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27 Feb 2008 : Column 1186
6.15 pm

However, if so many people and national Parliaments object to a proposal, it will be withdrawn anyway, on other grounds. No proposal could succeed if it was opposed by a majority of member states and European parliamentarians. The subsidiarity principle is therefore largely meaningless, and it is certainly not much of a safeguard. Any case is to be decided by the ECJ, but no one can recall an occasion when the Court decided against a proposal on subsidiarity grounds. The question that needs answering is whether national Parliaments can object on the grounds of subsidiarity to the European Court of Justice, which is the supreme arbiter in the matter. Again, there is an ambiguity. The Committee that deals with European matters in another place raised it with the Government and received no clear answer. We do not know whether Parliament—or the Government—can make an objection on the grounds of subsidiarity.

There are no additional powers for national Parliaments. Meanwhile, powers are haemorrhaging from Parliament upwards to the European Union in almost every aspect of policy. New clause 5 would require the Government to justify EU proposals not only on subsidiarity and proportionality grounds but on that of conferral. Conferral is the principle whereby the EU enacts only measures that national Governments and member states grant it the power to enact. The problem is that the division of powers between member states and the European Union in the treaty has been determined decisively in favour of the European Union. The principle of conferral, which provides that all powers remain with national Governments unless they have been conferred, has been overtaken by provisions that deal with exclusive and shared competences.

The origins of those provisions go back to discussions on the Convention on the Future of Europe, where they were immediately perceived to be key matters. After all, constitutions divide powers—between states and the federal Government in the case of the United States, and between member states and EU institutions in the case of Europe. Those provisions have been included wholesale in the treaty of Lisbon and it is therefore a constitutional measure, whatever the Government say.

When considering the Convention on the Future of Europe in 2002, a working group was set up to look into the matter. It produced a report, which was highly sympathetic to the position of member states, possibly taking its cue from the suggestion in the Laeken declaration that some powers should revert to member states. The working group examined and was critical of article 308, which is the flexibility clause—sometimes called the rubber article. It grants the power by unanimity in the Council of Ministers to create new powers that the treaty does not contain. That is highly controversial and means that the treaties, including the treaty of Lisbon, will not be limiting because article 308 endures in a slightly amended form in the new treaty. Any temporary Council of Ministers could agree to move into new territories and acquire new powers not seen by those drafting the treaty.

The working group was critical, and that created consternation in the upper reaches of the convention—among the presidency and the secretariat, who ensured that none of the proposals appeared in the final document. Instead, the definition of shared competences endured. That definition is curious. Shared competence allows
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member states to legislate in many matters only if the European Union has not done so. To put it the other way around, as soon as the European Union legislates in any policy areas, member states lose their ability to legislate or decide. That is an odd definition of sharing. If I were to share a meal with someone on that basis, they could eat the lot and give me nothing yet claim that they had shared the meal. In truth, national Parliaments are given only a residual power to legislate.

Nor is the list definitive or exhaustive. It specifies 11 policy areas, some of which—such as freedom, security and justice—are very general, but it also states:

That is the worst of all worlds. The article gives the European Union substantial new powers without limiting them in any way. My new clause applies here as well. It was not just me who objected to the wording; the Government objected to it, and we both lost. It is in the treaty. I can maintain my objection, but the Government must now defend what they regarded then as indefensible.

Then there are the areas of exclusive competence, in which member states cannot legislate at all and the principle of subsidiarity therefore does not apply. We discussed fisheries yesterday, so I will not repeat those arguments, but competition policy has also been asserted as an area of exclusive competence, and my new clause applies to that too. The Government did not like the proposal. but it was approved. They lost, and now they must pretend that they do not mind it after all.

International agreement is a significant new power for the European Union. When the negotiation and signing of international agreements becomes a matter of exclusive competence across policy areas such as the environment, transport, energy and crime, this country will not be able—and therefore this Parliament will be forbidden—to conclude or negotiate such agreements with third parties or international organisations. That is an enormous extension of the powers of the European Union.

The exclusive competence and shared competence clauses have huge implications for the powers of the House, and also for the supremacy of EU law. Other new clauses in the group deal with the supremacy and I will allow my hon. Friend the Member for Stone to make the case for them later, but let me say now that supremacy is asserted not just in declaration 17, which takes the case law of the European Court of Justice and inserts it in a treaty, but through the shared and exclusive competences.

I was puzzled when the hon. Member for Cambridge said that we were supreme in our own legal order but not in the European order. How can we be supreme in our own legal order when the national Parliament will be entirely and completely forbidden to legislate in areas of exclusive competence, and will be forbidden to conclude international agreements with third parties?

David Howarth: The obvious answer is that we are supreme because we can free ourselves from all those obligations simply by repealing the 1972 Act.

Mr. Heathcoat-Amory: I am glad the hon. Gentleman concedes that that can be done. In his speech he outlined a different scenario, in which some judges would send that decision to the European Court of Justice.


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David Howarth: Let me clarify what I said. I was responding to the hon. Member for Stone (Mr. Cash), who described circumstances in which we had passed legislation that was incompatible with our obligations but had not withdrawn. It is possible that, in such circumstances, the judge might follow our law or the European legal order, but that does not preclude withdrawal as the solution to the whole problem. That is our prerogative, and it is the way in which our supremacy remains.

Mr. Heathcoat-Amory: I think it follows from what the hon. Gentleman has said that if we pass the Bill and ratify the treaty—which hands over legislative supremacy to the European Union in the areas that I listed—we can reverse that only by withdrawing completely from the European Union. I want to take the slightly less drastic step of amending the Bill and the treaty to establish the supremacy of this Parliament. My new clause would require the Government regularly to explain how powers have been transferred from this Parliament thus, in my view, undermining self-governance. They would have to do that every time the EU advanced a proposal for legislation or decision making. That would also never allow the Government to forget that these powers have been transferred without the consent of the public, if they deny them a referendum.

Mr. Cash: I wish to begin by drawing an historical comparison with an analogous time when people decided what laws they wanted their Parliament to exercise: the Putney debates, compared with which our debates are pretty tame. Much concern was expressed in the great Putney debates about who governs us and how; matters were dealt with in a manner that befitted their importance.

We have had an interesting debate, and I congratulate Labour Members on their contributions to it. We are discussing hugely significant questions. I want to concentrate on new clauses 8 and 9, which I tabled. I endorse the arguments of my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve) on amendment No. 13 and the customarily perspicacious remarks of my right hon. Friend the Member for Wells (Mr. Heathcoat-Amory) on new clause 5. I also pay tribute to the contribution of the hon. Member for Linlithgow and East Falkirk (Michael Connarty), who has extensive knowledge from his extremely good chairmanship of the European Scrutiny Committee. I have not mentioned everybody, but I should add that I enjoyed the perambulations around the question of supremacy of the hon. Member for Cambridge (David Howarth), although I do not agree with him on that—but, not unnaturally, I do agree with him on the Bill of Rights question.

This is not just a legal debate; it is a debate about the political will of the nation as expressed through the representatives in this House on behalf of the voters of this country. That is the measure of the importance of the debate. It is also about the question of whether we are able to demonstrate and reassert in the context of this Bill the principle of the supremacy of Parliament. That is not an abstraction; it is about essentially practical matters, as I shall explain. Against that background, let me also say that, with the leave of the Chair, I shall press new clauses 8 and 9 to a Division; I want to put that on the record, as I understand that that is a necessary formality.


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I wish first to refer to some comments of Edmund Burke, the great Conservative philosopher-in-action and politician and in many respects the founder of the Conservative party, in his famous essay, “Reflections on the Revolution in France” of 1789. William Pitt, whose biography our shadow Foreign Secretary has recently written, was then Prime Minister. Edmund Burke’s words—which I paraphrase slightly—are worth bearing in mind. He said that they

He went on to say that

the politicians’—

What he meant by that was that it was possible, in a very short time, to pull down a whole constitution. I believe that, for practical purposes, that is what we have been doing with this Bill—not only in the manner in which our discussions have been truncated but in the impact that it will have on the constitution of this country.

6.30 pm

Adam Afriyie (Windsor) (Con): My hon. Friend is making a clear and eloquent case. He has cited Edmund Burke, and it seems to me that, if, under the treaty, we wished to negotiate a policy that had been proposed by the European Commission, the only way to state our negotiating position with any strength would, in many cases, be to threaten to use the European Communities Act 1972. The treaty might well lead to the break-up of the European Union, rather than to the furtherance of the Union that is desired.

Mr. Cash: Indeed. I made that very point yesterday in the debate on competences. This attempt to press everyone into this compression chamber will produce tensions and diversity, particularly if the economies of Europe do not work according to the plan laid down by the bureaucrats.

To carry forward the historical connection with William Pitt, I recall that, in his famous Guildhall speech, he said:

I believe that that is extremely relevant to this debate, however relatively sparsely attended it might be—certainly on the Labour and Liberal Democrat Benches. We are talking about our own Government, and we have to remember that the Bill will implement in United Kingdom law all the existing treaties, with the accumulated functions and proposed amendments, which, as the European Scrutiny Committee has clearly stated, are substantially equivalent to the original constitutional treaty.

I am not going to go right the way down that route, however, as I believe that that case has been thoroughly examined, but I want to repudiate what the Prime Minister said, yet again, at Prime Minister’s questions today about the abandonment of the constitutional
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concept. So many statements have been made by other leaders in Europe to contradict him that I do not need to repeat them all now. They are on the record.

I sometimes make the point—and I am open to correction on it, by myself, among others—that, when we say that we are implementing a treaty in UK law, that is actually not quite correct, legally and constitutionally speaking. It is the manner and form in which we translate the treaty into an Act of Parliament, but subject to the 1972 Act through the operation of sections 2 and 3. For practical purposes, by using our Acts of Parliament as a vehicle, we are, in a circular way, putting into European law the provisions of the treaty that have been agreed by prerogative.

It so happens that the provision is made through a UK enactment and is justiciable by the UK courts. [ Interruption. ] If the hon. Member for Cambridge wishes to intervene, I am happy to let him do so. Such a provision is justiciable in the UK courts and is therefore an Act of the UK. I have no doubt about that. Because we have voluntarily surrendered through sections 2 and 3 of the 1972 Act, in the terms of Lord Bridge and the Factortame case, we have effectively imposed voluntarily on ourselves the European legal order as an incubus within the Act of Parliament.

The problem is therefore very simple. We are creating a kind of fa├žade, of which we need to be very aware. There are those who will argue that we cannot hereafter amend any of those enactments, for the reason that I have given. I disagree profoundly. That lies at the heart of what I am about to say. I also believe, particularly with reference to new clauses 8 and 9, which are supported by more than 40 MPs, that the question is raised of the significance and value of Parliament to the voters and the country.

Let me get away for a moment from the purely legal arguments, because this is essentially about political will, although it has to be addressed in a proper constitutional and legal framework. This is not “our” Parliament. This Parliament does not belong to the Members of this House but to the people outside. It is their Parliament and its powers are draining away. The reasons were given by my right hon. Friend the Member for Wells just now, and I put forward the arguments on the questions of competences yesterday. Those exclusive and shared competences are accumulating and have accumulated to such a critical mass that it is almost impossible to find any area of law that is not within either of those competences. We are not allowed to legislate within them.

We are neutering ourselves by putting through this treaty and by the accumulation of the other treaties. Furthermore, the Minister for Europe had an exchange with me yesterday about my analogy with the corn laws, the Reform Acts and women’s votes. He said that it was ludicrous to suggest that the Bill should be subject to any comparison with those cases. I do not agree. The impact of what was done in the Reform Acts, for example, in granting greater democracy, is being undermined by the undemocratic institutional arrangements to which we are hostage in this process. We are also unwinding and taking away from ourselves a democracy that was fought for and won in those Reform Acts and, in particular, in the great battle for the Reform Act 1867.


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It is quite incredible to my mind that there is so little public concern. I suspect that one reason for that is the fact that the arguments have not been properly presented and addressed in the public arena. I have made the point that I do not believe that the television and broadcast media have gone anything like far enough in explaining what is really going on; neither have any other media. The referendum issue has foundered because of the lack of a full explanation in the right forum. We can talk to ourselves in the Westminster village and in the Chamber, but, in the modern age, people who are not heard outside are not heard at all. During the passage of the Bill that became the Reform Act 1867, John Bright and others addressed meetings of 200,000 people in Birmingham and Glasgow because those people had no other means of hearing.

There is a lack of knowledge, not understanding. People’s instinctive understanding is that they do not want the treaty and do want a referendum. That is the view of well over 50 per cent. of people—the figure is well into the 60s. However, it is no wonder that so few people attend these debates and that so few people bother to vote in elections. People know instinctively that their powers, which they exercise through voting, have been diminished and taken from them. Members know that when they legislate as a consequence of, or to implement, European Union regulations and decisions, they cannot change them, so why should they take an interest? The Government know perfectly well that many Bills cannot be amended, even though amendments are tabled, because of the requirements incumbent on us under sections 2 and 3 of the 1972 Act. That is why I have tabled new clause 9 on the supremacy of Parliament.

Rob Marris: I stoutly refuse to accept the hon. Gentleman’s intellectual construct that power is a zero sum game—it is not.

Mr. Cash: The hon. Gentleman can say what he likes. I am setting out the argument as I want to present it. If people were more conscious of the effect of European legislation, they would be more likely to take part in such debates and in elections.

We need to ask whether all this matters. I believe that it matters profoundly. Let me quote Burke once more. In his famous speech on constitutional reform in 1782, he said:

That is where we are in relation to the Bill.

We should not forget that our Parliament has been the bastion of freedom for hundreds of years in Europe, and was the foundation of our successful resistance of tyranny in two world wars that saved Europe from itself. What an irony that the mother of Parliaments now faces a reverse takeover from its siblings. We face not a theological abstraction—not just some vague concept of sovereignty—but practical questions to which people want answers. However, the people simply do not yet know how far all this has gone in relation to the competences, the exclusivity, the sharing of those competences, and the power that has drained away from this place due to the fields in which we cannot legislate.
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The Minister has admitted by implication that very little is left, and the European Court of Justice rules supreme.

Michael Connarty: I have had the pleasure of reading the shadow Foreign Secretary’s biography of William Pitt. I studied British history up to A-level and I continue to read about it. However, I did not study it at university because I liked it so much that I did not want to be put off by someone chopping it into little pieces and feeding it to me in lectures.

I understand that the debate between Burke and Pitt related to the defence of the Bill of Rights on the basis that it gave power to the King. Burke and Pitt divided on the challenge to the King’s authority. Surely the hon. Gentleman accepts that the conclusions of the process improved this country’s constitutional arrangements. Even he must accept that as the European Union has advanced since its inception and the first treaty of Rome, we have been able to do things across Europe that we never thought would be possible, such as breaking down the iron curtain and bringing people into a democratic settlement and a much more prosperous way of life. I agree with my hon. Friend the Member for Wolverhampton, South-West (Rob Marris) that politics is not a zero sum game. It is something to which great value can be added through flexibility and development.


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