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Mr. Nicholls: Does my hon. Friend agree that that is why it is so important that the Government admit that there are certain irreducible demands on which they will insist, if necessary via legislation in this Parliament?The alternative is to tell our partners in advance that, ultimately, if they overrule us, we will accept it.
Sir Michael Spicer: I could not agree more with my hon. Friend. There must be a clear statement of those demands. The only matter on which I take issue with the Government is that the demands are couched in terms of saying no to matters that they think will arise at the intergovernmental conference. The Government should make a positive statement that we want to retrieve powers, in return for which we are prepared to consider what others may do within the context of variable geometry. That would be a positive negotiating position.
Mr. Denzil Davies (Llanelli): In the 10 minutes available to me, I intend to deal with the European Court of Justice, on which we are apparently to receive another memorandum, so the time has come to consider fundamental reform of its structures and procedures.
The court is 36 years old. It was set up as part of the authoritarian European Coal and Steel Community and it drew most of its procedures from the authoritarian and state-dominated French legal system. We have a European Community of 15 countries, and in a few years' time it will probably be more. Many of them--not just Britain--have legal systems that are different from the French system. The European Court is a state court which serves an increasingly centralised European state. It is a supreme court. From time to time, it has declared Acts of Parliament--not just of this Parliament, but of Parliaments throughout the 15 nation states--unconstitutional, and it will do so again.
We should not be surprised about that. We have signed a treaty which declares the ever closer union of European nation states and the submergence, in effect, of their sovereignty. Presumably that is why we have such a court, but the problem for this debate is that the European Court is not fair. Its structures and procedures mean that it cannot be even-handed in litigation between a nation state and a Community institution or when a party seeks to invoke treaties against the nation state. It cannot be even-handed, because its legal bureaucracy and structure is aimed towards ever closer union.
The European Court is not like courts in Britain. It is located in a large, impressive building in Luxembourg. It has 800 staff, many of whom are highly qualified lawyers, although they are described as legal secretaries. Each of the 15 judges has a highly qualified cabinet that would turn a United States supreme court justice green with envy.
One of the problems is that the European Court is bureaucratic. When a party hands in pleadings at Luxembourg, the first person he meets on the court house steps is the judge rapporteur--it is always a rapporteur. He is a proper judge. With other judges, he will decide the case. He takes the case over. After that, the case belongs not to the parties, but to the court of legal bureaucracy.
The judge rapporteur considers the pleadings.He decides what facts must be proved and, in secret,how those facts are to be proved. That is an enormous power. He decides on the procedures--within, of course, the general procedure of the court--and takes over the whole case.
After a few years of written pleadings going back and forth, before the oral hearing, which is perfunctory and lasts for only half an hour or an hour--most of the work is done in writing--the judge rapporteur writes a report about the case for all his fellow judges. It probably forms the basis of the first draft of the court's opinion. Apparently--so I am told--the judge rapporteur often writes the judgment as well. We therefore have a complete legal bureaucracy.
The judge rapporteur may be an important fellow, but the top cat is our friend the Advocate General. He is an extraordinary fellow. He is both a judge and an advocate. If any young lawyer wants to have it both ways, he should become an Advocate General. With his friend the judge rapporteur, the Advocate General also considers the case from the beginning. There is nothing in the British legal system--or, I suspect, in the legal systems of most other countries--to compare with the Advocate General. Again, the concept comes from the French legal system. There is a mirror image in the Conseil d'Etat--the French state court. If I may translate the French, he is known as the commissar of Government. The Advocate General is the commissar of the European Court, and he has enormous influence.
The Advocate General's moment comes at the end.He sits with the judges listening to the oral argument of the poor advocates, who get only half an hour each. Once they have finished, down from the judges' bench comes the Advocate General and he becomes an advocate.He addresses the court and reads out what he calls his opinion--we have heard about his notorious opinion on health and safety and the 48-hour week. It is his speech to the court. He is impressive and intellectually brilliant in many ways, reviewing the whole case because he is the Cerberus of the acquis communautaire--the guardian of the treaty.
That is the end of the matter. The Advocate General has the last word. Every advocate knows that the last word is precious. Some time ago, a silk to the chancery Bar apparently tried to ensure that he lost in the Court of Appeal 2-1 so that he could open in the House of Lords and have the last word. I do not know whether that is true, but the advocates in the European Court of Justice cannot reopen the case after the Advocate General. As we all know, the Advocate General's opinion, although it is not always followed, is influential with the court.
There are 15 judges in the court, but they deliver only one judgment. I do not know whether hon. Members have read such judgments, but they are a disgrace. Except to the aficionados who practise law, they are usually almost completely incomprehensible, even to most lawyers.Yet this is a court whose judgment can make an Act of Parliament unconstitutional. The judgment is merely a series of propositions with a conclusion: there is no attempt at reasoning--no attempt to make it flow so that people can read and understand it.
There is no dissenting judgment, of course, because no one can dissent in the European Union. People cannot dissent in the Commission--anyone who is against a single currency gets the sack. It should be remembered that in the United States supreme court, dissenting judgments have often been the most important judgments. So why in the Europe Union cannot there be one proper judgment from the judges and one--we are not asking for more--dissenting judgment? The current procedures do not allow that.
I want to offer the Minister a few suggestions to take with him when he goes back into that terrible room and finds that he is one against 14. First, there needs to be a fundamental review of the procedures of the court, the way it operates, the way evidence is called and the way facts are decided. Secondly, the judges should be told to write a proper opinion, which people can read and understand. One dissenting judgment should be allowed, if one is wanted. Finally, we should get rid of the Advocate General, because we do not need him.
Sir Cranley Onslow (Woking):
Since the Government published their White Paper, I have had one letter from my constituents on the subject. I do not know why I have not had more. I am sure that people are interested in Europe. Perhaps they hesitate to enter into a debate where such appalling terms as "subsidiarity", "variable geometry" and "acquis communautaire" are common change.
I want to leave all the technical stuff and quote from that one letter, which is of some interest. My constituent writes:
I note that some of my hon. Friends are nodding in agreement with that letter. I received it with some regret because it shows the extent to which the problems are not understood and the extent to which we need to move forward. It would not be a misleading summary to say that many people in this country feel about the EC like someone who has bought a fine new car, found that it has four good forward gears that work well, that the brakes are a bit dodgy, that neutral is all right, but that there is no reverse gear--so when he finds himself in a position where he does not want to be, there is no way to get out of it. That is something that we cannot ignore.
I agree with the right hon. Member for Chesterfield (Mr. Benn), who has left the Chamber, that the one issue that the intergovernmental conference should address is the grievance that many people feel. Without any evidence that something is being done about that, confidence in the EC as an institution and in the treaties that we have signed will continue to wither on the vine. There is a job to be done, which is to deal with areas that we find so unsatisfactory--such as the common fisheries policy. We do not have to be Euro-sceptics to be furious about the way that the Spaniards get away with things; we do not have to be Euro-sceptics to boil over when we learn how other countries cheat on the enforcement of their quotas; we do not have to be Euro-sceptics to be infuriated by the European Court of Justice and the extraordinary conclusions it reaches. My right hon. Friend the Prime Minister has made his feeling clear on that.
I and my constituents feel that Britain did not join the European Union to be saddled with Eurojudge-made law. Something must be done about that and the IGC provides an opportunity to do it. The Government's approach in the White Paper is commendable and we hope that real results come from that. Most of our constituents will welcome the Government's pledge on qualified majority voting, the number of Commissioners and the powers and procedures of the European Parliament--a body which, though elected, still has a serious credibility problem which it might do something to solve if it actually began to use the powers that the Maastricht treaty gave it. I find it difficult to understand why that has not happened already. It may have something to do with the in-built socialist majority in that so-called democratic body.
The Government's line on foreign and defence policies is also right. NATO must be the bulwark of our defence. Our vital national interests cannot be overridden. It is absolutely unthinkable that British forces could be committed to operations in or out of Europe against the will of this House. It is equally unacceptable that, while
recruitment to our armed forces is voluntary, another European Court should be able to degrade the efficiency of our fighting services by compelling them to retain homosexuals in uniform. People want to be assured that, at the IGC, Britain will try to redress grievances rather than plough on blindly.
I wholly agree with what the Government say in the White Paper about the social chapter, especially in paragraph 60. We hear a great deal about conditions in Germany. Anyone with a close relative working in a German firm will know at first hand how extraordinary the loss of work ethic has been in German society, how the German work force has saddled itself through self-indulgence with social benefits to an extent that has made it so uncompetitive that even in high-tech industries such as the automobile industry jobs are leaching from Germany to Britain--and a good thing, too, for us. I do not mind BMW, Mercedes or Bosch coming here; but let us not hear those on the Opposition Front Bench saying that it has nothing to do with the fact that we have not saddled ourselves and our workers with the burdens of the social chapter in the way that the Germans have done.
I want finally to refer to the question of a referendum on a single currency, which my constituent opposed in his letter. I believe that there must be a referendum, as there is no other way of obtaining the consent of the British electorate. It should be based on a question set by the Government of the day, which will not be this Government, on a question decided by the Parliament of the day, which will not be this Parliament, with everyone given an opportunity to show how far they have confidence in the system, how much they believe that the EU works to our advantage, and how much they believe that it is genuinely a democratic body.
I was somewhat depressed by the equivocating responses of the hon. Member for Livingston (Mr. Cook) when he was pressed on that point. It was clear that, in effect, he was saying that, if the Labour party should gain a sufficient majority to form a Government, there would not be any nonsense like a referendum. That will not stand Labour in good stead when the general election comes and I hope that we will make more of that.
"I don't think that there should be a referendum on whether we join the EU single currency if one does come about. It is far too technical a subject for the man in the street to cope with. My wife says that if there is a referendum on the single currency the electorate need to be told far more about the pros and cons. What we both feel very strongly about is the dreadful way the EU interferes in the general running of our country. They are succeeding in doing something that the Kaiser, Mussolini and Hitler failed to do in this century, as did all others in the seven previous centuries, namely conquer us, overrule our Parliament and the judiciary, laws, fishing rights, etc. etc. Give us a referendum on this and we will gladly let you know where we stand."
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