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4.34 pm

Mr. David Heathcoat-Amory (Wells) (Con): I am very pleased to follow the hon. Member for Birmingham, Edgbaston (Ms Stuart). I often found myself on the same side of the argument as her in the Convention on the Future of Europe, on which we both served. The House would expect that, because we were both sent from here to defend and to promote the interests of parliamentary democracy, and more generally to advance the principle of self-government. So it was natural that we agreed more often than we disagreed, and such agreement has been reflected in her comments this afternoon, most of which I support.

As an ordinary member of the Convention, I was often exasperated to discover that the drafting and many of the ideas that we had to consider came from above—from the praesidium—rather than from the working parties and our deliberations in the plenary sessions. So the bottom-up model that we were promised was in fact replaced by a top-down, rather familiar European model of decision making. It is apparent from the hon. Lady's recent pamphlet and from her writings that she, too, suffered from this problem in the praesidium. Many of the ideas advanced did not arise from below, but were promoted and initiated by the presidency, or by the European bureaucracy. But the hon. Lady certainly did her best to protect the interests of national Parliaments generally, and it is a matter of regret to her—as well as to us—that she was unable to strengthen significantly the subsidiarity provisions that, after all, have been part of treaty law for more than a decade.

We were promised that the constitution would provide an opportunity to entrench those provisions more assertively, and to give national Parliaments a real right to prevent the adoption of measures that are clearly against our vital interests. However, none of that is apparent in the draft that we are considering. We have only the right to object and to request a review if the subsidiarity principle is broken, which is really nothing more than we have at the minute. Parliament is already

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entitled to make objections, and the Commission is entitled to reject them. That situation, I am afraid, will continue, and I greatly regret the fact that the British Government have not made this a red line issue by backing up their assurances to this House with real negotiating vigour.

It was exactly two years ago that heads of state published the Laeken declaration, which drew attention to severe defects in the European Union, to public disillusionment with it, to the secrecy, and to the lack of effectiveness and efficiency. It declared that Europe was at a crossroads, and I agree with that analysis. Those same heads of government are now faced with a choice—one that they may well be making this very weekend. It is a choice between an open and democratic Europe that is closer to its citizens, as mandated by the Laeken declaration, or accepting the European constitution in its current form. That constitution, I am afraid, has all the familiar hallmarks: it is technocratic, centralising and undemocratic. That is the stark choice now facing the states of Europe, and I do hope that the Government, even at this late stage, will have the courage to go back to the instructions given to us all when the declaration was first published.

Of course, originally the Government did not want a European constitution at all. That was their established position, and indeed, Laeken alluded only elliptically to the possibility of a European constitution.

It is perhaps amusing—in a death-rattle sort of way—to note that objections to a constitution are still being expressed by Ministers even this week. The Guardian featured an article about the Lord Chief Justice, who advanced the proposition for a written constitution in this country. However, the Lord Chancellor—Lord Falconer—was definite in his objection to the very concept of a constitution. I quote:

I rather agree with that, but does the noble Lord take the same view about a written European constitution, which will have exactly the same in-built conflict between the expressed wishes of elected representatives and that of judges, particularly when the constitution that we are likely to adopt is longer, and certainly more obscure, than the treaties that it will replace?

One of the requirements at Laeken was to simplify, but the document that we have to deal with now is longer than the text that it replaces. So we are getting a written constitution, but, oddly, not one that we are writing ourselves. We are importing a written constitution, and I know of no other country in the world that has ever done that. We were told at the start to act like the founding fathers in Philadelphia in 1787, but they wrote their own constitution for their own country. We have participated in a written constitution, which we are going to adopt whether we like it or not.

Mr. Cash : Does my right hon. Friend agree that one of the worst aspects of the arrangement is that the European Court of Justice will be given such extensive power to interpret the constitution that it—the Court

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itself, let alone the judiciary—would become the pre-eminent force in driving European integration forward?

Mr. Heathcoat-Amory: Yes, I summarise the process under way here as powers being transferred from people we elect and can get rid of to people we do not elect and cannot get rid of. I notice that the British judiciary is complaining about Government plans for a supreme court, but the real supreme court will not be in this country: it will be the European Court of Justice. I agree with my hon. Friend about that.

When it became apparent that the Convention on the Future of Europe was drawing up a constitution, the Government then took fright and eventually—I would say rather belatedly—tabled more than 200 amendments. I have a copy of all the amendments here. Sadly, only a small number—about 11—were accepted in the Convention, and the rest have simply been quietly forgotten and dropped. That is a serious matter.

To take one example, asylum is a big issue, which featured prominently in the Prime Minister's party speech this year when he promised legislation and to take control of a system that had clearly broken down. The Queen's Speech promised legislation on asylum and immigration. However, it is the European constitution that will take over responsibility for that area of policy. It contains a long section on all the legislation that can be adopted by majority voting in the new Union under the terms of the constitution. The Government representative in the Convention tabled an amendment to delete those provisions and the right hon. Member for Neath (Mr. Hain), who was the Minister for Europe at the time, emphasised the importance of the issue by saying that it was a "fundamentally important" amendment. Why, then, does it not appear anywhere in the list of red lines in the White Paper? It has simply been abandoned.

The Government do not really understand that the very fact that asylum and immigration will be a shared competence of the new Union means that this House will have only a residual right to legislate in that area. My hon. Friend the Member for West Suffolk (Mr. Spring) asked the Foreign Secretary earlier in this debate what he understood by the term "shared competence". The Foreign Secretary did not know. He said flippantly that it meant a competence that was shared, but the informed answer with which he might have enlightened the House is that when the Union legislates in an area of shared competence, member state Parliaments cannot. It follows that because freedom, security and justice are listed as a shared competence, alongside almost every other policy area that the House addresses, when the Union starts to legislate, we cannot. The promises of the Prime Minister in the Queen's Speech to bring forward Bills are empty, because at the same time his Ministers are agreeing to a European constitution that will prevent him from doing so.

I challenged the Prime Minister on that point at Question Time a month or two ago. He did not appear to know the answer, so I wrote to him. He wrote back a semi-abusive reply, questioning my motives. I wrote to him again, and I understand that my query has now been forwarded to the Foreign Office. I am still waiting for a reply, but it is now very late in the day. We have

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only a few days before everything is signed. It will then be taken through the House on a whipped vote, and it will be too late.

Many of the issues that arose in the Convention on the Future of Europe that the Government complained about have been forgotten. They are no longer red line issues that the Government have promised to defend in the final days of the IGC. I was glad that the Foreign Secretary confirmed that he would still veto the red line issues on the compulsory co-ordination of economic and employment policy. I hope that the same is true for the budget rebate, which is clearly under threat. The draft constitution refers to the modalities of the Union's resources being subject to European laws by majority voting. We know that the Treasury does not like that, so I take it that that is still a red line issue, as is QMV, in any form, on tax and social security. However, those issues remain in the final draft as we enter the endgame.

At least the Government have dropped the absurd conceit that the constitution is only a tidying-up exercise. They have finally admitted that it deals with some big and important issues that they will insist on changing. I am still suspicious that we may be being softened up for a massive fudge at the end, because the Government have been so bad at defending their proposals in Committee. For example, on 20 October, we discussed article 10, the so-called primacy article. It establishes that the constitution, and all the laws flowing from it, shall have primacy over the laws of member states. That is a bald and unqualified assertion of the primacy of the constitution, and all its objectives and obligations. We know that the Government do not like the primacy clause because they tabled an extensive amendment to it in the Convention on the Future of Europe, but they seem to have forgotten that. In the Committee, we pressed the Minister for Europe on the point. He said, in reply to my hon. Friend the Member for Stone (Mr. Cash),

He could not answer that point. So the European Scrutiny Committee asked the Attorney-General to come to the Committee to debate those matters, but he has just written to us saying that he will not do so. The Government are thus either unable to answer the points that we are making or do not want to answer them.

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