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On control orders, the measures that we are going to introduce will be significantly different from the control order regime that the right hon. Lady's Government introduced. She talked about a curfew, but under the
current regime, a curfew of 16 hours is possible, with little or no flexibility. Our proposals for the requirement for an overnight residency or stay represent a significant reduction on that, and offer increased flexibility for the individuals involved. We are changing the regime so that there will be a two-year limit on the operation of a control order on any one individual. The right hon. Lady asked about people who are currently on control orders. As I made clear in my statement, the current control order regime will be extended until the end of the year.
The right hon. Lady said that she supported the greater use of surveillance, which is part of the package that I have announced. I welcome her support. I am sure that we are all of one mind in wanting to ensure that we can prosecute people and bring them to justice. Obviously, we will make every effort to ensure that people on the new measures are constantly looked at in regard to bringing prosecutions. She also asked about resources. There will be new money available to the Security Service and the police over the comprehensive spending review period, but it is a well-known practice that we do not identify individual sums of money allocated for Security Service purposes.
Finally, the right hon. Lady made quite a lot of the fact that she thought there was a problem with the process that had been undertaken. I have to say to her that she was a member of a Government who tried to introduce first 90 days pre-charge detention, then 60 days, then 42 days before finally settling on 28 days, so I will take no lessons from her on process.
Mr Speaker: Order. This is an extremely important matter and a great many right hon. and hon. Members understandably wish to question the Home Secretary about it. However, there is also important business to follow, and therefore considerable pressure on time. Brevity in questions and answers alike is therefore imperative, a fine example of which can now be provided by Sir Menzies Campbell.
Sir Menzies Campbell (North East Fife) (LD): May I remind the Home Secretary that it was a Labour Home Secretary, Roy Jenkins, who put through emergency legislation in relation to terrorism in Northern Ireland in the course of one parliamentary day, demonstrating that, if there is consensus, a way can be found to legislate? May I also say to her that, in this finely balanced package-particularly in relation to control orders-she provides a welcome alternative to, and relief from, what often seemed to be the unbridled authoritarianism of the previous Government? Does she further understand that she strikes a particularly welcome note in continuing to pursue the possibility of intercept evidence, and in her emphasis on surveillance, investigation and prosecution?
Mrs May: I thank my right hon. and learned Friend for his contribution. I am particularly grateful to him for pointing out, from his experience, that it is perfectly possible to pass legislation in one parliamentary day, as did a Labour Home Secretary. Of course, the crucial factor then was consensus across the House, and I hope that we shall be able to achieve that again, should it be necessary to bring forward the emergency legislation to which I referred in my statement.
My right hon. and learned Friend also reminds us that is has been important for the coalition Government to ensure that we rebalance the needs of our national security with our civil liberties. I was disappointed that the shadow Home Secretary made no attempt to apologise for the way in which the previous Labour Government infringed people's civil liberties.
Mr David Blunkett (Sheffield, Brightside and Hillsborough) (Lab): May I sympathise with the Home Secretary in having to balance the protection of the British people with the political embarrassment of the Deputy Prime Minister? As she has already said, we all agree that prosecution and conviction would be preferred in cases where conspiracy to commit terrorist acts, or the preparation of such acts, are the issue. Will she therefore consider one more attempt to approach the senior judiciary and the legal profession to get agreement to change the rules on disclosure and admissibility of evidence, so that we can use due process through the courts in difficult circumstances such as those of the man known as AM who is being held on a control order? He has declared that he wishes to take his own life, and thereby the life of the British people. The consequence of that would be that we could not prosecute or convict him, because he would be dead.
Mrs May: I note the points that the right hon. Gentleman has made. On the issue of the admissibility of evidence in court, the Government will produce a Green Paper later this year-some time in the summer-that will deal with the whole question of the use of closed evidence in legal proceedings. I am sure that the right hon. Gentleman will look forward to that with great interest. On his first point, I merely say that both parties in the coalition Government went into the election absolutely committed to the need to rebalance our national security and our civil liberties. The package I have announced today does just that.
Mr David Davis (Haltemprice and Howden) (Con): I welcome unreservedly the Home Secretary's comments on the reduction of detention without charge, the curbing of the misuse of section 44 stop-and-search powers and, indeed, the reduction in local authority surveillance. On the contentious issue of control orders, she knows as well as I do that these have acted as a recruiting sergeant for terrorism. Indeed, as Lord Macdonald said in his report:
"The evidence obtained by the Review has plainly demonstrated that the... control order regime acts as an impediment to prosecution."
Can she therefore tell the House why she did not accept the proposal put to her of using police bail, which would have given her all the control she currently has-but within the judicial system rather than in denial of it?
Mrs May:
I think that my right hon. Friend is aware that there are certain aspects of this on which he and I take a different view. I welcome his support for a number of the measures we have introduced today. On the issue of the impact of control orders, the aspects of the counter-terrorism legislation that led to most concern among communities were the 28 days pre-charge detention and the use of section 44 stop-and-search powers. In fact, it was the stop-and-search powers that many people in communities up and down country were most concerned
about; and they were also concerned about the use of counter-terrorism legislation by local authorities in respect of matters that clearly had nothing to do with counter-terrorism, such as dog fouling and whether or not children had the right to go to a particular school in a particular catchment area. The package produced today and the measures introduced to replace control orders will, I believe, provide the necessary structure and powers to ensure that we are able to prevent and disrupt terrorist activity while at the same time ensuring that we put every effort into prosecuting individuals. As I said, prosecution must be the preferred option.
Mr Jack Straw (Blackburn) (Lab): Will the £20 million of new money, to which the Home Secretary refers, come from within her existing comprehensive spending review allocation or from the reserve?
Mrs May: I have named no figure on the funding to be made available. I was very clear in my response to the shadow Secretary of State that I was not going to name a figure. I am sure that the right hon. Gentleman, as a former Home Secretary, will understand why we are not doing so in respect of the work of the security services. I can say that the Security Service and the police will both receive new money.
Patrick Mercer (Newark) (Con): I certainly welcome the Home Secretary's statement about the increase in surveillance, but she will be as aware as the rest of the House that in the last few weeks we have seen a heightened threat level from Irish dissident activity on the mainland as well as a series of scares about a very serious armed incident inside this country. If surveillance of known terrorists increases, how will she balance that against the increased threat from unknown terrorists?
Mrs May: We are, of course, very conscious of the severity of the threat that this country faces. That is why the threat level is currently set at severe, which means that a terrorist attack is highly likely. We are constantly undertaking with the security services, the intelligence agencies and the police painstaking day-by-day work, which is necessary to ensure that we not only prevent activity by those already known as terrorists, but that we identify others who might be in the process of trying to undertake terrorist activity. I pay tribute to the police and the security services, particularly to West Midlands police, for the operation undertaken before Christmas, which led to the arrest of 12 individuals and the charging of nine of them for terrorist-related offences.
Keith Vaz (Leicester East) (Lab): May I welcome the reduction in the detention period and the changes to control orders, although we will need more detail on exactly what they mean. I also welcome the Home Secretary's attempt to try to develop consensus across the House. I certainly think it right that she should meet the shadow Home Secretary-following the robust relationship that seems to be developing, I, for one, would like to buy a ticket to that meeting. I ask the right hon. Lady not to forget Parliament or the need to engage with the Select Committee on these issues. Will she give us an assurance that her prevent strategy will remain robust, that she will protect the counter-terrorism budget and that she will ensure that reviews of this kind-I know that she has more of them planned-will in future be more orderly than the one we have just had?
Mrs May: We could never forget the work of the Select Committee under the right hon. Gentleman's chairmanship-on these and other home affairs matters. It is this Government's intention to do all that is necessary to maintain our national security and to protect the public. That involves looking at the budgets that we make available for counter-terrorism work and the powers available for that work, as I have set out today. I dispute the right hon. Gentleman's comment about the way in which this review has been conducted. We are conducting a number of other reviews, but what I think is important for all of them, given the severity of the threat we face and the importance of the decisions we take, is that we look at all opportunities, discuss the issues and reach decisions that are right for the people of this country.
Nicola Blackwood (Oxford West and Abingdon) (Con): I thank the Home Secretary for her statement and I welcome the long overdue rebalancing between security and civil liberties that it signalled. Looking ahead, can she explain how the Government's work on communications data will impact on the agencies' ability to access it and to intercept communications where necessary?
Mrs May: My hon. Friend has raised an important issue. This is just one part of our ongoing work to ensure that the Government provide for the security and intelligence agencies and the police the necessary powers and tools that they need to keep us safe. We made it absolutely clear in the strategic defence and security review that we will introduce a programme to preserve the ability of the security, intelligence and law enforcement agencies to obtain communications data and to intercept communications within the appropriate legal framework. That work is ongoing; we are ensuring that that capability is retained.
Mr David Winnick (Walsall North) (Lab): I welcome the reduction of the period of detention from 28 to 14 days-although I wish it were without the reserve powers announced last week and again today-but is the Home Secretary aware that her statement on control orders will be very disappointing to many of us? It would be far better if the due process of law-ordinary law-were used in the fight against terrorism. No one in this House underestimates for one moment the terrorist danger, but we should be very careful about making intrusions into civil liberties-hence the disappointment on control orders.
Mrs May: It has been clear from the interventions in response to my statement that there are differing views on this issue across the House. We all want to see terrorists investigated, prosecuted and brought to judgment. As I said, the best place for a terrorist is in a prison cell. We want to make every effort to ensure that the processes of investigation and prosecution can be successful, but there is a small number of cases where prosecution has not been possible and deportation is not possible, so the Government need to act in order to protect the public.
Mr William Cash (Stone) (Con):
There is no freedom without security, so would the Home Secretary consider changing the proposed Bill's title from the protection of freedom Bill to the security and freedom Bill? The Lord Chief Justice and many others have highlighted the problem that the principles of habeas corpus, due process
and fair trial have been significantly hijacked by human rights legislation and judicial interpretation, which have taken us significantly in the wrong direction.
Mrs May: I must confess to my hon. Friend that I wondered where his question was leading, but I should add that he did not disappoint me at the end. I will consider his suggestion, but I think that we have a very good title in the protection of freedom Bill.
Ian Paisley (North Antrim) (DUP): While, in cosy comfort and at times with chuckles, we in the House deal with the theory of terrorism, Belfast this morning unfortunately experienced the practice of terrorism when a massive explosive device was found there. As a result, the whole of north Belfast was sealed off from commerce, schooling and everything else, which is the equivalent of sealing off the whole of the east end of London.
With that in mind, will the Home Secretary-whose statement I welcome-tell us whether the repeal of section 44 and its replacement with a more tightly defined power for police officers will be flexible enough to allow the police to deal with specific threats that have an impact on a border with a 200-mile radius? We do not want them to be confined to dealing with such tightly specific threats that they are prevented from policing Northern Ireland properly, and protecting it from a more generalised dissident republican threat.
Mr Speaker: Order. I very much want to hear what the hon. Gentleman has to say, but I think that one question is enough. On days such as this, a great many Members wish to contribute.
Mrs May: The hon. Gentleman is right to raise the issue of the latest attempted terrorist attack in Northern Ireland. As he says, it involved a significant explosive device, and the action that had to be taken disrupted a significant number of people in Belfast. I am sure that all of us, on both sides of the House, are absolutely determined that people who perpetrate such acts should not be allowed to succeed.
Once again, I pay tribute to the work of the PSNI. We have been engaged in close discussions with the Northern Ireland Office-which, as I have said, has itself been engaged in discussions with the PSNI and the Justice Minister-about the operation of the section 44 replacement, if I may so describe the new power that will be available. I am confident that that new power will give the PSNI the capabilities that it requires, and I understand that later this week the Northern Ireland Office and the PSNI will discuss the protocols that will apply.
Mr James Clappison (Hertsmere) (Con): As a member of the Home Affairs Committee who has been involved in the saga of scrutinising the proposals for 14 days, 28 days, 60 days and 90 days as periods of pre-trial detention, I commend the approach taken by my right hon. Friend. May I urge her to be vigorous in her engagement with foreign Governments in order to facilitate the deportation of terrorist suspects in appropriate cases, thus reducing both the burden on the security services and the threat to citizens of this country?
Mrs May: My hon. Friend has made an extremely valid point. The Government will indeed be rigorous in their efforts to increase the number of countries with which we have agreements about the deportation of terrorists, so that we are able to deport them rather than their remaining in the United Kingdom.
Hazel Blears (Salford and Eccles) (Lab): As the Minister responsible, with the then Home Secretary, for taking the control orders legislation through the House, may I say that I deeply resent the implication by some Government Members that we welcomed the opportunity to incarcerate people without trial? Control orders were always an imperfect solution to an unprecedented terror threat.
Recently, in the High Court, Mr Justice Wilkie said of the subject of a control order that he had renewed:
"He was and remains prepared to be a martyr in an attack designed to take many lives. He remains highly trained, security conscious and committed."
Does the Home Secretary feel personally confident that the measures that she is introducing will protect the British people from people like that?
Mrs May: I have announced those measures precisely because we recognise the need to take action against a small number of people of the sort described by the right hon. Lady whom it has not been possible to prosecute or deport. I am confident that our measures will do the job that is necessary, preventing and disrupting terrorist activity and ensuring that we can keep people safe.
Dr Julian Huppert (Cambridge) (LD): There is much to welcome in the statement, which goes a long way towards reversing the worst infringements of civil liberties by the last Government, but when it comes to control orders, the details do matter. I am pleased to note the increased focus on prosecution, the justice system and the police, but can the Home Secretary confirm that when the legislation is published, we shall see a continued move away from a murky, spooky world and towards a legal and just world?
Mrs May: My hon. Friend is obviously particularly concerned about the civil liberties aspects of the proposals. I believe that the package that I have announced contains a series of measures that will enable us to protect the public and maintain our national security, while at the same time reducing our civil liberties- [Interruption.]. I mean that the measures will enable us to increase our civil liberties and reduce infringement of them. I am sorry: I was thinking about my hon. Friend's reference to a "murky, spooky world".
Let me simply say to my hon. Friend that it is necessary for our security services to be able to operate. The security services and the intelligence agencies do a valuable job for us in this country, and, by definition, what a security service does must remain secret.
Mr George Howarth (Knowsley) (Lab): In the context of civil liberties, which does the Home Secretary consider to be more draconian, a control order or 24-hour round-the-clock surveillance?
Mrs May:
There is a significant difference between telling people that they cannot do something and watching people while they are doing certain things, while enabling
them to lead as normal a life as possible commensurate with the protection of the public. That, I believe, is the balance that we have achieved in these new measures.
Lorraine Fullbrook (South Ribble) (Con): I welcome the Home Secretary's announcement about the Regulation of Investigatory Powers Act 2000. No longer will local authorities be able to spy on law-abiding residents who may commit heinous crimes such as putting out their dustbins or taking their children to school.
Mrs May: That is an extremely valid point. I believe that local authorities' misuse of RIPA powers has done much to reduce the public's confidence in counter-terrorism legislation, and that today's move is important for that reason.
Jeremy Corbyn (Islington North) (Lab): Is the Home Secretary entirely comfortable with the notion that individuals are held in British prisons without due process before being deported to countries that have not signed international conventions such as the United Nations convention against torture, where they may face an abuse of their own human rights? Will she guarantee that in future no one will be deported to a country that has not signed the convention against torture?
Mrs May: The whole point of the discussions that we have with countries in order to be able to deport people is to ensure that those people will not suffer from abuses of their human rights when they are returned to those countries. I refer the hon. Gentleman to what my noble Friend Lord Macdonald said in his report on the review. As I said in my statement, he said that the Government's engagement with other countries on these issues was likely to have a positive effect on their human rights records.
Jonathan Evans (Cardiff North) (Con): I can inform the House-at the risk of provoking my hon. Friend the Member for Stone (Mr Cash)-that I led the delegation from the European Parliament that first briefed the United States Congress on British and European involvement in extraordinary rendition, at a time when Labour Members were maintaining in the House the fiction that our Government were not involved. Against that background, my right hon. Friend's statement is very important in rebalancing civil rights in this country. Will she comment on the suggestions that we should consider introducing much more post-charge questioning and the use of intercept evidence?
Mrs May: I am grateful to my hon. Friend for the work that he did in the European Parliament. I know that he has taken an interest in human rights matters there, and that he continues to take an interest in them in the House.
Today I laid before the House a written statement indicating that further work would be undertaken to investigate the possibility of the use of intercept evidence. I am pleased to say that we have been able to continue the valuable work of the Privy Council group of which the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith)-together with a number of Members of the House of Lords-is a distinguished member.
Mr David Hanson (Delyn) (Lab): Does the Home Secretary accept that those of us who signed section 44 orders and control orders did so for the purpose of preventing terrorism? Does she envisage any alterations in the regime governing the-I believe-eight individuals who are currently subject to control orders pending the changes that she is to introduce, and how does she expect to deal with the proposed extension of the pre-charge detention period from 14 to 28 days when Parliament is not sitting?
Mrs May: First, I recognise that individual Ministers have to take difficult decisions on the use of these powers. I am sure that all Ministers take those decisions with the right intentions, including that of maintaining the safety of the public. The current regime will continue until the end of the year, as I have made clear, and the measures necessary to continue that regime will be brought before both Houses of Parliament before 10 March, the date on which the legislation on that falls. The package that we have put together not only does exactly what the right hon. Gentleman wanted to do and what I want to do, which is to protect the public, but very importantly it ensures that we are maintaining our civil liberties and rolling back some of the infringements of them.
Mr Hanson: What if the House is in recess? [Interruption.]
Mrs May: I think that the Whip, the hon. Member for Ealing North (Stephen Pound), has told the right hon. Gentleman what he intends to do with the recess. If Parliament is in recess, it is perfectly possible that it can be recalled to bring in emergency measures. The right hon. Gentleman knew the answer to that question before he asked it.
Tom Brake (Carshalton and Wallington) (LD): The Home Secretary's statement will be welcomed by all those who value fundamental British rights and the defence of our national security. Can she confirm that emergency powers will not be used as a back-door ruse to reinstate some of Labour's human rights-busting counter-terrorism legislation? This Government believe in the judicial process and will seek to prosecute alleged terrorists, not to detain them indefinitely and arbitrarily.
Mrs May: On the indefinite detention of people, I can confirm to my hon. Friend that we will be introducing a two-year limit in the new measures. It will then be possible to put a new measure in place if it has been clear that somebody has been undertaking further terrorist activity, but that two-year limit is an important power that we will be ensuring is on the statute book.
Paul Goggins (Wythenshawe and Sale East) (Lab):
Further to the question asked by the hon. Member for North Antrim (Ian Paisley), may I press the Home Secretary further on section 44? Whatever the problems in Great Britain, there is no question in my mind but that section 44 has saved lives in Northern Ireland. The power has been used proportionately by the Police Service of Northern Ireland, in tandem with the powers under the Justice and Security (Northern Ireland) Act 2007, to uncover and disrupt activity by terrorists. I will want to look, as others will, at the detailed proposals that she
introduces, but she has described them as very tightly circumscribed. Is she not concerned that she may tie the hands of the PSNI?
Mrs May: The right hon. Gentleman's description of the PSNI's use of section 44 is accurate, because the PSNI used it very carefully-more carefully than police forces on the mainland. He rightly says that, as a result, terrorist attacks were disrupted and prevented. We have been very careful in discussions, and it has been of particular concern to ensure that the power that we are proposing will be usable by the PSNI and will enable it to continue to do what it needs to prevent terrorist attacks in Northern Ireland.
Mr Dominic Raab (Esher and Walton) (Con): I commend the Home Secretary on the important steps that she has taken towards reversing the draconian drift under the previous Government. I am disappointed that the coalition has not scrapped control orders altogether, but even more important is the need to reverse the collapse in counter-terrorism convictions of 90% in the past four years. May I just ask about the written statement on intercept evidence? Are the Government now committed to lifting the ban? Has the question now changed from "if" to "when and how"?
Mrs May: The Government have always had a commitment, including in the coalition agreement, to examine the possibility of using intercept material as evidence. It is on that basis that we have asked that further work be done to examine a number of issues associated with practicality, affordability and how an intercept-as-evidence regime could operate. It is a mistake for anybody in this House to think that using intercept as evidence is somehow the silver bullet that will take away all our other issues and requirements. Work has been done to examine existing cases and ask whether a prosecution would have been made possible had intercept as evidence been available. I believe that I am right in saying that in all cases-although I hesitate in saying "all" because I cannot remember the exact numbers-such evidence would not have made that possible. That is certainly true of most cases.
Caroline Lucas (Brighton, Pavilion) (Green): I welcome the direction taken by the Home Secretary. It is an indictment of the previous Government that it has taken a Tory-led Government to restore at least some of our civil liberties, albeit in a very halting way. I want to take her back to her decision not to use this opportunity to bring back control orders within the normal judicial process as a form of police bail. Does the failure to do that not simply mean that we still have control orders, albeit by another name?
Mrs May: No, we do not. We are repealing control orders and introducing a new set of measures that have more tightly targeted restrictions on individuals and that, in some areas, significantly increase the flexibility for those individuals to work and study and give them some access to communications. May I correct the hon. Lady on one point? It is the coalition Government who have brought this package of proposals before the House today and both parties in the coalition were clear in the run-up to the election and following it that action needed to be taken to rebalance national security and civil liberties.
Richard Fuller (Bedford) (Con): There is much to welcome in my right hon. Friend's statement, but thousands of people around the world are subject to arbitrary internment by Executive fiat and they should look to Britain as a beacon of freedom. What consideration has she made of the impact on this nation's voice for liberty and justice arising from this lost opportunity to place control orders where they should be: fully within the criminal justice system?
Mrs May: I think that people will look at what the Government have done today and see a responsible Government who have recognised the need to ensure that the protection of the public and national security is our priority while retaining and strengthening those freedoms and civil liberties that we have valued over the centuries.
Mr Pat McFadden (Wolverhampton South East) (Lab): The debate at the heart of government on these issues has been based on the wrong premise that it is the laws put in place by the previous Government to protect the public against terrorism that pose a threat to our liberties. The threat to our liberties comes from those who want to kill innocent people. Today's announcement waters down the control that we have over terrorist suspects, increases the risk that we would lose control over those suspects, and increases costs and pressures on our hard-pressed security services. Does the Home Secretary accept that, if one of the people currently subject to those restrictions is found to be engaged in a terrorist act, the public will rightly look back on this announcement as both dangerous and complacent?
Mrs May: I reject the right hon. Gentleman's description of the situation and of the balance between national security and civil liberties. Of course it is the terrorists who pose a threat to our civil liberties and to life and limb, and it is right that the Government do everything they can to ensure that they protect the public against that terrorist threat, but if legislation infringes people's civil liberties and by its very operation reduces the public's confidence in counter-terrorism legislation, that also has an impact. It is right that this Government should examine the measures that the previous Government introduced-which before the election both coalition parties felt had gone too far in a number of areas and, on control orders, the courts had found were too draconian-and deal with them as we are today, which will continue to protect the public.
Guy Opperman (Hexham) (Con): I remind the House that I had a former profession as a barrister for the Attorney-General. The Home Secretary has said that the curfew element of the control order will be replaced by-
Kevin Brennan (Cardiff West) (Lab): Surely the hon. Gentleman does not need to read his question if he is a barrister.
Guy Opperman: Thank you; any time you want to get it going, you can.
The Home Secretary has said that this will be replaced by an overnight residence provision. Could she tell us more about that? Will there be significant differences between the past and present situations?
Mrs May: Yes, there are significant differences between the past and present situations. The curfews under the control order regime allow 16 hours of detention in the home. The overnight residence requirement will replace the curfews and there will be a requirement for people to stay normally in their nominated home overnight. Most people would consider a normal overnight residence to be eight to 10 hours, but we are not suggesting that we should put a figure in the legislation. That would be a matter for the courts to decide. There is a significant difference between the proposal we are making and the regime that the previous Government introduced.
Thomas Docherty (Dunfermline and West Fife) (Lab): Just like the "Grand Old Duchess of York", the right hon. Lady marched the Liberal Democrats up a hill last May and has brought them back down again this week. On the specific issue of what she now calls the overnight residence requirement, does she not accept that if something acts like a curfew, looks like a curfew and sounds like a curfew, it is a curfew?
Mrs May: No, I have just explained the differences between the curfew and the overnight residence requirement.
Nadhim Zahawi (Stratford-on-Avon) (Con): May I congratulate the Home Secretary on the decision to allow Lord Macdonald to oversee and approve the process for the review? The Labour party has complained about the process. Does my right hon. Friend recall the previous Government making provision for such a review to have independent oversight?
Mrs May: No, I do not recall the previous Government ever doing something like that-[Hon. Members: "Lord Carlile!"] Opposition Members mention Lord Carlile, but he did not undertake a review of this sort. He was the independent reviewer of counter-terrorism legislation and he continued in that role. May I take this opportunity to pay tribute to the work that he has done for a number of years in that role? He will be replaced in it by David Anderson, QC next month. The previous Government did not produce such a review or enable Parliament to have a discussion or debate such as that we will have on the counter-terrorism legislation. I am pleased to say that my noble Friend Lord Macdonald has said that he found the process of the review to be "sound" and
"The evidence base for the Review's conclusions"
Ian Austin (Dudley North) (Lab): The truth is that the vast majority of British people will be very concerned that the control orders regime is being watered down as a result of party political considerations and not as a result of national security considerations. If any of the people involved are caught using the new freedoms that the Home Secretary is going to give them and using the mobile phones and computers that she is going to allow them to have to plot terrorist activities, to encourage other people to engage in terrorist activities, to radicalise people or to promote extremism, will she be prepared to resign?
Mrs May: The hon. Gentleman clearly does not appreciate the purpose of what is being done and the Government's intention. The answer to his question is that if there is evidence that an individual has been engaging in terrorist activity, they will be charged and prosecuted.
Michael Ellis (Northampton North) (Con): May I congratulate the Home Secretary on establishing a wholly new and more balanced counter-terrorist regime that restores civil liberties lost under the previous Labour Government but that still gives police the power they need to keep us safe in this country?
Mrs May: I thank my hon. Friend. I think that the vast majority of the public will see that the Government have done exactly what we said we would do when we came into power, which is to restore the balance between national security and civil liberties. That will be welcomed.
Kevin Brennan (Cardiff West) (Lab): What will happen if, after two years of the Home Secretary's new form of control order, an individual has not committed any terrorist actions and cannot be deported or prosecuted but we know that they still represent a threat? What will happen then?
Mrs May: As I have made clear, there is a two-year limit on the new measures. It will be possible, if further evidence of terrorist activity is found, to impose a further measure. The idea that, as the previous Government thought, the Government can under some measure have people parked indefinitely was a problem identified with the previous control order regime, and one of the issues that we have addressed.
Christopher Pincher (Tamworth) (Con): Although I appreciate that the Home Secretary might be a little constrained in what she can say, will she nevertheless give an indication of the reactions she has had from the police and security services to the content of her statement today?
Mrs May: I am certainly happy to inform the House that I have had a positive reaction to the statement, in that the director general of the Security Service has told me that he considers that the changes provide an acceptable balance between the needs of security and of civil liberties and that the overall package mitigates risks. As we said in the review:
"an approach that scrapped control orders and introduced more precisely focused and targeted restrictions, supported by increased covert investigative resources, would mitigate risk while increasing
civil liberties. Such a scheme could better balance the priorities of prosecution and public protection."
Chris Bryant (Rhondda) (Lab): The Home Secretary has said that she will publish two separate pieces of draft primary legislation. They will sit around and we will be able to chat about them, but she will not introduce them until there is suddenly some specific reason-such as a court case-for her to do so. We will then suddenly have to pass the legislation in one day. Surely it would make far more sense to go through the legislative process so that we can table amendments and consider the legislation properly without the burden of the emergency affecting the debate. Would that not avoid the danger that the courts might decide that there was no proper opportunity for a free and fair trial given that Parliament had already effectively decided that the people involved were guilty?
Mrs May: We have proposed that the emergency legislation on 28 days' pre-charge detention should be subject to pre-legislative scrutiny so that there is an opportunity for it to be considered, as I have made clear. If the hon. Gentleman is so concerned about the process that we propose, why did he support it when his Government introduced it for the 42 days' pre-charge detention?
Pete Wishart (Perth and North Perthshire) (SNP): It was all going so well. There we were, happily dismantling Labour's anti-civil libertarian agenda, when along came this review. With respect to the right hon. Lady, she has simply done "a Labour" on control orders. Her proposals seem and feel just like the Labour control orders. At what point did she abandon her plans to get rid of control orders entirely and come up with control orders No. 2?
Mrs May: The commitment was always to review control orders. We were always absolutely clear that national security took priority, but we needed to rebalance civil liberties and national security. I believe that that is what this package does.
Point of Order
2.17 pm
Yvette Cooper (Normanton, Pontefract and Castleford) (Lab): On a point of order, Mr Speaker. The Home Secretary did not answer the question about the level of resources that will be given to the security services and the police, although that information is in The Daily Telegraph today. We recognise that some information will need to be kept secret, but this information is directly relevant to the effectiveness of the new regime proposed by the Home Secretary. Will you use your offices to look further into why the House is not being given information that seems to be being given to the newspapers?
Mr Speaker: It is important that we should not continue the debate subsequent to the statement. I have let the statement run relatively long because it is an extremely important matter and the Front-Bench contributions were, understandably, a bit longer than normal. On this occasion, all that I want to say is that information about the policy of the Government should without exception be communicated first to the House. If for some reason that is not the case-the right hon. Lady has registered her concern that that might be so-that concern will have been heard. That was a point of order and it is open to the Home Secretary to respond to it if she wants, but she is under no obligation to do so as she has made a full statement.
The Secretary of State for the Home Department (Mrs Theresa May) indicated dissent.
Mr Speaker: The Home Secretary does not wish to do so. So be it.
Bill Presented
Education Bill
Presentation and First Reading (Standing Order No. 57)
Secretary Michael Gove, supported by the Prime Minister, the Deputy Prime Minister, Mr Chancellor of the Exchequer, Secretary Vince Cable, Sarah Teather, Mr Nick Gibb, Mr David Willetts and Mr John Hayes, presented a Bill to make provision about education, childcare, apprenticeships and training; to make provision about schools and the school workforce, institutions within the further education sector and Academies; to abolish the General Teaching Council for England, the Training and Development Agency for Schools, the School Support Staff Negotiating Body, the Qualifications and Curriculum Development Agency and the Young People's Learning Agency for England; to make provision about the Office of Qualifications and Examinations Regulation and the Chief Executive of Skills Funding; to make provision about student loans and fees; and for connected purposes.
Bill read the First time; to be read a Second time tomorrow, and to be printed (Bill 137) with explanatory notes (Bill 137-EN).
Carers and Employment
Motion for leave to bring in a Bill (Standing Order No. 23)
2.19 pm
Mr Mark Williams (Ceredigion) (LD): I beg to move,
That leave be given to bring in a Bill to make provision for carers' rights to flexible working; and for connected purposes.
Carers play a vital role in our society. Not only do they care for friends, family and others and provide support that would otherwise be provided by the state, but many-3 million-also work either full or part-time. A further 1.3 million carers of working age are not in paid employment-some out of choice. Many of those carers want to work but recognise that they would have to juggle work with their caring responsibilities. Financial concerns are by no means the only problem that carers face, but balancing care and work is clearly a significant challenge. A survey of 3,000 Parkinson's carers showed that a quarter of them were worse off financially since taking on a caring role, with 14% having had to leave work and 8% having reduced their work since starting caring.
The Work and Families Act 2006 gave carers significant rights to request flexible working, but my Bill would simplify the definition and make legislation easier for carers and employers to apply. In bringing forward the Bill, I do not criticise that legislation, which was in many ways groundbreaking and was a significant step forward; rather, I hope to build on and improve it. The coalition agreement between my party and the Conservatives states that the Government will
"extend the right to request flexible working to all employees, consulting with business on how best to do so."
I warmly welcome that commitment and I shall set out some of the areas it would be helpful for the Government to consider in relation to carers. Flexible working is a goal we should be achieving for all workers, but my Bill focuses on the particular circumstances of carers.
Currently, the definition of carers provides a long list of those eligible to request flexible working, including those caring for a spouse, for a partner with whom they live, for a civil partner or for a relative. Relatives include parents, parents-in-law, adult children, adopted adult children, siblings, including siblings-in-law, uncles, aunts, grandparents and step-relatives. Also eligible are those caring for and living at the same address as the adult in need of care. Despite that extensive definition, certain groups of carers are still excluded, such as those caring for people to whom they are not closely related or who do not live in the same accommodation, which could amount to as many as 75,000 carers nationwide. We often talk about numbers, but let me put that figure into context. Carers UK has told me about a man who cares for his ex-wife and is not covered by the definition and about a single man who has fallen out with his family and is cared for by a friend who does not live at the same property and, again, is not covered by the definition. Those are real people who have experienced difficulties in making requests and fulfilling their work and care responsibilities because of the definition, which, although broad and significant, excludes many people.
During the consultation on the regulations in 2006, some groups said that the burden would be too onerous and argued for a more prescriptive definition, but many
employers said that the definition was overly complex and that they wanted something simpler, even if that meant a broader definition or, indeed, no definition at all. A 2006 survey of four major employers found that they operated lighter-touch policies than required under the regulations and that none of them asked for any information about the relationship of the carer to the person being cared for. The most important thing for any employer is the impact that the policy has on their work, whereas the definition of who is being provided with care is of little concern to them.
Answers to parliamentary questions in September 2008 on the acceptance of requests for flexible working did not include figures for carers, but they showed that employers are increasingly responsive to the needs of those who wish to work flexibly, with 78% of requests being accepted. Not all employers will be able to accommodate requests, but those who do often recognise the importance of supporting their employees. It is key that when a request is made, an employer should reject it only where there is a clear business reason to do so, that they must explain their reason to the employee and that there should be an appeals process. Many employers have found that rather than being a burden, flexible working can help them to extend working hours and spread out work.
In 2009, the Equality and Human Rights Commission published a report, "Working Better", which recommended changes to the regulations on flexible working. Its research found that awareness of those rights was low and that they were still widely perceived as being the preserve of mothers with young children. For those who care, there are additional barriers to flexible working, as is borne out by the figures in the 2005 report "Ordinary lives: Disabled children and their families", which found that only 16% of the mothers of disabled children are able to work compared with more than 60% of mothers generally.
I hope that the Bill will also address the issue that many carers face of their commitments changing, sometimes quite rapidly, in relation to the kind of care they deliver. I recently spoke to a man whose wife had been diagnosed with motor neurone disease. His experience with his employers was very positive: when she first became ill, he was able to fit his hours around hospital visits, but he then had to reduce his hours to a nine-hour week for three months before asking for a care break of 12 months which was later extended to 15 months as his wife's condition deteriorated. Not long after, she died. His company told him that although they could not guarantee to hold his job open, he could return at the same grade and not lose out. It is worth quoting what he told me:
"This removed so much strain for me, as I knew I had a future to look forward to after my wife had died and I would not suddenly have to start job hunting the day after."
He has now devoted himself to the work of the Motor Neurone Disease Association and chairs a local branch of MND. He reports that, regrettably, many people in similar positions are not so fortunate as he was. There is a real need to ensure that employers recognise the importance of this policy and that examples of good practice can be extended.
Much of the responsibility for carers' issues in Wales is rightly devolved to the National Assembly Government, but the issue of flexible working remains with the Government in Westminster. In Wales, more than
150,000 people are in paid employment and have unpaid caring responsibilities. Some 60% of male carers and 32% of female carers in Wales combine caring with full-time employment, and 6% of male carers and 27% of female carers combine caring with part-time employment. There are examples of good practice, however: Carers Wales has highlighted the carers' policies produced by Cardiff council and the Velindre NHS trust. Carers Wales has also worked with other local authorities and the Welsh Assembly Government on developing policies in support of caring.
The final point that my Bill would address is the fact that employees currently have to wait six months until they can request flexible working, although many employers provide these rights from day one. People with significant caring responsibilities need to work flexibly from when they start and the regulations might make it difficult for them to find a job that accommodates their caring responsibilities. The Employers for Carers leadership group has suggested that the Government should consider that as part of their consultation on flexible working. Many employers would welcome that being settled when an employee first starts working for them. I hope that the Government will seriously consider the issue of day-one rights. As was stated in the EHRC report, the current regulations do nothing
"to reach people who are unemployed, moving in and out of insecure employment, or returning to work after a career break."
The Bill is about cutting the red tape associated with requests for flexible working and simplifying the process. It is about identifying the many examples of good practice in large and small workplaces across the UK and about ensuring that this good practice is supported and emulated by all employers. One million carers give up work to care, and there is a real need to encourage good practice on flexible working to ensure that carers can stay in work. My hope and aim in bringing forward this Bill, with the help of Carers UK and Carers Wales, is that the Government will consider these matters very carefully as part of their consultation and that they will introduce rules that will ensure comprehensive rights to flexible working for carers in the many different situations in which carers find themselves.
That Mr Mark Williams, Dr Hywel Francis, Jonathan Edwards, Lorely Burt, Annette Brooke, Jessica Morden, Roger Williams, Tony Baldry, Laura Sandys, Malcolm Wicks and Albert Owen present the Bill.
Mark Williams accordingly presented the Bill.
Bill read the First time; to be read a Second time on Friday 17 June, and to be printed (Bill 36).
Thomas Docherty (Dunfermline and West Fife) (Lab): On a point of order, Madam Deputy Speaker. You will recall that at lunchtime the Prime Minister indicated that the hon. Member for Belfast West (Mr Adams) had accepted an office of the Crown. However, it is our understanding from press reports coming out of Belfast that Sinn Fein are denying this. Clearly, this is a matter that will continue to trouble the House for some time. Has the Speaker's Office received notification from the Government that Mr Adams has indeed accepted a paid office of the Crown?
Madam Deputy Speaker (Dawn Primarolo): I have no knowledge of the matter. If and when the Speaker receives notification from the Treasury, he will cause it to be included in the Votes and Proceedings of the House. That is as much as I can do to help the hon. Gentleman on his point of order.
Mr Nigel Dodds (Belfast North) (DUP): Further to that point of order, Madam Deputy Speaker. I understand that a Member must apply for an office of profit. If there is any departure from that procedure, may we have a statement to the House? Will the Speaker inform the House of any departure from the accepted conventions, traditions and procedures of the House so that we are clear about the circumstances in which such a bizarre resignation is happening?
Madam Deputy Speaker: Although I appreciate that the hon. Gentleman has a great interest in the matter and that other Members may well have the same interest, it is not a point of order for me or for Mr. Speaker. If notification is received, the Speaker would place it in the Votes and Proceedings of the House. That is as much as I can help the hon. Gentleman with the matter.
Business without Debate
European union document
Motion made, and Question put forthwith (Standing Order No. 119(11)),
That this House takes note of European Union Document No. 7984/08 and Addenda 1 and 2, Unnumbered Explanatory Memorandum dated 13 September 2010 and Unnumbered Supplementary Explanatory Memorandum dated 21 December 2010, submitted by the Department for Transport, relating to facilitating cross-border enforcement in the field of road safety; and notes that the Government is deciding whether or not to opt in to this Directive under the terms of Protocol 21 of the Treaty on the Functioning of the European Union on the position of the United Kingdom in respect of the area of Freedom, Security and Justice.- (Mike Penning .)
European Union Bill
[Relevant document: The Fifteenth Report from the European Scrutiny Committee, The EU Bill: Restrictions on Treaties and Decisions relating to the EU, HC 682.]
Further considered in Committee
[Dawn Primarolo in the Chair]
2.33 pm
Chris Heaton-Harris (Daventry) (Con): I beg to move amendment 24, in clause 7, page 6, line 7, at end insert-
'(e) a decision under Article 218(8) of TFEU for the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms in accordance with Article 6(2) of TEU.'.
The Second Deputy Chairman of Ways and Means (Dawn Primarolo): With this it will be convenient to discuss the following:
Amendment 45, page 6, line 25, at end insert-
'(da) a decision implemented through the solidarity clause under Article 222 that obliges the United Kingdom to provide assistance to another Member State which is the object of a terrorist attack or the victim of a natural or man-made disaster.'.
Amendment 25, in clause 10, page 8, line 34, leave out subsection (2).
Chris Heaton-Harris: It is a pleasure to come back for a third day of excitement this week, talking about Europe. I thought that when I left the European Parliament, I might be able to ditch that part of my life and move on to something interesting. It seems to wear one down, like a terrible weight around one's neck.
I want to see whether I can tidy up a few parts of the Bill which, I believe, could be helped. Currently the European Union is not party to the European convention for the protection of human rights and fundamental freedoms, the ECHR. The Lisbon treaty, however, introduced what is now article 6(2) of the treaty on the European Union, which provides that the EU will accede to the ECHR. This accession agreement-in effect a treaty between the EU and the states party to the ECHR-is being negotiated.
Article 218(8) of the treaty on the functioning of the European Union provides that once negotiated, the accession agreement must be concluded, for the EU's part, by unanimity in the Council. The same article states that after adoption by the Council, the EU decision concluding the agreement must also be
"approved by the Member States in accordance with their respective constitutional requirements"
before it can come into force.
Under current UK law, this approval may require an Act of Parliament. Clause 10, however, where this matter currently resides, requires only a resolution of approval
in each House. Indeed, the definition of parliamentary approval in clause 10(3) does not seem well suited to the approval of a decision adopted by the Council under article 218(8), because the resolution of approval specified concerns approval of a draft decision.
Until the article 218(8) TFEU conclusion has come into force, the EU cannot accede to the ECHR. This is a complicated treaty between the EU and the ECHR and warrants a great deal of scrutiny. It will have a number of indirect effects on the United Kingdom.
Andrew Percy (Brigg and Goole) (Con): I, too, wish we could be free of the European Union, but that is a debate for another day. Does my hon. Friend agree that, given where we are on prisoners' voting rights, as well as the growth of rights under the ECHR and the controversy surrounding that, we need to ensure maximum parliamentary scrutiny of decisions such as the one that he is describing?
Chris Heaton-Harris: Indeed. I know that there is to be a Backbench Business Committee debate on the matter in the not-too-distant future, in which I hope that Members across the House can voice their concerns about that ruling.
I return to the proposal to move one part of the Bill from clause 10 to clause 7. I was speaking about the indirect effects on the United Kingdom that the accession of the EU to the EHCR might have. When the accession takes place, the EU will be able to be taken to the European Court of Human Rights, which will undoubtedly lead to more cases, more cost and impact and, most importantly, more jurisprudence on EU law.
I am seeking not to upgrade the requirement for scrutiny, but to maintain the present level. Furthermore, I am concerned that in clauses 6 and 7, a few article 48(7) ratchet decisions are not caught by the Bill. Such decisions would be those applying to the EU's ordinary legislative procedure where the EU treaties currently require a special legislative procedure, and the existing special legislative procedure does not require unanimity in the Council. In other words, while a switch in EU legislative procedure would be taking place, it would not involve abolition of a veto because a veto did not exist in the first place. However, the EU's ordinary legislative procedure entails the European Parliament having co-decision rights with the Council. It can table amendments to a proposed law and veto the Council's desired law. In general, a switch to the ordinary legislative procedure would take EU decision making further out of the hands of national Governments and give greater power to a supranational institution.
The article 48(7) ratchet clauses not covered by the Bill would confer new co-decision rights on the European Parliament in a few areas of EU law that I shall list now, and many more. Article 23 provides that every EU citizen has the right to diplomatic protection. We had a debate on what that might mean to the individual. I am speaking now about our power to scrutinise such decisions. Article 182(4) allows the Council to adopt, through qualified majority voting, but only after consultation of the European Parliament, specific EU research and development programmes. These must accord with the multi-year EU framework programme for research and development that is decided through the ordinary legislative procedure, but the decision on specific programmes sets
their duration, the precise financial contribution by the EU-essentially by us-and the detailed rules for implementation. Furthermore, article 349 provides that the Council can adopt legislative measures on how EU treaties apply to areas known in wonderful EU parlance as the outermost regions. The way in which such specific decisions are dealt with in the Bill would be a retrograde step for democratic control, hence my amendment.
Mr William Cash (Stone) (Con): I rise to support my hon. Friend the Member for Daventry (Chris Heaton-Harris) in the arguments that he has adduced. Since the Maastricht treaty, I have been gravely concerned about the operation of co-decision, and that is the best part of 20 years ago. The bottom line is that the situation has become increasingly difficult and unacceptable. The European Parliament, which is not a real Parliament at all-I see the Minister sighing. He cannot understand that the difference in the manner in which the European Parliament is elected, the difference in its procedures, the extent to which it holds Ministers to account, the intrusion of the process of proportional representation and the manner in which that operates, and many other aspects of the institutional difficulties and the democratic deficit that exists in the EU, which are all part and parcel of the necessity to retain control in the hands of the national Parliaments. Unfortunately, for all the reasons given by my hon. Friend, in relation to these specific matters there is an extension of this strange creature which used to be called co-decision, but which now, in typical Eurospeak, has become the ordinary legislative procedure. It is not ordinary at all, it is quite extraordinary, and it is not a legislative procedure in the sense in which we are legislating in this House.
The Temporary Chairman (Martin Caton): Order. May I ask which amendment the hon. Gentleman is speaking to?
Mr Cash: I am speaking about the general principle relating to the question of co-decision in the context of the amendments-
The Temporary Chairman: Order. The hon. Gentleman knows that when we are dealing with amendments, we deal with the amendments, not with general principles. If he could come on to the amendments in the group, I would be grateful.
Mr Cash: I am dealing specifically with amendment 24, moved by my hon. Friend the Member for Daventry, and supporting his arguments. My amendments are, in general terms, supportable in accordance with the arguments I have set out, and I have no further comments to make on them at the moment.
Mr Nigel Dodds (Belfast North) (DUP): On the point made by the hon. Member for Daventry (Chris Heaton-Harris) about needing an Act of Parliament as opposed to a resolution of both Houses, is not one of the advantages of such a course that it gives more time for scrutiny, and that an Act is amendable in a much greater way than a mere resolution? Given the importance of the issues that the hon. Gentleman outlined, it is vital that measures to do not get passed into law here in the UK indirectly or by accident, or by unintended consequences, as so often happens.
Mr Cash: That is exactly the point. The combined effect of the amendments that we are discussing is directly related to what the hon. Gentleman says and to what my hon. Friend the Member for Daventry said. It is about time that the Committee understood that the importance of these debates is not being reflected by the votes or by the attitude Government's attitude. So far, they are not accepting any of the amendments. The European Scrutiny Committee has produced a report, and most of the amendments arise from it, including the ones we are discussing. My hon. Friend is a member of that Committee, and other members of the Committee are here as well. The net result is that we are not discussing the amendments properly.
The Temporary Chairman: Order. The hon. Gentleman seems to be talking about clause 9, but we are talking about two specific amendments to clause 7.
Mr Cash: I am happy to endorse the view that has been expressed. I wanted to make a general point, and that is really all I need to say at this stage.
Mr Wayne David (Caerphilly) (Lab): I would like to address my remarks to clauses 7, 8, 9 and 10, rather than to the amendments.
The Temporary Chairman: The hon. Gentleman will be able to talk about clause 7 when we come on to clause stand part.
2.45 pm
The Minister for Europe (Mr David Lidington): Amendments 24 and 25 would require that before the EU can accede to the European convention on human rights, Parliament would need to approve the EU's accession by Act of Parliament. At present, the EU and its institutions cannot be held to account for the fulfilment of its existing international legal obligations by the ECHR in the same way as the EU member states all can. Accession by the EU to the convention would close this gap.
EU accession to the ECHR is, as I think my hon. Friend the Member for Daventry (Chris Heaton-Harris) acknowledged, already expressly provided for in the EU treaties, as amended by the treaty of Lisbon. Article 6(2) of the treaty on the EU provides that
"the Union shall accede to the ECHR".
Mr James Clappison (Hertsmere) (Con): I am sure that in his usual persuasive way my right hon. Friend will give us a very good account of the legal case for the EU acceding to the ECHR. I hope that as he does so he will dispel the suspicion that is forming in many people's minds that the real reason, never mind the complicated legal rationale that he has given, is to put the EU on the same footing as the other signatories to the convention, which are all member states, and to give the EU the character of a member state. It is only member states that have acceded to the ECHR, and all the members of the EU have done so. I am sure that my right hon. Friend will give us a very thorough explanation, which will also serve to dispel that suspicion that is forming in many people's minds.
Mr Lidington: Certainly I agree that it is important to keep in our minds the distinction between the member states and the EU as an entity. It is therefore important that the treaties set out plainly that accession to the convention would not affect the EU's competences in any way, and that any extension or enlargement of EU competence would therefore have to be obtained by the normal process of treaty amendment, which is subject to the various checks that we are laying out in this legislation. Under protocol 8 to the treaties, it is also made clear that the Union's accession to the ECHR will in no way affect the situation of the individual member states as parties to that convention. So the accession by the EU to the convention cannot give further powers or competences to the EU; nor will it affect member states' own standing with respect to the ECHR.
In dealing with Council of Europe matters, the Government are always on the alert to avoid creating either the impression or the reality that EU member states, which are all individually parties to the ECHR, are acting as a bloc. The situation is unusual, because the Council of Europe is an institution in which EU member states have a majority over other state parties. Therefore, it is important that that distinction of principle to which my hon. Friend alluded is maintained.
Mr Clappison: May I say-I hope the Minister will appreciate this-that he has been extremely assiduous in attending to Council of Europe matters and exemplary in discharging his ministerial responsibility in respect of them? He made an extremely important point about the Council of Europe, which is that it includes many other nations that are not EU member states. It is a good thing for countries that are members of the Council of Europe to be dealt with individually, including those that also happen to be EU member states, so as not to create in any sense the impression that there is an EU bloc, because that has a bad impact on human rights in Europe, extending more widely than just the EU.
Mr Lidington: I agree. Quite apart from any constitutional or legal significance, it would be politically and diplomatically counter-productive to go down the route that my hon. Friend has rightly warned against. Whether the UK as state party should continue to have the relationship with the European convention on human rights that we currently have is a matter of intense in the debate in the House, and Members on both sides of the Committee have their views on that.
The point for the purposes of this afternoon's considerations is that the accession of the EU to the ECHR would make no practical difference to the UK's position. The Government see some advantages in EU accession, because the European Court of Human Rights in Strasbourg could act as a direct check on how EU institutions exercise their powers, in exactly the same way it acts as a check on the actions of all other signatories to the convention. In know that some of my hon. Friends will say that they believe that the European Court of Human Rights should not have that type of authority over this country, but I say to them that it is my belief that the EU and its institutions should be held to the same standards on human rights as we expect of member states.
Jacob Rees-Mogg (North East Somerset) (Con):
I thank the Minister for giving way and for his patient responses to so many questions. I wonder whether it is
necessary for the EU to sign up to the ECHR, because we have already debated the question of how EU law comes into effect in this country, which is by Act of Parliament. Therefore, any decision made by the EU can come into effect here only under our own laws, which are of course already justiciable under the European Court of Human Rights. This is not so much an added safeguard as a symbolic step towards creating the European Union as a state.
Mr Lidington: We certainly need to guard against that. The Government have accepted, as did the Conservative party before the general election, that the ratification of the Lisbon treaty is a political and legal reality and that we will work within that context. The treaty states that the EU shall accede to the ECHR, and it also provides that the judgments of the European Court of Human Rights should be considered, once accession has taken place, as general principles of EU law. In those circumstances, one would expect that those in the Commission who are responsible for drafting European directives and other legislative initiatives would have regard to the judgments of the Court and would frame draft European legislation in order to meet the standards of that jurisprudence.
Jacob Rees-Mogg: Will the Minister clarify Her Majesty's Government's view of the Lisbon treaty, because it seems to me that they are in quite a strong position to say that things that have not already been done, which are subject to unanimity before they can be implemented, need not be implemented by the Government?
Mr Lidington: There is a clear statement on the face of the treaty that the EU shall accede to the European convention on human rights, and the Government's position is that we accepted that statement and that commitment as part of the Lisbon treaty. As I hope to explain shortly, the law and our procedures in this House provide a number of safeguards that, I believe, will enable the House of Commons and the other place to scrutinise in detail any proposal for accession when it comes forward.
Mr Cash: Will the Minister give way?
Mr Lidington: I will give way, but a large group of amendments is listed on the Order Paper for consideration later today, and those amendments stand in the names of many hon. and right hon. Members. I want to try to limit my comments on the early group so that we have time for a thorough debate on those amendments on justice and home affairs, which I think the Committee would expect.
Mr Cash: I have already been helpful to the Minister in limiting my earlier remarks. Having said that, I would point out to him that this afternoon the European Scrutiny Committee has considered the document, "EU Accession to the European Convention on Human Rights", and set out in full, for the purposes of ensuring that the House is properly informed about what all the arguments amount to, both the questions and answers that he has given to that Committee. In particular, we include his letter of 30 June, our letter of 8 September and his letter of 21 September, and the detailed matters that arose on that, which take up two pages. We include our letter of 27 October and the explanatory memorandum of 15 November. The idea that the Minister can slide past this-
The Temporary Chair (Martin Caton): The hon. Gentleman is supposed to be making an intervention, not a speech.
Mr Cash: There is an obligation to answer this point.
Mr Lidington: I look forward with relish to studying the European Scrutiny Committee's conclusions.
There are already a number of ways for the Government and Parliament to exercise control over the precise terms of the EU's accession agreement. Article 218(8) of the TFEU makes it clear that accession would be subject to unanimous agreement by the Council and that the Council's decisions to conclude the agreement cannot enter into force until it has been approved by all member states individually and in accordance with their respective constitutional requirements, which are entirely a matter for each member state.
In addition, all EU member states are also parties to the European convention on human rights in their own right and will also be parties to the accession instrument. As with any other treaty to which the UK is party, the final accession agreement will be subject to the procedures under part 2 of the Constitutional Reform and Governance Act 2010-the codification of the Ponsonby procedures. That requires the agreement to be laid before Parliament for 21 sitting days, during which time either House may resolve that it should not be ratified. On top of those two levels of control, clause 10 of the Bill will add an additional layer of accountability by requiring a positive vote in favour of the agreement in each House before the UK could approve the EU's decision to conclude such an agreement.
Chris Heaton-Harris: I do not want at all to talk about the detail of the European convention on human rights, but I make the point that we will probably need an Act of Parliament, or a resolution as it stands. I do not intend to press the amendment, but I wanted to ensure that the Minister completely understood my reasons for tabling and for wanting appropriate scrutiny of the points that it raises.
Mr Lidington: I completely understand my hon. Friend's motives, and if I may say so without bringing him into complete disrepute with a number of other hon. Members on the Back Benches, he has played an extremely active and constructive part in our debates in Committee and has adeptly and correctly spotted some loopholes in the Bill that have led the Government to bring forward amendments to respond to the them.
Given that a number of control mechanisms already exist, that the accession agreement does no more than spell out the detail of something already provided for in the treaties and, most importantly, that there is no practical effect of EU accession to the ECHR on the position of member states, there is no necessity for the additional requirement of an Act of Parliament. I therefore welcome my hon. Friend's intervention and hope that he will not press the amendment to a vote.
Chris Heaton-Harris: I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn
3 pm
The Temporary Chair (Martin Caton): That brings us to the debate on clause 7 stand part. If I am reading the feeling of the Committee correctly, I shall allow this to be a fairly wide debate, obviating the need for further stand part debates on the later clauses. If we all understand that, I shall show considerable laxity.
Question proposed, That the clause stand part of the Bill.
Mr Cash: I shall discuss my earlier point about EU accession to the ECHR in the context of the broad view that you, Mr Caton, have taken about the necessity to get some of these issues out in the open. I shall also refer to the document that I cited in my intervention on the Minister, because we discussed it in the European Scrutiny Committee today. The document is a Council decision, the object of which is to authorise the European Commission to start negotiations with the Council of Europe on the EU's accession to the European convention on human rights. Our Committee reached the stage of a first report.
Chris Heaton-Harris: I very much apologise for not being at the European Scrutiny Committee meeting, but I was getting ready for this session. Government Members are giving the Bill the appropriate amount of scrutiny, but, looking at the Opposition Benches, I wonder whether anybody on that side cares.
Mr Cash: I could not agree more. My hon. Friend is right, and I am glad that the Minister also nods in agreement, because the accession is hugely important. I understand entirely that the Minister has a view about it. He has also heard the very good arguments that my hon. Friend the Member for Daventry (Chris Heaton-Harris) has made on the specific questions that arise. The Minister knows that it is a contentious issue, not least because we are also dealing with the interaction of the European convention on human rights, which came up in the statement on terrorism only an hour or so ago in this very House, and the crucial balance between security and freedom. We do not need to discuss control orders and counter-terrorism now, but I simply make the point that an enormous body of law could be affected by this.
The shadow Minister for Europe, the hon. Member for Caerphilly (Mr David), is attentive, was a member of the European Scrutiny Committee and is taking an interest in the debate. Of course, he has to be here, but I think that he would be here anyway. I find it strange that the Chamber is almost completely empty when we are considering these incredibly important issues, and it would be interesting to know whether there is any reason why. I am glad to welcome my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips), who also has great knowledge of these matters. I hope that he will contribute to the debate, because we have just discussed this point in the European Scrutiny Committee, so it is an opportune moment for us to look at the principles involved.
The Government support accession by the EU to the ECHR, as the Minister indicates. I am sorry that we got a little tetchy, but he gave me the impression that he wanted to move on from the subject fairly quickly, and I understand the necessity to move on to later amendments.
Our entire proceedings, despite some considerable reservations on the one hand and downright hostility on the other, have been conducted in a civilised manner and in accordance with what I hope debates in this House should consist of, but we need to take a good look at what the provision implies, and this clause stand part debate gives us the opportunity to do so.
According to the Secretary of State for Justice and Lord Chancellor, accession will close the gap in human rights protection as applicants will for the first time be able to bring a complaint before the European Court of Human Rights directly against the European Union and its institutions for alleged violations of ECHR rights. It will enable the European Union to defend itself directly before the European Court of Human Rights in matters where EU law or actions of the EU have been impugned.
The Secretary of State also says that accession will reduce the risk of divergence and ensure consistency between human rights case law between the European Court of Human Rights and the EU's Court of Justice in Luxembourg. That is very important. Furthermore, he says that the EU will be bound by European Court of Human Rights judgments in cases in which it is a respondent, and like other contracting parties to the ECHR the EU will need to have regard to the Strasbourg jurisprudence.
I have heard the Secretary of State for Justice express views, albeit in other circumstances, in which he has raised concerns about the extent to which the judiciary is impinging on the sovereignty of this House, and I take him at his word. If he believes that, he might also consider that the EU will have to have regard to Strasbourg jurisdiction. Sovereignty, which we have debated at some length in relation to clause 18, is directly involved in that issue.
I do not need to repeat any arguments that I set out in relation to clause 18, and I have no intention of doing so, but the principle is about the use of jurisprudence from Strasbourg or the European Union Court, the European Court of Justice, and its effect on the legislative process in this House. There is also a constitutional question for the United Kingdom about the manner in which our judiciary is using Strasbourg precedents and importing them to their judgments in our courts. The Lord Chief Justice recently criticised that, because he is worried about the impact of accession on the manner in which we make our decisions and the invasion of common law precedent.
Stephen Phillips (Sleaford and North Hykeham) (Con): I hesitate to intervene on such an erudite speech by my hon. Friend, but one problem that the Minister might want to consider in the context of the clause is that accession by the EU to the convention will create essentially co-ordinated jurisdiction over some areas between the European Court of Justice on the one hand and the Strasbourg Court on the other. Indirectly, therefore, it might affect the rights of this place, because more law and jurisprudence will come from both Courts, and that might interfere with the way in which we conduct business and are expected both to represent our constituents and to make our own laws consistent with accepted doctrine of parliamentary sovereignty. I have intervened now because I think my hon. Friend will agree with that point.
Mr Cash: Absolutely, and it could not have been better put. I am grateful to my hon. and learned Friend, who is Queen's Counsel after all, as well as a distinguished member of the European Scrutiny Committee. He has been following the matter with great interest and makes the point very well.
There is a further point to make about the statement by the Secretary of State for Justice. He says that, additionally, European accession will mean that individuals who argue unsuccessfully in the European Court of Justice that the European Union has breached their fundamental rights-I stress "fundamental"-can, subject to the usual admissibility requirements, complain to the European Court of Human Rights that the EU has violated one or more of convention rights. The risk of confusion in that melee-that dual jurisdiction-is a serious potential problem. The Secretary of State for Justice went on to say that European Court of Human Rights judgments will be binding on the European Union as a respondent to the proceedings.
The Government, apparently, do not expect the European Union's accession to the ECHR to have any direct impact on UK law. As article 6(3) of the treaty on European Union confirms, the fundamental rights guaranteed by the ECHR already
"constitute general principles of the Union's law."
However, importantly, the Secretary of State for Justice concedes that an adverse judgment against the EU by the European Court of Human Rights may require the EU to amend its legislation to protect individuals' fundamental rights in a way that will have consequential implications for UK law. That is why I not only have sympathy for what my hon. and learned Friend said, but refer back to the Minister's assertion that it will not have implications for EU law.
As I said, we have had a number of exchanges with the Secretary of State for Justice. It is best if I pick out one or two of his points from the correspondence, all of which will be set out for the benefit of Members. I am delighted that the hon. Member for Birmingham, Edgbaston (Ms Stuart) has come to swell the ranks of Labour Back Benchers, whose presence would otherwise be non-existent. Unfortunately for the Minister, it is just possible that she will agree with what we are saying, but we will wait and see.
In the letter of 30 June, of which I am sure the Minister is aware, the Secretary of State for Justice wrote to the European Scrutiny Committee, advising that the EU had adopted this mandate. He went on to explain that the Government support EU accession and made the remarks that I summarised earlier. We replied to him on 8 September stating that the EU's accession struck the Committee as potentially a significant development in its internal legal order-despite treaty provisions to the contrary-and that it would amount to submitting the acts of EU institutions to independent external control by the ECHR. We also said it was a potentially significant development in the way in which EU citizens' human rights are protected. We used the word "potentially" deliberately because it was difficult on the information before us to know how much the EU's accession to the ECHR would be a symbolic gesture and how much it would lead to practical changes for United Kingdom citizens.
At this point, it is worth saying that these changes are not just generalisations, but that serious fundamental changes are being brought about by the manner in
which the accession proposal is being put through. It is Government policy and it has significant implications for the daily lives of people. It is difficult in a debate such as this to give specific illustrations because the nature of the debate more or less precludes one from doing so. We are supposed to be talking about the generality of the constitutional change. However, I simply want to put on record that it will have a significant impact on the practical lives of the people whom we represent. That is the key reason for raising these issues.
We went on to note that the Cabinet Office guidance recommended that Departments should provide the scrutiny Committees with
"details of negotiating mandates as soon as they have been approved".
We were grateful for the explanation of the Secretary of State for Justice on how the Government view these matters. We asked him to explain further how the current gap in human rights protection will be closed by accession, and what he meant by the word "directly" when he said:
"applicants will, for the first time, be able to bring a complaint before the European Court of Human Rights"-
"directly against the EU and its institutions for alleged violations of Convention rights".
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After an exchange, what it boiled down to was that there is concern in academic circles that the charter of fundamental rights, which was brought in through a protocol in the Lisbon treaty, specifically allows for EU human rights law to provide "more extensive protection" than the ECHR, and that raises a problem. In light of that, it is difficult to see why the Secretary of State for Justice concluded that a key benefit of accession to the ECHR will be consistency between the two legal domains. On the contrary, there is concern in academic circles that the charter will lead to legal uncertainty on how human rights are applied in Europe by introducing the additional standard of "fundamental" right. Although in appearance that is an esoteric legal argument, it will have an impact on people's rights. That is the problem.
Ms Gisela Stuart (Birmingham, Edgbaston) (Lab): This may be one of the rare occasions when those on my Front Bench do not object to my intervention. I really do not know what the hon. Gentleman is going on about. I have tried to read clause 7 again. Let us go back. The fundamental charter of rights was introduced because of the judgment against the European Union as an institution over Gibraltar. Rather than signing up to the ECHR, which would have been the logical and consistent thing to do once we had given it legal personality, we now have two systems. In the UK, we are signed up to the ECHR. I would have preferred it if the EU had signed up to the ECHR. The charter of fundamental rights gives additional rights. I singularly fail to understand the point that the hon. Gentleman is making because the situation is no different.
Mr Cash:
I am expressing the view of academics who have studied this matter, perhaps more than the hon. Lady. [ Interruption. ] I am not making any personal assertions. I am just saying that the evidence that we have is that the charter will lead to legal uncertainty
over how human rights are applied in Europe by introducing the additional standard of fundamental rights. I am not criticising the hon. Lady, but simply replying to her question by expressing the view that is taken in academic circles.
Stephen Phillips: Does my hon. Friend agree that the problem that is being expressed is that there will be two competing and overlapping systems, adjudicated upon by two different Courts, which is potentially a recipe for disaster? I think that is the point that he is seeking to make.
Mr Cash: I have made that point and am entirely grateful to my hon. and learned Friend for repeating it. The issue is that there is a significant potential for uncertainty when there are two Courts.
Ms Gisela Stuart: I accept that there is a potential conflict, but given that we are already a signatory to the ECHR and that the EU is already a signatory to the charter, none of this adds to the complexity-the complexity already exists.
Mr Cash: I accept that. That complexity does exist, and part of the difficulty with the whole issue of human rights, whether in relation to accession, the charter or the jurisdiction of the Courts, is shown in the comments of the Lord Chief Justice in his Judicial Studies Board lecture. He said to the entire judiciary, "Brothers and sisters", referring to the other judges- [Interruption.] Well, that is their language. He said, "Brother and sister judges, will you please take note that our first obligation is to have regard to the manner in which we come to our decisions in the light of common law precedent?" He warned them against adopting Strasbourg's precedents as a means of arriving at decisions in our own courts. He actually used the words, "We must beware". I therefore entirely agree with the hon. Lady and with my hon. and learned Friend the Member for Sleaford and North Hykeham, and with the views expressed in the European Scrutiny Committee's report that has come out only this afternoon.
Mr Richard Shepherd (Aldridge-Brownhills) (Con): There is indeed a conflict of courts, which has been a matter of considerable concern for a number of years. It is the oldest question of all-who is the master? Where there is a conflict between a constitutional court-the European Court-and a human rights court, who prevails? That is the lack of clarity that exists and the worrying aspect for many people. It has been much talked about in the European Parliament in recent years.
Mr Cash: Indeed, and I add that my hon. Friend, who is a member of the Joint Committee on Human Rights, has been manfully seeking to contain the tsunami of opinions expressed in that Committee about the continuing onward movement towards accession of the type that we are discussing here and about the human rights culture and all that goes with it.
Mr Shepherd: I am not a lawyer, as is evident, but the great difficulty is that we have a common-law tradition, and the European tradition is civil law. Those are totally different ways of looking the world. It is the case law that I am worried about.
Mr Cash: Indeed, and that is because the abstract principles contained in the charter, the ECHR convention and so on have developed a completely different type of law from ours. In a way, this debate illustrates the difficulty that exists. I say to the Minister that as ever, the Government are acquiescing in greater movement towards the human rights culture.
I may say that if anyone knows of my record in relation to matters such as this, they will know that nobody is more likely to want to defend the rights of individuals. All Members are devoted to trying to ensure that there is proper protection. The trouble is how to get to that point. I believe, for example in relation to terrorism, that if we legislate in Westminster according to the principles of habeas corpus, due process and fair trial, and according to our established procedures, we can be sure that no suspect will be ill-treated in our prison cells, however much potential circumstantial evidence there is against them.
Habeas corpus is the first duty of the judge. Ask any senior judge and he will say, "My first obligation is to apply habeas corpus." He would go straight down from his chambers to the prison to make absolutely certain that a person was not being ill-treated. If a writ of habeas corpus is issued, that is that. It is one of our most fundamental protections of liberty for the citizen. A great deal of human rights legislation, and all that goes with it, is moving us away from that. There are also political judges in other countries. There are different systems of law, yet we are acquiescing in a process of change away from our established system.
It is difficult to grasp the broad sense of what is happening, but it has a direct impact. However, the Government are acquiescing in it on a significant scale. That was why, when I was shadow Attorney-General, I proposed the repeal of the Human Rights Act 1998. That was our policy up to the time of the coalition agreement, and the Prime Minister himself repeatedly said that he thoroughly endorsed it. It was Conservative party policy, but under the coalition it has been abandoned, which seems a big jump. In addition, during the debates on the Bill we have seen further acquiescence in the process of moving towards the abstract principle, instead of the concept of the common-law precedent, which my hon. Friend the Member for Aldridge-Brownhills (Mr Shepherd) mentioned.
Kwasi Kwarteng (Spelthorne) (Con): My issue with my hon. Friend's eloquent speech is that I do not understand the word "process" that he has been using. We are already under the convention regime. Whether we are in or out of that is a boundary question. He might want to get out, but that is a different debate. Nothing he can do to amend the Bill will fundamentally alter the fact that we are already signed up to the "process".
Mr Cash:
With great respect to my hon. Friend, he came into the Chamber somewhat after my hon. Friend the Member for Daventry (Chris Heaton-Harris) explained why he wanted to amend the Bill to ensure that we retain greater sovereignty in relation to certain matters arising under the European convention. I do not criticise my hon. Friend the Member for Spelthorne (Kwasi Kwarteng) for coming in a bit late, but we have already discussed that matter-we are now on clause stand part
and the general question of the principles on which the convention operates. Does my hon. Friend want to intervene again?
Kwasi Kwarteng: I will have my say-don't worry.
Mr Cash: Certainly. My hon. Friend says, "We are where we are." In this debate and in the debate on the individual amendments, the Committee is dealing with some very important principles, including the principal question of the shift of accession. Therefore, it is important for us to explain and illustrate, by reference to documents, which I am not going through in detail, and by general principles, that with regard to the charter, the European Court of Justice, the European convention on human rights and the Strasbourg Court, there are important questions that will affect the constituents whom we serve.
For example, the Minister has told us that the only way that individuals can argue in the Strasbourg Court that the EU has breached their human rights is to bring proceedings against one or more member states. His answer to the question, "What do you mean by 'directly'?" was that once the EU has acceded to the convention, it will be possible for the EU itself to be the respondent and to defend claims in its own name. When we asked how accession will reduce the risk of divergence and ensure consistency between human rights case law, Strasbourg and Luxembourg when article 52(3) of the charter specifically allows human rights law to provide "more extensive protection" than the ECHR-my hon. and learned Friend the Member for Sleaford and North Hykeham referred to that-we were told that the EU must have regard to Strasbourg jurisprudence.
Our problem over and over again is that the answers that we get are a further extension of the principles that move us away from common law and precedent, and that instead absorb us into a system of law, judgments and courts that operate on abstract principles. It is as simple as that. That is the key question. When there is a divergence between the two Courts, those problems will become more conflated and confused.
Another question was how the EU autonomous legal order will be preserved in light of European Court of Justice opinions in certain cases, which I will not go into in detail. In a nutshell, we are grateful for the Minister's replies, which are included in the European Scrutiny Committee's report so that anybody who wants to read them can do so. I quite understand that those who have come into the Chamber very recently did not hear the arguments advanced by my hon. Friend the Member for Daventry and the specific issues that he raised.
Kwasi Kwarteng: If the remarks of my hon. Friend the Member for Daventry (Chris Heaton-Harris) were so fundamental, why did he not press his amendments to a Division?
Mr Cash:
The short answer is that my hon. Friend the Member for Daventry did not do so because he had dealt with the questions that needed to be dealt with in relation to those amendments. I am concerned with the broader issue of the relationship between the European Court of Justice and the European Court of Human Rights in Strasbourg. That is the principal question in a clause stand part debate, which is why I am dealing with
it now. That ought to be of great concern to the House, which is why the ESC has produced a special report and why I have gone into the detail in this debate rather than in a debate on specific amendments.
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The draft report notes that-and I refer this section particularly to the Minister, because he may not have seen it yet-
"the guidance for Parliamentary scrutiny of EU documents states that 'Departments should ensure that the Committees are kept informed as much as possible about the scope and development of negotiations prior to conclusion of an agreement.' We look forward to being kept so informed. Meanwhile, the document remains under scrutiny."
This is a very important matter. It is complex and requires some appreciation of the direction of navigation, which is towards an abstract system of law based on abstract principles rather than common law and precedent. It involves an interaction of the ECJ and the ECHR. We fear the possibility of inconsistency and uncertainty as a result, and this is the opportunity to explain those fears.
I am grateful to my hon. Friend the Member for Daventry for raising the question specifically and to my hon. Friend the Member for Hertsmere (Mr Clappison) for his amendments. I thought it would be sensible if I took the opportunity to set out the position of the Committee in relation to the exchange of correspondence with the Minister. As a rider, I would just add that we appear to be acquiescing to the move to a system of abstract law, which is not in the interests of the people of this country. The issue is not that we are where we are: it is the impact that where we are is having on our constituents. That move towards acquiescence is causing me ever more concern, because we are being absorbed into a system that is changing the face of our politics, our judiciary and even our parliamentary sovereignty. For all those reasons, it should be taken very seriously. However, judging from the fact that yet again no Labour Back Benchers are in their places, we can form some judgment about the extent to which they care about their constituents in relation to matters that will have an enormous impact on their daily lives.
Mr David: I thank the hon. Member for Stone (Mr Cash) for providing an indication of what his Committee's recent report says. We have heard over the last few days how important his reports have been in the consideration of this Bill. I also thank him for providing a useful context to the developing relationship between British law and European law.
During the last couple of days, we have heard a great deal from the Government about so-called direct democracy-enabling the people to make decisions themselves. However, it is worth remembering that the Conservative party has never been the party of devolution in Britain and it has always had a very limited definition of the European concept of subsidiarity. During the last few days, we have also discussed the exemption clause and the significance test-ways in which the Govt are substantially qualifying their apparent commitment to referendums. This afternoon, we go on to discuss the Government's proposals for those issues that they deem, to quote the Minister for Europe, are "not of sufficient significance" to require a referendum.
Clause 7 sets out where primary legislation is required in such areas. It is interesting that the Government see Parliament playing a key role, but only on what it considers to be second tier issues-issues that do not require, to quote the Minister again, a "full-blown referendum". Leaving aside the difference between a full-blown and a half-blown referendum, this differentiation between what is deemed appropriate for direct democratic decision-making and for parliamentary decision-making well illustrates the incoherence and contradictions at the heart of this Bill.
For example, yesterday we heard from the Minister how under schedule 1 of the Bill any change to the appointment procedure of the advocates-general of the ECJ would attract a referendum. However, according to the letter that the Minister sent to his Back Benchers in November, a move from unanimity to qualified majority voting for decisions concerning the number of advocates-general would not attract a referendum, but would be covered by clause 7. Perhaps he will be kind enough to explain to the Committee why there are to be different procedures on those two related issues. It would be difficult in the extreme for any Government to explain why a referendum would be held on the one issue, but not the other.
It should be stressed that clause 7 is not about stopping changes at either the Council of Ministers or the European Council, because any member state can block a change to an internal passerelle clause. Clause 7 is only about providing parliamentary approval if the Government have already agreed to use one of the decisions set out in the clause. As my hon. Friend the Member for Wolverhampton North East (Emma Reynolds) pointed out yesterday, it would be extremely difficult for a Council decision to abolish unanimity in respect of the adoption of any future acts. Indeed, Sir John Grant, the former United Kingdom permanent representative to the European Union put the matter extremely well in his evidence to the European Scrutiny Committee when he said that
"everybody's got to agree that some of them are going to be outvoted."
It is extremely unlikely that such a scenario would arise, so in reality the impact of clause 7 will be very small indeed.
After clause 7 we have clause 8, which would give Parliament a greater role over the so-called flexibility clause in the Lisbon treaty, and after that there is clause 9, which deals with justice and home affairs issues. Yesterday we discussed how some justice and home affairs issues would be covered by a referendum; today we discuss some justice and home affairs issues that will not. In particular, I want to refer to opt-ins to measures
"under the area of freedom, security and justice".
Interestingly, the Bill does not really deal with one extremely important area. Britain has a temporary opt-out in the Lisbon treaty with regard to certain justice and home affairs measures. Under that protocol there are transitional provisions that provide for the United Kingdom to participate-or not-in certain European Union justice and home affairs measures. For example, the Government decided not to opt in to the draft EU directive on human trafficking. They decided not to opt in to that
directive at the start of the legislative process, making the same decision during that process and at its conclusion, although I understand that they are to review the position when it comes to the adoption of the directive.
We believe that this is an important issue-an issue that clearly has to be addressed on an international and a European basis. I understand that the Government have decided to opt in to the sexual abuse, sexual exploitation of children and child pornography directive-and quite right too-but what about the issue of international human trafficking? Our view is clear: it is an important issue that Britain should be tackling in co-operation with our European partners. However, the issue before us today is whether it is sensible, according to the Government's own logic, to agree to their proposal that such opt-in provisions should be subject to parliamentary scrutiny, but not a referendum. We fully believe that there should be more parliamentary scrutiny. That is why we agreed to an enhanced role for national Parliaments in the Lisbon treaty. However, given that the Government have been arguing for referendums on important issues, why are they not proposing a referendum on such an important issue?
According to the protocol to the Lisbon treaty, the United Kingdom has an opt-in provision that will last for four and a half years. After that, Britain will be fully part of the justice and home affairs decision-making process. Last night we heard that the Government had absolutely no intention whatever of allowing referendums to take place before 2015 at the earliest. The question that I ask is: why? According to the Government's own logic, if there are to be referendums on important changes that affect the United Kingdom, there should surely be a referendum on this justice and home affairs opt-in during the course of this Parliament. Nothing better shows the inconsistency and incoherence of the Bill than this. It is a muddled clause in a very muddled Bill.
So much for clause 9. Next is clause 10. If what we have been discussing does not make things complicated enough, clause 10 sets out a further six decisions that require parliamentary approval. It is as though the Government have gone out of their way to create a piece of legislation that is deliberately confusing, obsessively complex and designed to confound every constitutional expert in the land.
Let me be clear: we strongly support greater parliamentary involvement and greater parliamentary scrutiny. That is why Baroness Ashton, when she was Leader of the House of Lords under the previous Government, made a statement setting out commitments by the then Government for more parliamentary scrutiny on actions arising from the justice and home affairs protocols. Last week, this Government made a statement that reaffirmed those commitments, and I welcome that. However, we are genuinely concerned about the lack of clarity. This is an obtuse and even eccentric way of addressing serious constitutional issues. They are issues that affect the people of this country on a day-to-day basis, and the country and the House deserve better than the Bill before us today.
Mr Lidington:
May I first respond to my hon. Friend the Member for Stone (Mr Cash)? He spoke with his characteristic dignity, courtesy and thoroughness about the issue of EU accession. I am sure that he will understand that I want to look carefully at the report
from his Committee, rather than responding on the hoof this afternoon. As he would expect, a subject of this significance needs to be discussed by Ministers collectively in order for the Government to come up with the thorough and considered response that every member of his Committee deserves.
Clause 7 fulfils the pledge made in the coalition programme for government that
"the use of any passerelle"-
"would require primary legislation."
It sets out that the Government may not agree to the use of a number of passerelles, or ratchet clauses, in the EU treaties unless the approval from this House is specified in an Act of Parliament.
As the Foreign Secretary and I have made clear in the past, there is no straightforward legal or treaty definition of a ratchet clause. The European Union (Amendment) Act 2008 listed 10 such clauses and limited the definition to use of the simplified revision procedure and to nine articles that allow for the giving up of the British veto in specific areas. When we considered that commitment in the coalition programme, we decided that that definition was insufficient. So for a start, we have put a referendum lock on many of the passerelles listed in the 2008 Act. We debated those matters earlier in our Committee proceedings. Others we have subjected to a primary legislation lock under clause 7. So the use of article 48(7) to give up the UK veto in an area that we did not include in schedule 1 to the Bill would, none the less, still require full parliamentary approval in an Act of Parliament. The same principle applies to any proposal to move to qualified majority voting in an area of enhanced co-operation in which the UK is a participant.
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My hon. Friend the Member for Daventry (Chris Heaton-Harris) referred to article 48(7), and asked me about those aspects of it that did not involve giving up the UK veto but that made possible a shift to the ordinary legislative procedure. It is true that there are eight largely technical cases where article 48(7) could be used to move from the special legislative procedure to the ordinary legislative procedure, but they do not involve a move from unanimity to qualified majority voting, as QMV already applies in each of those eight instances. We believe that all such a decision would do would be to increase the role of the European Parliament from being consulted to being the joint decision-making authority with the Council. It would not change the UK's position under QMV. In the light of my hon. Friend's comments, I would be happy to take the issue away and reflect on it further. Perhaps I could write to him on that detailed point, ahead of the Report stage, and see if I can satisfy him on that account.
Ms Gisela Stuart: I apologise if I have missed something that the Minister has already said, but are the lists setting out what requires a referendum and what requires other procedures indicative or exhaustive?
Mr Lidington:
What is clear in the Bill is that anything under article 48(7) relating to the giving up of a UK veto or a move to qualified majority voting would require primary legislation here. My hon. Friend the
Member for Daventry questioned me on those areas of policy, defined in various parts of the treaty, where article 48(7) could be applied to move from the special to the ordinary legislative procedure, but where QMV still applies now and would apply in the new circumstances. If it would help the hon. Lady, I will happily copy the letter I write to my hon. Friend the Member for Daventry to her as well.
We took the opportunity in working on this Bill to take a fresh look at this issue. We concluded that a general principle could be applied-that articles already in the treaties that provided a "one-way" option should also be considered to be passerelle clauses. These one-way options add to or reduce what could be done within existing areas of EU competence, but without changes to either voting rules or legislative procedures. We felt that they should be subject to primary legislation.
We also looked hard at articles that modify the composition or rules of procedure of existing EU institutions and bodies. We will come on to most of those when we debate clause 10. However, we felt that the article allowing for the amendment of the number of Commissioners was a highly significant article as it could be used to negotiate a reduction in the current requirement that every member state should nominate one Commissioner. We therefore proposed, because of the importance of that matter, that any such decision should require approval by primary legislation.
Chris Bryant (Rhondda) (Lab): Is it not ludicrous that there are so many Commissioners? There are far too many of them to give them all proper jobs. Half of them do not have a proper job now. We have ended up with a system under which each country gets one Commissioner, but they are not meant to be there as "the British Commissioner". They should work together as a commission. When it comes to state aid, it is particularly important that they act independently, not as a national representative.
Mr Lidington: The hon. Member for Rhondda (Chris Bryant), my predecessor in office, puts a strongly held view with characteristic cogency. Whatever the merits of his argument, it seems to me that departing from the principle that each country should be entitled to nominate a Commissioner would be a change of major significance to the way in which the European Union is organised and run. As such, it would seem appropriate, whatever the merits of demerits of the proposal, that this should be subject to primary legislation rather than any less demanding form of parliamentary scrutiny.
Mr Lidington: I am conscious of the pressure on time and I am going to try to make some progress.
Let me respond to the challenge from the hon. Member for Caerphilly (Mr David) about the numbers of advocates-general. There are not 27 advocates-general, so we are not in the position of having one for every member state, but it is important that we retain the veto on this, and we have no intention of giving it up.
It is important for the United Kingdom to be able to approve the appointments of judges and advocates-general, and we felt that it was sufficiently important to be included in schedule 1.
Mr Lidington: There will be other opportunities for us to debate the number of advocates-general, and I am sure that the hon. Gentleman is ingenious enough to identify them. He and his hon. Friends have managed to weave the issue into every speech they have made so far at every stage of the Bill's progress.
Mr Lidington: I am afraid that I am going to deny myself the pleasure of hearing a further explanation from the hon. Gentleman.
The other articles listed in clause 7-covering decisions on provisions for elections to the European Parliament, on the system of own resources of the EU, and on the adoption of provisions to replace the excessive deficit procedure-already require primary legislation before this country can agree to them, and clause 7 replicates those earlier requirements. Decisions under the articles listed in clause 7(2) would require approval in accordance with the constitutional requirements of the member state before the member state confirmed its approval of a decision. The four articles that I mentioned are also subject to enhanced parliamentary control in Germany following the judgment of the Federal Constitutional Court on the Lisbon treaty.
For the other decisions listed in subsection (4), primary legislation will be needed before this country votes in the Council of Ministers or the European Council. In other words, the Act will be needed before the United Kingdom can cast its vote. We intend that to happen before the final political decision to use the ratchet clause is made at European Union level but after official-level negotiations have been completed, so that it is clear to Parliament that that is the final text and it can make a decision on what is proposed without the risk of further changes.
Unlike the 2008 Act, the Bill does not contain a disapplication provision giving Ministers discretion to approve a decision that has been amended since being approved by Parliament. That is deliberate. We want Parliament to approve the final version, although it will of course be examining the proposals from an early stage under the existing arrangements for parliamentary scrutiny of European legislation.
I should emphasise that these provisions will apply only when the Government intend to agree to a measure. If the Government of the day did not support the exercise of any of the ratchet clauses, they would simply block their adoption. However, the pledge in the coalition agreement and the commitment in the Bill provide that when the Government would be in favour of such a decision, Parliament must approve it first.
Chris Bryant: I did not intend to speak, but as the Minister refused to give way-it was the first time I had ever seen a Minister do that in Committee-I wanted to make one very brief point. [Interruption.] I see that the Whip is fulminating. He can go and fulminate on his own.
The problem with the Bill, and with clause 7 in particular, is that it will make it more difficult for us to negotiate with other countries to achieve the outcomes that we want for the British people. Let us suppose, for example, that France introduced a law similar to this and we tried to negotiate a proposal that is in the coalition agreement, namely that we should end the ludicrous caravanserai between Brussels and Strasbourg. It is laid down in the treaties that the European Parliament shall have two places in which to sit, which is ludicrous given the vast amount of money that is spent on the two buildings, the vast inconvenience caused to people, and the creation of a monopoly air service which is also ludicrously expensive. Moreover, I do not think that all that has resulted in a better policy and decision-making process. However, if the French Government had a law such as this, they would simply block every treaty change that might be in our interests.
Stephen Phillips: As always, I am grateful to the right hon. Gentleman for giving way, but has he not just made the case for why the Bill is so important? In the example that he has given, it would be possible for the French Government to say to other European Governments, "This is in the interests of my country, and I will therefore not be able to get it through." Is that not the great merit of the Bill, and is it not the sort of Bill that we would never have seen from the Government of whom he was a member?
Chris Bryant: May I just clear something up? I am not right honourable, although many hon. Members have recently referred to me as such. Many would doubt whether I am even honourable.
The First Deputy Chairman of Ways and Means (Mr Nigel Evans): Order. I am not calling a Division on this one!
Chris Bryant: I do not think you are able to call one, Mr Evans.
The hon. and learned Member for Sleaford and North Hykeham (Stephen Phillips) seems to be arguing that we should adopt a French style of intransigence, permanently trying solely to defend the British interest. In the end, such an approach cuts off our nose to spite our face. I do not think that anybody here thinks that the double-sitting arrangement is sensible, and most French politicians would agree in private. If this country starts setting up barriers to try to make it more difficult to change anything in the European Union, other countries will do the same and we will end up keeping some of the anomalies and ludicrous elements of the European Union. That is why I oppose the clause. I would have dealt with all that in a short intervention on the Minister.
Mr Shepherd: I do not understand this. The hon. Gentleman says, "It is in the treaty" but this Bill has nothing to do with changing the treaty and is about circumstances that may arise in the future. So what point is he making? If the treaty provides for movement between the two centres on a rotating basis, it is mandatory, is it not? How does this relate to the Bill?
Chris Bryant:
The Bill does make reference to treaty change, and understandably so. I thought that the whole argument that the hon. Gentleman and many others have made over the past three or four years during
discussion of the Lisbon treaty and its predecessor was that because a treaty change was involved, there should be a referendum. All I am saying is that if that had been the proposition in France, we would never see an end to that element of treaty change. I would, however, be amazed if the Government make any progress on trying to change the Strasbourg provisions, although perhaps the Minister will be able to enlighten us on that.
Mark Reckless (Rochester and Strood) (Con): The hon. Gentleman mentions that the dual site of the European Parliament is provided for in the treaties. Surely the key issue is that the coalition agreement says that we are going to deal with this situation. The opportunity to do so is coming up, because the eurozone needs our agreement to a new treaty. In return for our agreement, surely we could demand that the European Parliament move to a single site, thus fulfilling what is in the coalition agreement.
Chris Bryant: That little speech was the definition of "denial", because there is no prospect of the French volunteering a treaty change on the Strasbourg sittings unless an enormous contribution is to be made from our side, which the Government would be able to deliver only if they were holding a referendum. By forcing referendums here, which means that the Government cannot give anything away, the Bill is making it impossible to win the argument on closing down Strasbourg-I mean the sittings there, not the city.
Kwasi Kwarteng: The issue that the hon. Gentleman raises in his example is clear. He suggests that the French would be reluctant to give away the right to have the two sites. That just illustrates the point that my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) made about the French sticking up for their interests, and it touches on the whole point of this Bill. It seems extraordinary for a Member of Parliament to say, "We don't like the Bill because sticking up for our interests might in some way damage the whole European project." That is not what we are trying to do.
Chris Bryant: I think that the hon. Gentleman misunderstands me. I am sure that that is my fault, because I cannot have expressed this at sufficient length or ably enough. The point I am trying to make is that our insistence that there will be no treaty change without a referendum makes it more difficult for us to achieve changes in the treaty that we want to pursue, because other countries will simply say, "We know that you are determined not to have any treaty change whatsoever, which is why you have created this referendum lock and all the rest of it." That is why, I think, Government Members who are delighted that the coalition is committed to trying to change the situation in relation to the dual sittings and Strasbourg are profoundly deluded.
4 pm
Nick de Bois (Enfield North) (Con): How does the hon. Gentleman reconcile his statements about our having a referendum, when lots of negotiations have gone on while many countries have had referendums?
Chris Bryant:
Referendums in different countries operate in different ways. I think that I have heard the Minister say on a couple of occasions both here and elsewhere
that there was never a referendum that supported the Lisbon treaty. That is completely untrue, as the Spaniards were the first to hold a referendum and it had an 83% or 84% yes vote, so he is wrong about that.
I think I have made my argument on Strasbourg.
Mr David: My hon. Friend is making a very important point. He has used the example of Strasbourg, but he is making a wider point. The process of change in the European Union, as anybody who knows anything at all about it will be aware, is based on negotiations. The point of the Bill is that it makes it impossible for future Governments in this country to negotiate in Britain's national interest.
Chris Bryant: Absolutely. There are many different things in the European Union-many determined in treaty-that I want to change as a pro-European and as somebody who wants always to defend the British interest. I do not see those two things running counter to each other. My argument in essence is that the Government must have enough freedom to proceed in negotiations, so that they can gain concessions from the other side. If a country has already locked itself down, it is impossible to gain concessions from the other side.
Chris Bryant: I will give way to the hon. Gentleman, then to my hon. Friend, and then please release me.
Mark Reckless: I would suggest that the hon. Gentleman has not entirely seen my point. A referendum is only one lever that the UK can use to extract concessions. Our agreement is needed on the new treaty for the eurozone, which is desperately needed to try to put in place a permanent bail-out mechanism. My suggestion and, as I understand it, the commitment in the coalition agreement is that as a coalition we will ensure that the Parliaments move to one site and work to limit the application of the working time directive in the UK. Surely that new treaty gives us an opportunity to do so.
Chris Bryant: No, because one requires treaty change and the other does not. If we have already locked ourselves down by saying that any element of change would have to be submitted to a referendum, when we effectively know that most referendums on many of these issues would be lost in the UK-that is the whole tenor of the argument made by the hon. Gentleman and others on the Government Benches-it will be impossible for us to negotiate with a free hand. In the end, that will be bad for the British interest.
Ms Gisela Stuart: I want to make an offer to Members of running classes on how the EU works. Anybody who has ever worked in the EU would turn in their grave if we were to rerun the past 10 minutes-except those who are not there yet. The comments have shown a complete and utter lack of understanding of how the EU works and how treaty changes work. What is most amazing about the Bill is that I find myself for the first time in years agreeing with those on my Front Bench-that shows how wrong the Government are. Negotiations are different; none of this has anything to do with clause 7 and hon. Members are utterly wrong. I am happy to run a workshop on that afterwards.
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