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On the surface, that seems clear, but it is meretricious. No treaty transfers competence away from Parliament; Parliament always remains sovereign. We could, if we chose to do so as a Parliament, repeal the European Communities Act 1972 tomorrow. [Interruption.] I note that two Members said that that would be a good idea.

Mr. Cox: What does the European Court of Justice mean when it describes something, as it has done in hundreds of its judgments, as being within the exclusive competence or jurisdiction of the European institutions?

Chris Bryant: The hon. and learned Gentleman knows perfectly well, though he was wholly inaccurate in his understanding of the process of treaty change when he spoke earlier. He knows that there are areas where we have decided that we will share our sovereignty with other countries in the European Union. If, however, we chose to do so, we could decide to leave the European Union and that would no longer apply. As a result of the Lisbon treaty, there is a process for leaving the European Union, which did not exist before. [Interruption.] I note that the hon. Member for Shipley (Philip Davies) said, "Hear, hear." Of course.

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Mr. Cash: The Minister has complete and total belief in the European Union and the European Court as they stand and in their functions, in section 3 of the European Communities Act 1972, and in the primacy declaration to which I referred. As the Minister for Europe in the Foreign and Commonwealth Office, does he deny the assertion by the European Court as set out in the Handelsgesellschaft, the Costa and the Van Gend en Loos cases, which he knows perfectly well as he is a very competent Minister? The European Court asserts its control and jurisdiction over the constitution of this country and therefore its Parliament, as well as the laws and law-making. Does the Minister deny it?

Chris Bryant: Yes, I wholeheartedly deny that the European Court of Justice has the power to determine every one of our laws. That is simply not true. Sovereignty remains with Parliament because we have the right, if we want to, to leave the European Union.

What is more, although there is a clear definition of "treaty" in the Bill, the definition of what constitutes competences that the hon. Member for Rayleigh provides in his proposed new clause 68, is incompetent. It confuses the concept of competence with jurisdiction and invents three wholly new legal concepts-supplementary jurisdiction, shared jurisdiction and exclusive jurisdiction, none of which exists in UK or European Community law. Moreover, the word "jurisdiction" is understandable in the context of the European Court of Justice, but not in the context of the objectives and powers of the EU. His proposal therefore falls at the first hurdle.

Nor is there a definition in any of the amendments of the "transference of competences". As a result, as several hon. Members have made clear today, the law would be wholly uncertain about when a referendum would be triggered. Indeed, as a parenthesis, I would add that the new clause refers to the transfer of "competences", in the plural, so would there not have to be a referendum if a single competence was being transferred? What counts as a singular competence, and when would there have to be a referendum?

Let us not look at hypothetical examples; instead, let us examine real treaties that have already been through the system. Would there have to have been a referendum for the instrument amending the convention for the establishment of the European Radiocommunications Office, which was laid before Parliament under the Ponsonby rule in December 2002? The hon. Member for Rayleigh is looking remarkably empty-headed. The instrument limited the UK's power to act and it created a new European body. Would it require a referendum? The hon. Gentleman does not know.

Would there have to have been a referendum on the protocol established in accordance with article 34 of the treaty on European Union, amending, as regards the creation of a customs files identification database, the convention on the use of information technology for customs purposes? That created new powers elsewhere and took them away from this country but, again, we get an empty face from the hon. Member for Rayleigh.

What about the several stabilisation and association agreements between EU member states? What about the accession treaties? The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) said he believed that every European treaty that he had been involved with, presumably including all the accession treaties, should have been subject to a referendum.

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Mr. Hogg: I was in fact referring to the major treaties that I was associated with, namely those arising from the Maastricht talks and the Single European Act. The Minister will recall that I specified them both.

Chris Bryant: The point is that the right hon. and learned Gentleman is starting to use the word "major", and others have used the word "substantial", but neither word appears in the amendments moved rather incompetently by the hon. Member for Rayleigh.

Mr. Cash: I shall answer the Minister very simply. This is a sovereign Parliament-that is his and his Government's argument. If this sovereign Parliament decides that it wants to be able to revisit anything arising from the European Communities Act 1972, he concedes-does he not?-that we could do so, in accordance with our constitutional law.

Chris Bryant indicated assent.

Mr. Cash: If that is the case, it follows that all the precedents that he has just posed can be revisited, as a matter of political and constitutional will. However, only when such a thing is proposed-which his Government will not do-will we be in a position to revisit them. The Opposition propose that these matters should be dealt with in that way, but the Government are simply running away from questions to do with the sovereignty of Parliament.

Chris Bryant: No. Indeed, the point I am about to make is entirely to do with the sovereignty of Parliament. I still want to ask the hon. Member for Rayleigh whether he conjectures that his amendment would require a referendum on a treaty amending the number of Members of the European Parliament, or determining how additional Members are appointed. Does he, or does he not? Perhaps he will respond later in the debate.

The danger, I believe, is twofold. First, these amendments would undermine the sovereignty of Parliament, as the uncertainty in the drafting would have to be clarified by nobody other than the courts. I notice that several lawyers have spoken in favour of the amendments-perhaps they are seeking more business.

Mr. Cox: On a point of order, Mrs. Heal. It cannot be appropriate for the Minister to descend to such an undignified submission about Opposition Members. It must be wrong to suggest that there is a conflict of interest in that respect.

The First Deputy Chairman: Order. The Minister may wish to reconsider his words, but I think that he said what he did in a rather light-hearted way at the end of the debate.

Chris Bryant: The right hon. and learned Gentleman knows perfectly well-

Mr. Cox: Not "right honourable".

Chris Bryant: No, indeed; just learned, not right. The hon. and learned Gentleman knows perfectly well how the comment was intended. However, the point is serious: it would be the courts, not Parliament, that decided whether there was a referendum; Parliament would
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have ceded its right to decide. By contrast, I believe that what constitutes enough of a treaty to require a referendum is a political decision for Parliament, so the amendments are unnecessary and wrong.

If the proposal became law under a Tory Government, that Government would be wholly in hock to their anaphylactically Eurosceptic tendency, with internal rows about what did or did not require a referendum. I can just hear the hon. Members for Stone and for Shipley (Philip Davies) condemning their Government for not holding a referendum on the slightest treaty that comes around.

The amendments are not just impracticable, but wrong. It is the job of Parliament to scrutinise Government, and that includes the treaties that they sign. That is why, for future EU treaties, we have strengthened Parliament's power, putting in place a statutory obligation that the Government will be able to ratify a future EU amending treaty, regardless of its effect, only if the treaty has been approved by an Act of Parliament, as set out in section 5 of the European Union (Amendment) Act 2008. It is also why, for other treaties, the Bill puts on a formal footing the 1924 Ponsonby rule.

I believe it is right that the power remains with Parliament, and that also happens to be the view of Parliament. On 5 March 2008, during the passage of legislation on the Lisbon treaty, the House voted on an amendment proposing a referendum. That amendment was defeated by 311 votes to 248, a majority of 63. It was not just the House of Commons that defeated it, however: on 11 June 2008, the House of Lords also voted against a referendum on the Lisbon treaty, by 280 votes to 218, a majority of 62.

Even if I did support the use of referendums for the ratification of treaties, I would not want to cede to the courts the powers to decide when a referendum should be held and what circumstances should apply, but that is what the amendments would do.

Philip Davies (Shipley) (Con): What mechanism does the Minister envisage to deal with the problem of political parties that promise a referendum before a general election, and then, after the public have in good faith voted them in on that basis, change their mind in a rather shoddy manner?

Chris Bryant: If the hon. Gentleman wants to talk about shoddiness, he can talk to the leader of his own party. He can talk about his leader's cast-iron guarantee and demand the right hon. Gentleman's apology at a meeting of the 1922 Committee.

The amendments show not just a fatal inability to draft decent legislation, but an Opposition who have a wholly dangerous degree of Euro-fundamentalism at their heart. Why have the Opposition insisted on only European treaties being subject to a referendum? Why have they not included any treaty that limits-albeit voluntarily-the UK's power to act? Why not, for instance, include a referendum on the UK-US extradition treaty? Why not include treaties on reform of the International Monetary Fund or the United Nations? Why not include a referendum on any climate change treaty that comes about later this year? The trouble is that there is no principle to the Conservatives' position; if there is, it is
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one of swivel-eyed, obsessive Pavlovian, dogmatic and fundamentalist objection to anything that even mentions the European Union.

This group of proposed changes, including the new clause that the hon. Member for Rayleigh tabled, seeks to do one thing and one thing only: to appease the Conservative Back Benchers and the Eurosceptic wing of the Tory party. It has nothing to do with good governance or sensible policy making. It is the Leader of the Opposition's way of saying sorry to the likes of the hon. Member for Stone-sorry for abandoning the cast-iron guarantee. Sadly, the right hon. Member for Witney (Mr. Cameron) has not even the grace to blush.

There is a narrow calculation in the proposals. There was a calculation that, by showing a little bit of Eurosceptic leg, the right hon. Gentleman would secure the leadership of his party; there was a calculation that, by opting out of the largest grouping in the European Parliament, he would avoid the fate of his predecessor; and there is a calculation now that, if he offers a so-called referendum lock, his Back Benchers will not demand a referendum on him for abandoning his cast-iron guarantee. The trouble is that he is now left with an unworkable policy and a bunch of allies in Europe who consign him to the extremist margins. He is undermining the national interest.

These amendments would subject Parliament to the courts, subcontract out our governance to the lawyers, and fatally, abjectly and ludicrously undermine the sovereignty of Parliament, and I oppose the whole lot of them.

9.30 pm

Mr. Francois: I have heard a number of winding-up speeches by Government Ministers in the time I have been in this House, but tonight the only person who was being wound up was the Minister himself. That was not a summary of the Government's position-it was an incoherent rant. Nevertheless, let me do my best to reply to the debate.

This has been an enlightening debate, not least because it has highlighted the clear reluctance of the Government and Liberal Democrats to back the introduction of a referendum lock on future treaties that pass powers from Britain to the European Union. If such a power were on the statute book, it could strengthen the hand of a future British Minister in negotiations with our European partners, because it could be cited in those negotiations and all our European partners would be aware of it. It would strengthen the hand of a future Government in dealing with our partners in the EU; perhaps that is one of the reasons why some of the other parties in this House are so reluctant to see it introduced.

My hon. and learned Friend the Member for Torridge and West Devon (Mr. Cox) made a robust and, in many ways, very witty speech in defence of our amendment. Several of the points that he made were unanswered by the Minister in his summing-up rant, so let me put a few points to the Minister. Of course, several of these treaties have transferred competences from this Parliament to the European Union. He knows full well that the effect of those treaties was to do that; to attempt to deny it, as he did in the opening sentences of his rant, was completely and utterly fallacious. He knows full well that those powers were potentially transferred from
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here to the EU, and he should not attempt to deny it in the same way that the Government constantly attempted to downplay it when we had the debates on the Lisbon treaty.

The Minister put some questions to me. No, we would not propose to have a referendum on the establishment of a radio communications agency, any more than we would propose to have one on the establishment of an open-plan office, as the previous Prime Minister once put it when he was trying to explain away the Lisbon treaty as something that no one should be in the least bit concerned about. Our referendum lock would not automatically mean that there was always a referendum on an accession treaty-that would depend on whether the treaty included the transfer of further powers from Britain to the EU. However, if this referendum lock had been on the statute book at the time of the Nice treaty or the Amsterdam treaty, it would have guaranteed that the British people were asked to give their consent, or not, in a referendum. If it had been on the statute book at the time of the Lisbon treaty, it would have guaranteed that the British people had a chance to indicate their support, or not, in a referendum. That is the kind of amendment that we are talking about, and it utterly undermines the Government's case to try to belittle it because they are desperate to find a reason for people not to vote for it in the Lobby tonight.

Philip Davies: I agree wholeheartedly with what my hon. Friend says. Does he agree that Labour Members are so wound up in their opposition to his proposal because on these matters they are petrified of the verdict of the British people?

Mr. Francois: It is a pleasure to agree with my hon. Friend in a European debate. He is absolutely right. Labour Members are very worried about the verdict of the British electorate, partly because of the way they have behaved over the Lisbon treaty. We shall get to the general election and see how the people judge them then.

We then heard criticism from the Liberal Democrat spokesman, the hon. Member for Kingston and Surbiton (Mr. Davey), who said that our position was not sufficiently clear and attempted to contrast it with what he believed was the clarity provided on these matters by the Liberal Democrats. Let me summarise their position throughout the whole Lisbon process. When we debated it in this House, the Liberals argued again and again that they wanted an in-out referendum on membership of the European Union. They organised a contrived sixth-form walk-out to try to get a vote on that matter, and then when it actually came to the vote on whether we should have a referendum on the Lisbon treaty, which they had promised in their manifesto, they abstained.

Moving on to the other place, the saga continued. We should bear it in mind that the Liberals had abstained on a referendum on Lisbon in this House, despite their manifesto promise. When it fell to their peers to echo the work of their colleagues in this House and they had a vote on a referendum on Lisbon, they voted against it. They then had an opportunity to vote on an amendment on whether to have an in-out referendum, which the Liberal Democrats in this House had spent weeks and weeks trying every possible device in the depths of "Erskine May" to bring about a vote on. They had been
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desperate in the Commons to have a vote on an in-out referendum, but when the issue got to the Lords they voted against it. And yet the hon. Member for Kingston and Surbiton has the brass neck to come to the House this evening and say that we are unclear and inconsistent. What a remarkable way to conduct parliamentary debate. The Liberal Democrats have been completely inconsistent, and I reiterate that if they had supported us at the time of the debates on the Lisbon treaty, there were enough potential Labour rebels to give the people of this country the referendum that they had been promised all along. We know it, he knows it, his colleagues behind him know it and the Government know it too. I say to him, please do not ever come back here and lecture us on votes on a referendum.

Mr. Cash: Will my hon. Friend give way?

Mr. Francois: I could not have a summing-up speech without giving way to my hon. Friend. Just for a moment I thought so, but no.

Mr. Cash: May I invite my hon. Friend, in his marvellous attack on the Liberal Democrats, not to leave out the Government for their complete refusal to have a referendum on the constitutional treaty and its twin, the Lisbon treaty, when they had the opportunity to do so?

Mr. Francois: In fairness, all the way through the Lisbon treaty debates I was not normally accused of letting the Government off the hook, but nevertheless I entirely endorse my hon. Friend's point.

I hope that even at the last minute, the Government and the Liberals might decide to join us in the Lobby to help to put right at least part of the damage that was done to public trust by the Lisbon treaty process. We have to acknowledge that that took place and that we are not having this debate in a vacuum. I reiterate that if the Government and the Liberal Democrats seek in a few minutes to deny the British people their say on any future treaties that transfer power from Britain to the EU, in response we will ask the British people for a mandate at the forthcoming general election to pass such a referendum lock into the law of this country. I hope that they will yet recant and support us, but we need now to test the will of the House. If that does not work because of Labour and the Liberals, we will test the will of the British people instead.

Question put, That the amendment be made.

The Committee proceeded to a Division.

The Second Deputy Chairman of Ways and Means (Sir Michael Lord): I ask the Serjeant at Arms to investigate the delay in the Aye Lobby.

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