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, by a majority of not less than two-thirds of those entitled to vote in each House.
(2A) No motion under subsection (2)(b) or (c) shall be made unless both the scrutiny reserve resolution of the House of Commons of 17th November 1998 and the scrutiny reserve resolution of the House of Lords of 6th December 1999 have been fully complied with..
Mr. Hague: One of the aspects of the treaty that has caused so much concern in the House and in the country is that it provides, deliberately and extensively, for its own amendment on a huge scale, without recourse to a further treaty. Once again, it is in this respect an almost exact copy of the EU constitution, with articles IV-444 and IV-445 of the old constitution becoming article 48 of the Lisbon treaty. This group of amendments is designed to provide for effective parliamentary scrutiny of any use in the future of those powers of potentially immense importance.
During these debates, it has become a regular refrain to point out that the Government are now trying to win acceptance for aspects of the treaty to which Ministers themselves were long and trenchantly opposed. The self-amending nature of the treaty is no exception to that. The 2003 Government White Paper referred to
A proposal for a Clause which would allow the European Council to vote by Unanimity to move any Treaty Article to QMV. We oppose anything that would undermine the role of National Parliaments in Treaty change.
And they were right to do so, because previous treaties, such as the Single European Act and the Maastricht, Amsterdam and Nice treaties, have only been amendable on any major scale through the passage of a later treaty, requiring a process of negotiation, publicity, media attention, parliamentary debates of a protracted nature and, in the case of this treaty, a commitment to a referendumalbeit a commitment that the Government seek to break.
Such changes have therefore occurred only periodically. They usually come as a package to be considered in the round and are difficult to bring about, as they should be, since they can change fundamentally the governance of the nation states of the European Union. The ability to make a change as important as moving from a requirement for unanimity to qualified majority voting in any given policy area has always been opposed by the Government. The Secretary of State for Justice, when he was Foreign Secretary, talked of the prospect that
late at night at an ordinary European Council, a decision on one other countrys milk quotas is traded for a concession on moving from Unanimity to QMV...that is not acceptable.
We think that a self-amending Constitutional Treaty does not make a lot of sense.
It will be clear to observers of our proceedings by now that this treaty is closer to being a list of things that the Government did not want than of those things that they favour, which is testimony to the abject failure of much of their negotiating effort. That could never be more clearly demonstrated than on this matter, where the self-amending provisions they agreed have ended up being agreed and spelled out in glorious detail in clause 6 of the Bill. These are the passerelle clausesor ratchet clauses, as they might be more accurately termedwhich allow the European Council in any area other than defence to move from decision making by unanimity to qualified majority voting, or from special legislative procedures to so-called ordinary legislative procedures, and all without any further treaty, let alone any consultation with the electorate.
Mr. Edward Davey (Kingston and Surbiton) (LD): We intend to support the right hon. Gentlemans amendment, because we believe that parliamentary control should be retained in those areas, but I am surprised by the way in which he is caricaturing the Governments position. As I understood it, the then Foreign Secretary told the Foreign Affairs Committee back in December 2003 that it was not necessary to have the whole panoply of an IGC to amend the treaties.
Mr. Hague: I am grateful for the hon. Gentlemans statement that he will be with us in trying to ensure that there can be proper parliamentary scrutiny in these areas. On his point about the Governments position in December 2003, I am not sure whether their position changed between November and December 2003. The quotations to which I referred were drawn from November and October 2003. It may be that the Government changed their mind at that time. Until then, or until some time a little after that, they had always opposed the creation of a self-amending treaty.
Let me remind the Committee what the treaty means by the ordinary legislative procedure. It means not just qualified majority voting but giving the European Commission the sole right to initiate legislation and the European Parliament a role of co-decision, which will mean that it will have equal rights to national Governments to amend or block EU law. The procedure maximises the role of the EUs central institutions in making EU legislation.
The care and thoroughness with which the passerelles have been inserted into the treaty tells us a great deal about the mindset of its drafters. No clearer signal could be given that in ratifying the treaty we are being invited to join a continuing process of a further reduction in the powers of nation states, exposing the assertions of the Prime Minister that the treaty marks the end of a period of institutional change. If he genuinely means that, that assessment is almost pathetically naive.
Mr. Cash: I very much endorse much of what my right hon. Friend has said[Hon. Members: All of it!] I said what I said. It is not always a question of what is said; it is sometimes about what is left out.
With respect to parliamentary approval, there are many instances where other member states have agreed to things by qualified majority voting with which we would not have agreed and have been through procedures
that amount to no more than decree. In other words, they have not scrutinised the stuff properly. Effectively, we are at the end of the line.
Mr. Hague: I endorse the whole of what my hon. Friend just said. He must not be too hard on me for missing some things out when I am only part way through my remarks. He may be able to endorse my whole speech by the time that I come to the end.
Mr. Brian Binley (Northampton, South) (Con): Before my right hon. Friend continues with his speech, which is excellent as usual, does he agree that the fact that not one Government Back Bencher is present is quite shameful?
Mr. Hague: Yes. We have just seen a split in the Labour partys ranks during the last Division and now we see the absence of its Members. Perhaps they have gone on to carry on their argument in the tea rooms and coffee houses of the Palace. I wish that they were back here to hear about the possible implications of the treaty that the Government have signed.
Mr. Hague: In the last vote, the Conservative party voted. We abstained on the previous vote, but then a commitment to vote on that subject was not part of our election manifesto. That is a point that the hon. Gentleman might wish to bear in mind when we come to the referendum debate tomorrow.
If the treaty were truly the end of a period of institutional change, as the Government have asserted and as the Minister asserted when he wound up the last debate, there would be no need to build into it the ready means to accomplish further change at any time. Although the Government have given the assurance provided for in clause 6 that the agreement of the British Government to the use of such powers will require the explicit approval of a motion in each House of Parliament, it is our contention that the seriousness and scale of what could happen if the ratchet clauses are exercised merits far more thorough parliamentary scrutiny at the time.
Let us take the briefest of looks at what might happen under those clauses. They involve, for instance, changing the general rule on the determination of the common and foreign security policy from unanimitythe Government have been at pains to stress their attachment to that procedure throughout the debatesto qualified majority voting. The implications of ever agreeing to do that would be colossal, as I think Ministers would be among the first to admit. It would mean that the independence of EU member states in foreign policy would effectively be at an end. No doubt Ministers would argue that, because of the declaration on foreign policy, our ability to conduct our own foreign policy had not been affected, but the fact that that declaration is wholly compatible with the abolition of national vetoes proves how well the European Scrutiny Committee was advised when it was told that the declaration was meaningless.
Sir Nicholas Winterton (Macclesfield) (Con): My right hon. Friend has been a high flyer since the beginning of his parliamentary career. Some of us have slogged it out on House Committees such as the Procedure Committee. Does he accept that the Government are bypassing not only the House but all its Committees, which have a duty to ensure that the House properly scrutinises matters of concern to our country?
Mr. Hague: My hon. Friend has had many moments of high flight in his parliamentary career, which has been much longer than mine, and perhaps his highest flights are yet to come. He is absolutely right, because the absence of a commitment to primary legislation when an agreement is made to move from unanimity to QMV cuts out the Committees of the House. Also, only a quick vote would be required, and it is not clear what the length of the debate would be45 minutes, one and a half hours or another length of timein which the House would sign off on such an important change.
As parliamentarians, we cannot think that it could ever be right to pass the treaty through Parliament, with or without a referendum, on the basis of explicit assurances from the Government about the general preservation of unanimity in foreign policy, and then for this or any future Government to seek agreement to surrender that crucial unanimity on the basis of a short debate on a single motion, without any substantial legislative process.
Mr. Cash: I was glad to hear my right hon. Friend agree with my hon. Friend the Member for Macclesfield (Sir Nicholas Winterton) on the scrutiny process. As he might have noticed, my amendment No. 61 would require any such motion to be operative only in the event that the scrutiny reserve resolution of both Houses had been complied with fully. Unfortunately, the Government frequently do not comply with that resolution fully, so a motion could be passed irrespective of the fact that the ESCs role under the Standing Orders and resolutions of the House had effectively been bypassed.
The evidence adds up that Parliament should be given a far greater say than the Government currently plan to give it. The Select Committee on Foreign Affairs made a recommendation on that point in paragraph 112 of its report, stating:
We conclude that the Governments confirmation that any movement of further Common Foreign and Security Policy decisions from unanimity to qualified majority voting under the passerelle procedure would be subject to a prior vote in Parliament...is welcome, although we recommend...that all Treaty changes are the subject of primary legislation.
Is there not another reason to support that amendment? If an Act of Parliament was required and had an implication for one of the devolved Administrations, a consent to legislate motion would be required in the Scottish Parliament, for example. Without
primary legislation, European law that had a direct impact on Scotland, Wales or Northern Ireland would be given no consideration.
Mr. Hague: I had not considered that point, which the hon. Gentleman makes powerfully. One need consider such matters for only 10 or 15 minutes to see how strong the case is and how innumerable are the points that can be made to show why we need primary legislation in this event.
I have given an example of what could happen in the area of foreign policy, but that is not the only provision for far-reaching change built into the treaty and explicitly provided for in the Bill. Talk of moving from a special legislative procedure to an ordinary legislative procedure may sound dry and technical, but that jargon disguisesdeliberately, one suspectsprovisions that would have profound effects on the way in which this country is governed and policed. The ratchet clause would allow the Government to agree on a mere motion of the House and a mere motion of the other place an end to national vetoes, with the sole right to proposed legislation belonging to the Commission, on various measures ranging from visas to passports, residence permits, family law, co-operation between police, customs and every other law enforcement agency and even, in article 89 on the treaty on the functioning of the EU, what rights police forces have to operate in other countries.
The notion that a quick debate and a snap vote at a time of the Governments choosing should suffice for scrutiny or comprise adequate debate on such matters is risible. There can be no grounds to trust Governments word that they would never sign up to any of those things. Time and again they have made promises that they would not hand over powers to Europe, particularly on justice and home affairs, and time and again they have done exactly that, not least through the treaty. They said that
we restate our agreement to justice and home affairs remaining outside Community competence[ Official Report, 16 December 1996; Vol. 287, c. 617.]
The Government agreed to put asylum and immigration under Community competence within months of coming to office at the Amsterdam negotiations, and the rest of it comes under Community competence in the treaty. They said:
We will insist that unanimity remain for...key areas of criminal procedural law.
Ms Gisela Stuart (Birmingham, Edgbaston) (Lab): I should have read the amendments more carefully, but I have not quite worked out whether they would cover approval by the House of primary legislation if we agreed to the office of European public prosecutor, which requires unanimity. I do not see in any of the amendments a requirement for such approval.
I believe that that issue was covered in the debate on the previous group of amendments. This group of amendments does not directly relate to that,
but it covers the general principle of primary legislation being required if the passerelles are employedsomething on which the hon. Lady has spoken in the House and, indeed, on which she has asked me to agree. I have responded to her request by moving the amendment.
We all know in the House that statements of policy can change. I remind the House of what the former Home Secretary, the right hon. Member for Airdrie and Shotts (John Reid), said when it was proposed just two years ago that the intergovernmental method on criminal justice and policing should be abolished after the constitution was rejected:
The constitutional treaty is no moreit is a diseased dead parrot.
He said there would be no attempt to revisit the issue, yet that exact proposal is part of the criminal justice and policing provisions of the treaty, which the Government now say they are fully behind. On the Governments record alone, it would be sheer folly for the House to give not just them but any future Government sweeping powers without the basic safeguard of requiring the proper rigour of primary legislation. Anything less would be a dereliction of the Houses duty to hold the Government to account.
Mr. Cash: Implicit in clause 6 is a provision whereby QMV could follow parliamentary approval. In those circumstances, it would be a matter of European law enforceable under the European Communities Act 1972. Does my right hon. Friend accept that the Act of Parliament that he proposes must of necessity override the 1972 Act; otherwise we would effectively be bound by the provisions of that Act unless they were reversed?
Mr. Hague: My hon. Friend is pursuing a familiar argument, which was advanced during the consideration of a previous group of amendments. We all understand and respect that argument, but I hope that he will permit me to make the particular case about the need for primary legislation.
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