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9.15 pm

In order to show the Committee the importance of the issue, I want to provide one more instance in which those powers could be used. Article 312 of the consolidated treaty, which concerns the need for unanimity in adopting the multi-annual financial framework of the Union, is another instance in which the passerelle could be employed by providing for that unanimity to be replaced by qualified majority voting. The adoption of the financial framework of the European Union goes to the heart of its priorities and budgets, and the unanimity rule in negotiating the financial framework is one of the last remaining negotiating levers of substantial power in the hands of nation states. Are the Government serious that such a power, which potentially affects the deployment of billions of pounds of British taxpayers’ money, let alone our ability to get our way in European affairs across the board, can be done away with by a Minister getting up in this House on a Thursday afternoon to propose that it be done away with and securing a single affirmative vote? The procedure proposed by the Government is not remotely proportionate to the potential importance of the decisions.

The Government may say that they cannot imagine proposing the changes that I have described, so we need not worry our little heads about them. There are
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several answers to that. First, if the Government have no intention of proposing such changes, they have nothing to fear from the most extensive possible parliamentary scrutiny or control and the requirement to pass an Act of Parliament. Secondly, the current Ministers will not be Ministers for ever, and if they are to be believed, the treaty is meant to last for a long time. Thirdly, whatever assurances Ministers give, they represent the Government who assured us that there would be a referendum and that there would be line-by-line scrutiny of the entire treaty. It is clear that such assurances cannot be relied on. Fourthly, if the Government have no intention of exercising the powers that I have described, why on earth did they agree to include them in the treaty in the first place?

I put it to hon. Members from all parties, although there are more Opposition Members than Government Members in Committee, that irrespective of our views about the merits of the treaty as a whole—I am pleased that there is common ground with the Liberal Democrats on this—amendment of the Bill is possible in this area without wrecking the treaty. It is possible to provide for proper parliamentary debate and supervision of the exercise of powers by providing that passerelles or ratchet clauses will be subject to primary legislation in the British Parliament.

Sir Patrick Cormack (South Staffordshire) (Con): Will my right hon. Friend remind himself and the Committee that this Government introduced deferred voting, which involves filling in little forms? The next step will be deciding matters of enormous importance on a Wednesday afternoon by filling in bits of paper.

Mr. Hague: My hon. Friend has made a good point. Under the terms of the Bill as drafted, there might be a short debate late on a Tuesday night or Thursday afternoon. In that case, the rules of the House provide that the motion should be decided by a deferred Division, in which case the House of Commons, as a body, would not even be sitting here attentive to the debate when such matters went through. Once again, the case for primary legislation involving a series of debates and votes in this House and in Committee is clear.

The changes that could conceivably be brought about under those passerelle rules are potentially as important as the changes currently contained in the treaty. If they were exercised, it would breach the assurances given by Ministers during the passage of the Bill. If they or their successors abandon those assurances, they should at least have to pass another Bill to the satisfaction of both Houses of Parliament. I put it to the Committee that for decades the amendment of European treaties, whether provided for in the Single European Act, the Maastricht treaty, the Amsterdam treaty, the Nice treaty or this treaty has been a matter for primary legislation. To allow the amendment of such treaties, possibly on a considerable scale, without recourse to primary legislation is a further diminution in the role of Parliament and its power to control the Executive of the day.

Sir Nicholas Winterton: I shall be delighted to continue to listen to my right hon. Friend because he is making a lot of sense. Is not the situation made worse by the fact that how the European Community spends its money has never been fully accepted, passed and audited by
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those who undertake that important responsibility? How can we trust the European Union and the Government who now want to take more power and responsibility away from this place and give it to an irresponsible, profligate organisation?

Mr. Hague: With his customary passion, my hon. Friend makes a point relevant to the multi-annual financial framework, to which I referred a few moments ago. If we are ever to satisfy ourselves that the money spent by the European Union is properly audited and accounted for in future—and my hon. Friend will know that the Commission’s accounts have not been signed off by the auditors for many, many years—

Sir Nicholas Winterton: For 13 years.

Mr. Hague: Thank you. If we are ever to sort that out, the British Government will be required to use their negotiating power—and negotiating power in the financial affairs of the European Union stems from the unanimity rule in agreeing the multi-annual financial framework. Yet now it turns out that that rule could be done away with for ever and a day by the Government coming to the House, holding one of those short debates late on a Tuesday and having a deferred Division on a Wednesday. That would be the only scrutiny of the decision that the House would ever have.

Bob Spink (Castle Point) (Con): Will my right hon. Friend confirm that the auditors have failed to sign off the accounts for 13 consecutive years not because of some minor issues but, as they themselves said, because of major problems in all the key spending areas?

Mr. Hague: I do not want to stray too far from the amendments, Sir Michael, but my hon. Friend is absolutely correct.

Mr. Geoffrey Clifton-Brown (Cotswold) (Con): My right hon. Friend has made a cogent case. These are indeed very serious clauses. Can he envisage a situation in which all the Government had to do was pass a one-clause treaty of Lisbon (miscellaneous provisions) Bill, all of whose provisions were dealt with by secondary legislation upstairs for an hour and a half? Given their majority, the Government would always get their way. Would that not be an even worse scenario?

Sir Nicholas Winterton: It could not be worse.

Mr. Hague: It is possible for the scenario to become even worse, although my hon. Friend the Member for Macclesfield (Sir Nicholas Winterton) says that it could not. One can imagine the further delegation of the powers, to make matters worse still. Again, the requirement for a Bill to be presented to the House and have its Second Reading on the Floor of the House, whatever happens to it afterwards—whether it goes to a Committee of the whole House or elsewhere—is a strong one that parliamentarians across the House would like to see.

The Prime Minister has assured the nation that the treaty of Lisbon means an end to institutional change in the European Union. If it turns out that it does not mean that, surely the abandonment of such an assurance should be subject to the maximum parliamentary scrutiny.
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In effect, the Government are asking us to trust them that the use of the passerelles will be limited and that they will provide for adequate parliamentary debate on the basis merely of a motion. Yet after all the broken promises that have characterised the very process in which we are now engaged, they must understand that trust is in very short supply.

Parliament should ensure that its right to decide on the amendment of treaties is preserved in full; it should insist that changes comparable to those that have always required primary legislation should continue to require primary legislation. It would cost the Government nothing to accept these amendments this evening; if they refuse to do so, it would cost the House nothing—whether we are for or against the treaty—to insist on passing them.

Mr. Davey: It is a pleasure, for once during our proceedings, to agree almost entirely with what the right hon. Member for Richmond, Yorks (Mr. Hague) said. Like the hon. Member for Stone (Mr. Cash), I agreed with much of what the right hon. Gentleman said.

The amendments are incredibly important, because they go to the heart of the democratic accountability of decision making. Unlike the right hon. Member for Richmond, Yorks and many of his hon. Friends, I believe that the European Union allows for a lot of accountability through the European Parliament and the scrutiny of the Council of Ministers—once this House has taken decisions in the proper way through a proper primary legislative process. That is fundamental, and if anything, the right hon. Gentleman underplayed his points.

Many of the policy areas contained in the passerelles referred to in clause 6 go way beyond the treaties of Lisbon, Nice or Amsterdam. They are exceedingly significant. The idea that we might have qualified majority voting on common and foreign security policy is exceedingly serious. The idea that such a change could happen through a mere motion in the House is extraordinary. Moreover, the idea that the control of budgets through the multi-annual financial framework, which the right hon. Gentleman described in some detail, could move from unanimity to qualified majority voting through a mere motion of both Houses is absurd.

The House does an appalling job on finances already. When I was a member of my party’s shadow Treasury team, I often used to say that I would love it if we had parliamentary sovereignty over the way in which the Executive spend money. Indeed, I wrote a pamphlet in 2000 entitled, “Making MPs Work for Our Money”. In that pamphlet—it is a cure for insomnia, I readily accept—I point out that the last time the House voted against an expenditure request from the Executive of the day was in 1919. Since 1919, every expenditure request from the British Executive, whatever party has been in control, has been nodded through. This Parliament, this House of Commons, has given up control of expenditure by the Executive of the day, and we should reform that process. I was delighted to sit on the Procedure Committee, which was excellently chaired by the hon. Member for Macclesfield (Sir Nicholas Winterton), when we made those points about financial scrutiny.

If the House is already so poor on this matter, we should not allow the small, remaining powers that we have, which are more related to the European Union’s budget than that of the UK Government—that is how
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ridiculous this situation has got—to move to qualified majority voting at the European level without an Act of Parliament. Given that Parliament is so weak on such financial affairs already, it would be a mistake to give up those powers without the controls proposed, particularly in amendment No. 20. I am glad to hear that the right hon. Gentleman wants that to be the amendment that we divide on.

I often have to read the right hon. Gentleman’s speeches; I am sure that I have read more of his speeches than he has of mine because he has a rather illustrious— [ Interruption. ] I am sure that they have more jokes. I read a speech that he made at the last Conservative party conference in which he said clearly that there should not be any further European treaties without a referendum being held first. If I am misquoting or in any way misrepresenting him, I hope that he will intervene. As I understand it, his position is that there should be a referendum on any European treaty in the future.

Mr. Hague: The position of the Conservative party that I explained at the party conference was that there should be no further treaties that transfer new competences to the European Union without a national referendum.

Mr. Davey: I am grateful for that clarification, which describes a significant difference. Moving from unanimity to qualified majority voting is not a transfer of competence, so the point that I was about to make is not quite valid. I had been wondering whether the right hon. Gentleman should call not for Acts of Parliament but for referendums on such issues, but I shall withdraw the point.

9.30 pm

Amendments Nos. 50 and 41, which the right hon. Member for Wells (Mr. Heathcoat-Amory) tabled, are similar to amendments Nos. 19 and 20. Of the four, amendment No. 20 is by far the clearest and goes to the heart of the matter. The hon. Member for Stone tabled amendments Nos. 60 and 61; he will doubtless speak about them, and perhaps I will intervene on him. It is slightly ironic that he wishes the House to move to qualified majority voting, given his stance on QMV at European Union level. I will not say much about his amendments because I want to hear his arguments. However, Parliaments in the EU countries that currently use QMV for constitutional changes or changes in their relationship with the EU are elected by proportional representation. Clearly, that creates a different dynamic in their legislatures.

Mr. Cash: The hon. Gentleman is in danger of confusing himself. Amendment No. 60 does not propose qualified majority voting in the sense that it is used in the treaty. He can describe my two-thirds proposal as QMV, but it is not that in the United States Senate and Congress. The two-thirds provision derives from the United States and it is simply a gesture of despair, given that the motion would otherwise be whipped through under the normal arrangements. However, I shall explain that when I make my speech.

Mr. Davey: We could hold a long debate about different names—super majorities, qualified majority voting and so on—but the point has been made. It is interesting that the hon. Gentleman takes the proposal
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from America, where the system of government is different, with the separation of powers. However, I am not attracted to his amendments. I will listen to his speech, but on the face of it, I am not attracted to them.

Amendment No. 20 is the right way forward. I hope that the Government are listening to the debate and that there will be some contributions from the Labour Benches. The hon. Member for Birmingham, Edgbaston (Ms Stuart) and I have already clashed during our proceedings, but I believe that we are as one on the subject that we are considering because it is extraordinary that we could amend treaties without a proper primary legislative process.

Ms Gisela Stuart: I am beginning to wonder whether I am right as I agree with the hon. Member for Kingston and Surbiton (Mr. Davey), which almost causes me to reconsider.

I want to make a couple of brief points about the importance of amendment No. 20. Passerelle clauses and ratcheting are the essence of what many people in European politics think of as organic law. Through such provisions, one reaches the position whereby the European Union can create its own competences. Most countries with written constitutions have protection from their constitutional courts; certain things cannot be done because their written constitutions do not allow it. We do not have such protection and that is why we need additional safeguards. Using primary legislation for any further extension of qualified majority voting would be one such protection.

I am interested to learn whether anybody knows whether votes in Special Standing Committees on European Affairs have ever changed a Government proposal.

Mr. Cash: The short answer is that, on one or two occasions, after recommendations from the European Scrutiny Committee, a matter has gone to a European Standing Committee, which has reversed a decision. I have been there—egging the members on, as hon. Members can imagine. However, under sections 2 and 3 of the European Communities Act 1972, the Committee’s decision is automatically, without further ado, reversed on the Floor of the House. The House appears to be supine on overriding the 1972 Act.

Ms Stuart: I am grateful for that, but I think that we all agree that the House is not very effective in holding the Executive to account in respect of actions in the Union, and that is the case even on policy. When it comes to institutional changes, the issue is even more important.

Sir Nicholas Winterton: Does the hon. Lady not accept that the answer that my hon. Friend the Member for Stone (Mr. Cash) gave to her question is no? No Special Standing Committee has ever changed the legislation that it has considered, because the Government hold a majority on the Floor of the House.

Ms Stuart: That is very much my take. Most Governments can get their way and will even whip primary legislation through—that is the essence of how this place works. However, both Chambers will be required to consider any proposals properly, so primary legislation must be the way forward, as the Foreign Affairs Committee recommended.


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The other point, which may seem slightly bizarre, is that many people see the continuous move towards qualified majority voting as progress. However, unless we retain unanimity in certain areas, we will become part of what I would regard as a federal state. If anyone asked me how I would define federalism, I would say that it means that on all occasions the majority can overrule the minority. We still have a few key areas, such as finance and defence, but with devolution in Wales, Scotland, Northern Ireland and even London, as well as what is going to Brussels, this place may ultimately end up doing nothing other than raise taxes and authorise war. Those are two significant areas, but if there was any further erosion, there would have to be primary legislation at a minimum. Therefore, although I will probably again be a member of an eccentric minority on the Labour Benches, I will certainly support amendment No. 20.

Mr. Cash: My right hon. Friend the Member for Richmond, Yorks (Mr. Hague) has made some extremely important points and I am glad to be able to give somewhat qualified support for the proposal in amendment No. 20.

Mr. Simon Burns (West Chelmsford) (Con): Be generous!

Mr. Cash: My hon. Friend, the Whip on duty, may say that, but it is extremely difficult to be generous with the rights of our constituents and the voters of this country. In essence, that is one of my concerns.

With respect to subsection (2), which is what we are talking about, I would like to add a number of things to what my right hon. Friend said. Where a Minister of the Crown moves a motion under the arrangements proposed, there is a difficulty—I speak as a member of the European Scrutiny Committee, on which you served with me for 14 years, Sir Alan, so you understand this very well—in that where a scrutiny reserve has not been complied with, it is perfectly possible that the cart and the horse are not in the order which one would expect.

The net result is that it is possible that parliamentary approval could be followed by a decision, particularly in the context of qualified majority voting in the Council of Ministers. Where that happens, such a decision automatically becomes binding on the House, without further implementation in the House, under sections 2 and 3 of the European Communities Act 1972. In no way do I apologise for, or resile from, my insistence upon the necessity of saving our House, this country and Acts of Parliament by the insertion of the words “notwithstanding the European Communities Act 1972”, in order, apart from anything else, to make sense of the amendment that my right hon. Friend has moved.


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