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6.45 pm
Mr. Cash: The answer to the hon. Gentleman is simply this: the kind of Europe that he describes is not the kind of Europe that I witness. Although I have, for example, been in favour of enlargement—I never said otherwise—my problem, having voted yes in 1975 and, although I have now repented, having also voted for the Single European Act, is with the European Union as it is constructed. I do not have a problem with the kind of Europe that Winston Churchill advocated in his famous speech in Zurich in 1946, saying that we should be “associated but not absorbed”. I believe in an association of nation states working within a loose co-operation that enables us to form alliances, but not within a centralising, European Court of Justice-dominated, supranational arrangement.
In his diaries, de Gaulle wrote about his exchanges with Adenauer. He wrote that they agreed that they did not want their countries to be merged into a stateless institution. However, that is precisely what happened, and that is part of the problem. When de Gaulle came to this Parliament, he made a remarkable speech in which he confirmed what, to him, this country represented. He said, on 7 April 1960,
“This outstanding role in the midst of the storm”—
“is owed not only to your profound national qualities but also to the value of your institutions...With self-assurance, almost without being aware of it, you operate in freedom a secure, stable political system.”
I think he was right. He understood what the problems were, which is why he took such a difficult position in the EEC. However, the history of de Gaulle, Adenauer and the rest is for another occasion.
Mr. Bernard Jenkin (North Essex) (Con):
I merely add that the great man’s last utterance on the subject was contained in a letter to the chairman of the constituency association where my father was the
parliamentary candidate. From his hospital bed, Winston had inveighed against joining the European Economic Community, but he had subsequently been persuaded to write a letter to satisfy the Whips and others who were pressing him on the subject. In his letter, he said that the only reason to apply was to find out what the terms of membership might be, not necessarily to accept those terms.
Mr. Cash: That is very interesting. It is as well in a debate of such importance to put such matters on the record, albeit we must not stray too far from the amendment.
I believe that we have to negotiate; that is part of the essence of the process. However, I invite my right hon. and hon. Friends to recall our position on, for example, the repatriation of economic competitiveness and the social chapter, and our statements on the common agricultural and fisheries policies, the working time directive and so on, not to mention the problems that arose in the Northern Rock case from the market abuse directive. The plain fact is that if we are to deal with the questions before us and work out how to reassert our ability to legislate, we must have a sound constitutional basis on which to do so, and that is what new clause 9 offers.
With respect to new clause 8 and the Bill of Rights, I have said that Speaker Boothroyd invoked the Bill of Rights in relation to the potential ratification of the Maastricht treaty, and the courts agreed that it was not possible—because they backed down—to go into the question of ratification. They left the matter entirely to the question of legality. There is also the problem of the charter of fundamental rights and the implications of the European Court of Justice in respect of a vast area of activity that the Government themselves do not want to be brought into effect.
The bottom line is that we must use the powers contained in the judgments made in case law in McCarthys Ltd v. Smith and Garland v. British Rail Engineering and by Mr. Justice Laws, which clearly and unequivocally state that we in the House have the right to pass legislation inconsistent with that of the European Union if we do so in the correct manner. As Lord Denning said,
“If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the treaty or any provision in it or intentionally of acting inconsistently with it and says so in express terms then I should have thought that it would be the duty of our courts to follow the statute of our Parliament.”
That is the basis on which I rest my case with respect to the supremacy of Parliament and new clause 9. I believe that we should adopt the new clause, because it is absolutely fundamental to the future self-government of this country and to our ability to reform, review and, where necessary, amend provisions that otherwise will be imposed on us through the Court of Justice, creating a situation in which we can no longer govern ourselves.
Mr. Shepherd: I would like to have heard the Minister’s reply earlier to my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve) when he moved the amendment, as it would have added to the vitality of this debate.
When asked what history was, Santander said, “First you have to invent it.” In a sense, the House reinvents its perception of history again and again. I stand here after 29 years, having been present at all the debates on the development, as we put it, of what we now call the European Union, with the exception of the debate on the originating Act. I came to the House with certain assumptions and with the assumptions of my electorate. That is why the amendments are of critical importance: it must be ascertained where they stand. I am here only by their writ and only as a manifestation of their sovereignty. That is why the concept of the sovereignty of Parliament is not just a nightmare. It is part of the development of our constitution, and therefore the definition of what we understand by liberty. That is why this is not a debate to be disposed of in seven minutes, an hour and a half or two and a half hours in this phoney Committee construct. It is something that touches the rights of the people of this country to determine the laws under which they live.
Michael Connarty: Will the hon. Gentleman give way?
Mr. Shepherd: No; I simply do not have the time. The hon. Gentleman should take it up with his party’s Whip. It is the mandate for which the hon. Gentleman voted that constricted the debates to an hour and a half to two and a half hours. That is an outrage, as he well knows. Our difficulty is in reconciling great principles to a new constitutional order. I certainly did not understand that when I first came to the House in 1979. On Second Reading—that, too, was a debate in which many of us could not contribute—the right hon. Member for North Antrim (Rev. Ian Paisley) said that we had had many assurances, but that it did not mean very much.
In fact, the Bill is only a little step; we have had pillar arrangements, and we were even given assurances, which I know were given in good faith, about the Single European Act. When people such as me expressed fears about what the measures meant for the people whom I am sent to represent, we were always given the reassurance, “No, no. That’s a nightmare scenario; it’s a fanciful interpretation”, but when I look at the Bill, I see that we are a long way off from where we were in 1972 and subsequent years. [Interruption.] I hear mumbling; we are stimulating a debate at last. We are now hearing the devotion to a new constitutional order, without ever having invited the British people directly to express what their understanding is, and without asking them whether the measures are appropriate.
The House drifts along as we are hollowed out. That is what is happening under the aegis of the Bill. The House is now a hollow, echoing Chamber. My hon. and learned Friend the Member for Beaconsfield raised a question under amendment No. 13. It seemed reasonable and rational, and met the observations of everyone in the Chamber. If the Government’s understanding and my hon. and learned Friend’s understanding are the same, could we not accept the amendment?
I next come to an issue on which there must be a difference between people such as me and the Government: the sovereignty of Parliament and the very reason why we stand here in the Chamber. Who makes the laws and who judges on them? Our constitutional integrity requires
that ultimately we be the judge on the laws that affect our people, who sent us here. I understood that that is who is judge, under the constitution and the history of liberty in this country. Protection of the sovereignty provisions is protection of the things that are central to the existence of this place. I therefore agree with, and will vote for, all the amendments that are pressed to a Division that try to protect the integrity of those who sent me here to represent them.
Mr. Jim Murphy: I am delighted to have the opportunity to respond to this evening’s debate at the end of six hours of deliberation. The fact that the debate was six hours long reflects the wish, set out in today’s amendment to the programme order, of both Labour and Conservative Front Benchers. I share the frustration felt about the fact that we will not debate the other groups of amendments, particularly those on the EU competence for animal welfare in outer space, and that we will not have the quasi-theological debate on the European definitions of sentient beings. Perhaps we can return to those issues another time.
Martin Horwood (Cheltenham) (LD): I am interested to hear the Minister make light of the issue. I share the frustration felt by many Members present about the fact that we have not had the opportunity to discuss important amendments covering issues such as animal welfare and space, public health and the environment. Does he agree that the impact of the amendments—if we imagine that the treaty would be left intact if they were passed—would be not simply to preserve the status quo ante, but to frustrate, truncate and possibly even reverse the progress of European policy in some important areas?
Mr. Murphy: I know that the hon. Gentleman came along to participate in debate on amendment No. 151, but he has had the great opportunity of listening to the very informative assessment made by the hon. Member for Cambridge (David Howarth) of the relationship between domestic law, the sovereignty of Parliament and the European Union. Those are important issues, and we will continue to discuss them in the Chamber.
Let me turn to the specifics of the amendments before us. New clause 5, which was tabled by the right hon. Member for Wells (Mr. Heathcoat-Amory), is about a proposal relating to draft EU legislation. The Government already provide the European Scrutiny Committee with an explanatory memorandum that specifically addresses whether the Government consider a proposal to have met the principle of subsidiarity.
The Government are committed to effective and improved scrutiny, but I accept the tone in which the right hon. Gentleman moved new clause 5 and the encouragement from my right hon. Friend the Member for Leicester, West (Ms Hewitt), and I will bring to the attention of the Leader of the House the points that the right hon. Gentleman fairly made about the way in which we could improve the scrutiny of proposals from the Commission and elsewhere, and see whether that can be incorporated in the wide-ranging review being undertaken by the Leader of the House and the Deputy Leader of the House. It is important that we do that.
7 pm
Amendment No. 13 is unnecessary. It is the established view of Governments of both parties that it is a bad principle to have redundant provisions in legislation. I shall set out why that is the case. My hon. Friend the Member for Wolverhampton, South-West (Rob Marris) alluded yesterday to the fact that in EU treaties “shall” does not always impose an obligation to take action. It can also set out powers. The meaning depends on the context. In this case the relevant provisions confer rights and powers on national Parliaments. The language used is therefore simply descriptive.
The hon. and learned Member for Beaconsfield (Mr. Grieve) referred to the French text. My Dutch is better than my French, and that text as well is descriptive when it states “De nationale parlementen dragen”. That is clear. It is descriptive text. That is the wording that has been accepted across the entire European Union. Other language versions, such as German, use the present tense where the English text would use “shall”. The English language version is clearly and intentionally non-binding.
“Shall” is retained in the protocol, which states that the European Parliament and national Parliaments shall draw up arrangements for co-operation. That is not a commitment to co-operate. If it is in any way an obligation, it is an obligation to act jointly in drawing up arrangements. National Parliaments are not required to participate in such arrangements. If the hon. and learned Gentleman seeks to intervene, I am happy to give way, although he will have a couple of minutes towards the end.
The EU legal experts group includes representatives from all member states and all European institutions and reflects the views of others, including the Dutch Government and the French Government, who have confirmed separately that no obligation is intended. In a debate on ratification—
Mr. Peter Bone (Wellingborough) (Con): Is the Minister contending that the translation is incorrect and that a different word should be used?
Mr. Murphy: I am contending that no obligation is intended. As I said, the legal experts group has come to that conclusion. Also, in the summing up at the General Affairs Council towards the end of last year, the presidency made it clear, and it was agreed by all member states, that there was no compulsion.
In a letter to the Foreign Secretary on 16 October the Minister of State and Foreign Affairs of Portugal, which fulfilled the role of presidency, stated that
“the Legal Experts reached the conclusion, by consensus, that this article imposes no obligation on the national Parliaments and it is purely declaratory in nature.”
The House of Lords European Union Committee commented on the revised text in its report of 1 November 2007, which stated:
“While we accepted these reassurances”—
that the treaty was not intended to impose obligations on national Parliaments —
“we considered it necessary to ensure that the phraseology was correct while the interests of national parliaments were appropriately presented in the text. . . We were accordingly pleased to have heard that the word ‘shall’ has been eliminated from the English text.”
Mr. Grieve: There appears to be a contradiction in the Minister’s position. Earlier, he told us that the context meant that “shall” could not under any circumstances be mandatory, yet a moment later he told us that the House of Lords Committee was reassured by the removal of that word. There is a certain lack of clarity on where the Government stand.
Mr. Murphy: That is not the case at all. The European Scrutiny Committee, ably led by my hon. Friend the Member for Linlithgow and East Falkirk (Michael Connarty), raised a specific concern and I undertook to address it. I sent myself to the Netherlands and France to negotiate with the Dutch and French Europe Ministers and got the agreement that was reflected in the outcome of the General Affairs Council, at which it was agreed unanimously that that would be the case. The House of Lords Committee then responded to that change and I have read that issue into the record.
Mr. Iain Duncan Smith (Chingford and Woodford Green) (Con): Will the Minister give way?
Mr. Murphy: Unfortunately, I cannot.
I turn to new clause 9. The hon. Member for Stone (Mr. Cash) has asserted that the UK’s membership of the EU has fundamentally diminished parliamentary sovereignty. That is a striking claim. I disagree with the hon. Gentleman, but I do not disrespect him. He has sought to make his case in an entirely cogent and logical manner. As the hon. Member for Cambridge (David Howarth) is well aware, the classic definition of sovereignty is given by Dicey in his “Introduction to the Study of the Law of the Constitution”:
“The principle, therefore, of parliamentary sovereignty means neither more nor less than this, namely that ‘Parliament’ has ‘the right to make or unmake any law whatever”.
Parliament exercised its sovereignty in passing the European Communities Act 1972. By doing so, Parliament—not the EU, not the European Court of Justice, but Parliament—decided to accept the obligations of EU membership for the UK. Parliament has continued to exercise its sovereignty in passing the legislation necessary to implement every EU amending treaty since the Single European Act 1986.
Let me be clear, as I was yesterday—the UK Parliament is and remains sovereign. That is not affected one millimetre or one inch by the Lisbon treaty. As our own courts have ruled,
“the fundamental legal basis of the UK’s relationship with the EU rests with the domestic not the European legal powers.”
That came from Lord Justice Laws.
In concluding, let me be clear that the primacy of EU law has existed since before we joined the EU, and it remains today. In his earlier contributions, the hon. Member for Stone described his amendments as a “get out of jail free” card. They are not that, but a “get out of the EU” card that is anything but free. It would be a danger to our national interests, undermine our economy and put in jeopardy the many hundreds of thousands of jobs on which our constituents’ welfare and livelihoods and our relationship with the EU depend. On that basis, I encourage and invite my hon. Friends to oppose the amendments.
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