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Mr. Mike O'Brien: I have listened carefully to the hon. Gentleman's argument. Earlier, he conceded that, if the Government's red lines on defence, social security and taxation were adhered to, a superstate would not be created. If we stick to the red lines and adopt a constitution that places limitations on the role of the EU, we must accept that the limitations would not exist without a constitution. The Conservative party position of not having a constitution at all would therefore be more likely to lead to some sort of European superstate than the adoption of a constitution with the red lines. Surely that would provide the limitations.
Mr. Maples: My hon. neighbour and friend can do much better than that. The constitution advances the competences of the Union and qualified majority voting. There is currently a veto over foreign affairs and defence positions. Taxation is not even a competence. Some aspects of taxation could become the subject of qualified majority voting. The passerelle clause, or whatever one wants to call it, allows the Council of Ministers to institute qualified majority voting on other subjects. We are better off without the constitution, which considerably advances the federalist cause.
There is a respectable case for a united states of Europe. I understand it and perhaps someone will make it in the debate. It contends that pooling our resources and our power in the modern world where there are giant superpowers such as China and the United States is the way forward. I have great respect for people who make that case openly. I have been on platforms with them and I especially remember a Liberal Democrat Member of the European Parliament who presented that respectable case openly.
However, I believe that I am making a respectable case for saying that although we want close relations with other European countries and that we need institutionalised arrangements to deal with some common problems and issues, we do not want a constitution or to go any further in the direction of a federal superstate.
There is no respectable argument for pretending that we are on the second track when we are on the first. The Government do that all the time.
There is another good reason for holding a referendum at some stage in the process. Perhaps it should have happened when the Amsterdam or Maastricht treaties were considered, or during the passage of the Single European Act; perhaps the 2008 intergovernmental conference might be a good opportunity. The decision about whether we are wholeheartedly in the European Union fundamentally bedevils British policy making. Successive Governments have experienced that—it is not new to this Government and it was not a characteristic only of the previous Administration. Some Labour Members are worried
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about the advance of European federalism and some Conservative Members wholly support it. It is not a party issue but it bedevils policy making. That applies to defence in particular. The Prime Minister asserted that NATO was the only institution that had a defence role, subsequently signed up to the St. Malo agreement and then tried to extricate himself from holding two positions at once.
Anyone who spoke to people in the United States State Department, as I did at that time, knew about all their work to unscramble the matter. I agree that it has largely been done and that the European defence capability has been effectively hauled back into NATO. However, in a giveaway action in November 1998, the Prime Minister signed the St. Malo agreement because we were not joining the euro the following year and he wanted to be at the top table at the next intergovernmental conference, then spent four years trying to row back from it. In the process, he upset all sorts of people, including the United States and Turkey, and European allies such as France and Germany, which wanted a European defence policy and now feel that the Prime Minister misled them.
Until we settle the matter one way or another, it will continue to bedevil us. A referendum will settle it. Without it, the problem will continue. We want to co-operate on many issues where our interests are the same. We need institutional arrangements to effect that but our alliance with the United States is fundamentally important to our security. We have a worldwide outlook and interest that is shared in the European Union only by France—certainly nobody else. What is more, we have a history of successful institutions of government; no other member of the European Union or accession state does. The second world war was a complete constitutional disaster for all those countries. They either put in place fascist Governments or were defeated, and they all had to reinvent their institutions after 1945.
For us, the second world war was the triumph of the nation state, the triumph of our institutions, the triumph of virtually uninterrupted parliamentary government for several hundred years. Why do we want to change that? I can understand why those other countries want to change. I can understand fully why countries such as Belgium, which do not have a strong national identity, countries that do not have much power and countries which are difficult to run as a unitary state because of large regional factors would want to be in this arrangement. I can understand why France and Germany want to tie each other down, although I can never understand why the Germans are prepared to play junior partner to the French the whole time. Nevertheless, I can understand their agendas. I cannot understand ours. We have very successful institutions of state. We have had a successful history as a nation state over many hundreds of years. Why do we want to abandon that?
I want to spend a few minutes considering some of the provisions of the constitution. One of the things that bothers me about calling it a constitution is that that makes it more than just a treaty. Article 10 gives this away when it states:
"The constitution, and law adopted by the Union's Institutions in exercising competences conferred on it, shall have primacy over the law of Member States."
So far, we have had a series of decisions in the courts in Germany, France, Denmark and—sort of—here, which effectively say that European law takes primacy over domestic law, but it cannot take primacy over the constitutional arrangements of the country in question. In other words, the law that is made at European level must comply with the powers that were delegated to the EU in the various treaties in pursuance of the constitutional arrangements of the nation states. There are quite a lot of cases to illustrate that, and I shall come to them in a moment. A constitution would normally set itself above that, and I am concerned, given that phrase in article 10, that by calling it a constitution we should be implanting it as a constitution in the domestic law of member states and not simply as another intergovernmental treaty.
It is worth pointing out that that supremacy covers everything. There are bits later in the treaty that exclude elements of the common foreign policy, for example, from the jurisdiction of the European Court of Justice, but that supremacy includes the common foreign policy and the charter of fundamental rights, and I believe that there is a danger that if we implant a constitution in domestic law it might eventually be seen to be superior to that law, perhaps not here but in other countries. That is something that the European Court of Justice will try to achieve, because it is a very constructivist court. We have seen how, given a little power and a bit of a gateway, it advances that idea. That is what the supreme courts of all federal states do. The United States was effectively built by Supreme Court decisions.
Case law in several European countries illustrates the point that I have just made. The supremacy of law does not extend to supremacy over the constitutional arrangements. I shall quote from rather a good pamphlet by Martin Howe QC, who is something of an expert on these matters. He is a European lawyer, practising in the European courts. He says that the European Court has argued that
"Community law is even supreme over the constitutional laws of the Member States."
I should like to quote from the Handelsgesellschaft case, which was probably the most famous ECJ case on this matter:
"The law stemming from the Treaty, an independent source of law, cannot because of its very nature be overridden by the rules of national law, however framed"—
I think that most of us would accept that that is the position—
" . . . therefore the validity of a Community measure or its effect within a Member State remains unimpaired even if it is alleged that it runs counter to either fundamental rights as formulated by the Constitution of that State or the principles of a national constitutional structure."
The German constitutional court gave that short shrift in the Maastricht case, stating that, if international conventions impose binding obligations on Germany
"which require internal implementation in a way which would infringe guaranteed constitutional rights, then the measures providing for internal implementation are 'subject to review in full by German courts. In this respect the protection of basic rights provided by the Constitution is not displaced by supra-national law that could claim precedence.'"
The judgment in that case continues:
"the resultant legislative instruments would not be legally binding within the sphere of German sovereignty. The German state organs would be prevented for constitutional reasons from applying them in Germany. The Federal Constitutional Court will review legal instruments of European institutions and agencies to see whether they remain within the limits of the sovereign rights conferred on them or transgress them."
In France, there has been a similar case in the Court de Cassation, which is the supreme court.
In the so-called "metric martyrs" case here, Lord Justice Laws reiterated the position that there is nothing that the European Union could do that would take away Parliament's right to change the law—in other words, to repeal the European Communities Act 1972, or for that matter any other law, even if it put us in breach of the treaty. However, counsel for a United Kingdom public authority—admittedly, it was only Sunderland borough council—argued that Parliament could not do that.
Here we have a lawyer for a United Kingdom public authority arguing that the British Parliament cannot repeal EU legislation, or cannot repeal the foundations of such legislation. What concerns me is that we are in danger of moving much further in that direction by calling this measure a constitution, and that the European Court of Justice will certainly suggest that it can override domestic constitutional arrangements—it has done so already, and article I-10 will give it far greater power and reason to do it.
I suggest to hon. Members that a constitution is conceptually different from other law, although it is difficult for us to understand that because we do not have a written constitution. Law is made pursuant to a constitution while a constitution is an organic measure. From it, other things flow. I am concerned that, by calling this measure a constitution as opposed to just another treaty that changes the powers. In one way or another, we are opening the way for courts in member states—and perhaps, eventually, even in our own country—to do just that.
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