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Mr. David: I would like to point out that there was a qualification made this morning, and that the article in question applies only to the single market.
Mr. Heathcoat-Amory: If we are going to descend into trivia—important trivia, but nevertheless genuinely peripheral—then, yes, there is that qualification. But everything relates to the internal market, as the hon. Gentleman knows. He is a member of our Committee and he will know that the European Commission now regards health policy as a single market issue because health care is a service that can cross borders and health products can be traded. It is using single market powers to drive through a new Community health policy. Those matters will now all be arbitrated and decided by the European Court of Justice—so once it is written into the constitution that competition policy is an exclusive competence, pretty well everything will be decided there. I repeat that this House will be legally unable to legislate on those matters, even when competition policy clearly relates only to our own domestic concerns.
The main point about all the amendments that the Government representative tabled in the Convention on the Future of Europe is that they have now all been abandoned and forgotten. They are not the red lines. In fact, Government policy has been one long retreat. At the same time, they have been conceding the ever-growing importance of what is at stake. We started in the Convention with the Government's representative, the right hon. Member for Neath (Mr. Hain), who never attends our debates now, of course. I think that he might be rather embarrassed about some of the things that he said at that time. He claimed that the constitution was only a "tidying-up" operation, but that view did not last very long. The Government then conceded that the constitution was indeed important, although not important enough to hold a referendum on it. Then, in a somersault, they agreed that it was important enough for a referendum.
In parallel with the ever-growing importance of the issues at stake, they have been conducting ever-greater retreats on the specific policy issues. By the end, the Government representative had tabled in excess of 200 amendments to the constitution, of which he only succeeded, if we are generous, with 12. That is a success rate of about 5 per cent. In negotiations, one wins some and loses some. It is remarkable, however, if one loses 95 per cent. of what one is aiming for, and succeeds on only 5 per cent. Yet the same right hon. Gentleman called it a strategic victory, and said that the Government
"achieved all of our strategic objectives".
I find it odd that if one is out-voted or ignored on 95 per cent. of one's demands, one still calls it a great victory. I would like to know what a defeat would have looked like. In relation to strategic victories, the details are important.
With regard to competition policy, once the door is open a chink, the Commission and the Parliament knock it down and legislate in the fields open to them. Therefore, if any new powers go into this constitution, of whatever sort, and if there is any move from unanimity to qualified majority voting, we can be sure that that will be exploited to the full by the European Union. The ultimate arbiter in any dispute is, of course, the European Court of Justice, which is an activist court that almost always finds in favour of greater centralisation and more European Union powers.
The Foreign Secretary was curiously silent on the question of red lines. Those were carefully self-selected about a year ago. They are a handful of issues that do not alter fundamentally the architecture or structure of the constitution, the distribution of powers or the primacy of European Union law, all of which are completely untouched by the red lines that the Government are demanding. We must assume that the Prime Minister will secure them. That is worth a pause, because we have before us the grisly record of the Prime Minister on the charter of fundamental rights.
It is part of our traditions in the House that when the Prime Minister gives an unambiguous assurance from the Dispatch Box about an area of national policy, we tend to believe it. Certainly, I did—I have come to regret it somewhat in relation to the Iraq war. Nevertheless, that is the default position that we must all adopt. The Prime Minister gave an unambiguous, clear assurance that the charter of fundamental rights would not be made legally binding. Rather innocently, I believed him at the time. That has now become a negotiating aim, however; in fact, worse than that, it has been abandoned altogether. Not only will the charter of fundamental rights be legally binding, but it constitutes the whole of part 2 of the constitution, which, under article 10, will have primacy over the law of member states. In its totality, therefore, it is put above anything that the House can do or any law that it may pass. That is perhaps the most remarkable U-turn of all, but we have never had an explanation of it from the Treasury Bench.
Mr. William Cash (Stone) (Con): Does my right hon. Friend also agree that, under the proposed constitution, all the treaties and all the laws, including the entire body of the acquis communautaire, are to be revoked and then reapplied under the primacy of the constitution, which is a massive, fundamental change that also changes the character of the Union at the same time? That is why we are right and the Government are wrong.
Mr. Heathcoat-Amory:
Yes, the so-called primacy clause has had enormous implications that have never been explained or elucidated candidly by the Government. The Convention took the case law of the European Court of Justice—which is an activist court and is always seeking through its case law to expand its jurisdiction—and made that into an unqualified assertion of the primacy of Union law in all
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eventualities. I cannot reconcile that in any way with the sovereignty of national Parliaments or the sort of democracy or powers of the House with which we have grown up, and which have been accepted as a constitutional norm, certainly by all Members of the current House. That has been decided in the constitution unambiguously and categorically in favour of the Union, without any debate.
It is true that the Government tabled an unsuccessful amendment to try to restrict the primacy of Union law to cases in which there might be a conflict on individual and specific directives and regulation. That is the working compromise that we have reached with the European Union—we cannot pass national laws that conflict with directives to which we agree. The Government failed on that, and we have returned to the unqualified assertion that the constitution, and all laws flowing from it, shall have primacy over the laws of member states. Of course, when I say that the constitution shall have primacy, that means all the objectives in the constitution, generally expressed, and the charter of fundamental rights to which I have alluded.
Another aspect that would be funny were it not so serious is that I heard the Home Secretary complaining the other day about judge-made law. He was complaining that British judges are now interpreting his statutes in a way of which he does not approve, and saying that the House should decide those matters. If I may say so, he has not seen anything yet. The charter will be interpreted not by British judges but by the Luxembourg Court, which will interpret laws that have probably been passed, over a British objection, by qualified majority voting. Therefore, if the Home Secretary does not like judge-made law, I suggest that he reads the constitution, which entrenches judge-made law except that it will not be a British court doing it.
When the Minister responds to the debate, will he confirm, for the avoidance of doubt, that at least this self-selected handful of issues, on which he wants to dig in, are still red lines? Some doubts have been expressed. He will know that there is a provision in the constitution to harmonise compulsorily economic and employment policy—it is not a power but an instruction given to the Union to do that. When the Foreign Secretary gave evidence to the European Scrutiny Committee, he emphasised that that was unacceptable. It may be, but it is still in the constitution. The latest draft states:
"The Union shall adopt measures to ensure the coordination of the employment policies of the Member States".
There has been some change on economic policies, but compulsory co-ordination from the centre, by the Union, of the employment policies of member states is still in the constitution. That is a red line, and it must come out this weekend. I hope that that can be confirmed.
Exactly the same is true about social security, which, as the Prime Minister has often repeated, is a red line, on which there is to be no majority voting. But again, it is included in the draft that is now going to Brussels. Article 21, in part 3, provides for qualified majority voting on social security. A kind of emergency brake has been included, whereby if we object to what is a fundamental issue, we can appeal to the European Council—the European summit, meeting periodically—
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at Heads of Government level. A similar emergency brake is applied to criminal justice procedures.
The Government might think that that will meet their red line, but they should realise that it would be a fudge and completely unacceptable. There is already a torrent of legislation on such issues, and if they are to pull the emergency brake whenever social security or criminal justice arises it will be full on all the time. Last year, the Committee on which three of us sit examined 1,000 new measures from the European Union. Many of them are incremental. Once qualified majority voting is allowed on criminal justice and social security, and once the EU starts to co-ordinate our employment policies, no emergency brake in the world will be an adequate substitute for the veto that we were promised in the White Paper, which is now one of the red lines. I hope that the Foreign Secretary's silence in the debate does not indicate any kind of retreat. The point is, however, that even if he does secure his red lines they will be inadequate, given all the hundreds of amendments with which the Government failed.
The Government must stand back. Let us not become too obsessed with red lines; let us ask ourselves what is being attempted. The European constitution is a decisive break with everything that we have had in the past. My right hon. and learned Friend the Member for Devizes (Mr. Ancram) has been criticised for our modest attempts to repatriate powers over fishing or agriculture, but we have been engaged in a colossal renegotiation of the entire European Union for the past two years. I know because I was part of it: for 16 months I was in the Convention on the Future of Europe, and we undertook and carried through the most radical renegotiation that there has ever been.
All the existing treaties have been repealed and replaced by a new legal entity called the Union. The pillared structure—the intergovernmental method of making decisions on justice and home affairs, and foreign and security policy—has gone, or has been consolidated in that new legal entity. International agreements are now to be conducted exclusively—again, this is an exclusive competence—by the European Union, acting for member states. Wherever there is an internal policy on transport or the environment, or—as is increasingly the case—on such matters as health and social policy, it will not be us doing the negotiations with third countries in the far east or with the United States: that will be done by the Commission and the Council—the new Union—on behalf of all member states, by qualified majority voting in almost all cases. The implications are huge. I call it a renegotiation in completely the wrong direction.
To criticise us for having a modest go at repatriating some powers is to overlook the additional fact that that was shadowed as a suggestion in the Laeken declaration, which set the whole process in train. Let us look back at the instructions given to the Convention on the Future of Europe in December 2001. At the Heads of State meeting in Laeken it was suggested that we should repatriate some powers. They then said that might in the long term lead to a constitution, or a constitutional text. Instead, the Convention went straight to the constitution and completely ignored any suggestion of any repatriation of any powers. That is why I think that the Convention did not just ignore, but contradicted the instructions given to it.
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The Convention failed in its task. It was supposed to simplify the existing treaties. I have here the latest version of the constitution—produced, incidentally, not by the British Government but by the British Management Data Foundation. It has put together all the text—all the new protocols and declarations—in almost 300 pages of A4, with writing on both sides.
The Foreign Secretary said at the outset, in an article in The Economist, that he thought a constitution should be a simple document rather like the constitution of the United States, which could fit in anyone's pocket and be accessible to the public. I do not know what sort of suits the Foreign Secretary wears, but he certainly could not carry this document around for long. It is also completely impenetrable by the public—the people whom we represent. It has failed even in its task of simplification: it is longer than the treaties that it replaces. Its main defect, of course, lies in the transfer of powers upwards, which again conflicts with the Laeken declaration instruction to create a more democratic Europe, closer to the citizen. How can taking more powers upwards from national Parliaments to the Union bring Europe closer to the citizen? It is a complete contradiction in terms.
The Foreign Secretary made the tired old point about subsidiarity and how everything would be different—how national Parliaments, including ours, would gain exciting new powers to enforce subsidiarity. That simply is not the case. Subsidiarity has been a treaty requirement for more than 10 years. It has not worked, and it will not be made to work simply by giving national Parliaments the right to ask the Commission to have another look at the position. There is no power to compel it to do so. That is a sham, and it was spotted as a sham by the European Scrutiny Committee before I was on it. In a press release, its distinguished Chairman said that the subsidiarity procedure being considered by the Convention was not a watchdog because it had no teeth. He rejected it, and he was right to do so. In another failed amendment, the British Government tried unsuccessfully to tighten it. Nothing in the constitution strengthens the position of the House of Commons in any way.
As for economics, my approach is somewhat different from that of the right hon. Member for Llanelli. I believe that the constitution would lock us into a failed and failing economic model. In my view, it crystallises everything that is wrong with the European Union—its centralisation and its regulatory bias. The European Union is an incredibly old-fashioned organisation, which has been overwhelmed by world trends. It features a high-tax model, over-regulation and a lack of competitiveness, accompanied by a tragically high unemployment rate. We must learn what the rest of the world is trying to teach us. At present we are taking everything that is wrong and putting it into a constitution, which means that it will never be repealed.
The constitution also does nothing to clean out the waste, incompetence and unpunished corruption that are all too prevalent in the European Union. The only people who ever lose their jobs in the EU are the whistleblowers. No one else ever resigns or is sacked, despite repeated scandals involving the EU's budget and its programmes. Yet these are the same institutions and the same people who will gain more powers and more money under the constitution. It makes no sense whatever.
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However, the people have now seen through this situation. That has happened. The electorate have woken up and a different Europe is waiting to be born. We do not have to have this constitution—we could go back to the Laeken declaration and try to design something that is genuinely simple, democratic and closer to the people. The Prime Minister has no mandate to sign this treaty. There was nothing about it in the manifesto on which he won the last election, and the people have sent the Government a clear and unambiguous message that they should say no in the concluding negotiations. If the Prime Minister does that, he will do not only us, but the people of Europe generally, a favour.
3.29 pm
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