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Mr. Andrew Dismore (Hendon) (Lab): I want to raise with the hon. Gentleman his definition of a constitution, and to put to him the mirror image of that point, which is that a constitution also circumscribes what laws can be passed by member states.

Mr. Maples: Of course it does. We do not have that. As the hon. Gentleman knows, there are few limits on the powers of Parliament to do things, but my point is this: why should our legal arrangements be subject to being overruled by the European Court of Justice? If we are to have a written constitution, let us have a British supreme court with those powers, as is the case in the United States.

It is worth recalling that on 20 December 1860 a constitutional convention in the state of—

David Cairns: Will the hon. Gentleman give way?

Mr. Maples: I have been interrupted as I was about to make a rather nice point, but I give way.

David Cairns: The hon. Gentleman has been given the chance to start his point again from the beginning. He
 
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advocates a British supreme court—or perhaps he is saying that that would be preferable to having the European constitution. As a first step towards that, will he support the Government's proposal for a supreme court in this country?

Mr. Maples: What the Government propose is not a supreme court in the sense of a constitutional court, but simply renaming the Appellate Committee of the House of Lords the supreme court. I think that that is a mistake, because it implies that it will have the powers of a supreme court. The Lord Chief Justice said that we are exchanging an extremely good court of final appeal for a poor man's supreme court. Government policy in that respect is a mistake. A supreme court where there is a written constitution is an entirely different matter from something that is called a supreme court where there is not.

I quote for the House an 1860 constitutional convention in South Carolina, unanimously passed:

As we all know, the US federal authorities took a different view of that matter.

David Cairns: As did the rest of the world.

Mr. Maples: It does not matter what the rest of the world thought about the United States civil war; the question was what the US federal authorities thought.

Mr. Deputy Speaker (Sir Michael Lord): Order. I remind hon. Members that if they want to intervene they must rise in their place in the normal manner.

Mr. Maples: As I was saying, we all know where those matters led.

People will say, "This is incredibly far fetched. We are talking about Europe in the 21st century. People aren't going to fight each other again." I am sure that people said the same thing at the 1788 constitutional convention in Philadelphia. I do not suggest that anyone will attack us, but I suspect that if a small European country tried to go its own way, very heavy pressure would be put on it not to do so. We have seen the pressure that was put on Ireland to sign up to the Nice treaty. That was kids' stuff compared with what could happen.

My first substantive point to the Government, which I reach shortly after starting, is that article I-14 needs to be clarified to make it clear that while we call this a constitution, it is not a constitution in the sense of creating an organic law. It is simply another inter-governmental treaty that changes the arrangements for managing the European Union. I do not particularly care what it is called, although I would prefer that it was not called a constitution, but that bit in article I-10 that says that the constitution will have precedence over member states' laws, and, as an afterthought, the laws that are passed under it, is dangerous.

Mr. Mike O'Brien: I was bemused by the hon. Gentleman's references to the American civil war, and
 
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was moved to suggest that he looks up the Lincoln-Douglas debates. These issues in American history were far more complex than he suggests, and in terms of drawing analogies, his point verges on being utterly ridiculous.

Mr. Maples: I am sure that if somebody in South Carolina had made that point in Philadelphia in 1788, James Madison, Samuel Adams or somebody else would have made exactly the point that the Minister has made. Seventy-two years later, however, the issue became slightly different. As he has jogged my memory about the Lincoln-Douglas debates, Lincoln's quote about Douglas,

seems very apposite to the way in which the Government handle these issues, because they lie about them. They do not tell the truth about what they are doing, why they are doing it, and what the consequences are.

Mr. Christopher Chope (Christchurch) (Con): Does my hon. Friend agree that one example of that was the Prime Minister's answer in Prime Minister's questions the other day, when he implied that the whole of the common fisheries policy would still be an issue of shared competence, when we know that part of the common fisheries policy, under this constitution, would be under the exclusive competence of the Commission?

Mr. Deputy Speaker: Order. I ask the hon. Gentleman to choose his words carefully. The words that he just used were in a general sense. I am sure that he would not want to refer to anybody in particular.

Mr. Maples: They were carefully chosen, Mr. Deputy Speaker.

Is the European Union a state or not? I believe that it is getting close, but it is not a state yet. The most commonly accepted definition in international law of a state, however, is contained in the Montevideo convention, which strictly applies only to the American hemisphere. Nevertheless, it gives four characteristics for being considered a state:

which Europe has, "a defined territory", which we have, "government", to which we are getting very close, and crucially,

which is what this treaty gives. It gives that to the whole Union, not just the Community—previously, the Community, for the purposes of trade issues, had legal personality, but the Union as a whole did not. By giving it that legal personality, and the exclusive right to enter into treaties, certainly, by the Montevideo convention definition, we are coming very close to being a state.

I have talked about tax, social security and foreign policy remaining at least partly inter-governmental. The erosion of the veto in those areas, however, would end it. The constitution involves the Commission in those areas in a way in which it has not been involved previously. All that is needed is an erosion of those qualified majority voting provisions, which can come
 
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through article 24 by a so-called passerelle clause without further reference to this Parliament or an inter-governmental conference—the inter-governmental conference in 2008 will not be needed to do it. I think I am right that the Council of Ministers can give up its veto and introduce qualified majority voting in any area in which it wishes to do so.

I suspect that were we sitting our GCSE politics exams and being asked to list the characteristics of a state, we would come pretty close to an A* if we wrote down that it has a Parliament, a President, a constitution, a Foreign Minister, a supreme court, a bill of rights, a central bank, a common foreign and security policy, military capability, a public prosecutor, a currency, a police force, supremacy of federal law over state law, treaty-making powers, legal personality and citizenship. That is not an exhaustive list, but any 16-year-old would get an A* for listing those in answer to what constitutes a state. The fact is that a huge number of the characteristics that, to most people, imply a state, are there. A great many of those that I have listed—nine of the 16—are in the constitution. Nine of those 16 do not currently exist. We do not have a president, we do not have a constitution, we do not have a Foreign Minister, we do not have a Bill of Rights—only an annexe to the Nice treaty—and we do not have a public prosecutor. Federal law is not supreme. It does not have treaty-making powers in all areas. It does not have legal personality. All those things stem from the constitution. We are taking a huge step down that road.

I think it is crucial for common foreign and security policy to remain inter-governmental. The Government have said that that is one of their red lines; but they have agreed to the collapse of the pillar. Under the Maastricht treaty, pillar two—I think; I also get two and three mixed up—remained inter-governmental. Now it is collapsing. The European Union is getting a Foreign Minister. It has not had one so far; it has had a high representative of the Council. I am a great fan of Mr. Solana, who does a very worthwhile job extremely well, but he will now be called the Foreign Minister—and he will have two hats: he will also be a Vice-President of the Commission. The Commission is securing an involvement in foreign affairs that it has not had before, which is an important departure.

Article 39.5 in part I of the treaty says, in regard to common foreign and security policy,

That applies to virtually any international action we might wish to take. It means that we must tell those others what we are going to do, or thinking about doing; we must share our analysis with them, and share the issue with them as it affects the United Kingdom. It is a very wide provision. Article 201 contains a let-out proviso, which says that if we think that vital issues of national policy are at stake we can insist that a vote is not taken. Perhaps we, France or Germany could do that, but I think it would be very difficult for any other country to exercise the power. It is like nuclear weapons again: it is like threatening to withdraw.
 
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The European Court of Justice is excluded from articles 39 and 40, but not from the whole common foreign and security policy. It is not, for instance, excluded from article 15, which states:

That means that although they could not interfere under articles 39 or 40 with decisions on the common foreign and security policy, the European Court of Justice will have an overview of how member states behave in relation to it. Article 282, which concerns the imposition of economic sanctions, gives the European Court of Justice oversight of that as well, and I am sure that there are other examples.

There are two big gateways allowing the Court a role in foreign policy decisions. If the Government are really going to draw their red lines around the common foreign and security policy, which I believe they want to do, they must tighten up those arrangements considerably. The European Court of Justice does not need very big gateways; the gate needs to be open by just a fraction of a millimetre, and a couple of cases later it will be through. The Government would be well advised to make sure that the gate is firmly closed, and that there is no way in which the European Court of Justice can secure any role whatever in reviewing this country's foreign policy decisions.

Home affairs is now fully under pillar one. It was under pillar three, I think. We gave up part of that at Amsterdam, when immigration and asylum were given a role. We have now gone the whole hog, and home affairs has been sold out to the Commission. That is clear from page 89 of the treaty, which states that the Union

whatever "solidarity" means.

The home affairs pillar goes very much further than that. Article 170 confers a great deal of power over the harmonisation of civil law. Article 171 deals with criminal law. Article 175 deals with police capabilities, and article 176 establishes a public prosecutor. Those are characteristics of a state. We are giving the European Union enormous powers to take action in areas that we have hitherto considered to be the exclusive preserve of domestic law. That is one huge area in which we have given up power. Those who say that the treaty makes no difference should look at that section and at what has happened to the home affairs pillar, which has remained intergovernmental before.

May I make one technical point to the Minister, to which he may like to reply now or, if not, write to me about? What has happened to the Schengen opt-out? A protocol to the Amsterdam treaty gave us an opt-out from the Schengen arrangements. That protocol is not repeated in the treaty. I should be grateful if he would take that matter on board. He does not need to listen to the whole of my speech, but I should be grateful if he would listen to one or two points to which I shall draw his attention. This constitutional treaty repeals the Amsterdam treaty. The protocol is not repeated in it. The same point applies to our opt-out on the euro in a
 
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protocol to the Maastricht treaty. When Maastricht and Amsterdam are repealed, any halfway-good lawyer will be able to argue that the protocols have gone too, because there will be no treaty on which they are based. Where, then, do our opt-outs on Schengen and the single currency survive in the new treaty? I hope that the Minister can satisfy me on that point, either now or at some later time.

Anyone who reads the charter of fundamental rights can see that it is not a Bill of Rights in the sense that most of us would understand our Bill of Rights or that of the United States. It is a list of political aspirations. They are pretty good political aspirations and I do not argue against them, but they are very vague. Again, we are leaving the door open to the European Court of Justice running roughshod all over our domestic law.

Let me give an example. Article II.50 on fundamental rights says:

We have recently passed—or at least if not passed, the Government have proposed—measures providing that the double jeopardy rule be set aside in the case of compelling new evidence. The European convention on human rights, from which this was drawn, contains that proviso, but it is not in the charter of fundamental rights. If we were to agree this, we would be unable to do as we want—I do not particularly want to do it, but the Government do—which is to say that people can be tried again if compelling new evidence comes to light. That is just one example of how that measure will be stretched.

If people do not think that this is the sort of thing the European Court of Justice does, it is worth reflecting on what happened with the equal treatment directive, which I think was adopted in 1978—quite a long time ago. It was designed to give equal treatment to men and women, and it has resulted in the European Court of Justice saying that Germany must include women among its tank crews in front-line units. The hon. Member for Falkirk, West (Mr. Joyce) knows more about this than me. One may or may not think that having women in front-line tank units is a good idea. I think that this Parliament should be free to decide that, but the European Court of Justice has built on the equal rights and equal treatment provision. That is how far it has got. That is why I say that, if we leave a chink open to it, it is through it.

The Government think that the "horizontal clauses" that they have had put in will protect them against that, but they are very weak and clumsily drafted. The treaty says that the charter is confined to EU institutions and EU law, but EU law now includes almost everything. Of course, EU law includes the European Court of Justice. Whatever the European Court of Justice does, it is by implication EU law. Let us consider some of the gateways in the constitution through which it may go. It is worth reflecting that the United States Supreme Court got whole rafts of stuff in place using the equal protection amendment. Those things exist in the constitution. Article III.7 prohibits discrimination on the ground of nationality, while article III.8 permits measures to combat discrimination on the grounds of sex, racial or ethnic origin. All that people have to be
 
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able to do is hang it on that. If they can show that they are being discriminated against on the ground of nationality, they get the right in one country but not in another. It therefore seems that the ECJ will find a way of getting through.

Let us take the health article, which says that everyone has the right to access preventive health care and to benefit from medical treatment under the conditions established by national laws and practices. The Government say that the conditions established by national laws and practices safeguard us from the European Court of Justice telling Britain what preventive health arrangements we must have. If that is the case, the whole paragraph is completely unnecessary and meaningless. It does nothing; it does not create an additional right. If it does not create a right over and above what we have under national law, why is it there at all?

If I were sitting as a judge in a supreme court, I could say that the intention manifestly must have been to give some superior rights to what were being given under national law, otherwise there would have been no point putting the provision in the charter or the declaration of fundamental rights. When we have a constructivist court such as the European Court of Justice, it will be through there in a flash.

Another issue on which the Government will run into trouble is their quite tough proposals for asylum seekers. I am not arguing the merits or otherwise of withdrawing the social security benefits from asylum seekers, but I very much doubt that the Government will be able to do so once the constitution is in place. The first chapter of the declaration of fundamental rights is pretty all encompassing. It states:

One does not have to be a very clever judge to hang on to that almost anything that one wants in respect of how human beings are treated, particularly if it is alleged that they are being treated badly.

On employment law, the issue of collective bargaining rights may be dear to some Members' hearts. Article 28 confers rights to take collective action, including strike action. There is no limit on that in the charter but, under our law, there are serious limitations on the right to take strike action. The ECJ, and not Parliament, will have the ultimate power to decide whether restrictions on strike action or collective bargaining should be allowed in circumstances that might have a vital effect on national security. GCHQ is an example. However, we place many more restrictions on strikes. There must be ballots and cooling-off periods, and certain things have to happen first. There are also certain industries in which strikes cannot take place. We will also find it difficult to maintain the conditionality of the working time directive whereby people can contract out or a number of occupations are exempt.

The charter of fundamental rights is really dangerous. The Government resisted it for a long time. They did not want it in the Nice treaty or in an annexe, but they got it in an annexe. Now they have it in the constitution, so why do they not just say "No"? The charter is not fundamental to the constitution; it is a political agenda to which most of us at a political level could subscribe. We would not argue with much of it in an election
 
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campaign. Why do we not just exclude it from the treaty? Why does the Prime Minister not simply go back to Dublin and say, "Listen guys. I've got to have a referendum and they are never going to agree to this. Take it out. It does not make the constitution less effective in terms of making the EU's institutions function. We never wanted it in the Nice treaty even as an annexe in the first place"? This is an illustration of the Government's appallingly weak negotiating abilities. They make pre-emptive concessions just because they want to feel good in Europe. They think that they are at the top table and they want to sit alongside Mr. Schröder and Chirac at dinners. If the Government do not like the provision, they should just say that they will not have it. They have a veto. However, once the provision is in the constitution, the gateway will be open and they will regret that at leisure.

The Prime Minister has told us that we have raised a completely false scare about energy. However, page 89 of the draft treaty states:

which means qualified majority voting—

That is pretty all encompassing and it means that, when the Union has acted, we cannot. Does that cover nuclear power generation? Will we be subject to Union rules about our nuclear power stations of which we still have quite a lot?

What about our treaty over North sea oil with Norway? Under the constitution, we cannot make treaties with other countries in areas where the Union is empowered to make them. We have treaties with Norway over North sea oil and gas. Will they go out of the window? We cannot make any third-party agreements. Therefore, it is true that we are opening up an area of our energy policy. I think that we are the only country in the EU that has oil and gas—Holland may have some access, but only to the gas fields—but we are surrendering that policy to the Union. We were one of the only countries in Europe that had a decent fishing industry, but we gave control of that away. Why do we give such things away? Why do not we say that energy is a matter of particular concern to us and that we want unanimity on it or its exclusion from the treaty altogether?

I mentioned to the Minister how the protocol on the euro in the Maastricht treaty will be extended. Article 14 of the draft constitution gives the Union complete competence over economic policy:

Frankly, I do not know what is left. Outside foreign policy and defence, there is little that Parliament or the Government do that does not come within that definition. Not only economic policy, but employment and social policy are being opened up.
 
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I should be grateful if the Minister would reply to this particular point. Article 53(4) addresses the Union's resources and qualified majority voting:

I am concerned that our rebate may have gone to qualified majority voting. If the Minister cannot reply today, I should be grateful if he would confirm that that point is covered in some other way—I cannot pretend to have read every word of the treaty. Our rebate is worth a lot of money—some £2 billion a year—and it is tremendously important that any change requires unanimity and cannot be done under qualified majority voting.

My final specific point on the treaty concerns tax. Article III-62 contains the power to harmonise indirect taxes by a unanimous vote, although it reduces that condition to qualified majority voting in

The same is true of company taxation, which can also operate by qualified majority voting on tax fraud and tax evasion. I used to be a tax lawyer, and one can hang an awful lot around tax evasion and tax fraud. One man's definition of tax evasion is not another's definition of tax evasion—the European savings directive is all about what the Union calls tax evasion. We are opening a big gateway for the European Union.

Finally, I shall examine the consequences of a refusal to ratify the draft constitution. We are being sold all sorts of scare stories that a refusal to ratify would be a disaster. If we refuse to ratify the treaty, as far as the European Union's organisational and institutional arrangements are concerned, we will end up where we are now—at the end of the Nice treaty—and there is no need to do anything else. The European Union functions reasonably satisfactorily, and it functioned satisfactorily before the Nice treaty, too.

The other countries of Europe cannot go ahead without us. They can use the enhanced co-operation provisions of the existing Maastricht treaty, but they cannot tear up the existing treaties and sign this constitution. There is no provision for them to leave the European Union, to renounce the treaty establishing the European Community or to renounce the treaty establishing the European Union. If they did so, it would be a clear breach of those treaties, and they could not inherit the European Union institutions—effectively, they cannot leave. If we, or any other country, veto the draft constitution, we will be where we are now, which is a perfectly acceptable status quo. The scare stories about the consequences of not ratifying the treaty are simply not true. On other European countries renouncing the Maastricht treaty, it is also worth bearing it in mind that the Maastricht treaty is the basis for the euro, and that the 11 countries that have the euro do not want to scrap it.

The ultimate protection is the right to leave, which was one of my red lines, which I discussed earlier. The right to leave requires a leaver's agreement, and the arrangements that reduce that right to qualified majority voting are not entirely satisfactory. If such an agreement cannot be obtained within two years, the constitution ceases to apply to the member who wants to leave, and such arrangements should be more even-handed.
 
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The treaty moves things along in several fundamental areas, and it is not only a tidying-up exercise. It opens gateways for interference by the European Court of Justice in all sorts of areas in which it should not be involved, including foreign and security policy. Finally, the danger of creating a European constitution is that we create a different kind of law within the EU. I believe that that is what it would do in its present form, although that could be dealt with fairly easily by amending article I-10.

The former right hon. Member for Chesterfield used to say that the two fundamental characteristics of a democracy are that the voters can throw out the Government and the Government can change the law. If voters do not like the way in which the Government are behaving, they can throw them out. The electors threw out the Conservatives in 1997, but when they throw the Labour party out of government—next year, we hope, but it will happen at some point—they will not be electing a Government who can change laws made pursuant to the European treaties. We are agreeing to delegate Parliament's power to make legislation to a group of people who cannot in any circumstances be controlled by the British electorate.

Let us take an example of an action taken domestically—that the Bank of England should set interest rates. A new Government could change that, perhaps even without legislation being passed, but certainly with it. Parliament could change that law. However, the House cannot change laws, regulations and directives—or framework laws, as they will be known in future—introduced by the European Union. There is a fundamental question of democratic accountability to be addressed: such accountability does not and will not exist. As elected politicians, we all share the view that those in opposition can hope that, one day, the voters will throw out the Government and they will be able to put right all the awful and stupid things that that Government did. There are fewer and fewer things that we can put right, and once the treaty is in place there will be very few indeed.

I welcome wholeheartedly the Government's conversion to holding to a referendum, but I believe that they are making a terrible mistake in leaving it until after the next election. First, that will enable people like me to traduce their motives. Secondly, and more important, it will leave outstanding an issue that has bedevilled British politics for two generations and will continue to do so until it is settled. I shall accept the results of the referendum. If the answer is "yes", it is clear to me what direction a chunk of British policy will take in future. I believe that, however much jiggery-pokery and gerrymandering they try, the Government will have to accept a no vote, and it will also be clear in that case where things go from there. I believe that the sooner the question is settled in a referendum, the better for all of us.

1.17 pm

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