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Peter Hain indicated dissent.

Mrs. Browning: The right hon. Gentleman shakes his head—really. It is not that I am against the EU or any of its member states. I am not anti-German or anti-French. I count many people on mainland Europe as personal friends. However, I am British and ultimately we should decide what is in the British national interest, both constitutionally and economically. I am not afraid to say that that is why I am here and why I represent the people of my constituency, and I do not believe that it is in the British national interest to take on this constitution.

6.16 pm

Mr. John Bercow (Buckingham): I have particular concerns about subsidiarity, the charter of fundamental rights and the way in which the Government intend to

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proceed in this matter without democratic legitimacy. As my hon. Friend the Member for North Dorset (Mr. Walter) rightly underlined, subsidiarity did not start with discussions about the constitution. It took root in the Maastricht treaty, article 3b of which was sadly unsuccessful.

We then proceed in this important debate to negotiations over the treaty of Amsterdam. I remember the Government's proud, self-indulgent, flag-waving approach to the incorporation within that treaty of the protocol on the application of subsidiarity and proportionality. That protocol said:

"The application of the principles of subsidiarity and proportionality shall respect the general provisions and objectives of the Treaty, particularly as regards the maintaining in full of the acquis communautaire and the institutional balance; it shall not affect the principles developed by the Court of Justice regarding the relationship between national and Community law, and it should take into account Article 6(4) of the Treaty on European Union, according to which 'the Union shall provide itself with the means necessary to obtain its objectives and carry through its policies'."

Any close inspection of that protocol would offer no serious crumb of comfort. It is certainly not a charter for decentralisation, still less a guarantee of the primacy in our affairs of national self-government.

Nevertheless the Government were conscious of, and preoccupied with, the second part of the third paragraph of the protocol, which allowed for circumstances in which Community action could be "restricted or discontinued" where it was no longer required. That was the fig leaf on to which the Government clasped and was presumably the rationale behind the Prime Minister's decision on 18 June 1997 to make a statement to the House about the IGC, saying that he had successfully negotiated a new protocol on subsidiarity and proportionality, which had "real teeth". That struck me as highly significant. In the subsequent years, I waited to see whether any decentralisation would take place, but it does not appear to me that any such decentralisation occurred.

On 21 May this year, I took the opportunity to ask the Foreign Secretary whether he could identify a single directive or regulation under the terms of the protocol that had been repealed. The right hon. Gentleman, to his great credit, candidly replied:

"No, and the practice has been unsatisfactory."—[Official Report, 21 May 2003; Vol. 405, c. 1023.]

So now their course of action is to say, "Ah, but things will get better, because there is now a proposal that when one third—in terms of voting strength—of the national Parliaments object to a particular proposal, there will be an obligation on the European Commission to review it." There is, of course, an obligation to review, but I invite the right hon. and learned Member for North-East Fife (Mr. Campbell) to bear in mind, and regard as dramatically significant in this debate, that that is where the obligation ends. Having reviewed the legislation in question, the Commission will be entitled to maintain, amend or withdraw it. That is why the European Scrutiny Committee—being properly sceptical, in the best sense of that much maligned term—observed on 16 October 2002 that there was no requirement for any of the EU institutions to take the slightest notice of the legitimate representations of national Parliaments of member states on behalf of their aggrieved citizens.

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I remind the Leader of the House that we have been here before and we have heard similar assurances. Why should it be any different now? There is no obligation on EU institutions to respect the principle of subsidiarity, in the terms in which my hon. Friends and I understand it. As if that is not bad enough, we must take account of the context in which we are addressing the issue, which is that in the 10 years from 1992 to 2002 no fewer than 28,681 directives, regulations and decisions flowed forth from the institutions of the EU to impact on the member states. That is what gives urgency—nay, immediacy—to a proper resolution of this important matter.

I am also concerned about the charter of fundamental rights. It is a legitimate set of aspirations and declaration of good intent, but I have two concerns. First, we would be giving our assent to something that has been drafted in accordance with the continental insistence on highfaluting declarations of good intent, rather than the more practical and reliable British insistence on specificity. In other words, we do not know what we will get when we sign up to it, or how it will be interpreted by the courts of the EU and the UK, given that the matters it contains will be justiciable.

Secondly, I am alarmed that a Government policy to change the law on double jeopardy could be threatened by the incorporation of article II-50 of the charter. That is not because I believe that the double jeopardy rule should be changed, although there are arguments about the significance of DNA and whether changing circumstances justify a revisiting of that law. My point is not about the detail of the law but who is responsible for it. The future course of criminal justice policy, including the issue of whether people should be able to be tried twice for the same offence, is a matter of legitimate concern to democratically elected Members of the British legislature. It is, with respect, no business of the European Union, which—as my right hon. Friend the Member for Richmond, Yorks (Mr. Hague) spent much of the last Parliament underlining—should do less, but do it better.

On the question of the referendum, the Government do not have a leg to stand on. There are three elements to the issue. The first is the characteristic, ping-pong attitude of the Government when they say, "You didn't have a referendum on the Single European Act or the Maastricht treaty, so there is no reason why we should have one now." I am prepared to confront that argument and say that I think that there was a powerful case for a referendum on the Single European Act and an even more compelling argument in support of a referendum on Maastricht. I argued the latter position on 22 October 1992 to the Twickenham Conservative ladies' conference and again to the Chelsea Conservative political centre on 6 May 1993. As hon. Members will imagine, massive audiences attended and my remarks were extraordinarily well received. However, even if there was not a good argument in those cases, there is one now because of the cumulative impact of the legislative changes and the arrogation of powers outwith the United Kingdom to people whom we do not elect, whom we cannot remove and whom, in some respects, it will become illegal to seek to persuade of the British national point of view. There is a good case for change.

I was implicitly, though gently, rebuked by the right hon. and learned Member for North-East Fife for apparently impugning the motives of Ministers. In

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reflecting on the rationale of the Government for saying no to a referendum, my concluding observation is that we should think back to Sherlock Holmes, who said words to the effect that when all the other possibilities have been eliminated, the remaining possibility, however improbable, must be the truth. The Government cannot be motivated by respect for tradition, by concern about precedent, or by a preoccupation with the niceties of decent behaviour and respect for the views of others to say, "While we would dearly love to put our centralising proposals to deprive the British people of the power of self-government in so many new areas to them, it would not be fair on them and they are not really capable of making the decision." The truth is that the Government are scared. They are frit. They have not the intellectual or political self-confidence in their case to put it to the people. Instead they want to deny the British people a choice and to abuse those of us who came into this House to defend the cause of parliamentary democracy and national self-government.

6.26 pm

Mr. Richard Spring (West Suffolk): I congratulate all those who have participated in this debate and I thank the Foreign Secretary for sponsoring yet another parliamentary debate about the EU and the European Convention. I particularly thank our two parliamentary representatives at the Convention, my right hon. Friend the Member for Wells (Mr. Heathcoat-Amory), who spoke brilliantly this afternoon, and the hon. Member for Birmingham, Edgbaston (Ms Stuart), for their contributions over many arduous months.

Of course, it is the greatest possible unalloyed joy to have with us this afternoon, in his very busy life, the Leader of the House and Secretary of State for Wales. He was described breathlessly in an article in The Times on Monday as follows:

"Fifty-three, tanned, trim, and handsome, he strides into his office in the Commons bursting with the joys of his day."

I hope that he will send a signed copy of the article to his right hon. Friend the Chancellor of the Exchequer, who is clearly so eager to receive his advice on taxation. The Leader of the House famously wrote a book, "Ayes to the Left", in which he suggested that the European Union was some sort of capitalist plot. It was rubbish then, and his latest pronouncements on the European Union similarly qualify as rubbish—or, to use the new word, Horlicks.

The best bit in the article in The Times states:

"He says the public has become disillusioned with politics because of hype and spin."

However, the right hon. Gentleman has gone out of his way to paint a picture of what has emerged from the Convention that is totally different from the perceptions of everybody else in Europe. Now the Government tell us that they will fight hard to amend some of the Convention's proposals, especially in respect of the collapsing of the three pillars. We wish them well, but if they fail, will they veto the treaty? I would be interested to hear the right hon. Gentleman's response to that.

None of this should ever have been allowed to happen in the first place. Long before the Convention actually got under way, European Governments were setting out clear views of what the EU architecture should be. Our

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Government, I regret to say, produced virtually nothing. They opposed the written constitution and the binding incorporation of the charter of fundamental rights, but—needless to say—we have signed up anyway. That reflects a pathetic lack of leadership and focus.

As the Library has accepted, at the IGC there will be renewed discussion of some of the more controversial articles but, very importantly,

"it is generally agreed that the IGC should not unpick the text agreed"—

by the Convention. So there we have it. We know in essence what will emerge at the IGC, and we can make judgments on what that will mean for us, and indeed for the whole of the EU.

Why did the Government agree to a written constitution? Either it is of lesser significance than what was agreed to at Maastricht or in the Single European Act—as the Foreign Secretary tells us—or as the German Foreign Minister said, reflecting pretty well everybody else's view, it is

"The most important treaty since the formation of the European Economic Community."

I think I know whom to believe on that score. At the heart of the Convention's proposals lies the constitution. To all intents and purposes, it will be the first time that Britain has had a written constitution.

The Foreign Secretary has said, in effect, that golf clubs have constitutions, so why should not any other organisation? Once it was clear that the Government, in their lack of conviction, had abandoned the rejection of a constitution, the right hon. Gentleman sought to reassure us last autumn with an article in The Economist. As we re-read it, it is almost beyond parody. It states:

"The constitution of the world's most complex international organisation—the United Nations—fits easily into my jacket pocket. The constitution of one of the world's oldest and most successful democracies—the United States—would fit neatly into the other pocket . . . Size is important—the smaller the better when it comes to constitutions! But size tells us another, more important, story—that of coherence."

Well, I am holding the proposed constitution, all 250 pages of it: some constitution, some jacket—indeed, some pocket. One wonders what the Foreign Secretary would make of the ten commandments.

Several things are clear about the proposed European constitution. First, no one in Europe apart from the Government pretends that it is simply a tidying-up exercise. There will be large transfers of sovereignty from the EU's member states to the EU's institutions, and a profound reshaping of Europe's legal order. This country badly needs an open and genuine debate on this momentous change for the EU. That cannot happen while the Government, absurdly, play down the consequences of the constitution.

I therefore appeal to the Government to have the courage of whatever convictions that they may have and acknowledge that this will be one of the most fundamental alterations to the EU since the treaty of Rome and, if they believe in it, to argue for it honestly. Along with the right hon. and learned Member for North-East Fife (Mr. Campbell), we look forward to a comprehensive White Paper, to which the Foreign

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Secretary has already referred. I hope that that will elevate the debate. We also seek the assurances about our legal status that were spelled out by my right hon. Friend the Member for Wells (Mr. Heathcoat-Amory).

This constitution adds little in the way of the clarity that this Government said that they wanted. Indeed, it leaves some fundamental points quite unclear and no doubt they will be decided, regrettably, by judges in Luxembourg, as the right hon. Member for Upper Bann (Mr. Trimble) and the hon. Member for Hornchurch (John Cryer) noted. The sad fact is that this Government have never set out a clear vision of their own for Europe. The French have, the Germans have, the European Commission has, but the Government have not. It is no wonder that the charter of fundamental rights, which the Prime Minister claimed would be no more than a political declaration, is now to be legally binding. In Europe, this Government have been, in the end, content to follow, and not lead.

The Convention on the Future of Europe has been a considerable missed opportunity, as my hon. Friend the Member for North Dorset (Mr. Walter) said. The Laeken declaration that established it asked many of the right questions, but they have simply not been answered.

Why are the Government so hostile to letting the people decide whether or not they like what the Government, quite clearly, are going to agree to? I can tell the Foreign Secretary that the party of European socialists website is rather more generous than he is. The president of that group is his predecessor, the right hon. Member for Livingston (Mr. Cook). Its "website of the month" is one that is given over to the European referendum campaign. In marked contrast to the apparently closed minds of its brothers on the Government front Bench, the campaign makes an appeal that an EU constitution should be

"submitted to the citizens in a European referendum in all the countries concerned . . . that the Parliaments of the states concerned make the appropriate legal and constitutional provisions for a binding referendum"

and that

"the EU Constitution or Constitutional Treaty can only be adopted in the countries in which a majority vote in favour of it."

The website confirms other facts that we already know. We read that a significant number of other countries will go for a referendum. Even Giscard d'Estaing appears to be in favour. In Britain, referendums can be held even down to the municipal level, but it is beyond belief that, as we acquire the first written constitution in our history, the British people are excluded from holding a referendum—a point made by my hon. Friend the Member for Tiverton and Honiton (Mrs. Browning).

No one with whom my right hon. Friend the Member for Devizes (Mr. Ancram) and I have discussed these matters has not expressed surprise at Britain's contribution to the debate about the architecture of the EU. Of course, many of them are delighted, because they are the ones who have shaped the structures, when Britain has simply been tinkering around the edges.

What has the Government's policy of so-called constructive engagement yielded, as we approach enlargement? My hon. Friend the Member for Buckingham (Mr. Bercow) asked that question. How many powers have been returned to Britain, in the name of subsidiarity? The answer is none. It took a previous

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Government to deliver a substantial rebate, obtain the single currency opt-out, and drive on the single market. What, by comparison, have this Government achieved? Many believe that the Lisbon process has effectively run into the sands, yet the Government have won agreement on a limited number of elements.

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