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I shall give another example. The Export Control Act 2002 was supposed to be modified. That is important because it gives the Government the power to control exports or the transfer of technology to other countries, possibly in line with the requirements of the common foreign and security policy. So the Act
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would need to be amended to reflect the treaty of Lisbon. But—this is the point—the common foreign and security policy provisions in the treaty of Lisbon are substantially different and far greater in scope and power than those under the existing treaties. Again, this is not simply a technical change of terminology.

Another example is the Criminal Justice Act 2003. Again, the Act refers to articles 31 and 32 of the existing treaties, in which criminal justice is treated as an intergovernmental matter, whereas under the present treaty, as I have explained, it becomes a matter for the European Court of Justice and for qualified majority voting. In other words, that pillar of the existing European Union is collapsed and replaced by the normal Community method of decision making. So replacing those articles with the new articles in the existing treaty is not, again, a matter of terminology; it is a matter of substance.

Mr. Clappison: Is not the change of substance to the common area of justice and security that my right hon. Friend has rightly identified as far away as possible from the original conception of Governments meeting to co-operate on judicial, home affairs and criminal justice matters? We are now to have a common area—with harmonised rules, sometimes common criminal offences and common Eurojust and Europol systems—that is as far away from co-operation as it is possible to be.

Mr. Heathcoat-Amory: I agree with my hon. Friend, and the reason why criminal justice and policing were treated intergovernmentally is precisely that they are very important matters that the public feel must be dealt with in a Parliament to which they relate and, crucially, that can be changed after a general election if there is a change of Government. Indeed, I would go further: we obey the law because these are our laws in a sense, and they can be enacted, amended or repealed by our Parliament. Once they become enacted in a different jurisdiction that we do not control, that precious democratic link is fractured, with very serious consequences.

Mr. Cash: Does my right hon. Friend agree that a similar example relating to statutory instruments and the manner in which they can be introduced came up a couple of years ago in the Legislative and Regulatory Reform Bill, which has since been enacted? My proposal that Parliament assert its supremacy over the European Communities Act 1972 is the only way that my right hon. Friend’s argument can be put into effect, because the reality is that, whether we are talking about Acts or statutory instruments, the decisions will be taken outside Parliament, unless the House asserts its right to legislate on behalf of the voters of this country.

Mr. Heathcoat-Amory: I agree with my hon. Friend, and I remember voting for his very good amendment to the Bill that he mentions. It follows from what he says that he would agree that when the Criminal Justice Act 2003 was enacted, and reference was made to articles 31 and 34 of the existing treaty, Parliament did not think that instead of the treaties, there would one day be the treaty of Lisbon, which would take criminal justice and policing out of the intergovernmental pillar and collapse it, and instead make the issues subject to the mainstream Community method, with all that that implies.

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I hope that I have demonstrated that the Bill will give the Executive—specifically, the Secretary of State or the Treasury—a wide power to make amendments. Those amendments can cover primary, as well as secondary, legislation. I think it wrong in principle that the negative procedure should be used to amend primary legislation, unless there is good reason for doing so. I have shown that we are talking about matters of substance. I gave a number of examples, from a previous Act, of provisions that would have incorporated the constitutional treaty, if it had gone ahead. Those examples must endure as proposals that the Government identified as requiring amendment. I have shown that the Bill does not simply make technical adjustments; we are dealing with significant changes that touch on the powers of the European Court of Justice, the scope of, and powers under, the common foreign and security policy, and the collapse of the intergovernmental pillar governing criminal justice. Those are material changes, and they affect the powers of the House.

In conclusion, I repeat that the amendment would make a modest change. It is not a wrecking amendment. If it is made, it does not destroy, or even modify, the treaty; our other amendments do that. It simply concerns an internal matter to do with the powers of the House. I therefore commend it to hon. Members in all parts of the House.

Rob Marris (Wolverhampton, South-West) (Lab): The right hon. Gentleman is absolutely right that “European Communities” is different from “European Union”, and that is partly what the treaty of Lisbon is about. He made an interesting speech but, with due respect, most of it was wholly irrelevant. I suggest that he has been misled by the maladroit wording of clause 3.

Mr. Heathcoat-Amory: Well, it’s not my fault, is it?

Rob Marris: No, it is not; I agree with the right hon. Gentleman. I am referring to the clause heading on line 15 of page 1, which is “Changes of terminology”. It should say “Changes of definition and terminology”. I will return to that in a moment. Also, subsection (3), on lines 4 and 5 of page 2, says:

That should read something like, “The table in the schedule to this Act sets out substitutions required to reflect the consequences of the commencement of the treaty of Lisbon.” That returns us to one of the points made by the right hon. Gentleman with which I agree, which is that “European Communities” does not mean the same as “European Union”.

Amendment No. 39 would amend clause 3(5), which sets out how the powers granted under subsection (4) will be exercised. Those powers are not, as the right hon. Gentleman suggested, “changes of definition”. Subsection (1) contains the phrase:

The key word is “definition”, which is why I said that the clause’s title should be “Changes of definition and terminology”.

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5.15 pm

Mr. Cash: Amendment No. 39 concerns subsection (4), as applied by subsection (5), whereas subsection (1) is a stand-alone provision that amends section 1(2) of the European Communities Act 1972. Is the hon. Gentleman going to relate the questions about subsections (3) and (4) to a separate debate, or does he want to drift back to subsection (1)? Perhaps he has become confused.

Rob Marris: I have certainly not become confused. I have already adverted to amendment No. 39 and what it does. If the hon. Member for Stone (Mr. Cash) bears with me, he might see where I am going, so I urge patience.

As I have said, subsection (1) uses the word “definition”, whereas subsection (4) refers to

The power granted under subsection (4) relates to changes in terminology or numbering; it does not relate to definitions. For the particular benefit of the hon. Member for Stone, that is why I have said three times that the title of clause 3 is not helpful—I used the adjective “maladroit”—and drawn attention to the use of the word “definition” in subsection (1).

Mr. Cash rose—

Rob Marris: I will make some progress. I have urged patience on the hon. Gentleman, and I continue to do so.

Subsection (4) uses the word “terminology”. The right hon. Member for Wells (Mr. Heathcoat-Amory) seemed to believe that subsection (4) included the word “definition” rather than the word “terminology”. If the word “definition” were used in subsection (4) instead of the word “terminology”, I would support his amendment. However, if the word “definition” had been used instead of the word “terminology”, the Government would not have drafted subsection (5), which the right hon. Gentleman wants to amend, in its current form.

Mr. Cash rose—

Rob Marris: I will give way to the hon. Gentleman, but I urge patience.

I realise that amendment No. 39 relates to subsection (5), but it is important to discuss subsection (4), because subsection (5) concerns the exercise of powers granted under subsection (4). The second half qualifies the first half of subsection (4). The first half gives power to the Secretary of State or the Treasury; the second half specifies that over which the power may be exercised, just as subsection (5) specifies the way in which the power may be exercised. One has to read clause 3(4) completely to see that the second half—

in a sense qualifies the first.

Mr. Cash: This is a complex matter, and I am not trying to disparage the hon. Gentleman’s remarks in any way. He is trying to draw a distinction between definitions and terminology. If he looks at the schedule, he will see tables with “Provision of the
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European Communities Act 1972” at the head of one column, “Existing expression” at the head of the next and “Substituted expression” at the head of the third. There are three pages of substituted expressions.

To take one, crucial example, the words “Enforceable Community right” are turned into “Enforceable EU right”. That is a substantive change, made by the substitution of expression. It is not simply a matter of terminology as such; there is a substantive effect. If the existing expression had been left, it would not be possible to implement the merger of the existing treaties.

Rob Marris: I apologise to the hon. Gentleman; clearly, I have not yet made myself crystal clear to him or perhaps the Committee. On at least two occasions in this speech, I have agreed that, as patiently set out by the right hon. Member for Wells, it is a substantive change to say that “European Communities” does not mean the same as “European Union”. Today in the House we are discussing primary legislation, including whether we should vote that the schedule, which makes substantive changes, as the hon. Member for Stone has pointed out, should be in the Bill or not. The schedule is a substantive change, and I say to the hon. Member for Stone and other Members that that is precisely why at the beginning I described the heading of clause 3 as misleading to the right hon. Member for Wells and others because of its maladroit wording—it should say “Changes of definition and terminology”.

Not only that, but I said that clause 3(3), which brings in the schedule, was badly worded because it contains the word “terminology”, which should be left out. Perhaps the hon. Member for Stone missed that; I shall repeat what I said for his benefit. I said that clause 3(3) should read, “The Table in the Schedule to this Act sets out substitutions required to reflect the consequences of the commencement of the Treaty of Lisbon.” That leaves out the misleading word “terminology”, which should not have been included because it refers to the schedule, which is substantive because “European Union” does not mean the same as “European Communities”.

Mr. Cash: I am glad that the hon. Gentleman ended on that note, because I have a feeling that although this discussion is about as turgid as it can get, it is important. The fact is that changing the expressions in that way has a different legal effect. Effectively, when we now refer to legal obligations there is a new kind of legal situation that is much more integrating than before and moves away, as my right hon. Friend the Member for Wells (Mr. Heathcoat-Amory) said, from intergovernmental to Union parameters. It therefore has—and this is, in a nutshell, why I am pursuing the issue—highly significant constitutional implications. My point is simple: the changes have constitutional implications, and because of their scale they add up to another reason for holding a referendum.

Rob Marris: I agree that clause 3(3) has constitutional implications, but clause 3(4) does not. Subsection (4) uses the word “terminology” correctly, but subsection (3) does not. Subsection (4), which is absolutely germane to amendment No. 39, does not make a constitutional change—it says that substitutions should

That is clearly an incidental provision, not a substantive change.

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Mr. Gummer: I rise to discuss this issue for two reasons: I do not agree with the amendment, but I agree with the fact that we are having the debate. The House should be having precisely this kind of debate on every aspect of the Bill, and its rather arcane nature—I think, Sir Michael, that your own interventions have shown that it is quite difficult to know exactly when we are or are not in order—does not make it any less important. The fact that we have enough time to talk about this underlines how little time we have had to talk about even more important issues. The argument that we are having is a kind of surrogate for the arguments that we should have had if the timetabling system had enabled us to do so.

I do not think that my right hon. Friend the Member for Wells (Mr. Heathcoat-Amory) is right in his concerns, but it is perfectly reasonable to debate the amendment in order to underline them. I do not think that the operation of what we are discussing enacts changes that are more serious than those that are part of the decision to accept the treaty of Lisbon. The treaty creates the terminological change from the European Communities to the European Union. For me, that is an admirable change that enables us to move forward rather than backwards, and I am pleased about that. However, it has come to something when we have to discuss an amendment of this kind in order to be able to talk about the changes that we would otherwise have been able to talk about in normal line-by-line discussion of the treaty. This is the first time that we have had time to discuss this very important treaty in such detail. It is clear, given those present in the Chamber, that we are likely to be able to discuss everything before us in the time that we have available, which is unique.

For those of us for whom there is no terror in this remarkably valuable treaty, the House’s inability to debate and argue in order to show that it is much less difficult than how some would characterise it has proved to be a great loss. As we proceed, it has been noticeable that even the residual concerns that one might have had have evaporated when properly debated. I have been much cheered by the fact that at the end of many debates I have found that, in relation to certain problems that I had, the argument for the treaty has clearly been made. If one does not have time to have the argument, one cannot have it—that is why it is important that we have this discussion.

I say to my right hon. Friend the Member for Wells that it is true that we have to move forward, and it is true that we have qualified majority voting. He has gone from that to saying that we must have a rather more complex way to deal with the terminological changes involved. That is a mistaken argument, as is the argument against qualified majority voting. Speaking as one who has worked under that system, and the veto system, in the European Union, I always found it much easier to get my own way under QMV. Under the veto system, one is using what might be called an atomic bomb on every occasion, while under QMV, one is normally able to win if the issue is important.

5.30 pm

My right hon. Friend chose an example where Britain was entirely in the wrong, and I am pleased that at long last artists have a right that they should have
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had before. It is quite unacceptable that great works that are recognised as such later in their lifetime should be sold for huge and inflated amounts while the artist receives nothing. I have always thought that, and the fact that other nations outside the EU have not recognised it seems a pity. I am pleased that we lost that particular battle, but I shall come on to say why I think that QMV works.

Mr. Heathcoat-Amory: On a point of information, the artist will not receive the money because the work of art will be sold in another jurisdiction where the levy does not apply. Not only will the artist not get the money, but his gallery, the auctioneer, and all the restorers, packers, clerks and framers will lose business. The Government were right. It was a well-meaning measure, but it would not have been effective. That was shown conclusively by the independent study sponsored by the Antiques Trade Gazette, which I now take pleasure in handing to my right hon. Friend.

Mr. Gummer: I take much pleasure in receiving it. I think that I already have a copy of it, and the arguments in it take one side of the matter.

I have a curiously old-fashioned view, which is that if one wants to change something, one changes it and then tries to convince other people. My right hon. Friend is really arguing that we should never do anything in the United Kingdom, let alone the European Union, to which one cannot get everyone else to agree in the first place. I cannot go along with that because as an environmentalist, I am deeply concerned that the EU should do a range of things that the rest of the world is not doing. We have to set an example, and show that we are prepared to do something.

I disagree with my right hon. Friend on the issue in question, but even if he is right, he cannot argue that that is a reason for changing the clause through the amendment. The two do not hang together. The only reason I have spoken on it was that I thought it worthwhile maintaining that not everyone agreed with his view on QMV or on the issue that he raised.

The problem with the understanding expressed on QMV is that it fails to face the issue of what it means to co-operate. If co-operation is to be effective, when one shows willingness to do so, either under QMV or where there is a veto involved, it must stand so that it is something upon which others can depend. If it cannot stand, and we are merely considering a matter of part-time occasional agreement between Governments, there is no way in which the great efforts that we have to make in the EU can be made. Mrs. Thatcher understood that perfectly well when she insisted that the Single European Act, which changed more than anything else we have talked about, should not be subject to changes of Government or changes of attitude in Parliament.

Mr. Lilley: I am grateful to my right hon. Friend, who is eloquent and interesting, as always. He said that he found it easier to get his way through qualified majority voting than when he had a veto. Would he give us an example of an area of policy where he failed to get his way even though he had the veto?

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