Mr. Spring: That is precisely the point. It is disgraceful that the Foreign Secretary had no idea what something as important as shared competences actually meant. We are constantly told that the primacy of EU law is already incorporated in the treaties and that its incorporation in the constitution is thus of no consequence. My right hon. Friend has shown how the Government fought against answering, but is not it extraordinary that the Minister for Europe is so ignorant of one of the cardinal elements of that constitutional arrangement? That is typical of the sloppiness with which the Government have approached the whole matter.
The Minister for Europe (Mr. Denis MacShane): As my comments have been prayed in aid, would the right hon. Gentleman also care to read into the record all my lengthy replies to the questions put on the primacy of the Union, rather than selecting the one sentence in which I announced that I was not a qualified lawyer? Perhaps he will read everything that I said so that Hansard can record my reply, otherwise the point he made is neither fair nor accurate and is really quite mendacious.
Mr. Heathcoat-Amory: That is a big word to use against a colleague and I certainly should not use it against the Minister in return. I would not say that he is my favourite living author, but I read what he writes. However, that is no substitute for debate. I shall not accept a mere letter from a Minister defending the position; we want to scrutinise it and subject it to debate. That is the point of Parliament and the object of the European Scrutiny Committee. It was that that the hon. Gentleman denied us when he lamely said that he was straying into legal matters and that he had no answer. Then, when we asked the Government's legal man to speak to the Committee, he said that he would not come. That is my objection.
I was actually asking the right hon. Gentleman to repeat not what I said on the issue in a letter but what I said in debate, in Committee, at very great length. We held a proper discussion and I am happy with the points I made. I am happy to repeat them all in my wind-up, although that may take much more time than I shall probably be allotted.
Mr. Heathcoat-Amory: Of course I have the account of the debateI was there. I know what the hon. Gentleman said and I have read it subsequently, but it did not satisfy us. We wanted to probe and to get to the bottom of the matter. We tried again today when the Foreign Secretary gave us another unconvincing account of the primacy clause. We do not accept his view
Mr. Wayne David (Caerphilly) (Lab): Much of the right hon. Gentleman's argument is based on the premise that we are discussing a constitution, but does he accept what Sir John Kerr has saidthat we are in fact discussing a constitutional treaty?
Mr. Heathcoat-Amory: I do not accept that. The document is called a constitution[Interruption.] I know that the Government call it a constitutional treaty but if the hon. Gentleman consults the document, he will find that the people who drew it up call it a treaty
Lady Hermon: I am very grateful indeed to the right hon. Gentleman for giving way, and I apologise for not being present at the beginning of the debate. I had to take part in the Speaker's Committee on the Electoral Commission. May I gently remind the right hon. Gentleman that the principle of the supremacy of Community law was established by a very famous case, with which I am sure that he is familiar: Costa v. ENEL in 1962?
Lady Hermon: I thank the hon. Gentleman. I stand corrected, the year was 1964some years before the Conservative party acceded to the European Community, so the principle of supremacy was well known to the Conservative party and the then Prime Minister when the European Communities Act was passed in 1972.
Mr. Heathcoat-Amory: I am not going to engage in a long legal wrangle with the hon. Lady, but I ask her to glance at the article in question, which says that not just the law, to which it refers, but the constitution itself has primacy over the laws of member states. Even if one accepts that the treaty law has a kind of superiority, what we are debating now is whether that law can automatically have primacy over the domestic law that we make in the House.
Under our constitutional arrangements, Union law only has effect in domestic law by virtue of the European Communities Act 1972, and it has been always understood that we can repeal or amend that Act to disapply EU regulations, laws or directives. Will that still survive if we sign up to a constitution that contains an unqualified assertion that the constitution and all the laws that flow from it have primacy over the laws of member states? That conflict is unresolved. We were seeking to ask the Government about that, but they have refused to answer so far, and we are entitled to our suspicions about the fact that they are not coming clean about some of the fears that they may harbour about the future direction of court judgments, both in this country and in the European Court of Justice.
Mr. Cash: On 8 December, I asked the Foreign Secretary for a precise answer to the very question that my right hon. Friend has just put to the House. In effect, I asked him which would prevailthe European Court of Justice, or the United Kingdom courtsin relation to an Act subsequent to the constitution Act but inconsistent with it? The answer that I received was not only that it would be
Mr. Heathcoat-Amory: My hon. Friend, with legal training, makes the point very well. A massive transfer of power and authority is taking place under the constitution. We have before us a revolutionary document, so we need to scrutinise its contents with the very greatest care. We have been unable to do that because Ministers have refused to give straight answers to what we consider to be straight questions.
I have no time now to go into foreign policyparticularly the establishment of a European Foreign Minister, to which the Government no longer object, and the fact that our United Nations Security Council seat must be given up to that Foreign Minister on requestbut I want to squash a myth that has been circulating: the Commission will somehow lose relative power to the Council of Ministers under the constitution. It is true that a lot of squabbling is going on about the number of Commissioners. It is rather typical of those in the European elite that they appear to be more interested in who gets the jobs at the top and who becomes President and how many Commissioners there will be than in the other powers of the constitution.
The fact is, however, that under the constitution as it is drafted the Commission gets more and stronger powers. It will get explicit executive powers, powers of enforcement, a monopoly of initiative and the ability to
The truth is that the constitution represents a massive transfer of power upwards to the Union. There are more policy areas in which it will operate, of which I have mentioned some. There is more majority voting in around 37 new areasI have asked the Government for a precise number, but they cannot give it to me. Majority voting becomes easier under the new formula. In addition, all the people at the topall the existing EU institutionsbecome more powerful. The only people who do not become more powerful are the ordinary people of Europe. That democratic deficitthat disconnection between ordinary citizens and European Union institutionswill become worse not better. We have not brought Europe back to the people; we have taken more powers away from the people and the national Parliaments and given them to the new Union.
Nor does the constitution in any sense bring finality or certainty to the division of powers. On that I disagree with the Liberal Democrat spokesman, the right hon. and learned Member for North-East Fife (Mr. Campbell), who has had to leave the Chamber. The incorporation of the charter of fundamental rights opens up a whole new front on new powers to be decided for us. Those shared competences, which I and others have described, again open the way to huge new powers and competences being acquired by the Union at the expense of member states. Our instructions to create that democratic Europe have therefore been completely contradicted.
I end with a solutionI never want it thought that I simply criticise the Government or am in any sense solely negative. Let the Prime Minister give the final decision on all this to the people. After all, it is their rights that are affected. The constitution starts with the following words: