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“that it inappropriately implements EU legislation”.
Therefore, in relation to the provisions under clause 3, it can ask whether any instruments inappropriately implement EU legislation. I do not, however, believe that it will ever say that any instrument does do so inappropriately. I dispute the primacy of European law, as do many of my colleagues—more than 40 Members have signed my amendment on supremacy, and many others of all parties agree. The arrangements stipulated in relation to the primacy of European law—asserted by the European Court of Justice and weakly accepted by our Government and other Governments—even assert powers over our constitutional rights. They must be rebutted.
I regret having had to explain this situation at some length, but it is important to understand that my speech has not been just a European filibuster or a Eurosceptic rant. It is about the way we legislate under the procedures prescribed in clause 3, the inadequacy of the control that we have over them, and the inability to be able to deal with European legislation in many instances because of sections 2 and 3 of the 1972 Act. It is therefore necessary for us to reassert in practical terms—not just as a matter of general principles or abstractions, or in theological dissertations—how we can ensure that where negotiations have failed, we legislate on behalf of the voters of this country, so as, in relation to burdens on business for example, to guarantee economic competitiveness in the manner suggested by the current leader of the Conservative party.
Mr. Clappison: It is a great pleasure to follow my hon. Friend the Member for Stone (Mr. Cash). I do not pretend to have anything like his mastery of the detail of this matter, but what shone forth from his analysis was the same underlying point as my right hon. Friend the Member for Wells (Mr. Heathcoat-Amory) made in opening the debate: the need for transparency, and to ensure that points of significance are not disguised by terminology and that matters of substance are there for all to see. I think that we can make common cause on the fact that there has not been as much transparency as we would have liked in these proceedings, and in the process that led up to the intergovernmental conference mandate and then the IGC itself. It cannot be pretended that this has been a transparent process. I wonder whether the Minister can stand up and say that the process that led up to the IGC mandate in particular, which was little changed after the IGC itself, was as transparent as the Government would have wished it to be. I do not think anybody could say that it was transparent. My hon. Friend put forward one point of view and my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) properly and honourably put forward another, although I certainly do not agree entirely with his different conception of Europe, but we can make common cause on the fact that there has not been the amount of transparency that there should have been.
My right hon. Friend the Member for Wells was entirely right to set all of this within the context of the overall changes that the Bill and treaty are making. We must begin by referring to the pillar structure, which we obtained from the Maastricht treaty. We were told at the time that that would be the settlement for Europe. It was said that the Maastricht treaty was the high point of European federalism: that it would put that beyond doubt and that in future matters involving our relationship with Europe would be contained within the system of the three pillars—the Community pillar and the intergovernmental pillars of justice and home affairs and common foreign and security policy. However, through the current treaty we have now seen the collapsing of those pillars. Instead we have, in effect, one treaty divided into two parts, which is why transparency is so important.
My hon. Friend and my right hon. Friend the Member for Wells were right to draw attention to the unifying effect of the treaty. It is there in article 1; we have gone from the three pillars to what is contained at the beginning of the treaty, which is there for all to see and which is a change from the treaty of Nice. We are told under title 1, article 1:
“The Union shall be founded on the present Treaty and on the Treaty on the Functioning of the European Union (hereinafter referred to as “the Treaties”). Those two Treaties shall have the same legal value. The Union shall replace and succeed the European Community.”
The First Deputy Chairman: Order. I ask the hon. Gentleman to relate his concerns to the amendment under discussion.
Mr. Clappison:
As my right hon. Friend made clear in his opening speech, when there are further changes in terminology within the structure we should have the opportunity to debate them in the House under the provisions of clause 3(5), and we should have the
appropriate procedures so we know exactly what is taking place when, for example, there is a change in the treaty on the functioning of the European Union and the area of common justice, freedom and security, or a change in the common foreign and security policy which takes place within the treaty on European Union.
The terminology should be clear, because we need transparency as to what is taking place. My hon. Friend was right to set this in the context of what took place in the lead-up to the IGC mandate, because terminology is so important in that regard.
I think it is commonly agreed that we did not have the opportunity to scrutinise the proposals that the Government discussed at the IGC mandate Council meeting in June. The previous Foreign Secretary told the European Scrutiny Committee at the beginning of June that no negotiations or discussions had been taking place, yet on 19 June the IGC mandate was produced, 48 hours and 30 minutes later the Council opened and two days later, on 23 June, an agreement was reached. This country agreed to the IGC mandate and, as the Minister for Europe can confirm, it was not changed very much in substance by November’s subsequent IGC.
We had no opportunity to scrutinise the terminology or the substance. That is so important as far as terminology is concerned because we know that the Government received a questionnaire from the German presidency in the period leading up to June’s IGC mandate Council meeting. The Government told us that no discussions or negotiations had been taking place, yet we know they received a questionnaire from the German presidency last April, or thereabouts, asking them how terminology could be used in relation to the substance of the proposals being discussed.
Question 3 of that questionnaire asked:
“How do you assess the proposal made by some Member States using a different terminology without changing the legal substance, for example with regard to the title of the treaty, the denomination of EU legal acts and the Union’s Minister for Foreign Affairs?”
Terminology is so important because we are debating how we are to scrutinise such matters in future and we must ensure that we have the right type of scrutiny.
“How do you assess the proposal made by some Member States not to repeal the existing treaties but to return to the classical method of treaty changes while preserving the single legal personality and overcoming the pillar structure of the EU?”
This is exactly what is happening in this treaty and what was contained in the original European constitution, which we all know was rejected. Perish the thought that the thinking behind the German questionnaire was how the states concerned were going to get off the hook, disguise the fact that they wanted the constitution and change the terminology in order to do so—perish the thought that that was the process.
We know that the German questionnaire was sent to member states, including to our Government, only because it was leaked—again, no transparency. Our Government have yet properly to admit even that they have received it. The then Foreign Secretary was asked about it in Foreign Office questions last May by my right hon. Friend. The substance of her reply was that she barely knew about it and she would take no notice of it. I do not think that that is doing her a disservice,
because she said that there had been no negotiations and she seemed not to have known much about the questionnaire. We certainly know that we have not seen what our Government said in response to the questionnaire.
The First Deputy Chairman: Order. Perhaps the hon. Gentleman could relate his concern over the questionnaire to the amendment that we are discussing.
6.45 pm
Mr. Clappison: Although you are right to ask me that, Mrs. Heal, I am spot on the case because we need to know that this House will have the opportunity to debate terminology to ensure that substance is not being disguised behind it, as happened in the very process by which this treaty was brought into being.
The Minister could go a long way towards answering our concerns by telling us why the Government are so reluctant to publish their response to the German questionnaire—it is not too late, but I do not suppose they will do so. The Minister looks a bit concerned about that, but if we are to accept that the Government are being transparent, we need to know what their response was. The questionnaire’s wording makes it evident that proposals had been made by member states, so while he is at it perhaps he could tell us whether the Government made any proposals to the German presidency before it came up with this questionnaire.
The First Deputy Chairman: Order. Perhaps we can move away from the German questionnaire.
Mr. Clappison: I hope to come back to the hon. Gentleman, because I know that he is very interested in this matter.
I agree with the analysis, although not the conclusions, of my right hon. Friend the Member for Suffolk, Coastal on this matter. We also need transparency because of the extension of qualified majority voting. We will have a debate on that later, but transparency is important because the treaty marks a sea change on QMV and several of its provisions will make it much easier for the Community to move to QMV. The treaty was designed by those who negotiated it with that view in mind. Such provisions can only be in place to make it easier to move to QMV. Whether one agrees with QMV or whether, as I am, one is reluctant about it and thinks that it should be handled extremely carefully because it involves a significant movement of sovereignty—
The First Deputy Chairman: Order. We have a debate tomorrow on qualified majority voting, in which I look forward to hearing from the hon. Gentleman.
Mr. Clappison: Indeed, and I hope that I will catch your eye, or the eye of whoever is in the Chair at that time, Mrs. Heal. This is just a little preface of future remarks. We have been short of time in these debates and Back Benchers have often not had the opportunity to contribute, so we might not get a chance to hear them later. We need transparency, given what has taken place and what I suspect is in store for us—future incremental constitutional change, which this treaty embodies.
Mr. Mark Francois (Rayleigh) (Con): Amendment No. 39, which was ably introduced by my right hon. Friend the Member for Wells (Mr. Heathcoat-Amory), would allow for all orders made under clause 3 to be subject to the affirmative resolution procedure rather than the negative resolution procedure, as the Government wish. It would thus improve the Bill by compelling the Government to lay all orders made under subsection (4) before Parliament and by instructing that such orders should all be positively approved by resolutions of both Houses. The amendment would thus improve parliamentary oversight of the implementation of the treaty’s details into UK law without, for better or worse, wrecking the Bill in the process.
I hope that hon. Members from all parties, including the Liberal Democrats, who have expressed the wish to strengthen Parliament when outside this place, will join us in supporting the amendment. I understand that the hon. Member for East Dunbartonshire (Jo Swinson) said as much—
Mr. Francois: I apologise to the hon. Lady; I had to nip out of the Chamber for a few minutes, so I missed her contribution. I am grateful for her commitment that the Liberal Democrats would vote with us on the amendment, and we look forward to that being honoured when the Bell rings.
My hon. Friend the Member for Stone (Mr. Cash) also touched on the amendment briefly—for three quarters of an hour.
Mr. Francois: I have short-changed my hon. Friend—it was 50 minutes. He discussed the amendment knowledgeably. It specifically relates to the operation of orders made under subsection (4).
As my right hon. Friend the Member for Wells and others explained, the clause puts into United Kingdom law the terminological changes necessary to reflect the fact that the Lisbon treaty merges the existing EU entities, save the atomic energy body, into one legal entity, just as the original constitution attempted to do. The EU’s three-pillar structure is largely abolished. Justice and home affairs are totally absorbed into what has hitherto been called the European Community, which is a fundamental change. The distinction in name and legal personality between the intergovernmental second pillar on foreign and security policy and the European Community is also done away with.
Those technical changes actually signify profound changes in the EU’s structure, purpose and powers, belying the ridiculous claim that Lisbon is merely an amending treaty of little real importance, as the Government would have the House and the country believe. In the place of three distinct agreements, if the Bill is passed, we will have one new all-encompassing legal personality, swallowing up the distinct activities that come under the EU mantle. If the treaty is ratified, the European Union, which until now has existed only as an umbrella term encompassing the various European agreements, will become less of a temple and more of a monolith, with a unified legal identity in its own right.
The Minister is fond of saying that the constitutional concept has been abandoned, but whatever the Government’s sophistry about the treaty, its outcome will be almost exactly the same as that of the old constitution: the collapse of the pillar structure, which until now has safeguarded sensitive parts of our sovereignty as intergovernmental, and the merging of the EU into one legal entity.
Mr. Cash: There is one point that we have not covered. Does my hon. Friend know why there are references in the clause to both the Secretary of State and the Treasury? If he does not, perhaps the Minister will tell us. There is a reason for it, and it would be interesting to know what it is.
Mr. Francois: I suspect that my hon. Friend is asking the Minister a question through me. I am sure that the Minister has heard it, and along with my hon. Friend, I look forward to hearing his reply.
The Minister for Europe (Mr. Jim Murphy) indicated assent.
Mr. Francois: He has obviously clocked it, and we shall hear his response in a moment.
The amendment would mean that changes such as I have described would be scrutinised by Parliament, and it would therefore improve the Bill. We were promised line-by-line scrutiny, but, as we heard earlier, that has not happened. If the amendment is accepted, we can at least scrutinise further changes to the terminology of the treaty, which, as we have heard in detail, could be of wide-ranging significance. It would not wreck the Bill, but would improve it. It will be supported by the Opposition and by the Liberal Democrats, and it would be nice to hear that the Government have decided to support it as well.
Mr. Jim Murphy: It is a delight to follow the hon. Member for Rayleigh (Mr. Francois), as always, and to have the opportunity to respond to the debate on the rather narrow amendment No. 39, which has been wide ranging and always in order. We have heard from a number of right hon. and hon. Members, including the hon. Member for Stone (Mr. Cash) in a speech that was 46 minutes short.
Mr. Murphy: I made it 46, but perhaps it was nearer 50. The hon. Gentleman said that he had been accused of a Eurosceptic rant or filibuster, but I hope that he accepts that at no point have I suggested anything of the sort. While listening to his reflections on the cricketing skills of the late Mr. Cryer, who was a Labour Member, I appreciated why the House had previously taken a view in principle on the timetabling of certain Government business. We were denied the opportunity to hear even more on the apparently great cricketing skills of my friend Mr. Cryer.
I shall respond to the specific, wide-ranging points that hon. Members made. I do not wish to go into detail on all of them, and the Committee would not thank me for doing so, because we have other amendments to reflect upon. A number of right hon. and hon. Members
asked me about legal personality. We have been round the houses about it previously and are well versed in the arguments: having a legal personality is not new for the European Community or the European Union. The EC has had a legal personality since the treaty of Rome in 1957, and the EU has a functional legal personality that has enabled it to conclude 100 or so agreements in its name over the years.
Several right hon. and hon. Members mentioned competence. The Law Society guide to the treaty, which was published earlier this year, states:
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