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“bring their defence apparatus into line with each other as far as possible, particularly by harmonising the identification of their military needs, by pooling and, where appropriate, specialising their defence means and capabilities”
“take concrete measures to enhance the availability, interoperability, flexibility and deployability of their forces, in particular by identifying common objectives regarding the commitment of forces”.
If a member state in the permanent structured co-operation does not want to go along with some European policy that is being decided by the European Defence Agency on qualified majority voting, or has decided to exclude itself from a set of decisions that result in the European Union making it its policy to harmonise certain defence policies, it loses the veto, because unless it goes along with that policy, it is not complying with the terms of the permanent structured co-operation and can be excluded from it anyway.
Mr. Duncan Smith: As my hon. Friend said previously, what this House constantly fails to realise, because it has never been the nature of the way in which law is made in this country, is that the European Court of Justice constantly refers back to the protocol. That gives it its sense of direction when a clash occurs, and it will always find its way to that direction. It may temporarily halt, but it will always find that direction. That is why the momentum of the European Union has been guaranteed by the Court of Justice. Those Europeans who legislate say that the protocols are critical. We think that they are general; they say that they provide the sense of direction, and they are right.
9.30 pm
Mr. Jenkin: My right hon. Friend, again, is exactly right.
Mr. Davey: Will the hon. Gentleman say which part of defence policy he believes that the Court has jurisdiction over?
Mr. Jenkin: I have explained how the Court of Justice already has jurisdiction over sanctions policy. It already has jurisdiction over the single market, and it—
Mr. Jenkin: I am going to explain it to the hon. Gentleman. The European Court of Justice has the responsibility to adjudicate on what is purely a single market matter, and what is military. Those boundaries will be adjudicated by the Court of Justice and it is only a matter of time before the Court finds the means to regulate what the Commission has long wanted to be able to regulate: the edges of the defence market. I have explained how the protocol also creates a political imperative on member states participating in a permanent structure of co-operation to harmonise their defence policies for fear of being compulsorily excluded from the permanent structured co-operation. These are arrangements—
Mr. Hendrick: Will the hon. Gentleman give way?
Mr. Jenkin: I am going to make a simple, last point—
Mr. Jenkin: Okay, I will give way to the hon. Gentleman as I have not given way to him before.
Mr. Hendrick: We may have our differences about the virtues of the European Court of Justice, and I think that the example the hon. Gentleman gives about trade policy—whether something is a civil or defence issue—is quite obscure and tenuous, but leaving that aside, does he accept that not all 27 member states have to be members of the European Defence Agency? Those who join the agency do so because they wish to, and not everyone is obliged to take part. If a member state wishes to leave, or other member states think that that state is not playing ball on the objectives, why should it have a veto?
Mr. Jenkin: If a member state chooses not to participate in the defence agency or in the permanent structured co-operation, it is nevertheless bound by the policy decisions of those two bodies, which become the policy of the Union. Under article 11, that state is bound to support the policies of the Union actively and unreservedly in that area. That amounts to the loss of the veto.
Mr. Hendrick: Will the hon. Gentleman give way?
Mr. Jenkin: Does the hon. Gentleman want another go? I have flattened him once.
Mr. Hendrick: It would be significant if all 27 member states were members of the European Defence Agency, which will not be the case, as the hon. Gentleman well knows. Secondly, the fact is that if other member states in the defence agency do not agree, a member state can withdraw or be thrown out. Whether or not that member state has a veto in an organisation that does not have to have 27 members is neither here nor there.
Mr. Jenkin: I invite the hon. Gentleman to read article 11, which says—I know it off by heart—that member states shall refrain from any action that is likely to disrupt the policies of the European Union. If the policy of the European Union is decided by six or eight members, that is its policy. Those self-excluded or compulsorily excluded members have no control—
Mr. Jenkin: Do I really need to give way to the hon. Member for Preston (Mr. Hendrick) again? [Hon. Members: “No.”] I give way to my hon. Friend.
Philip Davies: Clause 3 concerns changes of terminology. Is it not another example of how the European Union has run rings round this country time after time? It tries to pretend that these changes in terminology mean nothing, and that they are just technical changes, and Ministers swallow it every time. But it knows why the changes are so important, which is why it insists that such changes are in these treaties, and it uses them in the way referred to by my hon. Friend.
Mr. Jenkin: My hon. Friend is absolutely right, and we know that there is a clear agenda behind the changes. Those who created the European constitution, which the Government admitted represented a fundamental change in our relationship with our European partners, have designed this treaty so that it will have virtually the same effect as the constitution, but under the disguise of an intergovernmental arrangement.
Mr. Jenkin: I shall give way to the hon. Gentleman again, but what I have just said is pretty much what his Committee told the House.
Michael Connarty: The hon. Gentleman has tried to make the same point in several speeches. He tries to delude those outside that people must be involved in the permanent structured co-operation, that they can expelled from it but that somehow they have no control over it. Article 1 of the protocol from which the hon. Gentleman quoted selectively states:
“The permanent structured cooperation referred to in Article 42(6) of the Treaty on European Union shall be open to any Member State which undertakes, from the date of entry into force of the Treaty of Lisbon, to:”
It then lists the provisions. It reads “shall be open to”, not “shall be compelled to be part of”. Will the hon. Gentleman please desist from claiming that people must join the organisation, that they can be thrown out of it and that, somehow, they have lost all control? The protocol makes it clear that permanent structured co-operation will not contradict any country’s priorities in defence policy or undermine people’s right to act through NATO for their common defence. It cannot be described as compulsory. If the hon. Gentleman puts that on record now, I shall let him fantasise as much as he likes thereafter.
Mr. Jenkin: The hon. Gentleman is guilty of a partial reading of the treaty. The permanent structured co-operation in article 1 of the protocol to which he refers is governed by another article under title V. I shall not repeat it, but permanent structured co-operation is created by a qualified majority vote of the Council. Moreover, such a vote can remove a member that no longer satisfies the criteria that the protocol lays down. The protocol’s obligations, which I read out earlier, are onerous.
Michael Connarty: Are they voluntary?
Mr. Jenkin: No, they are not voluntary. [Interruption.]
The First Deputy Chairman of Ways and Means (Sylvia Heal): Order. The hon. Member for Linlithgow and East Falkirk (Michael Connarty) knows how to make an intervention if he wishes to do so.
Mr. Jenkin: The hon. Gentleman is right that there is no obligation to be part of a permanent structured co-operation, but that is not the question. The European Union’s policy will be decided by those in the permanent structured co-operation. A member state that is in the permanent structured co-operation can participate in the discussion but be outvoted, and a member state that is not in it has no say in what becomes the European Union’s policy.
Michael Connarty: If a member state does not want to be part of that co-operation and any agreement of the European Union to take part in an action outwith it, why should that member state be bothered? In that case, the member state has decided not to commit troops or be involved.
Mr. Jenkin: I have never claimed that the article would be a means of deploying troops from a member state that is not in the permanent structured co-operation. I have never said that. However, let us suppose that it became the policy of a permanent structured co-operation to send a new force to a new theatre of war. Let us suppose that a member state in the permanent structured co-operation did wish to do that. The member state either has a veto over the operation or, if it had already been excluded for other reasons, no say over the European Union’s making a military deployment in its name. What could be clearer than that? Why do the arrangements exist if they are not to enable the EU to make more decisions without single member states being able to obstruct them with their vetoes? That is the reason for including the protocol.
Mr. Hendrick: Does the hon. Gentleman believe that it would be reasonable for, for example, Luxembourg to be a member of the European Defence Agency and have the power to veto the wishes of many other member states that are members of that agency?
The First Deputy Chairman: Order. We should be discussing clause 3 stand part, not the detail into which we are now going.
Mr. Jenkin: I will certainly respect your injunction, Mrs. Heal, but your injunction underlines how lamentably short is the time that we have been given to discuss the defence aspects of the treaty. Indeed, the defence amendments were never discussed at all. We have relied on your good offices and those of your colleagues to be allowed to discuss such matters at all, but we have never had proper time to do so.
The fact is that clause 3 is about establishing a clear direction of travel for the European Union. It is not about decentralising or giving more powers to member states; it is about taking powers away from member states and establishing institutions that will continue to remove policy discretion from member states and give it to the institutions of the European Union. That is why I oppose clause 3.
Mr. Roger Gale (North Thanet) (Con): I came into the Chamber earlier—it seems like quite a long time ago now—to make a brief contribution based on my personal experience in the House, which I believe is directly relevant to clause 3, curious though that may seem. Before that, however—and before you took the Chair, Mrs. Heal—the hon. Member for Linlithgow and East Falkirk (Michael Connarty) threw down the gauntlet to my hon. Friend the Member for Hemel Hempstead (Mike Penning), which I would like briefly to pick up.
The hon. Gentleman held aloft the treaty, asked, “Have you read this?” and challenged us to say which of the items in it our constituents had written to us about. Hon. Members will be pleased to hear that I do not propose to go through the entire litany, but back in the autumn I sent out 35,000 cards to my constituents, 3,500 of which were returned, which by my miserable maths makes 10 per cent., which is about 10 times more than we usually receive when we send things without a reply paid envelope. In addition, I collected 3,500 signatures for a petition calling for a referendum on the constitution, which is what the treaty is. Those people writing to me made their views very clear. They were concerned about defence, about European foreign policy, about an extension of presidential powers and, most particularly, about the loss of the veto in a whole raft of areas.
The hon. Gentleman held up the document and asked, “Have you read this?” As you will remember, Mrs. Heal, before the summer recess we did not have access to even the draft treaty in English, so I—poor, sad soul that I am—got a copy in French and tried to read it. It was, dare I say, pretty obscure. My right hon. Friend the Member for Chingford and Woodford Green (Mr. Duncan Smith) said that the document was “opaque”. I would say that it is obscure. When the draft treaty came out in English, I heaved a sigh of relief and grabbed it, giving up on my miserable French, only to discover that it was just as obscure in English as it was in French—to me, at least.
One thing shines through clause 3, however. You have sat in the Chair on numerous Committees considering various pieces of legislation, Mrs. Heal, as have I. In your years in the House, you will have experienced, as I have experienced, under—I have to say with shame—successive Governments, not just this one, a weakening of parliamentary draftsmanship. It has reached the point where increasingly lazy draftsmen write secondary powers into Bills saying that the Minister will have the right to do this or that thing by secondary legislation. There is a whole raft of potential secondary legislation that is not contained in very many of the Bills that we pass through the House. I see clause 3 as the European version of that writ large.
Clause 3 is not about giving nation states a right to do as they see fit; it is about a right of the European Union to tell us in Parliament what we will do and enact by secondary legislation. If I am right—the Minister will no doubt clarify this when he winds up, but I believe that I am—we have failed to grasp one salient fact, as was mentioned earlier. In these Houses of Parliament, the law is the last resort and Parliament is sovereign. In many European jurisdictions, the legislature is bound up with the legal process—they are
part and parcel of the same thing. If clause 3 goes through, we will find the European Court dictating to European legislators what we as United Kingdom legislators will then have to push through as secondary legislation. We shall find that we have no say over what we are enacting in many areas that are now the responsibility of this House.
With great respect to my right hon. Friends the Members for Hitchin and Harpenden (Mr. Lilley) and for Chingford and Woodford Green, who have said otherwise, clause 3 is not unimportant. It is not the most important clause in the Bill, but it is not unimportant. It is tantamount to a Trojan horse. If it goes through, inside it and on the back of it will come whole rafts of changes that we shall have no power to resist. That is why it must not, cannot and should not stand part of the Bill.
9.45 pm
Mr. Clappison: I shall oppose the clause standing part of the Bill. We have had more chance to debate this matter than many other aspects of the Bill but, even so, the clause is tainted by the way in which the Government have sought to manipulate terminology or nomenclature, all the way through the process to try to disguise what is taking place. The way in which we describe something is important.
The hon. Member for Kingston and Surbiton (Mr. Davey), speaking for the Liberal Democrats—we know that they have their problems at the moment—referred to the collapse of the pillars as being only a partial collapse. I think that that was in response to my hon. Friend the Member for Hemel Hempstead (Mike Penning), who used to be a fireman in his previous career. I do not know what a householder would have said to him if, attending a call and finding that the roof had blown off, he had said to that householder, “Never mind. You’ve only had a partial collapse. Your garden shed is still standing.”
The Liberal Democrats have to face up to the seriousness of what is taking place here. I know that the hon. Gentleman has had his problems on this matter, but he has to face up to the fact that major changes in foreign policy have taken place and that that pillar has been completely collapsed. There is qualified majority voting on foreign policy and, increasingly, incrementally, we are going to have a European Union-determined foreign policy.
The same will apply to justice and home affairs. What the hon. Gentleman said about the opt-in arrangements was true, but we also heard from the hon. Member for Linlithgow and East Falkirk (Michael Connarty) about all the problems surrounding the opt-in provisions on home affairs, and about the penalty clauses that this country will face if we seek to exercise those opt-in proposals. I am not even sure that it is not the Liberal Democrats’ policy to sign up wholesale to the so-called area of freedom, justice and security without an opt-in. They are not even clear on that.
These are important matters. The problem for the Government is that this process has been tainted by the way in which they have conducted the negotiations, by the lack of opportunity that we had to scrutinise the proposals before the intergovernmental conference mandate was agreed, and by the way in which that
negotiation was carried out by the former Prime Minister, as virtually his last act in office. Thereafter, we were saddled with the intergovernmental conference mandate, which was enacted almost wholesale at the intergovernmental conference in November, save for the provisions that were disadvantageous to the United Kingdom, which gave us penalty clauses in respect of the opt-in. That was a real triumph of negotiation for the Government.
As I said earlier, what really astounds me in all this is the lack of transparency that taints this clause. I can do no better than to quote from the agreed conclusions of the European Scrutiny Committee—which is chaired by the hon. Gentleman—on the way in which the process had been tainted. It states in, I think, its most recent report, the third one of this Session, that
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