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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.

Mr. Heathcoat-Amory: My hon. Friend is right and there are many more such examples. The Minister for

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Energy, E-Commerce and Postal Services appeared before the Committee to discuss the articles relating to trade and industry. We asked him about competition policy, as all competition policy will become an exclusive competence of the Union, even domestic competition policy—the rules to promote competition in our own jurisdiction. Under the terms of the constitution, competition policy unambiguously becomes an exclusive competence of the Union. When we asked the Minister about that, he replied lamely that he would go back to his office and write to us later. Well, we are still waiting for that letter.

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.

Mr. MacShane rose—

Mr. Heathcoat-Amory: I will give way again.

Mr. MacShane: The right hon. Gentleman is very kind. I withdraw any adjective that is inappropriate for what has been a friendly and well-mannered debate.

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 debate—I 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

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that the constitution merely establishes that the case law of the European Court of Justice should be entrenched in it. Apart from anything else, case law is, by definition, dynamic—it changes—so we are committing ourselves for ever to accept the case law of the ECJ. So much for the idea that the constitution will bring finality and certainty to the division of powers between member states and the Union.

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 said—that 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

It is a constitution; it has always been called a constitution, so we are entitled to believe that it is a constitution.

Lady Hermon (North Down) (UUP) rose—

Mr. Heathcoat-Amory: I must press on because other hon. Members wish to contribute.

Lady Hermon: Will the right hon. Gentleman give way on that point?

Mr. Heathcoat-Amory: Very well, I will give way once again.

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?

Mr. Cash: 1964.

Lady Hermon: I thank the hon. Gentleman. I stand corrected, the year was 1964—some 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.

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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: Will my right hon. Friend be kind enough to give way on that very point?

Mr. Heathcoat-Amory: I will give way once again to my hon. Friend.

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 prevail—the European Court of Justice, or the United Kingdom courts—in 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

but that the constitution "should be interpreted accordingly." In other words, it would be up to the United Kingdom courts to interpret whatever emerged from the process and that they would be bound by the European Court of Justice. That is a constitutional revolution.

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 policy—particularly 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 request—but 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

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negotiate and sign international agreements on behalf of member states across a wide range of policy areas. The Foreign Minister for Europe will be a member of the Commission, and the Commission will get new law-making powers in particular to make what will be called a non-legislative Act, which will be binding on everybody—all the people whom we represent—without the intervention of this House. It is an abomination that the least democratic institution in Europe, which sits in private—none of its members are elected—should be able to pass non-legislative Acts as if they were Acts of Parliament. That is a new power that has been put into the constitution. It is therefore a complete myth that the Commission is in any way to become a secretariat supporting and servicing a stronger Council of Ministers.

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 areas—I 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 top—all the existing EU institutions—become more powerful. The only people who do not become more powerful are the ordinary people of Europe. That democratic deficit—that disconnection between ordinary citizens and European Union institutions—will 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 solution—I 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:

Let us ask the people what they think. In practical terms, and in terms of hard-headed, negotiating tactics, declaring that he will have a referendum would enormously strengthen his bargaining position in the endgame at the intergovernmental conference. He would then not simply have to convince a supine Cabinet and whip the proposals through the House of Commons; he would have to convince his fellow citizens that he had done a good job for them. On those grounds, and on grounds of high principle, he must take that democratic road, however late in the day, and declare that there will be a national referendum.

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