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27 Feb 2008 : Column 1167

That is the key question because the master is not to be this national Parliament.

Mr. Grieve: My hon. Friend is correct. At the end of the day, the question is who is master in interpreting the treaty provisions. We must be prepared to make clear what is required to ensure that the treaty conforms, if not to our political viewpoint then to what the Government tell us that it is. That is why we have tabled the amendment.

Mr. David Heath (Somerton and Frome) (LD): The hon. and learned Gentleman is right to say that there is inconsistency between articles 61A, 61B and 61C. They are consecutive articles, but two say “may” and one contains nothing but the present tense in the phrase “national Parliaments ensure”. If that meant anything, it would be a statement of fact, and a description. However, it is not, as is borne out by arrangements in the House. We should be worried that we have no mechanism to date for enjoying the benefits of subsidiarity, which the treaty affects to provide.

Mr. Grieve: The hon. Gentleman is right. Although unfortunately I could not be present in the Chamber yesterday, I read the speech of the hon. Member for Birmingham, Edgbaston (Ms Stuart), and she made precisely the same point.

Ms Patricia Hewitt (Leicester, West) (Lab): I think the hon. and learned Gentleman is wrong about this and is making very heavy weather of it. Not only is article 61B, in both the French and the English versions, clearly a descriptive rather than a mandatory statement, but—this point has not yet been made—it specifically refers to the arrangements set out in the protocol on the application of the principles of subsidiarity and proportionality. The protocol rightly places on the Commission all the duties to inform national Parliaments of what it proposes to do, and national Parliaments may or may not choose to respond and express their views on whether those legislative proposals conform with the principles of subsidiarity. We should concentrate on how we in this Parliament ensure that the Commission observes the principles of subsidiarity, rather than worrying about the nonsensical suggestion that the Parliament is being mandated to do something when clearly it is not.

Mr. Grieve: I am sorry to disappoint the right hon. Lady by disagreeing with her. As she will see, article 9 has preserved the word “shall”. It states

The right hon. Lady may be surprised to learn that in the French text of article 9 the word “doit”, or “shall”, does not appear. It states, in exactly the same terms:

Although the “shall” was preserved—I hope the Minister will tell us in a moment why it was retained in
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this clause whereas, apparently on the Government’s insistence, it was removed from the others—I should like to know why that has had absolutely no impact on the French text. In a context that is mandatory, it continues to use a form of words that appears to be simply definitional. I must tell the Minister, and the right hon. Lady, that I think that is because as far as the French draftsmen were concerned, it did not make any difference, it has never made any difference, and it still will not make any difference to what the Government have done since then.

Mr. Denis MacShane (Rotherham) (Lab): The hon. and learned Gentleman once asked me for a good translation of the word “racaille”, used by President Sarkozy of people he did not like.

David Howarth: That is not parliamentary language!

Mr. MacShane: : Possibly not.

I think that the hon. and learned Gentleman is making extraordinarily heavy weather of this. The plain fact is that “shall” also contains a future component, which is easier to use in English because we use gerunds and compound verbs more than the French do. This is the German version:

That, like the French and the English, is very clear. I really think that the hon. and learned Gentleman—whose knowledge of French I respect, but it is not complete—ought to back away, because he is not doing his case much good.

Mr. Grieve: When not one Member but two start talking about making heavy weather, I begin to think that I am probably getting somewhere.

I disagree entirely with the right hon. Gentleman. No explanation has been advanced as to why the text differs so markedly in the two languages. When my late mother used to tell me that I “shall” do something, I took that as a mandatory injunction, and on the whole it happened. The fact that it might have been couched in the future tense does not seem to me to matter a bean. The point is that our job as a Parliament in scrutinising and passing legislation is to ensure that it conforms with what we want to achieve. Therefore, I return to my original question. If the text is as the Minister appeared to state to the ESC in or shortly before October, the Government ought to welcome amendment No. 13 as it will reassure Members who are currently not reassured that there will be no mischief from the wording of the treaty in these areas. At the same time, if I understand the Minister’s position correctly—I shall hear more about that shortly—in these circumstances it cannot do any harm to the Government’s adherence to the treaty.

5 pm

Mr. Cash: Will my hon. and learned Friend re-emphasise the point that interpretation of these words will be performed by the European Court of Justice, which I regard as the master in this case? It will determine what we may say, under section 3 of the European Communities Act 1972, and we cannot then disagree. That is part of
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the problem. The bottom line is that we must protect ourselves from that possible interpretation.

Mr. Grieve: I entirely agree with my hon. Friend, and what he says pre-empts my next point. Ultimately, this treaty is justiciable and is open to the interpretation of the ECJ. We must make it clear now what we understand the treaty to be, and ensure that, were the interpretation of the ECJ to differ from that of the Minister, we properly protect the public in this country and this Parliament from being overridden or mandated to do anything.

Mr. David Heathcoat-Amory (Wells) (Con): My hon. and learned Friend outlines a highly plausible situation in which the ECJ has to arbitrate or decide. Is he worried by the treaty requirement on the Court to practise mutual sincere co-operation with the other institutions of the European Union, not with member states? In any dispute about this obligation between us and the institutions of the Union the jury is already rigged against us.

Mr. Grieve: My right hon. Friend will recollect that in the crime and justice day debate I expressed the view that while the ECJ had many virtues it was in many respects the creature of the institutions that had created it and that in the light of its track record it appeared to have a clear agenda of enforcing, within the parameters set down by legislation, the acquis communautaire. Therefore, I agree with my right hon. Friend that under the treaty it does not have to put the views of national Parliaments or national sovereignty first.

We cannot, however, complain if we legislate badly. The power lies with us. I have made that point to some of my hon. Friends. I take the view that if we get ourselves into a mess in areas of EU law, it is in many cases entirely our own fault and responsibility, and not the result of some sinister conspiracy elsewhere. We tolerate sloppy legislation, and we fail to identify areas where our national interest might be jeopardised and to take steps—such as those that I currently propose to the Minister—that would solve problems and would, far from creating greater tension within the EU, go a long way towards making it run smoother.

Michael Connarty (Linlithgow and East Falkirk) (Lab): If the hon. and learned Gentleman had read the Hansard record of yesterday’s debates or had been in the Chamber listening, he would have known that I dealt with the point raised by the right hon. Member for Wells (Mr. Heathcoat-Amory). As he says, it is stated that such mutual co-operation should be practised, but it is also stated that the institutions must act in the interests of the member states. He is, therefore, wrong to say that the institutions of the EU are not charged with that duty. There was a difference of opinion in the ESC, but a majority supported my view.

Mr. Grieve: The hon. Gentleman makes an important point. I certainly was not seeking to suggest that the institutions of the Union were not operating in accordance with the interests of the member states. However, the interests of the member states are a collective expression. Within that, the interests of individual member states can be jeopardised, and they sometimes are.

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Robust and active participation in the European Union does not preclude this Parliament—or, for that matter, this Government—from identifying important areas of national interest and standing up for them. I disagree with some of the things that the Minister and the Prime Minister say they achieved, but they argued at considerable length that that is exactly what they did prior to the signing of the treaty. Indeed, we have only to look at the treaty to see that other countries, such as Ireland and Denmark, did exactly the same.

Ms Hewitt: I am grateful to the hon. and learned Gentleman for giving way for a second time on this point; it is clearly important to him. Article 8C is headed “National Parliaments contribute actively to the good functioning of the Union”. Let us leave aside for the moment our disagreement, in which he thinks that that is mandatory and I think that it is descriptive. It goes on:

As a distinguished lawyer, he must surely admit that the European Court of Justice could rule on whether a national Parliament had breached this—in my view—non-existent duty only if a case were brought. But brought by whom? By the Commission? Does he really believe in the bizarre fantasy—which the right hon. Member for Wells (Mr. Heathcoat-Amory) clearly shares—that the Commission, which is given a duty in the treaty to keep national Parliaments informed, would take a national Parliament to the European Court of Justice for failing to express its opinion on whether the Commission had acted in accordance with the principles of subsidiarity? That is complete nonsense, and, in my view, the hon. and learned Gentleman should move on to something more substantial.

Mr. Grieve: As a lawyer, I have always tried to look for possible pitfalls and to find sensible ways of skirting round them. I tend also to do that when I encourage my clients to avoid litigation. It is a wise course of action, even if it does lawyers out of money from time to time. If I see an area of ambiguity, the first thing I do is highlight it so that the Minister has an opportunity to respond. Heaven knows I have done this often enough. I tabled 318 amendments to the Proceeds of Crime Bill because I thought that it was a highly ambiguous document. Indeed, it has since been shown to be woefully deficient in some areas of interpretation. We should also ask ourselves whether the ambiguity can be cured in a way that provides general reassurance without undermining the Government’s primary intentions. What I find fascinating about the approach of the right hon. Member for Leicester, West (Ms Hewitt) is that she has not yet told me what is wrong with the amendment.

Mr. Cash: My hon. and learned Friend might remember the seminal case of Costa v. ENEL. If I may, I will quote briefly from the ECJ’s findings.

In other words, the root of what my hon. and learned Friend is saying—and in contradistinction to the assertion
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by the right hon. Member for Leicester, West (Ms Hewitt)—is that the European Court of Justice already has a view on its constitutional role, which is that, according to its assertions, domestic law cannot be allowed to prevail against Community law.

Mr. Grieve: My hon. Friend is absolutely right to highlight the fact that there is Court authority in precisely the terms he identifies. Exactly where that will fall might be an interesting issue of academic speculation. However, as it appears—I have to accept the Government’s word for this—that the Government certainly do not wish it to fall in the area of parliamentary sovereignty or, for that matter, of parliamentary action, it seems to me that spelling out clearly what the Government understand the position to be by accepting amendment No. 13 would be very wise. As I say, I wait to hear from the right hon. Member for Leicester, West what so irritates her about amendment No. 13 or what she thinks might be so damaging to our participation in the European institutions. I am at a loss to understand that.

Rob Marris (Wolverhampton, South-West) (Lab): Perhaps I can assist the hon. and learned Gentleman. I might be reading this differently from him, but article 13 of the treaty on the functioning of the EU states:

That is an obligation on the UK as a member state of the EU, and one that I welcome. The hon. and learned Gentleman’s amendment, as I understand it, would remove that obligation.

Mr. Grieve: It would remove it, but only in so far as anything in the treaty sought to impose an obligation on this Parliament to act in a particular way. One argument that has been put consistently, not only by the Government but by supporters of the EU—indeed, it is a view with which I have a considerable degree of sympathy when I approach it from a lawyer’s angle—is that any surrendering of sovereignty by this House should be voluntary. Equally, if the House wants to take back any area of sovereignty it should be able to do so, although it might face consequences under its international treaty obligations. I have picked out the areas that concern me and highlighted the fact that I did not understand that it was the Government’s intention to impose through these treaty obligations on Parliament to act in a particular fashion.

Ms Hewitt indicated assent.

Mr. Grieve: The right hon. Lady nods; perhaps there is a slight difference of opinion between her and the hon. Member for Wolverhampton, South-West (Rob Marris). This country might not want to differ in any way from a position adopted by the EU. We might want to engage in a common statement of our intentions.

The Minister acknowledged when he appeared before the European Scrutiny Committee last year that there was an issue with the provisions that I have
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highlighted. The question that arises, before we get carried away by excessively nebulous concepts, is whether the Government have succeeded in curing the problem. My reading of the text—particularly when I read it in French, which is a slight advantage that I have from being conversant and fluent in that language—is that the Government have not succeeded at all. The ambiguity has been left open, despite the fact that the Government said that that was precisely what they wanted to close. Given those circumstances, amendment No. 13 or a similar measure could solve the Government’s problem and reassure me.

Mr. Heathcoat-Amory: My hon. and learned Friend has already quoted from article 9 of the protocol on national Parliaments, which requires this Parliament to co-operate regularly with other Parliaments in the EU. There is no other way of interpreting article 9. In future, we might not wish to co-operate with the European Parliament. History is littered with examples of Parliaments having disputes. It is a real possibility that a failure to co-operate could come before the European Court of Justice. We must protect our interests by ensuring that the wording is not ambiguous.

Mr. Grieve: I agree entirely. I have no doubt that if the Minister wishes to provide an argument to show why my right hon. Friend is wrong, he will do so, but I have not heard such an argument yet.

The article that the hon. Member for Wolverhampton, South-West identified refers to the obligations of member states. He will appreciate from the way in which I have presented my argument that I am specifically interested in the obligations that appear to be imposed on Parliaments. Although member states and their Parliaments might be closely connected, they are nevertheless not one and the same thing. This House conducts its business not merely as a creature of the Executive, even though some of us would argue that we remain far too much under the Executive’s tutelage and would like to remove ourselves further from it. However, the way in which the House works ultimately concerns our privileges as parliamentarians. Providing an adequate mechanism to reassure the public and hon. Members strikes me as rather a sensible idea, which is why I commend amendment No. 13 to the Committee.

5.15 pm

Let me touch on the new clauses that are grouped with amendment No. 13. New clause 5, which my right hon. Friend the Member for Wells (Mr. Heathcoat-Amory) tabled, would allow the relevant Secretary of State to present to Parliament

and to produce supporting evidence. Given the difficulties that we have been having with European Union directives, the proposal strikes me as immensely sensible. I shall wait to hear how my right hon. Friend develops his argument, but I hope that the Minister will be able to give the measure a positive response.

My hon. Friend the Member for Stone (Mr. Cash) tabled new clauses 8 and 9. New clause 8 has a direct link to amendment No. 13 and relates to article IX of the Bill of Rights 1689. I am always a little hesitant
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about getting bogged down in the Bill of Rights because I am conscious that some of its provisions are, to describe them politely, rather old-fashioned. For example, I am not sure that the right for Protestants to bear arms suitable to their conditions has a great deal of relevance in the present day. However, it is absolutely right that article IX has been, and continues to be, of relevance to the independence of the House, because it provides:

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