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Mr. Gummer: Of course, in any discussion, one does not always get everything one wants, and I would not dream of suggesting that I was always 100 per cent. successful.
Mr. Lilley: An example of one success?
Mr. Gummer: Against the background of qualified majority voting, everybody seeks not to push things that matter seriously to someone else because they do not want to be pushed in the opposite direction in some future discussion. A collegiate result, which is very effective, is therefore achieved. The trouble with vetoing is that one can rarely use it if one is to be successful in the collegiate attitude, and, in my experience, one gets one’s way less. My right hon. Friend may have other experiences, but it is what I believe.
My right hon. Friend the Member for Wells said that QMV for energy matters means that we could tie ourselves to things that we want to change after the election. He is right. However, if we were to do as he suggests, we could not make long-term energy agreements in the European Union because we would have to allow 27 countries to sign up to agreements only after they had held general elections. Or do the British believe that somehow their Parliament has a different role to play? I would find that a difficult argument to present.
Mr. Heathcoat-Amory: Does my right hon. Friend seriously advance the proposition that co-operation on energy requires the treaty? The United Kingdom is party to thousands of policy agreements with other countries and organisations throughout the world on the basis of unanimity. Does he believe that we require the treaty, with QMV, to do what we have done for scores of years under existing procedures?
Mr. Gummer: No, not to do what we have done for scores of years but to achieve something more effective. We have not dealt with matters effectively and we therefore need a mechanism whereby we can do that over a long period. The point about the European Union is that it enables us to work with other colleagues in a context that people understand to be one in which we make decisions for the long term in a manner that enables us to give and take. My problem with my right hon. Friend’s argument and that of all those who dislike the European Union or the treaty of Lisbon is that it fails to understand that the institutions that we need to deal with a globalised world are not the same institutions that we have used previously.
The great thing about the European Union is that it has grasped the fact that the countries of Europe must decide either that they will continue to play the game by the old method, and thereby remain outwith the genuine arguments, or that they will act together so that they are at the heart of major global decisions. Acting together demands the sort of institutional changes for which the treaty of Lisbon provides.
The wording of clause 3 is maladroit—the Government are, of course, known for their maladroitness in writing anything. Indeed, one of the reasons that I feel so passionately about what the Government have done to the House is that past Governments known for maladroitness were put right by the long period of
debate and discussion in Committee. However, the Government, like a secretary who does not want a dictionary in case it proves that she cannot spell, have destroyed the dictionary. No one is therefore allowed to argue with the Government in a detailed way.
Although normally I would have allowed my right hon. Friend to continue with the view that he has, in his mind rightly, held for many years—I have always held the opposite view—on this occasion I thought it right to use the issue to show the House why a line-by-line debate on the treaty was not only what we were promised, but what would help the Government. Such a debate would enable them both to see whether things were less adroitly presented than they might wish them to be and—I am sure that the Minister will do this in his summing up—to promise the House that they would treat the provisions as though they had been properly written. Indeed, the Minister might even think of a slight amendment in the wording, but we shall see whether that is so.
Lastly, I am concerned about the proposed mechanism, for this reason. If I am right that we are talking about a matter of nomenclature—the hon. Member for Wolverhampton, South-West (Rob Marris) was right to say that it is perfectly possible to argue that the nomenclature reflects a big change in the treaty—one would certainly not want to make the change proposed in the amendment, because that would give people a much greater opportunity to stray beyond mere nomenclature. Were we to agree to the amendment, that would suggest that there was in fact an area in which the Government could stretch what they could do through such relatively easy mechanisms beyond that which would be reasonable.
I am therefore opposing the amendment that my right hon. Friend the Member for Wells has moved, partly—if I may put it so presumptuously—for his own good. Were he to gain what he seeks, he would be giving future Governments an excuse to move beyond the mere nomenclature to something greater.
Mr. Heathcoat-Amory: I hope that my right hon. Friend has not completely misunderstood the reason for my amendment. The reason is precisely to give the House a check, to ensure that in making such changes in future the Government were not, under the cover of making name changes, in fact making substantive changes. Surely he should join me in enhancing the power of the House to ensure adequate scrutiny of the Executive in implementing clause 3.
Mr. Gummer: But in my view the Government would not, in the relevant circumstances, have the power under the Bill to make changes other than those to mere nomenclature. I am concerned that placing before the House a system that my right hon. Friend knows to be limited in effect would not only encourage the widest interpretation, rather than the most narrow, but give people a belief that he had achieved something that, frankly, he would not have achieved. Neither of those are very suitable results; therefore I want neither of them.
However, my right hon. Friend is right that the treaty makes some substantial changes. I would merely argue that those changes add considerably to the power of the United Kingdom and give us greater influence in the world, which makes it possible for us to play a part
that we would not be able to play otherwise. I have confidence enough in the United Kingdom not to be worried that, working with colleagues in the rest of Europe, we cannot get our own way most of the time.
Jo Swinson (East Dunbartonshire) (LD): It is a delight to follow the right hon. Member for Suffolk, Coastal (Mr. Gummer). I have been enjoying his contributions to these debates very much, particularly the one last Wednesday, when he gave us a tour de force on the environment. I was also intrigued by the head-to-head exchange between the hon. Member for Wolverhampton, South-West (Rob Marris) and the right hon. Member for Wells (Mr. Heathcoat-Amory). The right hon. Gentleman has taken a keen interest in European affairs over many years and outlined in detail his concerns about clause 3.
I intend to restrict my comments to the amendment, which I hope will find favour. Given that I take a different view on Europe from that of the right hon. Gentleman, it will perhaps not surprise hon. Members to learn that I disagree with much of what he said, particularly about the huge impact that the proposed change in the wording could have. However, I am able to agree somewhat with the spirit of his amendment. My party is in favour of proper scrutiny in the House, which is why, during our deliberations on the programme motion, the Liberal Democrats joined the Conservatives to argue that more time be given for the House to discuss these matters in more detail.
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I believe that the changes proposed in the orders will be very technical. None the less, the amendment proposes the sensible change of moving from the negative to the affirmative resolution procedure. That would not be a huge burden on the House. Indeed, if the changes were purely technical, as I expect they would be, one could imagine the Statutory Instrument Committee dealing with them quite briefly—although perhaps not if some of the hon. Members present today were selected to serve on it. It is not as though the amendment were asking for an Act of Parliament to be passed whenever a change in terminology was proposed.
I have sat on many Statutory Instrument Committees discussing changes of an incredibly technical nature involving the change of certain words, and I do not think it would be a great problem to deal with such matters under the affirmative resolution procedure. It keeps Ministers on their toes more and ensures proper scrutiny. Given the lack of time that we have for the Committee stage of the Bill, it would be another way of ensuring that additional scrutiny could be undertaken. I therefore welcome the perhaps rare opportunity to support an amendment tabled by the right hon. Member for Wells, as it would enable us to have greater power to scrutinise various aspects of the Bill.
Mr. Cash: I want to take a close look at the impact of the extremely good amendment in relation to the way in which we legislate in the House. In particular, I want to focus on subsections (4) and (5), and to try to draw out the fact that I believe there to be somewhat more at the heart of this than seems to have been apparent so far.
I have alluded many times to the manner in which the whole of the legislation that leads us to this specific focus arose. It arose from a mandate. The proper discussion with the European Scrutiny Committee that usually takes place in these treaty-making arrangements did not take place this time, because the House and the European Scrutiny Committee were bounced when the German presidency put together a mandate, at extremely short notice, in order to wriggle out of the mess that the original constitutional treaty had got into.
I shall not trespass on your patience, Sir Michael, with respect to the relevance to the amendment of what I am going to say, but I want to make this point clearly. A vast amount of European legislation is made through statutory instruments—far more than Members of the House appreciate, and far more than is made by Acts of Parliament. Contrary to what the Liberal Democrat spokesman said just now, the powers that are given to enable those statutory instruments to be made in respect of European legislation have the character of Henry VIII clauses, because there is a power to use the statutory instrument procedure to modify Acts of Parliament under section 2 of the European Communities Act 1972. In other words, this is an explosive provision, because within it lies the power to generate amendments that could lead to amendments of Acts of Parliament. I think that the Minister, who I am sure has been properly briefed, will know exactly what I am saying. This is a huge Trojan horse and a very substantial incubus within which Acts of Parliament will be affected and amended.
This mandate is used to describe negotiations between member states’ Governments with a view to amending those treaties—that is, all the existing treaties. As we have already heard, the transmutation of arrangements under the European Communities and their conversion into the Union is much bigger than it might seem at first sight. The power to make statutory instruments to modify existing Acts of Parliament in pursuance of sections 2 and 3 of the European Communities Act 1972 is mutually interdependent with the change that took place, as I shall explain.
The mandate suggests an amending treaty that would amend, but not replace, the EU and EC treaties. The latter treaty would be renamed the treaty on the functioning of the Union, as we discovered in previous debates, but the word “Community” would be replaced by the word “Union”, with the Union having a single legal personality and replacing and succeeding the Community. That is one of the reasons, as I explained previously to the hon. Member for Wolverhampton, South-West (Rob Marris), why the treaty has a constitutional character. By replacing and succeeding the Community, as my right hon. Friend the Member for Wells (Mr. Heathcoat-Amory) explained—I backed him up in my interventions—the pillars get changed, so there is a constitutional change. It is directly relevant to our discussion about affirmative or negative resolutions and directly relevant to the way in which the House legislates, as I shall explain more fully later.
The mandate argues that the amended treaties
“would not have a constitutional character”.
However, the European Scrutiny Committee made the position absolutely clear through its expert legal adviser, to whom I pay tribute again for his work. For, as the Committee went on to say, “this could be misleading”.
If the effect of the changes is to bring about the collapse of the pillars, which we know it is, with established doctrines of Community law such as direct effect, exclusive external competence and a full jurisdiction for the European Court of Justice, the change is, as I said in previous debates over the past few weeks, substantial and constitutional. In other words, there is a substantial equivalence between the original constitution and the one that we are now debating, which would bring what is done intergovernmentally within the more supranational framework of the Community method. That poses an enormous constitutional question. It may sound difficult; it may even sound boring; it may be turgid; it may be arcane, as my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) mentioned; but it is significant.
I listened with fascination to the way in which the Government and Labour Members attempt to elide and slide over those questions. The reason for having a referendum is contained in this whole body of law that I have described, this Community method, this fundamental constitutional change in how we are governed—and its direct impact on the daily lives of our constituents who vote for policies and laws in general elections. Those people will find—and have already found by virtue of previous European legislation—that they are effectively excluded from the democratic process because they cannot change it subsequently.
For all that to be done by a statutory instrument is proof of the significance of what I am saying. People outside will not believe that legislation can be properly discussed in respect of the tens of thousands of statutory instruments or amended in respect of Acts of Parliament. If a statutory instrument has the power to modify Acts of Parliament as well, I am sure you would understand me, Sir Michael, if I said that the incubus whereby a statutory instrument effectively becomes an Act of Parliament is of immense constitutional significance. [Interruption.] I hear the hon. Member for Wolverhampton, South-West saying that it is not. I am always more than happy to give way and I would be delighted to hear his reasoning. When he hears what I have to say later, perhaps he will reflect on it, but I am happy to give way to him now.
Rob Marris: I am grateful to the hon. Gentleman for offering to give way before I had even indicated that it might be convenient. What the hon. Gentleman is doing is reading into clause 3(4) the word “modify”. I recognise that the noun “amendments” is also there, but as I said earlier, that is qualified by the second half of the provision, which continues with the words
“to reflect changes in terminology or numbering arising out of the Treaty of Lisbon”.
The hon. Gentleman talks about the surprise of members of the public, but I believe that they would be surprised if, when a provision needs renumbering, we have to have a debate on the Floor of the House to provide for it, which is what would happen if the amendment were passed.
Mr. Cash:
I am extremely glad that the hon. Gentleman has walked into a trap, which I had not intended to set for him, but which he has created for himself. I was not referring to modification by reference to the Bill, but to modification that is inherent in the manner in which
statutory instruments are made under section 2 of the European Communities Act 1972, as I shall explain.
Let me quote from Bradley and Ewing, one of the greatest constitutional authorities on this issue:
“However undesirable this might appear in principle, Parliament frequently delegates to ministers power to amend Acts of Parliament.”
We need to bear in mind the fact that the European Communities Act 1972 sets these provisions, which emerged from the application of sections 2 and 3 of the 1972 Act, in concrete through the acquis communautaire and also provides for the ultimate arbiter—the papal infallibility of the European Union, we might say—the European Court of Justice, which is effectively unchallengeable. On the face of it and subject only to my new clause 9, which I hope the House will vote on in a couple of days’ time, this provision will not be capable of repeal.
The great constitutional authorities say first that this might appear undesirable, but they go on to say:
“The term ‘Henry VIII clause’ is given to such provisions and numerous examples may be found in the Scotland Act 1998”
and often in other such constitutional measures—and we should note that it also applies to
“the Government of Wales Act 1998”.
“When the power in a new Act is restricted to amending earlier Acts that are directly affected by the new reforms, the power is less objectionable than when it extends to amending the very Act that contains the power.”
That is what we are talking about here.
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“Three instances of delegated power to modify Acts of Parliament may be given.”
The first—surprise, surprise—is the European Communities Act 1972, section 2(2)—the very provision that we are now discussing, because it is under that provision that the statutory instruments would be subject to annulment, which the amendment tabled by my right hon. Friend the Member for Wells seeks to change. My hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) and I agree with him—we have also put our names to the amendment—that at the very least the affirmative procedure should be used. I shall point out in a minute—I am afraid that it will not be a minute, Sir Michael, but a little longer—a serious contradiction between the Bill and the 1972 Act, certainly in spirit if not in precise effect.
“authorises the making of Orders in Council and ministerial regulations to implement Community obligations of the United Kingdom”—
under clause 3, that wording, “Community obligations”, would be changed, through the schedule which the hon. Member for Wolverhampton, South-West and I were discussing earlier, to “EU obligations”—
“to enable rights under the European treaties to be exercised and ‘for the purpose of dealing with matters arising out of or related to any such obligation or rights’”.
Schedule 2 to the 1972 Act, on which the making of statutory instruments turns, throws up one or two interesting questions, because it
“excludes certain matters from the general power, including the imposition of taxes, retroactive legislation and the sub-delegation of legislative power (other than power to make rules
of procedure for any court or tribunal). Subject to these limitations, measures made under section 2(2)”—
the instruments made in pursuance of European treaty obligations—
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