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The Lisbon treaty is like a Russian doll and has within it the genesis of its own continuation. It is part of the self-amending text that we have discussed, and it is paralleled by the passerelle, to use an alliteration. It is another example of the incubus that undermines the House’s ability to legislate on its own terms, and I say to every Member of the House that it is therefore another attack on the voters of this country. Members of the Government are engaged in a direct assault on their own constituents. I have said several times to the hon. Member for Wolverhampton, South-West (Rob Marris) that bypassing the voters by allowing decisions to be taken that, under our parliamentary system, properly belong to them at the time of general elections, is the ultimate affront.
Clause 6 is a reason for a referendum in itself. There are many reasons why a referendum is required, and we shall go into them tomorrow, but the clause is certainly one of them. It provides an internal mechanism for undermining our democracy. I therefore ask myself what goes on in other countries when matters of scrutiny affect their voters. I do not have time to go into the details, but the bottom line is that the arrangements in other countries are set out in a report produced by COSAC, which shows in 158 pages exactly how other member states legislate in relation to the EU. Those 158 pages give more than ample evidence that they do not examine European legislation properly.
We in this House— [Interruption.] I am saying this to the Labour Members who are conducting a conversation. I had the good manners to listen to them—will they have the good manners to listen to me? The Council of Ministers makes its decisions by QMV, and when we are outvoted there on matters that will be of concern to members of the Labour party as much as to us—if we scrutinise those matters properly according to our constitutional requirements, that is; but I think that our European scrutiny reforms should bring about an improvement—we are having imposed on us legislation that, because of QMV, is not being properly considered in the other member states.
I pointed out in an intervention on my hon. Friend the Member for Hertsmere that the statement in the clause that:
“A Minister of the Crown may not vote in favour of or otherwise support a decision...unless Parliamentary approval has been given in accordance with this section”
is complete nonsense with respect to decisions taken in the EU, which have legal effect without having to go through any parliamentary process. The same applies to regulations that come from the European Commission. I want the Minister to listen to this because, as Minister for Europe, he knows well the number of measures that are put on the A-list in UKRep and COREPER day by day and week by week, and introduced without his being involved in any meaningful sense. The provision that:
“A Minister may not vote in favour of or otherwise support a decision”
is therefore meaningless, because Ministers are not involved anyway. The entire clause is a total fraud against the electorate and an attack on our democracy, and it bypasses the process of amending treaties by convening an intergovernmental conference under article 48 of the existing treaty on European Union.
The clause is a fraud, and when we examine the nine or 10 provisions mentioned in it and ask ourselves what they will involve, we see that they include social policy, the environment, EU finance, enhanced co-operation and common foreign and security policy—things that the Government had to put in the clause because they knew the importance of them. The next question is to what extent they have provided a satisfactory safeguard for the British people in respect of the disgraceful and fraudulent procedure that has been followed in those arrangements. The short answer appears in clause 6(2):
“Parliamentary approval is given”—
in other words, the Minister is relieved of the fact, otherwise he would not be able to vote—
“if...in each House of Parliament a Minister of the Crown moves a motion that the House approves Her Majesty’s Government’s intention to support the adoption of a specified draft decision, and...each House agrees to the motion without amendment.”
We therefore cannot amend a decision once it has been made. The provision is a complete fraud, because one cannot amend decisions without transgressing sections 2 and 3 of the European Communities Act 1972. The measure would be implemented regardless—and I can see the Minister shaking his head—so I would like to know whether it is supposed to override the 1972 Act. The Minister may wish to intervene to say whether it does so or not. [ Interruption. ] He suggests that I should make quicker progress, but I will not let him off—not a chance.
In addition, an Act of Parliament would be needed or, in the case of a treaty proposal, an intergovernmental conference plus, in my opinion, a referendum if one was merited by the inclusion of constitutional requirements. For all those reasons, the fraud that lies within the proposal includes the fact that a motion would simply be whipped through. How often do we deal with motions in the House that are simply at the mercy of the Whips? There is no internal constitutional mechanism in the provision to prevent anything from happening, so it is a fraud. The very least that we should be offered is a free vote—and I do not mean just on this provision, as I want the whole thing to be thrown out. To provide a reasonable safeguard on the use of the mechanism in clause 6, I would expect a free vote to take place before approval was given to any such motion.
I produced a report for the shadow Leader of the House, my right hon. Friend the Member for Maidenhead (Mrs. May), when she was writing a pamphlet about the European scrutiny process. To some extent, we debated this the other day, but I said that we ought to have, in cases where 150 MPs decided—
The First Deputy Chairman: Order. I hope that the hon. Gentleman will confine his remarks to the first group of amendments on clause 6.
Mr. Cash: Of course I defer to your judgment, Mrs. Heal. However, clause 6(1) includes the phrase,
“unless Parliamentary approval has been given in accordance with this section”.
When I discuss the question of how that parliamentary approval is given, it is difficult not to deal with the mechanisms that have been provided. However, I think that I have said enough, Mrs. Heal, so I am happy to abide by what you said.
Basically, my concern about the provision is as follows. The Government and the European Union have yet again sought to bypass the arrangements that should properly be followed according to our constitutional principles and voters’ wishes to ensure that, rather than an élite arrangement, we have a proper system that we can understand and with which voters can go along.
Sir Michael Spicer (West Worcestershire) (Con): Will my hon. Friend say a little more about why he wants a specific reference to the 1972 Act? What is the law behind that? Why can there not be a more general condition?
Mr. Cash: Hopefully, we will vote on that tomorrow evening after the vote on the referendum. It relates to the override of the 1972 Act. I have set out the law—
The First Deputy Chairman: Order. The hon. Gentleman is correct: that debate and discussion is for tomorrow evening, rather than this evening.
7.15 pm
Mr. Cash: We cannot debate it, but hopefully we will vote on it. I will simply say that the provision is an override of the 1972 Act in accordance with established case law. That is all I need to say. It needs to be precise, clear, express and consistent, so it has to refer to that Act.
May I repeat one last time that under arrangements made under the proposals, other countries will seek through qualified majority voting to impose legislation on us? They operate by decree and/or by a system that is not subject to their parliamentary processes. It is therefore a total farce to talk about this being done according to the constitutional requirements of each member state, as they do not even consider such a process. That is a typical example of the lack of democracy at the heart of the measure. I was disgusted to hear the Liberal Democrats suggest that their proposals for an instruction were based on democracy, as they do not have a clue what the word means.
Rob Marris: I wish to make two brief points, the first of which relates to something that the hon. Member for Hertsmere (Mr. Clappison) discussed. He gave a rather graphic illustration, and used words to the effect that there is no reservoir of power in the House of Commons on which we can draw. He is absolutely right, but I disagree with him and with his hon. Friend the Member for Stone (Mr. Cash)—and I said this in the Chamber yesterday or last week—about the notion that power is a zero-sum game. I am individual, and I am a member of a political party. My political power is lessened by my agreeing to certain basic rules of the party to which I belong. However, my power is enhanced by my belonging to that political party, as is the power of my constituents, because it makes it more likely that the values for which their representative stands can pass through Parliament. Power is therefore not a zero-sum game: when we enter into agreements, as the UK has done with the European Union, we can gain what I have previously termed leverage. We can have more power overall in the big picture by giving up—and we are doing so in some cases—power. However, it is not simply a zero-sum game.
May I tell my hon. Friend the Minister that I wish principally to speak to amendment No. 286? I am attracted to the spirit of parts of that amendment. If it is pressed to a vote, I will not vote for it, as I will explain, no doubt to the disappointment of my hon. Friend the Member for Hemsworth (Jon Trickett).
Rob Marris: I am, however, attracted to the flavour of my hon. Friend’s amendment, which would insert additional provisions after clause 6(1), and is connected to Parliament’s power and the scrutiny that Parliament can, or cannot, bring to bear on matters relating to the EU, particularly the timing of any such scrutiny or parliamentary oversight, whatever word we use, and whether it takes place before or after a decision by the Heads of State and Heads of Government in the European Council, or by Ministers, or by list A UKReps. I think that we have a deficit in both regards in the House, despite the valiant efforts of my hon. Friend the Member for Linlithgow and East Falkirk (Michael Connarty) and his European Scrutiny Committee. We do not scrutinise nearly as much as we ought to beforehand, and the flavour of amendment No. 286 would take us some way towards remedying that. Proposed new subsection (A3) addresses health services, public education, social housing, postal services and public transport; proposed new subsection (A5) refers to a special committee, which would deal with tariff and trade agreements; and proposed new subsection (A4) deals with the provisions of the treaty relating to workers’ rights.
As I said earlier in an intervention on my hon. Friend the Member for Hemsworth, one cannot conduct negotiations in a meaningful way that is helpful to our country by tipping one’s hand completely before those negotiations start. That is why the wording in proposed new subsections (A1), (A2) and (A5), namely
“a statement on their negotiating mandate”,
is not helpful. The wording would have been better—I suspect that this is what my hon. Friend meant—if it had been, for example, “a statement on the issues to be discussed”.
The thrust of my hon. Friend’s remarks earlier today was right. We need better scrutiny and a better idea in advance of the general things that our Ministers, on behalf of the Government and answerable to the legislature, will be saying in negotiations and discussions with representatives of the other 26 member states of the European Union. We do not have enough of that under the current system in the United Kingdom. That does not concern this Government or previous Governments hiding things, although the conspiracy theorists think that it might.
Over the years, matters relating to the European Union have not commanded a great deal of attention in the United Kingdom, apart from, as we have seen in the case of this Bill, among a small group of assiduous hon. Members. With that in mind, we should consider what goes on not only in this House, but in society at large. I studied law in the United Kingdom between 1982 and 1984. That was 10 years after we joined the Common Market and the European Communities, which is now the European Union, but there was no mandatory education on the European Communities—there was a little bit in the course on the UK constitution. Ten years
after we joined, lawyers in training, as I then was, were not taught about the European Communities, despite the power of the European Court of Justice, which undoubtedly existed then—I am sure that the hon. Member for Stone would argue that it has grown in the ensuing years. Not enough attention was paid to the impact, much of which was positive, of the European Union in the United Kingdom, and that lack of attention to parliamentary procedures, which amendment No. 286 seeks to address, has continued. That is not to say that there is no attention, so perhaps “insufficient attention” is an accurate description.
If the Minister opposes amendment No. 286 tonight, I will be with him, because the wording is wrong and it includes one or two points with which I might take issue, but its general tenor and flavour are commendable.
Jon Trickett: My hon. Friend is making a thoughtful speech—hon. Members would expect me to say that, given that I tabled amendment No. 286—but I want to tempt him to take another small step towards us. In my earlier contribution, I referred to agency labour. Does he know either precisely or in general terms what the relevant Minister is negotiating behind closed doors in relation to the agency workers directive in Europe? If he does not know—I am sure that he does not know, because none of us really knows—would it not be a good idea for the Government to lay out their general position and allow it to be subject to scrutiny and debate in this House?
Rob Marris: Even I do not know the Government’s position. I say that because the Minister for Employment Relations and Postal Affairs, who is responsible for the matter, is my parliamentary neighbour and friend in addition to being my hon. Friend. I do not know the Government’s position, although I have discussed the matter with him and urged movement by the Government.
I do not want to bore the House, but I have difficulty with the word “mandate” in the amendment. However, I agree with my hon. Friend the Member for Hemsworth that we should know what is up for negotiation before the Minister goes to Brussels. We must clarify and tighten up the scrutiny of the legislature over the Executive both before such negotiations take place and, as amendment No. 286 states, after such negotiations have taken place, which would allow clear reporting to all hon. Members. That would allow us to keep an eye on what the Government are doing in the name of the legislature and in the name of our country.
Jo Swinson (East Dunbartonshire) (LD): It is always enjoyable to follow the hon. Member for Wolverhampton, South-West (Rob Marris). I feel like calling him my hon. Friend, because I spend more time with him than with some of my hon. Friends in the Chamber these days.
Rob Marris: I am here to support you.
Jo Swinson: I have hon. Friends with me today, which is welcome.
Parliament should be involved in the balance of decision making between the UK and the EU. Today, we must consider the details of Parliament’s role, including how many and which decisions should be addressed by
Parliament. At the same time, we should not impose a huge bureaucratic burden that stalls any kind of process both in this House and the EU. We also need to consider how Parliament should decide such matters. The discussion on how it should decide such matters will be addressed by the second group of amendments, so I do not intend to stray into that territory. Suffice to say, there is some merit in the suggestions about greater scrutiny. Indeed, the proposal on passing an Act of Parliament might allay the concerns expressed by various hon. Members that the Bill would give us weaker controls than are currently allowed for.
Many hon. Members have expressed concerns about the passerelle clause. In particular, the right hon. Members for Wells (Mr. Heathcoat-Amory) and for Chingford and Woodford Green (Mr. Duncan Smith) have warned us that the clause is not benign. They gave us the history of previous treaties on which it was stated that there would be parliamentary approval. Although I do not agree with the extent of their scare stories, I think that Parliament should have the right to decide. I therefore welcome the Government’s recognition of that point in clause 6(1)(a), which states:
“A Minister of the Crown may not vote in favour of or otherwise support a decision under any of the following unless Parliamentary approval has been given in accordance with this section”.
That is followed by a long list of the different areas to which that provision will apply. Some of those areas are sensitive, particularly clause 6(1)(c), which concerns
“Common and Foreign Security Policy”.
When parliamentary approval is sought in such cases in the future, it will be incumbent on Ministers to make a strong case as to why further moves to qualified majority voting would be appropriate.
I reiterate that, particularly in less sensitive areas, we do not want to create such a bureaucratic burden that progress is stalled within the European Union, although I suspect that that is the motivation behind some of the amendments. In particular, amendment No. 48, which was tabled by the right hon. Member for Wells, proposes that every decision in the Council should be subject to approval in this place. That is a recipe for paralysis, which some hon. Members may want to see, although I for one do not. Amendment No. 48 makes no sense, because it seeks to establish parliamentary approval for decisions that are currently subject to qualified majority voting. That would effectively reinstate the veto in those areas, which is clearly nonsense and would wreck the treaty.
Amendment No. 286 was tabled by the hon. Member for Hemsworth (Jon Trickett). I suspect that he and I have different views about the benefits of market liberalisation—I am not a fan of protection—but the provisions in his amendment on health services and social housing concern matters where we do not necessarily want European interference. However, we are in a single market, and when it comes to issues such as postal services and transport, we need to recognise that that can be beneficial. We do not want this House to second-guess every decision in those areas. The hon. Gentleman did not take my intervention. I wish he had—he was only too keen to take one from the hon. Member for Forest of Dean (Mr. Harper); I am not sure what that hon. Gentleman has that I do not. If the hon. Member for Hemsworth had taken my intervention, I would
have told him that, unlike some hon. Members, I do not think that we can blame the EU for what has happened to the Post Office in this country. He would be far better off if he directed his comments to his own Front Benchers and at their undermining of post offices through the scrapping of the pension book, the removal of Government services and the heavy-handed way in which they have been forcing benefit claimants to receive direct payments instead of using post offices.
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