.-- [Mr. Andrew Mitchell.]

Question agreed to. [Interruption.]

Madam Deputy Speaker (Dame Janet Fookes) : Order. Before we go on to the next Order of the Day, may I ask for a little peace and quiet?

European Community Documents

Motion made, and Question put forthwith pursuant to Standing Order No. 102(9) (European Standing Committees.).

Feeding Stuffs (Nutritional Purposes)

That this House takes note of European Community Document No. 8412/92, relating to feedingstuffs for particular nutritional purposes, and supports the Government's aims of seeking to clarify the scope of and justification for the proposed measure, and of ensuring that any measures which may be agreed place no unjustifiable burdens on pet food companies or other sectors of the feed industry.-- [Mr. Andrew Mitchell.]

Question agreed to.

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Adjournment

Motion made, and Question proposed, That this House do now adjourn.-- [Mr. Andrew Mitchell.]

8.6 pm

Mr. Tim Devlin (Stockton, South) : On a point of order, Madam Deputy Speaker. I understand that the Adjournment is in the name of my hon. Friend the Member for Langbaurgh (Mr. Bates). My hon. Friend and I put in for this Adjournment and, as my colleague is not here, I was wondering whether I could start without him.

Madam Deputy Speaker : I am afraid that the answer is absolutely no.

Mr. Tam Dalyell (Linlithgow) : Further to that point of order, Madam Deputy Speaker. Since it is just 8 pm, may I have an Adjournment on the terms of reference of Lord Justice Scott's report? I note that the Minister of State, Foreign and Commonwealth Office, the right hon. and learned Member for Grantham (Mr. Hogg) is present, and he is always willing to be obliging. If I were to initiate as debate on Lord Justice Scott's terms of reference, perhaps he could answer it. Do I take it that that is in order?

Madam Deputy Speaker : I am afraid that the hon. Gentleman is in error. It is not in order. I must now put the Question.

Question put and agreed to.

Adjourned accordingly at seven minutes past Eight o'clock.

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