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8.30 pm
Mr. Alex Salmond (Banff and Buchan) (SNP): I was tempted by the hon. Gentleman’s remarks. Is he aware that in the context of Scottish independence, the Liberal party in Scotland opposes a referendum because it is not in favour of Scottish independence? That seems to sit uneasily with that party’s attitude to the European Union.
Mr. Cash: I am always glad to hear from the First Minister. He has a remarkable facility for hitting the nail on the head. He is completely right: the Liberal Democrats look as ridiculous and as divided within their party as they are in their principles. They are a completely absurd bunch of opportunists, and that is all that there is to it.
The First Deputy Chairman: Order. Perhaps now the hon. Gentleman will get back to his amendment, which I am sure he wishes to speak to.
Mr. Cash:
I am glad to do so. I have a list of the newly defined shared competences as they are set out under the new regime—under the new rubric of the European Court of Justice, as extended into this new
field. Although the Court has had primacy for some time, its power increases as its functions accumulate. Competence is power. It has not yet been mentioned today, but one of the things on which we need to focus is the asserted primacy of the European Court of Justice in relation to these new and accumulated functions, and the exclusion of national Parliaments, in particular our own, with respect to the shared and the exclusive competences.
Two things are operating in the same direction, but in a contrary manner: the increase by accumulation in power and judicial authority of the European Court of Justice, and the diminution in power of the national Parliaments, which are in direct proportion to one another. We fall straight between the two. Some of us may recall from our history books Dunning’s motion that the power of the Crown
“has increased, is increasing and ought to be diminished.”
That is exactly what we should say about the European Union, the European Court of Justice and the manner in which the Government are treating this country.
The shared competences are as follows: the internal market; those aspects of social policy defined in the treaty; economic, social and territorial cohesion; agriculture and fisheries; environment; consumer protection; transport; trans-European networks; energy; area of freedom, security and justice; and common safety concerns in public health matters. Those accumulated functions are eating away at the body politic in this country. Furthermore, article 2A of the treaty says that member states can legislate in any area of the shared competences only to the extent that the European Union has not exercised its competence. That will invert subsidiarity. I must discuss subsidiarity, because it was mentioned by the hon. Member for Preston, who has now left his— [ Interruption. ] No, he has moved sideways. He is moving, crabwise, further and further towards the exit.
Mr. James Clappison (Hertsmere) (Con): My hon. Friend is making a powerful analysis of how the European Union incrementally seeks more and more shared competences. Is it not also important to examine the areas in which it seeks to establish a bridgehead for future shared competences through future incremental change? One example is that, under the terms of the treaty—I understand that this is a new duty—if an independent nation state acts on its own account where the Union has decided not to act, the nation state nevertheless has the duty to consult the Union and other member states on any matter that might affect their interests. In practice, that could mean anything. It is a duty to consult on any subject where an independent nation state acts on its own.
Mr. Cash:
Indeed. I do not feel that I am exaggerating when I say that my hon. Friend’s contributions to debates on the treaty, as well as to the European Scrutiny Committee, of which he recently became a member, are considerable. His analysis, given patiently day by day from the corner of the Chamber that he occupies, is a tribute to his perspicacity and tenacity. It is only persistence, tenacity and political will that will pull this country back to its rightful and deserved place. We in the Opposition—this is why I am so delighted as I look at my hon. Friend the Member
for Rayleigh (Mr. Francois), the shadow Minister for Europe—have managed so far to increase our sense of uniformity and unity on such central questions. They affect directly, utterly and completely the rights of the people whom we represent in our constituencies.
This is as great a battle as has ever been fought in the history of this country. There will be those who will try to deny that, but I say this: the repeal of the corn laws in 1846 was no different in kind, because it was about how power in this country was distributed between the rich and the poor. It is no different from the Reform Acts of 1832 and 1867 or the Act giving women the right to vote in the early 20th century. This is about the status of this House.
Mr. Iain Duncan Smith (Chingford and Woodford Green) (Con): I should like to draw my hon. Friend back, I hope not too rudely, to his amendments, and to the point about subsidiarity and how it will play out. We discovered back at Maastricht—it has not really changed—that the concept of subsidiarity is completely alien to how we view our democracy. When it was being sold to us by the then Prime Minister, John Major, as a real breakthrough, none of the other countries translated subsidiarity in the same way. It is a peculiar continental concept that says that where power rests with those at the top, they will give back what they like to those down below. In this country, power is supposed to rest with the people, and we are only meant to borrow it. That has made the difference in how that concept has been interpreted. When Labour Members make ludicrous arguments about subsidiarity, they should read the debates; then they would realise that subsidiarity has been used in exactly the same way, and it has done absolutely nothing to return a jot of power to the nation states or the people.
Mr. Cash: I am grateful to my hon. Friend for taking me back to what I said earlier. He is absolutely right. Subsidiarity is a theological concept, and the European Court of Justice is effectively being given in the political field the kind of doctrine of infallibility that at present is given to the Vatican and the papacy. It cannot be challenged, because there is no appeal except repatriation within the Parliaments. That takes us back to the point that my right hon. Friend made: power must go back to the voter. Similar situations have occurred in the history of this country in which it became necessary, regrettably, for people to take direct action to regain that power. The tensions that the treaty will generate may well prove insurmountable in due course.
Mike Gapes (Ilford, South) (Lab/Co-op): In the last intervention there was reference to the Maastricht treaty; the hon. Gentleman somehow omitted that treaty in his list of great battles of fundamental importance. Is that because he thinks that it is less significant than the Lisbon treaty, or does he agree with the denunciation that the right hon. Member for Chingford and Woodford Green (Mr. Duncan Smith) made of the former Prime Minister, John Major, and of all those, including his Front-Bench colleagues, who voted for the Maastricht treaty?
Mr. Cash: The only reason why I did not mention Maastricht was modesty, if I may say so. I did not think that it was necessary for me to explain every detail, as I tabled 150 amendments to that treaty. The number of amendments that I have tabled to the Lisbon treaty is of the same order, or a little greater. That is why I find myself leading on this group of amendments. I happen to believe that the Maastricht treaty was one of the critical moments in our history. The BBC recognised that point in a debate that took place reasonably recently. The bottom line is that although Maastricht was enormously important, the treaty that we are considering is even more important; the accumulation of functions since Maastricht has merely demonstrated that we were right at the time. That accumulation is in line with the predictions that we made at the time; that is the point.
Article F of the treaty of European union says that
“The Union shall respect the national identities of its Member States”.
The Lisbon treaty, too, refers to a “respect” for
“regional and local self-government”.
That is completely misleading. The Union approach has been to pursue a one-size-fits-all policy, with total disregard for national identities, so the extension of the competences actually works in exactly the reverse manner. Moreover, the treaty says that the Union “shall respect” nation states’
“essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security.”
In fact, although national security remains the sole responsibility of each member state, the article does not include important state functions such as conducting a foreign and security policy. Police and judicial co-operation will cease to be intergovernmental, and will be placed under the Community method.
It is very likely that the Union will put forward measures that might jeopardise member states’ national security measures. The evidence is contained in the PrĂ1/4m treaty relating to the collection of personal data, which is being implemented into Union law, so there is a kind of convergence. National security is hugely important, but there are indications of an invasion of it by other means. If we agree to the amendment, we will revert to the status quo, and we will therefore get rid of the problem and retain national security at the heart of our arrangements. I shall give that matter further thought as the debate progresses.
The principle of sincere co-operation is not new. Article 11 of the treaty on European union states that
“The Member States shall support the Union’s external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity.”
The treaty operates by reducing in every respect the power of our Parliament, and therefore the rights of our voters.
The position on subsidiarity is simply this: a series of laws are incorporated in the treaty, and the European institutions’ attempt to put a gloss on the matter by suggesting that subsidiarity will resolve the problem and to give so-called power to national Parliaments is a complete con trick. That has not happened to any effect on any occasion that I can think of. Subsidiarity does not work, and there is no intention that it should.
It is part and parcel of the artificiality of the arguments that they put forward to try to demonstrate that they are giving some credibility to national Parliaments.
I turn to competences and the European Court of Justice. As I say, competences are about power and law making. The ECJ is about the interpretation of that law. Let me quote the opinion of the Council legal service of 22 June 2007 on the primacy of European law. I suggest that my Front-Bench colleagues listen to this, although I am sure that they will anyway. The opinion says:
“It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community law. According to the Court”—
please note that it is “According to the Court”—
“this principle is inherent to the specific nature of the European Community.”
There follows mention of the Costa case of 1964, to which the Minister for Europe referred earlier.
The opinion of the Council legal service goes on to say that at that time
“there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice.”
“It follows . . . that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question.”
8.45 pm
There is only one way to get past that judgment by the Council legal service, which is right in one sense only—that that is the assertion made by the European institutions within the framework of the competences that they have granted themselves and have been granted, foolishly, by member states. As that is the basis on which they operate, we cannot and must not allow our own Parliament to assume that what they say is right. We must insert a provision, which I will discuss tomorrow, about the preservation of the supremacy of the United Kingdom Parliament, having regard to the European Communities Act 1972.
I will not go further down that route this evening, however much I may be tempted to do so—which I am. Having resisted that temptation, I shall briefly refer to the other amendments that I tabled. I have already dealt with many of the matters in general terms; they include, for example, the fact that Community common policies will take precedence because of exclusive competences that are being granted; the problems that we have with respect to competition rules; the conservation of marine biological resources; and the common commercial policy. I mentioned yesterday the problems that arise in the context of the development of policy. These demonstrate the manner in which the Union will grab and maintain new areas of exclusive competence. These matters are dealt with under my amendment No. 121.
There is also the matter of the UK Parliament being required legally to submit to the Union if and when the Union acts first. That also arise under amendment No. 121. The United Kingdom would be required to
conduct economic policy in the interests of the European Union under instruction of the Council—again, that is dealt with in amendment No. 121. The European Union seeks to direct policy for British industry, health, education, sport, culture, civil protection and tourism. That, too, is covered by amendment No. 121.
Then there is the issue of the European Court of Justice and its ruling—not its guidance and interpretation, but its ultimate jurisdiction over the right of the British people to make their choices in general elections. That is what is taken away by giving such enormous power to the European Court of Justice.
The hon. Member for Great Grimsby (Mr. Mitchell) will speak about fisheries policy. There are further issues such as the granting of aid, the common agricultural policy and so on. The bottom line is that we are giving in to the whole of the European Union without—
Mr. Mark Francois (Rayleigh) (Con): I hope my hon. Friend will not deny the House an exposition of his amendment No. 186, which seeks to remove something of a Henry VIII clause from the treaty. I have read amendment No. 186 and I have seen article 308, which it seeks to remove. I sensed that my hon. Friend was moving towards a peroration, which we do not want to miss, but before he delivers that with characteristic style, will he explain why he tabled amendment No. 186 and why he considers it important? I shall say something about it in my remarks, but it is his amendment.
Mr. Cash: Article 308 follows a line that goes back to the old article 235. It effectively grants a blank cheque, written by the UK and all the member states, in order to allow the Union to create its own powers beyond the treaties in order to pursue Union objectives, because it states:
“If action by the Union should prove necessary”—
“within the framework of the policies defined by the Treaties”—
“to attain one of the objectives set out in the Treaties”,
which is something that is a matter of interpretation, usually for the Court,
“and the Treaties have not provided the necessary powers”—
I ask the question: who is to decide what is necessary and what is not?—
“the Council, acting unanimously on a proposal from the European Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures.”
I am not the slightest bit taken in by the word “unanimously” in this context, because the whole thing becomes a juridical exercise in which what is necessary, what judgments are to be applied and who is to make the decisions, are all matters that will be presented in order to get to the necessary objectives. The bottom line is that this provision will be used, and has already been used, even when the European treaty has not provided the necessary powers. The article has been misused because on several occasions it has been
mentioned as the legal base for a proposal that has no connection with the words that were originally used but are no longer in there—
“the operation of the Common Market”.
It has been way beyond that over and over again. This is effectively yet another example of a self-amending text. This is the manner in which it intrudes into areas that it would like to be able to grab, which it deems to be necessary, over which we have no control, save only through the European Court of Justice, and the spurious notion of unanimity in this context.
Rob Marris (Wolverhampton, South-West) (Lab): Will the hon. Gentleman give way?
Mr. Cash: No, I will not give way. I have said before that if the hon. Gentleman’s constituents had any idea of some of the things that he has been saying he would never be re-elected. He happens to be a good friend of mine in other contexts, but I simply say that he is the successor to Nick Budgen and Enoch Powell, and it astonishes me that he should sit there and say some of the things that he does.
Rob Marris: The hon. Gentleman said “over which we have no control”. The very part that he read from article 352 on page 195 of the consolidated text refers to the Council acting unanimously and obtaining the consent of the European Parliament. He then went on to say that that could be used for measures over which we had no control. We do have control; it is acting unanimously. I follow carefully what the hon. Gentleman says—he is very knowledgeable—but he must be careful about the way in which he uses such quotes.
Mr. Cash: I am delighted to follow the hon. Gentleman’s injunction, because that is exactly what I did. I said that in the integrationist pursuit of the objectives set out, the unanimity will give way to the pursuit of those objectives, and that is the legal dynamic that is driving forward this integrationist process, which is at the heart of the problem. There is no tendency to repatriate or to think again; it is always towards more and more integration.
I simply conclude by saying that the provision will also apply to all third pillar matters on judicial and police co-operation, so that the Lisbon treaty will confirm the existing European Court of Justice encroachment into that area. This is a very important group of amendments. The extension of the competences is related to the power of the European Court, which deprives the British people of the opportunity to change their mind about matters that are incorporated in the treaties, and that is a good reason for our ensuring that we choose to vote on matters that are dealt with in the group.
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