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Mr. Heathcoat-Amory: My right hon. Friend is a shrewd observer of these matters and he is right. It is a fond national myth that each treaty is the last treaty. That entirely underestimates the dynamic that exists in other European countries and, most importantly, in the institutions of the European Union, which always presses us to go further and create, if not a federal Europe—that is not a word I use—but a Europe that takes literally the phrase in the present treaty about “ever closer union”. That mandate drives that tendency forward, and there is no doubt that President Sarkozy belongs to that tendency. He has set up a group, which has already met, to clear the way for more powers to be transferred upwards to the European Union.

Those involved have learned, from bitter experience, not to seek the consent of the public at any stage, because of the danger that they will say no. History is littered with electorates that have said no, but instead of listening to the people, a way of circumventing the obstacle is found and there is always another treaty. The new approach is the passerelle provision.

Mr. Philip Hollobone (Kettering) (Con): Does my right hon. Friend agree that the great British public have virtually no idea about the effect that the passerelle measures will have on the future sovereignty of our country? They know that something fishy is going on, but they have no idea of the extent to which our sovereignty is being undermined not just now, but for ever.

5 pm

Mr. Heathcoat-Amory: It is my regret that the instruction to simplify the EU was never carried out. If we had a simpler document in front of us, these matters would be clearer. As Mr. Amato, the former vice-president of the Convention on the Future of Europe, said in a speech in London that I heard, the treaty is designed to be complicated. Those involved have been relieved of the obligation to put the document in front of the people to be understood and debated in a referendum, and so it could build complexity on complexity. It is becoming—indeed, it has already become—a legal document for politicians to be interpreted by other politicians. Of course the public have great difficulty understanding it. It is our job in these debates to try to elucidate what is really happening and to alert people to the true content of the treaty.

I shall not pretend that the passerelle mechanism is entirely new. There are similar measures in the existing treaties, although they have not been used. However, the treaty of Lisbon has 10 new passerelles, which go right across the board and are designed to be used. They are on a much broader scale.

Mr. Kenneth Clarke: I am grateful to my right hon. Friend for giving way, and I shall not interrupt him again. He has rightly reminded us that the passerelle mechanism is not new; it has been in force for years and years. Does he recall that in the Maastricht debates people were raising all kinds of fears about the way in which it would be used to take away our sovereignty by stealth? Does he accept that that has not happened? Why does he think that it is suddenly going to happen now? Does he not accept that it turned out to be an unfounded fear when the institution was first attacked by people who hold his views?

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Mr. Heathcoat-Amory: I do not recall the passerelle provisions being the object of great fear at the time of Maastricht, because the Maastricht treaty made little provision for additional passerelle clauses. They have not been used because they are essentially peripheral. My point is that the passerelle mechanism is now widened and deepened and will become an essential element of the treaty of Lisbon.

Mr. William Cash (Stone) (Con): Having taken some part in the Maastricht debates, I can confirm what my right hon. Friend has said. In those days, the mechanism was known as article 235. It was not in any way as pernicious as these provisions, which are associated with changing all the existing treaties and undermining our parliamentary sovereignty by a totally obnoxious and completely unnecessary provision that would allow us to legislate simply by motion.

Mr. Heathcoat-Amory: My hon. Friend is right. Indeed, I have a note of the existing passerelles. They deal with such matters as moving the adoption of EU laws on family law to the ordinary legislative procedure. That is not an earth-shattering change to any system. However, the 10 new passerelles in the treaty of Lisbon include three new simplified revision procedures—that is what they are called—to revise the treaty.

Mr. Duncan Smith: I apologise to my right hon. Friend for intervening again, as I know that he wants to make progress. The answer to our right hon. and learned Friend the Member for Rushcliffe (Mr. Clarke) is simply that at Maastricht there was not a major complaint about the passerelles, but the precedent was set by their use in the treaty. They sat there, and have now undergone a massive expansion. They are now ready for use. That is the key. It is a process of moving forward, and the passerelles play their part.

Mr. Heathcoat-Amory: My right hon. Friend is correct. The phrase “simplified revision procedure” gives the game away. The clauses are designed to be a way to carry out sweeping revisions of the treaty.

Mr. Peter Bone (Wellingborough) (Con): I am grateful to my right hon. Friend for giving way; he is being extremely generous. Is not the difference between now and Maastricht the fact that, unfortunately, the European people rebelled in the French and Dutch referendums, which led the European elite to learn the hard way? They do not trust the people, therefore, and want to get the treaty through by the back door.

Mr. Heathcoat-Amory: I have made the point that when the EU reaches a roadblock, it never retreats or even stops. It finds a way round. In this case, it has done so by bringing in a way of achieving the same result as under the existing treaty without going through the laborious but democratic procedure of forming an intergovernmental conference, arguing out the proposals in public and putting them to national Parliaments or, when necessary, to referendums.

Angela Watkinson (Upminster) (Con): Does my right hon. Friend agree that, if there were no real intention to use the passerelle mechanism to take on more powers without consulting anybody, it would not be there in the first place?

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Mr. Heathcoat-Amory: My hon. Friend is right. All the clauses have a purpose. They are not decorative or descriptive, they are there to be used. They have a serious intention and serious content. I hold that the three separate simplified revision procedures, when taken together, would allow just about any change to how the EU defines and implements its policies to be made using the passerelle clauses. That could include the removal of most of the remaining vetoes, with the exception—I want to be fair about this—of treaty objectives for external policy. There could be sweeping changes to the functions, powers and procedures of the EU, including further extensions of qualified majority voting to matters additional to the 51 already provided for.

Michael Connarty: The so-called passerelle procedure means that all Governments must give up the veto on policy making so that decisions can be made by qualified majority voting. Does the right hon. Gentleman accept that the Prime Minister has given a guarantee to the Liaison Committee that a decision to give up the veto can be taken only on the Floor of the House? The House must decide to give up the veto before any representative of this Government can vote to do so in the Council.

Mr. Heathcoat-Amory: I shall turn later in my remarks, and in debates on other groups of amendments that cover the matter, to the exact procedure that the House should follow in agreeing to such measures. Since the hon. Gentleman is the Chairman of the European Scrutiny Committee, I shall remind him of what his report said about the provisions:

I know that he takes the matter seriously, because he believes in openness. So do I, and the best openness is to have treaty revisions made in the traditional way. They should be argued out by member states and the Commission in an intergovernmental conference and then put to Parliament to be debated. That procedure has served us well, and it is being abandoned.

Michael Connarty: I know the case that the right hon. Gentleman is making, but sadly, he does not admit that the Prime Minister’s assurance to Parliament that any decision to give up the veto will be taken only in a vote on the Floor of the House is a massive improvement. That was not the position after Maastricht or Amsterdam. Will he not admit that this is the first time that a Prime Minister of any party has assured the House that such decisions will be made on the Floor of the House?

Mr. Heathcoat-Amory: I concede that it is a modest advance in the powers of the House that a vote will be required, but I believe that primary legislation is what is needed in those circumstances. I hope that the hon. Gentleman will join me in pursuing the cause of parliamentary democracy and the powers of the House.

Mr. Harper: It is not good enough to rely on the Prime Minister’s promise that the House will get a vote. He promised the British people a vote on the treaty and has broken that promise, so we should not put any weight on a promise that he has made to a Select Committee.

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Mr. Heathcoat-Amory: I agree that there is no substitute for primary legislation. That is how we make important agreements, and a late-night, whipped vote at short notice is not an adequate substitute.

Mr. Clappison: I know that my right hon. Friend wants to make progress, so I am grateful for his generosity in giving way. Even if we took the assurance of a vote at face value, is it not a question of the signal that the provisions send the rest of the Community about the simplified revision process and further incremental change? What about the political pressure on this country? Do we not have a good example in the treaty itself of the way in which pressure can be brought to bear on the UK by the rest of the Community?

Mr. Heathcoat-Amory: My hon. Friend’s observation is accurate, and it is emphasised by the point I am about to make.

The Government have allowed in the Bill for parliamentary approval of a sort, but clause 6 does not list all the passerelles inserted by the treaty. The modest concessions made by the Government to give some additional power to the House ignore the fact that passerelles in the treaty are not covered by the clause. For example, article 82 of the consolidated treaty can expand the EU competence over criminal procedures. To me, that is a passerelle clause—it is a mechanism in the treaty whereby by a unanimous decision by a temporary and perhaps transient European Council or Council of Ministers can agree to expand the treaty into new areas of criminal procedure. That is not subject to the mechanism of which the Government are so proud.

To give another example, article 83 permits new areas of crime to be subject to qualified majority voting, simply by a decision of the Council of Ministers, without any parliamentary involvement at all. Article 86 can extend the powers of the European public prosecutor, again, without any vote in the House. My amendment adds to the list of passerelles covered by the Government’s procedure the missing passerelle clauses that they do not mention.

Mr. Cash: Earlier, my right hon. Friend mentioned the external action-specific provisions on the common foreign and security policy. I may have misunderstood him, but is it not right that under article 48(7), which falls into that category, the European Council, although decision making must be unanimous, has the power to decide to authorise the council to act by QMV instead? We therefore have a QMV arrangement for CFSP and external action.

Mr. Heathcoat-Amory: It is perfectly true that there are additional provisions for majority voting in the field of CFSP. The details are complex, and they are not the subject of this group of amendments, but the thrust of my hon. Friend’s intervention is correct.

Amendment No. 44 would subject the setting up of the office of European public prosecutor to the same parliamentary procedure. That is not strictly a passerelle matter, but it should be agreed by the House. The Government have a veto, as they do on all the passerelle clauses, but I contend that a conclave of European
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Ministers sitting in private should not be able to make treaty amendments, and certainly not without parliamentary approval. However, in the treaty they can agree between themselves to set up the office of European public prosecutor. The Government are against that proposal, and have said:

They were right about that. Unanimity is not an adequate safeguard, because once provision is made for a European public prosecutor, the presumption is that one day it will be agreed to. To that extent, the matter is prejudged, which is why the Government wanted all references to the European public prosecutor to be removed from the treaty. As with most of their amendments, they failed, so the provision is in the treaty and can be triggered by unanimity. My modest amendment requires that if the Government give way on their previous adamant objection to a European public prosecutor, the decision should have the consent of both Houses of Parliament.

5.15 pm

Amendment No. 46 would do the same on setting up a common European Union defence—in other words, a European army. The treaty is confused. Some articles state that European Union defence policy “may” lead to a common defence, whereas other articles state that it “will” lead to a common defence, if the European Council agrees it unanimously. The Foreign Affairs Committee called those provisions “clumsy and ambiguous”, and it was right. Indeed, the Government agreed with the Committee, because they tabled an amendment to take out the second reference and to make it clear that that “may” lead to common defence. As is so often the case, they lost the argument. Amendment No. 46 would simply add the additional lock that this House and another place should agree by vote or, as I would prefer it, by primary legislation, if a decision is made to move to a common defence and set up a European army with all that that implies.

Amendment No. 47, which has also been tabled in my name and those of my hon. Friends, would rectify another weakness in the Bill. Clause 6 states that Ministers

proposed passerelle clause without “Parliamentary approval”. As it stands, however, they could abstain, and if they were to do so, the matter could be adopted, because matters can be approved by unanimity, even if some member states abstain. That is a loophole, and amendment No. 47 would require the Government actively to vote against any such proposal, rather than not voting in favour of it.

In summary, the passerelle clauses extend the self-amending mechanism, of which we have seen very little in the past, and clearly form a key component of the treaty of Lisbon. My amendments would complete the list of passerelles, which is not complete at the moment—the Government should have corrected that matter. They also add similar elements, such as the setting up of a European public prosecutor and a move to a common European defence, and close the loophole that would allow the Government to make such changes by abstaining.

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I shall finish by advancing the case for amendment No. 48, which goes further. It would require parliamentary approval—an affirmative vote in both Houses—before agreement to any measures in the European Council or the Council by unanimity or in an area made subject to qualified majority voting in the treaty. That would establish for the first time real parliamentary control over the obligations imposed on this country from the EU. That approach has been adopted by the Scandinavian Parliaments, which literally mandate their Ministers before decisions are taken.

Scrutiny of European legislation in this House is, by common consent, totally inadequate. That was the conclusion of the Modernisation Committee report of some years ago. The Government have now responded to that—again, very modestly and inadequately. We can all see that, even with the new proposals from the Leader of the House, the House really has no power. We are at the bottom of the food chain; we are subjected—members of the European Scrutiny Committee have weekly experience of this—to a torrent of European Union draft regulations, directives and decisions on which we cannot decide in any real way. We have to accept them; all we can do is take note of them.

Amendment No. 48 would disapply decisions passed by unanimity or under the areas of qualified majority voting introduced by the treaty of Lisbon from having an effect in the United Kingdom. The amendment would do so notwithstanding section 2 of the European Communities Act 1972. As a non-lawyer, I am advised that in the Factortame case it was observed that British courts would allow the 1972 Act to be overridden if another statute made clear that its provisions were notwithstanding section 2 of the 1972 Act.

Mr. Cash: May I amplify what my right hon. Friend is saying? The cases of Macarthy’s Ltd v. Smith under Lord Denning, of Garland v. British Rail Engineering Ltd under Lord Diplock and of the “metric martyrs” under Lord Justice Laws also make that clear. It is absolutely crystal clear that what my right hon. Friend has just said is right. If, on behalf of voters in general elections, we are to preserve the right of the House to be able to make decisions, it is absolutely imperative that the amendment should be agreed.

Mr. Heathcoat-Amory: I am grateful to my hon. Friend, who is a constitutional lawyer, for his endorsement of what I have said.

To be clear, amendment No. 48 would prevent decisions of the European Union having effect in this country if Parliament had deemed otherwise. In other words, if we explicitly directed Ministers to reject proposals resulting from qualified majority voting introduced by the treaty of Lisbon or from a procedure of unanimity, those decisions would be disapplied in United Kingdom law, notwithstanding section 2 of the European Communities Act 1972.

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