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Mr. Heathcoat-Amory: I rise to support the amendment ably moved by my hon. Friend the Member for Rayleigh (Mr. Francois) from the Front Bench and the amendments
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advanced by my hon. Friend the Member for Stone (Mr. Cash), whose knowledge of these matters is more extensive than that of any other Member, as again demonstrated in this evening’s debate. I was also struck by the short speech made by my hon. Friend the Member for Woking (Mr. Malins), who correctly defined the essence of parliamentary democracy: mistakes can be corrected and we can reverse legislation that turns out to be wrong or damaging. All Governments—not just this one—make mistakes, but the House, either in the same Parliament or subsequent to an election, can alter the law. We cannot do that if the law is made in another jurisdiction and the procedure for amending or changing it is incredibly long-winded, cumbersome and way beyond our reach.

Philip Davies: Does my right hon. Friend agree that the problem with the opt-in provisions, which are much vaunted by the Government, is that once somebody has opted in, there is no mechanism ever to opt out again? Once we are in, we are in—even if a subsequent Government wishes to get us out again.

Mr. Heathcoat-Amory: My hon. Friend is entirely right, and such provisions will render general elections something of a farce. A political party will advance propositions on criminal justice, policing, immigration or asylum, but the electors will know quite well that, if its politicians are elected, they will be unable to make the changes or pass the laws because they are all made in the EU. The question “Why vote?” then becomes unanswerable, and the public have realised that. The Government and the Electoral Commission take an awful lot of time and trouble to try to persuade people to vote. They are putting voting booths in supermarkets—

Sir Nicholas Winterton (Macclesfield) (Con): Tesco.

Mr. Heathcoat-Amory: Yes, Tesco, and people are being encouraged to vote online. The real problem is that people will vote only when that vote makes a difference, and it will not make a difference if the political party that is elected cannot carry out its manifesto commitments.

Kelvin Hopkins (Luton, North) (Lab): I do not know whether my point will be welcome to the right hon. Gentleman, but CREST—the Centre for Research into Elections and Social Trends, an academic group—has shown a correlation between declining voter turnout and diminishing differences between the parties. If people feel that there is no choice, they will not vote. If there is a real choice, they will vote. I would like there to be a real Conservative party and a really democratic socialist Labour party; then people would come out to vote.

Mr. Heathcoat-Amory: The hon. Gentleman puts it better than I could. In a general election, we all engage in a contest, and each party has its own programme. An essential component of the process is that if we are elected, we can carry out that programme. If we cannot, democracy dies. That is why we are debating not a treaty but democracy itself.

I have tabled an amendment and a new clause. The amendment, No. 26, would disapply justice and home affairs from the treaty as implemented in this country. I
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tabled it because it is not necessary to have a new treaty covering those issues. Nobody—certainly not the Minister—has shown us that the intergovernmental method that we have under the treaty of Rome as amended is failing in any way. What provisions are we unable to agree to under the existing machinery? I believe in intergovernmentalism because it retains essential democratic control and accountability while allowing one to be internationalist in one’s ambitions, and I am an internationalist. I always have been, and so has this country. We are members of many organisations that seek to tackle world problems.

The Government’s case seems to be that anyone who believes in tackling crime and terrorism has to be in favour of the treaty. That is just not true. The rest of the world does not belong to anything like the European Union; those around the rest of the world tackle world problems as they always have done—by making alliances, seeking friends, and working with other countries to tackle common difficulties. That is how the rest of the world operates—intergovernmentally. Nothing convinces me that that is not working perfectly satisfactorily, or that we need to pool our law-making ability to tackle problems. After all, on police co-operation, Interpol long predates Europol. I find the debate curiously Eurocentric. Little Europeans are making the case for more European powers, but my horizons are global. I want to work with all countries of the world to tackle common problems.

The Liberal Democrat spokesman, the hon. Member for Eastleigh (Chris Huhne)—he has left the Chamber, but I am sure that the hon. Member for Cambridge (David Howarth), who is present, agrees with him—advanced a curious proposition. He said that we need the provision to help British people living in other countries. We are being invited to give up all our powers over laws affecting our constituents in return for a partial, vestigial influence over laws affecting some British people living in other countries.

That seems to me to be a very bad deal.


Apart from anything else, I am not convinced that Executive efficiency is more important than democracy. The European Union is incredibly inefficient. The common agricultural policy, the common fisheries policy and the European Union budget are not good models for a common crime and justice policy, but crucially it is the loss of public control and the lack of accountability that are breeding resentment and disillusionment with politics and politicians which worry me so much.

The treaty does not cure that, but makes it worse. It defies instructions given at the start of the reform process. I go back to 2001 when, in the Laeken declaration, Heads of Government meeting in that town in Belgium identified the problem—the growing gap between the European Union and its citizens. It instructed those who sat on the Convention on the Future of Europe to design a Europe closer to its citizens. How is that possible if more decisions are taken away from the citizens and away from their national Parliaments to be decided in remote institutions in the European Union, which are the source of the problem in the first place?

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The treaty abolishes the intergovernmental system of Maastricht and puts in its place a supranational system, which is further from the public. That goes all the way back to the Convention. The hon. Member for Birmingham, Edgbaston (Ms Stuart) will remember that the British Government were on the side of intergovernmentalism in those days. The Government tabled hundreds of amendments to try to stop the transfer of power and authority away from national Parliaments, but they failed. In the narrower sector of justice and home affairs, the then Minister for Europe, the right hon. Member for Neath (Mr. Hain), tabled 40 amendments, 38 of which were turned down.

So we know that the Government do not agree with the provisions in the treaty, because the treaty is virtually the same as the constitution which was the product of that Convention. I shall give one or two examples. Article 69B will give the European Union, if the treaty is ratified, the power to establish the definition of criminal offences and the sanctions applying to them—that is, the punishments. The power of the state to punish will be applied in this country in accordance with rules that we do not make.

The article specifies categories of serious crime, such as terrorism, corruption, computer crime and organised crime. Those are wide definitions and are not recognised in British law, a point that I made in an intervention. “Organised crime” is almost impossibly wide. There is no category of crime called “organised crime” in our jurisdiction, but we will import that into our criminal justice system via the treaty.

We had a short debate earlier this evening on the European public prosecutor. He will be responsible for investigating, prosecuting and bringing to judgment those accused of crime against the financial interests of the European Union. I have a much simpler solution to the financial problems of the European Union, which is to turn the tap off. If the European Court of Auditors in its 14th report next year still finds that much of the money goes missing, it should just stop paying it. Member states would soon start listening to the European Court of Auditors if it had that power.

Mr. Brady: Is my right hon. Friend concerned that if he were in a position to turn the tap off, that may, under the provisions, become an offence against the financial interests of the Union and he might be prosecuted?

Mr. Heathcoat-Amory: We could all be in court if the treaty goes through; my hon. Friend has made a shrewd and accurate point.

I have the Government on my side again. We know that the Government wanted to remove completely from the treaty any reference to the European public prosecutor, even though the office could be brought in only by unanimity. The right hon. Member for Neath, who represented the Government in the negotiations, said:

He rightly saw that once it was in a treaty, we would be implicitly committed to it; although we might have a veto, it would become a question not of whether but when. The right hon. Gentleman wanted all references out. My modest amendment would simply do what the Government tried to do in the Convention on the Future of Europe.

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I shall give one other example of an article to which the Government also objected. Article 69F states:

That is not a permissive power, but an instruction—the word “shall” is used. In the phrase “specialised law enforcement services” I recognise a reference to MI5; our Security Service is to be brought into the requirement to co-operate with other member states. There is a special relationship between our security and secret services and the United States, and it dates back to shortly after the second world war. In place of that, we are being mandated to co-operate with all 26 other member states. More than that, the power—and it will all be done by qualified majority voting—includes

Given that even this Government cannot be trusted with the data under their control—after all, Revenue and Customs lost 25 million files, affecting everybody in the country—we can imagine what may happen when even more sensitive information has to be exchanged with 26 other countries all over the European Union, with varying standards of control over it. We are trying to put right what has gone wrong in this country; it would be highly irresponsible to create a further leakage of information as far as Bulgaria, Romania, Malta and right up into the Baltic. Is that really a sensible way to proceed?

Mr. Jenkin: Would it be true to say that if an identity card were introduced to this country, it could come under the control of the European Union?

Mr. Heathcoat-Amory: It is certainly true that in the treaty there are many references to the exchange of information. It is bad enough that we will be centralising data here; I am against an identity card because I do not trust the competence of even our own Government to preserve and protect citizens’ information. If the data could be shared with 450 million other people, that is still another argument against it.

Sir Nicholas Winterton: I am listening carefully to my right hon. Friend, whose knowledge of the European Union is profound. Is he not stating in so many words that our country—the United Kingdom—is no longer a sovereign, independent country?

Mr. Heathcoat-Amory: I believe that if the treaty is ratified we will have undermined our powers of self-government to the extent that we could be considered to be in a colonial situation. I have visited other members of the Commonwealth who have more powers over their legislation concerning immigration, asylum and criminal justice than we, the mother country, will have under this treaty. That is an extraordinary irony of history.

Under the terms of the treaty, the whole area of justice and home affairs becomes a shared competence of the European Union—that is to say, the European Union and the member states will have powers to legislate. Crucially, however, it is asserted in article 2 that when the EU legislates in this area, member states will lose the ability to do so. In other words, we have not a shared competence but a residual role. That is profoundly important, particularly because attaching to this is the provision—

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Mr. Clappison: Is it also my right hon. Friend’s understanding that where the European Court of Justice interprets legislation in which the European Union has come to occupy a competence, that, too, will be binding on every country in the EU, including this one where it has been opted in?

Mr. Heathcoat-Amory: My hon. Friend is right. As I said in a previous debate, I do not regard the European Court of Justice as neutral in these matters. It is a federal institution in the way that the Supreme Court in the United States is a federal institution. Shortly after the American constitution was signed and ratified, the Supreme Court, under the famous Chief Justice, John Marshall, started to interpret states’ rights in a way that was prejudicial to those rights. That led to the consolidation of federal powers, to such an extent that about 60 years later, in 1861, the federal Government were able to declare war on a state—South Carolina—that attempted to secede. That was inconceivable when the constitution was drawn up, but that is what happened. The Jeffersonian settlement was undermined by a Supreme Court that was part of the federal structure. I see something parallel happening with the powers of the European Court of Justice, which, I remind the House, will have an obligation in the treaty to practise “mutual sincere cooperation”, not with member states but with the other institutions of the European Union. The observations about the European Court of Justice and its future role are well made.

Philip Davies: Does this not relate to subsidiarity? Subsidiarity does not mean that nation states can decide which powers to pass up to the European Union but that the European Union decides which powers, if any, it will be gracious enough to hand down to national Parliaments.

Mr. Heathcoat-Amory: Yes. Moreover, the final court that decides a subsidiarity case will be the European Court of Justice. My hon. Friend the Member for Stone (Mr. Cash) referred to the role of national Parliaments in the context of subsidiarity attempting to tell them what they should do in this area. The European Scrutiny Committee correctly observed that this House does not take instructions under any treaty. We are self-governing; we lay down our own rules of procedure. Whether or not we decide to look into matters of subsidiarity is purely a matter for us. We should resent becoming the creatures of a treaty and therefore of the European Union, as is the case under this document.

Mr. George Howarth (Knowsley, North and Sefton, East) (Lab): I followed closely the right hon. Gentleman’s comparison between the American constitution and the effect of the treaty. The parallel, if he takes it to its logical conclusion, is presumably that the European Union could have the power to declare war on France. Is that a serious proposition that he is making?

9.45 pm

Mr. Heathcoat-Amory: No. If the right hon. Gentleman was following my argument, he would know that I was simply illustrating a point. Powers in a treaty become subject to interpretation by a supreme court, and if that supreme court is part of the central authority it starts to see matters and interpret treaty provisions in a way that
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is detrimental to the interests of member states, in this case, and in favour of the interests of the central institution. We already see that activism in the European Court of Justice. I was pointing out that that process in America undermined the rights of states and asserted the powers of the federal Government to such an extent that they—the federal Government—declared war on a seceding state. I do not suppose that that will ever happen in the EU, but I was making the point that an accretion of powers to the centre aided by an activist court is happening in the EU in the same way as it did in the USA. I do not want to push the other parallels to breaking point.

Mr. Shepherd: My right hon. Friend’s observations on the connection with the Supreme Court under Marshall draw an interesting parallel. Those occurrences turned on the interpretation of the constitution and the words “we the people”. The phrase “we the people” overrode the rights of the states, and it was through that entry in the constitution that the relationship was changed between the federal Government and the states.

Mr. Heathcoat-Amory: That is my proposition. Ultimately, the treaty is about the comparative powers of member states vis- -vis the European Union. By “member states”, I mean in particular their representative Parliaments and, by extension, the powers of the people they represent. In my judgment, that balance is profoundly upset by the treaty—and never more clearly than in criminal justice, policing, immigration and asylum. With those few scattered thoughts, I strongly support the amendments tabled by my hon. Friends.

Mr. Peter Lilley (Hitchin and Harpenden) (Con): The defence of the provisions that we are seeking to amend has so far fallen to the hon. Member for Eastleigh (Chris Huhne). He speaks with some authority since, if the Liberals applied proportional representation to themselves, he would be leader 49 per cent. of the time. His defence—I take it that he is acting as an outrider for the Government—was that the measures are essential in order to export some good higher standards from this country to other countries in the European Community. Up to 750,000 ex-patriot Britons live in those countries, many of us travel to them, and many of us work in them.

It is normally said that Eurosceptics take a rather negative view of foreigners and foreign Governments. On this occasion, the Liberal Democrats and the Euro-enthusiasts were working on the assumption that Johnny Foreigner needs a little help from us and that the benighted populations of our fellow member countries of the European Community do not have adequate legal systems but need them to be overridden by a supranational authority. In the interests of those countries and of the British people living in them, we must therefore hand over power over our own legal authorities to those supranational bodies: the European Court of Justice, the Council of Ministers and the European Parliament.

Unfortunately, that cuts both ways. If we can export the superior systems of this country—that is the view of the Liberal Democrats—to those partner states, presumably they can export their power and influence to us. That has been a concern to my party.

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