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5.28 pm

Sir Menzies Campbell (North-East Fife) (LD): I doubt very much whether a single vote will be changed as a result of these proceedings, or whether any hearts and minds will be significantly changed either. In a sense, these debates, which have almost become part of parliamentary punctuation, have enabled Members to restate cases that have been stated with varying degrees of eloquence for some time—at least since the constitution was first mooted.

I still have some difficulty with the question of the primacy of European law. I raised this point with the shadow Foreign Secretary, who has another engagement and has apologised for his absence. If such primacy was part of the jurisprudence of the European Community from 1964 onwards, inevitably, by virtue of our accession in 1972, we must be taken as having accepted it. I find it difficult to understand that a distinction is to be drawn as far as the application of that primacy is concerned simply because a document will be produced that asserts it once again.

The only way to look at this properly is to put oneself in the position of a domestic judge. Today, a domestic judge faced with an issue to which European Union law is relevant is obliged to apply that law. The day after a constitution or treaty was ratified by this House, that judge would be in precisely the same position as he is today. It seems to me that a wholly artificial distinction is being drawn.

My right hon. and hon. Friends will vote for this motion. We do so for reasons that I hope to explain in a moment or two, but I want to make the point that we have consistently argued that a test has to be applied when any question arises of a change in the nature of the relationship between Westminster and Brussels. Looking again, as I did in preparation for this debate, at that test as we have set it out on previous occasions, I freely accept, as I hope others will, that tests of this nature are inevitably subjective; they can never be empirical.

The test that we have set out on previous occasions is that if the provisions that the Government eventually bring before the House involve any major shift of control, any transfer of significant powers from member states to European institutions or any alteration to the balance between member states and those institutions, a referendum will be necessary. The Foreign Secretary argues that those criteria are not fulfilled. However, a document such as that which failed to achieve agreement in Rome would necessarily trigger a referendum because in our judgment it would meet the criteria that my right hon. and hon. Friends have set out.

Mr. Cash: As the right hon. and learned Gentleman knows, I have great respect for many of his views on this subject, but does he accept that the House of Lords report to which I have already referred says explicitly in the context of the European Communities Act 1972:

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Does that not imply that it is essential not only that the Government should set out their views but that they should put the matter beyond all doubt by introducing domestic legislation that would ensure that our judges gave effect, if necessary, to clear and unambiguous law inconsistent with the 1972 Act?

Sir Menzies Campbell: The hon. Gentleman put that point to the Foreign Secretary. In the interests of brevity, I simply adopt the Foreign Secretary's response and ask the hon. Gentleman to put himself in the position of a judge today and a judge the day after a document of the kind that we have been discussing had finally been ratified by the House.

We do not have such final proposals before us today; nor inevitably could we have them. However, we are entitled to assume that what is likely to emerge from the process into which the Irish have put additional force and life is likely to bear substantial similarity in substance to the previous proposals that formed the basis of the discussion in Rome. It is my judgment—I accept that it is a matter of judgment—that the proposals raise constitutional implications that it would be right to put to the people of the United Kingdom. I say that as a matter of law, but also as a matter of politics. One of the features of the debate about Europe and our relationship with Europe is the extent to which we—the people of the United Kingdom—have become disconnected. One of the ways in which that connection could more effectively be restored is to give people the opportunity to endorse what is a very substantial change.

Mr. Kenneth Clarke: Does the right hon. and learned Gentleman accept that any new treaty will be subject to close parliamentary scrutiny? If we then had a yes-no referendum on whether to endorse it, he—like me—would no doubt campaign for a yes vote, if the treaty emerges in the form that seems likely. A yes vote would be a clear endorsement, but what would a no vote mean? We cannot anticipate the result, but it appears that a no vote would be interpreted as giving a mandate for a blank cheque to negotiate further changes to the existing treaty, the Single European Act, the Maastricht treaty and the treaty of accession, and even to reopen the issue of the primacy of European law. If a no vote could be interpreted in that way by those who are demanding a referendum—notably, the right-wing press—would not it be a dangerous further step to take after comprehensive parliamentary scrutiny, which has been regarded as adequate on all previous occasions?

Sir Menzies Campbell: I hope that the right hon. and learned Gentleman will not seek to visit the sins of his Front-Bench colleagues on me. The point that he made to the right hon. and learned Member for Devizes (Mr. Ancram) was not answered with quite the cohesive intellectual response that one would expect from a prominent member of the Scottish Bar. On 1 May, we will admit the new member states without any constitutional change, under the existing arrangements enshrined in the treaty of Nice. When the proceedings

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on the constitution became becalmed, I suspected that all we would have needed was 18 months of trying to live under the arrangements in the Nice treaty and there would have been a clamour for a constitution, because of the sclerosis that would undoubtedly have occurred and the inability of the European Union to operate in the absence of a constitutional document of the kind that we are discussing. I do not seek to reopen any of the previous treaties, but I accept the Foreign Secretary's point that in many respects they are opaque and difficult to understand. It is often difficult to find the details of particular competences, which require substantial searching. The argument in favour of a constitution that sets down clearly the competences—and the extent to which they are restricted to Brussels or domestic Parliaments—is essential.

Mr. Shepherd: The sincerity of the Liberal Democrats on referendums on such matters is not in question. Indeed, Paddy Ashdown sought a referendum at an early stage of the Maastricht process and he supported a private Member's Bill on the issue. However, it cannot be enough to say at each stage of the constitutional changes, "We are for a referendum", and then when no referendum takes place, say that the matter is closed. The argument relating to a referendum on this new measure is that in a sense it is reopening the position that the Liberal Democrats took—that a referendum was appropriate on Maastricht.

Sir Menzies Campbell: I see it not as reopening those issues, but as an effort to consolidate them. The hon. Gentleman is right about consistency. My recollection is that Mr. Bryan Gould, who was then a Member of Parliament, introduced a new clause during the Maastricht debates that would have required a referendum to be held on the issue, and the Liberal Democrats voted for it.

In 1995, we had a rare Liberal Democrat Opposition day that resulted in the motion that we had tabled being passed. The motion argued that if there was a material change in the relationship between the United Kingdom and the European Union, such change should be ratified and endorsed by a referendum. Not all those who now argue either for or against a referendum found time to vote on that occasion. The result was something like 33–0, which was a considerable victory for us, but the occasion did not command, I am sorry to say, much parliamentary support.

The hon. Member for Aldridge-Brownhills (Mr. Shepherd) referred to Paddy Ashdown, who was the first of all the party leaders to say that entry to the single currency involved not only economic considerations but constitutional and political implications and that therefore there should be a referendum on it. That is now the view of almost all Members.

Andrew Selous (South-West Bedfordshire) (Con): I do not think that the right hon. and learned Gentleman has adequately answered the question put by my right hon. and learned Friend the Member for Rushcliffe

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(Mr. Clarke) about what would happen if the British people voted no in a referendum. What would be the position and how would we proceed?

Sir Menzies Campbell: It would be deeply damaging to the European cause; it would be foolish to do other than admit that. We cannot refrain from giving people the opportunity to pass judgment on issues of that kind, if we believe that is the right thing to do, simply because we are concerned about the outcome. I hope that my confidence is not misplaced, but I am confident that such a referendum can be won. Indeed, it most certainly will be won; the right hon. and learned Member for Rushcliffe (Mr. Clarke), the hon. Member for Esher and Walton (Mr. Taylor) and I certainly spend enough time going around the country arguing the case.

The case should be argued and the referendum can be won. Indeed, if I had a complaint about Members on the Treasury Bench, it would be that there has been reticence about arguing the case for Europe. To some extent, that has been overtaken by the enthusiasm that the Prime Minister displayed yesterday during his report of the EU summit that he had just attended.

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