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Laura Sandys (South Thanet) (Con): To take up the point made by my hon. Friend the Member for Dover (Charlie Elphicke), I am a great advocate of transparency, which is crucial. The problem is that the Bill proposes unilateral transparency. We are not in the business of declaring that we are for unilateral disarmament before negotiations. Will the Minister ensure that although we need to make progress on transparency, we need to do so across Europe, and not just in respect of our negotiating team, which might feel hampered in making the key decisions that matter so much to my constituents?

Mr MacShane: The hon. Lady makes a fair point. Aneurin Bevan famously said apropos of unilateral nuclear disarmament that we should not send a Foreign Secretary naked into the conference chamber. Now and then at the more tedious European Council meetings, someone coming in naked might have cheered everyone up, but she is right to insist that Britain cannot unilaterally reveal itself in its wondrous glory, naked to the rest of the world, while 26 other members are smuttily enjoying the sight while keeping their own crown jewels well and truly hidden.

Laura Sandys: The hon. Gentleman is perhaps taking the analogy a bit too far.

Mr MacShane: I was tempted to do so, but I shall resist.

My frustration, after 17 years in the House, is that we still do not know how to discuss the EU. We are still frightened of going to the national capitals of Europe. Much of the information that the Bill calls for can be found if hon. Members are prepared to take the time to meet opposite numbers of all parties—the European debaters and deciders in the Bundestag, the Assemblée Nationale or wherever. Hon. Members could also easily find things out from civil servants in Brussels. Most of the information is available if they are prepared to take the time to find it.

Our own negotiating functionaries, to whose extraordinary qualities I pay tribute, would be quite happy to discuss with Committees of this House what they do, but we have reduced European matters to adversarial, in-or-out, horrors-of-Brussels debates and all the drivel that one can read in the Daily Mail and similar papers, instead of accepting that we are in the EU and, as the Prime Minister has made very clear, that we are not leaving. The EU will come forward with new proposals, some of which will be tricky and some of which we will advance, and it would be much better if we could have a mature dialogue with other national parliamentarians. There are 9,700 national parliamentarians and 700 MEPs. We overreact to what the latter say, and ignore the need to connect to the national Parliaments and parliamentarians of Europe to debate decisions.

That would mean a revolution in how we do business. Frankly, the Labour Government failed miserably in improving the quality of oversight and debate on EU decision making. I could publish some of the papers I wrote—if they are not locked away under some 30-year rule—to call for some of the measures that we are discussing. I wish the Minister and his team well in changing how we do EU business. The new clause is not the way forward, and I hope the motion is withdrawn after the debate, but it represents, and is a symptom of, a deep malaise in our nation and of the distrust of

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Europe that many people feel. I understand that fully, but I insist that parliamentarians can put it right. Hurling insults at the EU will never achieve that.

4.45 pm

Mr Richard Shepherd (Aldridge-Brownhills) (Con): The Bill is titled the “European Union Bill”, and is a legislative measure by this Parliament in respect of the government of this country. It seems to me that what Denmark does is what Denmark does, and what others do, they do. There is nothing unreasonable in the new clause, other than perhaps in respect of the question reasonably raised about the definition of “relevant”. However, I think that everyone in the debate understands the gist of this rather important new clause.

We forget who we are. It was a struggle to get accountable government—that is what this is about: accountable government. It is an odd quirk of the British constitution that we seek accountability at certain levels. Some of us have been here a long time and will remember the triumph of Sir John Major over Maastricht. If I recall correctly, he came back saying that he had won “game, set and match”. As was rightly pointed out by several Members, that is the normal formula of most leaders of EU countries, who all protest that they have secured some golden objective, the consequences of which we only find out some years later. I emphasise that the struggle for accountable government was not easily won. In fact, the House used to sit in secret, and it was a criminal offence to reveal the force and arguments that took place. We did not know, therefore, whether the man who protested he was our friend was indeed our friend, and we did not know whether the person pointed out as the enemy was indeed our enemy. To the benefit of this country, that went. An essential ingredient of our constitution, therefore, is the concept of accountability, but we cannot have accountability if we do not know how the Government act and what they say.

Today’s most relevant observation—I thought it was important, and I hope that the House thinks so too—was made by my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg). He said that many of the decisions coming from the EU are legislative decisions. Imagine that the House sat in secret discussing legislative decisions, and that none of us could be held to account—it is rather like the coalition agreement, is it not?—for the outcome of the decisions. No one is held accountable. That would end democracy in this country as we understand it. It is a difficult enough task to hold Governments to account: time goes by, and the exigencies and pressures of other issues get rammed in.

We are facing a huge constitutional change that has taken place over the past 30 years, and the decisions now made within the EU structure are profound and affect all our lives. One of the promoters of the new clause, the hon. Member for Birmingham, Edgbaston (Ms Stuart), gave a very good example—the working time directive for junior doctors. It had enormous consequences, and the House would have been better placed to agitate and put pressure on Ministers who proclaimed that they were fighting for Britain all the way and were winning game, set and match. However, the consequences of that decision are now being felt throughout our national health service.

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Mr MacShane: Will the hon. Gentleman give way?

Mr Shepherd: I am reluctant to, but as the travails of the right hon. Gentleman are so explicit, I will.

Mr MacShane: The working time decision was taken in 1994. I experienced two constituency cases involving horrible deaths because of overworked doctors who were obliged to do long hours at the weekend who, to put it crudely, made slight mistakes with a zero, so I welcomed that decision. However, those provisions were there from 1994. They could have been put into operation and introduced slowly, but we pretended that that was not going to happen. The decision was made, but nothing was secret.

Mr Shepherd: I have just heard another inaccuracy from the right hon. Gentleman, just as previously he was corrected on a matter of fact regarding the invitation of those not in the eurozone to be present at meetings affecting what are profound matters. I shall therefore take with slight caution some of the arguments that he has advanced.

I should declare an interest: I am a parliamentary vice-chairman of the Campaign for Freedom of Information. What is noticeable is that Europe is notoriously remiss in this area. It is proclaimed that work is being done on freedom of information, yet in many ways the bureaucracy in Europe is one of the most secretive organisations of them all.

Mr Cash: The very paper that led to the urgent question that divulged what was going on with European economic governance was described as a “non-paper”. In other words, it was a paper that no one was supposed to know anything about.

Mr Shepherd: This is the record on Europe that most of us will recall; it is not the fantasy of some, who see Europe as an object of almost theological insistence.

Mr MacShane rose

Mr Shepherd: No, I will not give way. The right hon. Gentleman spent nearly 30 minutes repeating the—

Mr MacShane: I was taking interventions.

Mr Shepherd: Indeed, and I took an intervention from the right hon. Gentleman, if he remembers. However, I have listened to the argument, and it is the same argument that he makes most of the time. Although repetition does inform one, it sometimes becomes like a woodpecker on the brain. [ Interruption. ] No, no, I am going to be fair. This is an important new clause. Our constitutional arrangements require Ministers to be accountable to this House, and the new clause would give us a better understanding of what is happening to our future and our constitutional arrangements.

The European Union set up a body—indeed, the hon. Member for Birmingham, Edgbaston sat on it—to bring the citizens of Europe closer to the institutions and nature of the European Union. I have watched, as have all Members of this House, the disengagement of those citizens—certainly in this country, but also in many others, right across Europe—which is becoming very severe indeed. We have only to look at Ireland, which has done everything that was required of it and is now in an horrendous state, so I do not need the right

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hon. Gentleman, the former Minister for Europe, to say that this is wonderful. It is not; we expect accountable Government.

Angus Robertson (Moray) (SNP): We are quite rightly focusing this debate on the workings of the European Union, but some right hon. and hon. Members seem to be establishing a principle that must surely apply to all international treaty organisations that the UK signs up to, whether on environmental, legislative or defence matters in international law. Is the hon. Gentleman saying that he wants exactly the same transparency in all negotiations in every treaty organisation of which the UK is a part? Surely that would be consistent.

Mr Shepherd: I do not accept the argument, because there are very few international agreements that apply in a directly legislative way in this country. Therefore, on a great range of matters we have to put things through this House; therefore, they are governed by the processes of this House. Normally they are nodded through, that is true. None the less, there is accountability to this House, and there are the Ponsonby rules and all that—if they amount to as much as I would like them to amount to. I would therefore urge the House to support the view that we should know exactly what is happening. I do not want to hear “Game, set and match”; I want to hear where we stand in these matters. I want our Front Bench to be quite candid about this matter, which lies at the heart of this European Union Bill, as amended. I was sent a press release, or whatever it was, to advise me as to the merits of the Bill. Well, I will make my own judgment on that, as will other Members who do not follow the Whip as closely as I do. I hope that we will have enough belief in ourselves—because this applies to us, to the British Government—to introduce a proper process in which Ministers will be candid and bring forth exactly what happens in these meetings.

The words

“including all amendments sponsored by Ministers and other member states during negotiation of the treaty or decision”

particularly excite me. Clearly that proposal would not apply at the time of the meetings but to afterwards, when we would come to understand the character of those who are making the law.

Mr Clappison: Would it not be very strange indeed if Ministers were to try to keep secret the amendments that they had tabled during such negotiations? Is not this something that people should subsequently know?

Mr Shepherd: I believe so, because there is a matter of the most profound trust involved. When Ministers speak at the Dispatch Box, we trust that they are telling the truth. That is one of the rules and we must hold them to it—[ Interruption. ] No, that is a convention of the House. Ministers have fallen when they have lied at the Dispatch Box.

Mr David: I hear what the hon. Gentleman is saying, and I have some sympathy with the point that he is making, but does he not foresee a legal problem with the publication of the amendments proposed not only by the British Government but by other member states as well?

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Mr Shepherd: As I understand it, the European Union purports to be a country now. That change of title happened following Maastricht. We became citizens of the Union, also under Maastricht. Those issues were fiercely fought over. The question of whether Her Majesty the Queen was a citizen of Europe arose on the Front Benches here. We asked those questions and they were debated. The Bill was passed, but it was, as Labour Members will recall, a damned close-run thing—on one amendment in particular.

Mr Cash: The very amendment paper that my hon. Friend is holding in his hand demonstrates the amendments that have been tabled and that are available to everyone who cares to look at them. On the basis that the Council of Ministers is a legislative body, does he not agree that, if we have to receive its legislation and are then allowed to table amendments to it, we should be entitled to see the amendments that have been tabled during the preceding process?

Mr Shepherd: That is the argument, and I am glad that it was so briskly conveyed. On that note, I urge the House to support the new clause.


Michael Connarty: I hope not to delay the House for too long. I am actually a signatory to this new clause, but I hope that the hon. Member for Hertsmere (Mr Clappison) will withdraw it. It was an attempt to ask for a process in which information should be provided to make sense of any proposal under section 4, which is mentioned in clause 5 on statements to the House. The truth is that there is a problem with the understanding of, and interest in, the decisions made in the European Council, which are then enacted by this Parliament and which affect the citizens, businesses and communities that we represent.

The hon. Member for Aldridge-Brownhills (Mr Shepherd) is always keen for us to be more informed, but I am not sure that the new clause would achieve that. Listening to the debate, I have become more and more convinced that more and more documentation does not mean more and more information. We need to look carefully at how the House treats the process involved. There are, I think, six members and one former member of the European Scrutiny Committee here today, and we tend to take a lot of interest in these matters, but there is not the same breadth of understanding, information gathering or discussion of European matters in the generality of the House.

Much can be explained by changes in the structure of how Parliament deals with European issues. We used to have European Standing Committees, with specific designations as A, B and C, specific remits and a fixed membership of 13 each, and they debated every single issue that came from the European Council about which the European Scrutiny Committee was not happy. What happens now is that a randomised group of people chosen by the Committee of Selection turn up now and then and the Committees have no sense of a specific remit. They are still foolishly called A, B and C as if they still have specific remits, but when a Minister brings forward provisions to change our position and bring in new law on the basis of a directive, regulation or other proposal from the European Commission, very few people understand what that Minister is doing.

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5 pm

We need to reflect carefully on what will happen when this Bill is enacted and it comes to something as serious as a referendum. Of course, I said originally that I did not believe this provision would ever be used; it is effectively wallpaper, as was said by many learned people from whom we took evidence. If the circumstances for a referendum arise, there will be a lack of information, a lack of understanding and only a very small number of people will debate the issues intensively, which they will do either because they have a fixed political position or on account of their interest and knowledge.

The idea is to gain more information from Ministers, which I believe will require a change in the structure of how this House treats European business. That is important. The Home Secretary put forward that view when she was the shadow Leader of the House and the Labour Government Front-Bench team also spoke strongly about it, but it never came to anything. I believe that it must now be looked at again.

The new clause makes a plea for this House to be treated seriously and to be properly informed by Front-Bench Members. Members need to be interested and engaged in the process whereby differences can be made to our relationship with Europe.

Mr Robert Buckland (South Swindon) (Con): I am attracted by the hon. Gentleman’s argument about the need for a change in the way this House deals with European policy. Is not the logic of his argument, however, that we need to go back to an earlier stage, whereby we as legislators should be involved, pre-negotiations and pre-discussions, in thematic debates and policy statements so that we can make some input to the Commission and the institutions of Europe? Does he accept that?

Michael Connarty: I not only accept it; I fully endorse and applaud it. There is a work programme that comes forward from the European Commission, and it is debated in Westminster Hall, but very few people turn up: that is the reality. We have tried to engage a number of Select Committees by referring to them matters of interest to the European Scrutiny Committee, which continues to be chaired ably by the hon. Member for Stone (Mr Cash). We are trying to engage Select Committees in those issues so that the European Scrutiny Committee and then the House could be advised of any European matters of substance that should be considered.

We could therefore change aspects of the apparatus we use before reaching the point to which the new clause refers, where a Minister is recommending a referendum. When this clause is triggered, the Government will have decided that they want to do whatever it is the referendum has been called to consider. It will be a referendum on a Government proposal, perhaps for a new treaty or a new decision that will change our relationship with Europe.

Let me finish by providing one example. We took a decision a long time ago—it was probably agreed across the Chamber because it was politically sensitive for us not to opt into all of the Amsterdam treaty—whereby we did not become members of the Schengen group of countries. That group is effectively all the European Union countries apart from us. Frontex, the new border police, is now trying to throw a ring around Europe and

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it is going to be heavily pressurised by migration from other parts of the world—particularly from Africa, and perhaps very quickly from north Africa. We are not a member of Frontex because we are not a Schengen country. We sit on the board—Frontex has been quite nice to us, even though we did not sign up to it—so we asked whether any of our officers engaged in a Frontex operation could have the same protection from prosecution as other Frontex officers. We are told “No, because you are not a member of the Schengen group.” The train is leaving the station very quickly to protect the rest of Europe, and the United Kingdom is running at the back waving a little flag saying “Can we join? But we do not want to be full members.”

We ought to be fully informed of the consequences of decisions such as that. I am not talking about those who are, for reasons of prejudice, Eurosceptic and against doing things on an EU basis, in the belief that they can somehow be done on a bilateral basis with 26 other countries. If we had been fully informed, we would have concluded that membership of Frontex was important enough for us to take the step of joining the Schengen countries and being a real part of Europe.

Although such information and debate would be extremely useful, that will not be made possible by the new clause, and I therefore hope that it will be withdrawn. However, we need to make those changes in the Chamber if our constituents are to understand that we know what we are talking about in Europe, and that we are acting on the basis of analysis and proper information rather than prejudice.

Charlie Elphicke: It is a privilege to follow the extraordinarily interesting and thoughtful speech of the hon. Member for Linlithgow and East Falkirk (Michael Connarty). The debate on the new clause has been largely underpinned by a dislike and distrust of the European Union and its works, and I share that distrust. Many Members feel that an organisation that spends vast swathes of our money and imposes massive increases in our budget contributions in return for no obvious value, at a time of great downturn across the continent, is not an organisation that is in touch with this country—or any other country. They do not trust an organisation that feels so remote from the electors of this country and every other country in the European Union. Even in Germany, an increasing number of people are finding the European Union and its works troubling.

Martin Horwood: The hon. Gentleman says that he attaches no obvious value to the European Union. Does he exclude from that the EU’s important contribution to world climate change and trade negotiations? Does he exclude the European arrest warrant, which enables us to fight terrorism across international borders? Surely those things have some value.

Charlie Elphicke: They could all have been achieved by nation states. Obviously we welcome the ability to do some things on a wider and more agreed basis, but we do not want the spider’s web of intrusion into our national lives and the lives of member states that we have seen in the European Union. That is why many Members object to it and say, “We don’t trust anything that happens there.” Every time there is a treaty negotiation the spider’s web creeps further out, more of our money is sucked in, and more of our national vitality is taken away from us and planted in Brussels.

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I am merely recording the sentiments that, in my view, underlie the new clause. It is felt that we have been shut out of the process, and that we do not have a say. For the last 20 or 30 years, the Governments of all the member states in Europe have been saying that they have secured great deals in Europe, but the general public in countries throughout the European Union have a sense that they have, to some extent, been sold down the river.

The new clause is underpinned by questions such as, “What are the amendments that you are moving? What are the discussions that you are having? What really happened behind those closed doors?” I understand that view, but although I share the deep concern that has been expressed about our involvement, and future involvement, in the European Union, I am not sure that the new clause represents the right way in which to deal with it. There is a balance to be achieved, given the inevitable tension between transparency and the need for negotiations. I am a massive fan of transparency, because I want to know how the European Union spends our money, and I want government that is accountable to our people. Dare I say it, I want government of the people, by the people, for the people. On the other hand, we must take part in negotiations, and we must ensure that our negotiating position does not blow up in our faces.

Many examples can be given. The Cabinet meets in secret, and we do not learn what happened until some years later; the NATO councils and some of the United Nations councils meet in secret as well. Traditionally, relations between member states tend not to be published on a case-by-case basis. I have listened with interest to the argument being put that the Council of Ministers is not an executive organisation but a legislature. That is a technical, semantic argument about what is really a negotiation between Governments of member states—it is an intergovernmental negotiation.

I have grave misgivings about giving away our negotiating position and telling other nations, which we want to squeeze for a better deal, where our top and bottom lines are in that negotiation process. I make that point because I must tell the House, with regret, that I used to be a law firm partner—I was a poacher before I turned gamekeeper—and in that time I would negotiate for my clients against the lawyer on the other side of the table who was representing their client. I did not want to tell them what I was going to concede; I did not want them to have an idea of what I and my client might, and might not, give away in future negotiations. I did not want to reveal where the lines of debate were or when I would say, “No further,” because if I had I would not have got the best deal. Just as in those times I wanted to get the best deal for my clients, in these times I want to get the best deal for my clients, who are now the people of Dover, and the nation as a whole.

Stephen Phillips: Actually, my hon. Friend is a gamekeeper turned poacher. He is making a compelling argument about not giving away our negotiating position to other EU member states. The difficulty here, however, is to do with the use of the word “relevant” in the new clause. Does that mean that under this clause we would disclose information that would not already have been known to other nation states? In that case I can see the point of his argument. However, if it means something

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different, it may not have that effect. Does he have any grip on what the word “relevant” means here, and does this problem not underline why the new clause should not be added to the Bill?

Charlie Elphicke: I completely agree, and I was about to turn to that argument.

The new clause is important in prompting a debate that should be had—and might previously have been had—about the relationship between this House and the Executive in respect of our negotiations in Europe. [Interruption.] The hon. Member for Birmingham, Edgbaston (Ms Stuart) nods from a sedentary position. This is a very important point, which goes to the heart of things, and it is why I asked about the situation in Denmark. I did so not in order to trip her up but because I was genuinely interested and knew that, as she is an expert on European matters, including the Council of Ministers, she would have experience to share on that subject.

The phrase “relevant documentation” in the new clause is not, of course, defined; it could mean anything or nothing. That is a technical deficiency, therefore. I also think that there is a technical deficiency in the phrase, “amendments sponsored”. I asked the former Europe Minister, the right hon. Member for Rotherham (Mr MacShane), how amendments are dealt with in Europe: is an amendment tabled and moved, or is there a nice bit of Euro chit-chat and then everyone comes to an agreement at the end? The hon. Member for Birmingham, Edgbaston can correct me if I am wrong, but my impression is that it is a bit of a mishmash of everything, and out of the sausage machine of discussion comes a new piece of Euro-legislation, freshly approved with the mark of Europe stamped on it.

Ms Gisela Stuart: I fear the hon. Gentleman is absolutely right. The Austro-Hungarian empire would have called the process “durchwurschteln” as it is a sort of sausage machine. I congratulate the hon. Gentleman on having such a good grasp of what goes on even though he has never been inside any of those negotiating rooms in Europe. The key problem is that the practice and the theory are so far from what we think they are. That is why I thought it was so important to try to open the door on what goes on, and it also highlights why it is important to keep asking questions about how these things work.

Charlie Elphicke: I thank the hon. Lady, and I am humbled by her kind words and great generosity. An important issue of transparency is involved here. We want negotiations to go on; we do not want to have everything picked over later, to risk our negotiating position in future and to risk our relationship with other member states. They might not want some of their information put into the public domain.

I want discussion to be full and frank. Why is that? I do not know how anybody else feels, but I remember that this country went through a phase of “sofa government”, when there were no minutes, no notes and no discussion. Not everybody thinks that that was a high point of our national life. Some people think that it was a particular low point because little deals got cut on sofas, in corridors and far away from anyone taking any minutes. That is the risk when we say, “Let us know

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what goes on behind closed doors.” Funnily enough, this sort of thing will not go on behind closed doors; it will go on in closed corridors and on sofas. I worry about that, because it is a real concern.

5.15 pm

However, I also want to have a sense of transparency: I want to know what Ministers are getting up to in Europe. I want this House to be properly involved in matters to do with the European Union, as does the hon. Member for Birmingham, Edgbaston. That is why I keep raising the example of Denmark. I have not yet mentioned Finland, but I will now go on about both those countries.

Ms Stuart: May I encourage the hon. Gentleman to go on about Finland, because it has this much more right than the Danes do?

Charlie Elphicke: That is exactly the argument that I seek to put. There is massive distrust of the European Union in this House, and massive suspicion that Ministers—of all parties—go to Brussels and sell us down the river without our knowing what goes on. Meanwhile, our electors give us a good kicking about why this, that and the other happened, and we cannot really explain why it happened and what our role in it was. So there is an accountability deficit.

Denmark has an open process, whereby its Folketing’s European affairs committee meets in public and agrees a mandate system, as the hon. Member for Birmingham, Edgbaston told us. It says, “This is your up line and this is your down line. Go off to Europe and negotiate.” The process is public so, as she beautifully put it, people do not need to worry about Denmark because they know where it stands. People count it in or count it out, and negotiate with everyone else. I suspect that Denmark is left out of negotiations because people say, “We don’t need to cut a deal with those guys.”

Ms Stuart: The difference is that although Finland mandates, the mandate can still be negotiated with its Parliament, whereas the Danes are mandated and the Ministers cannot change their minds. They are therefore at the meeting simply to say what their Parliament has told them. The Finnish system is better because it still allows for mandating movement.

Charlie Elphicke: Beautifully put, as ever, by the hon. Lady, who describes the problem exactly. The Danes’ mandate becomes an open negotiating position and they lose their ability to be flexible and to push other member states in the give and take that sits at the heart of true business or governmental negotiations.

Finland, like Denmark, does involve its national legislature, but the difference is that in Finland this is done in private. The Finnish grand committee meets in private, away from the cameras and the spotlight, so it can have that important discussion.

I do not know what other Members think, but I believe that my hon. Friend the Member for Stone (Mr Cash) has some good points to make. He makes them with great passion and often at great length, and he is well informed. He passes the Linlithgow test,

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because he reads all those boring papers, whereas all the rest of us put our heads in our hands and then flip through them quickly to pick out the main points. My hon. Friend actually reads this stuff—I do not know how he does it, but he does—so he is able to have a substantial and serious discussion about the issues. I put it to the Minister—I hope that he will respond in due course—that we need a mechanism, perhaps a Committee system, whereby those hon. Members who are interested, even obsessed, with the European Union can represent the House’s interests and hold discussions in private, as the Finnish grand committee does, before a negotiation happens.

The Intelligence and Security Committee knows what goes on, and therefore builds in some democratic accountability, but it does not blab to everyone exactly what our spies are up to around the world and what our security interests are. If it were possible to have a mechanism similar to the grand committee system in Finland, so that Parliament could be involved, perhaps there would be a greater sense of trust and a greater sense not only that we have the essential transparency, but that we do not send our Ministers in to bat in Brussels with—as I think a former Prime Minister put it—one arm tied behind their backs, so that they cannot negotiate in this country’s fullest interests.

Mr Buckland: My hon. Friend makes a powerful case in relation to Finland. Does he not agree that the system in Sweden, which is quite similar to that in Finland, would provide a useful way forward? Such a committee could meet, usually in closed session, and give a mandate to the Minister. The Minister would have discretion to depart from that mandate, but the position would be clearly defined before the Minister went to the Council. That has all the attractions of the systems that my hon. Friend has been ably advocating.

Charlie Elphicke: My hon. Friend makes a powerful point. I do not think that it is for me, as a Back Bencher, to find the detailed solution, but those who are senior in the House, such as Front Benchers, should consider the other models of accountability used in Europe. They should consider the fact that we want accountability and transparency, without prejudicing the United Kingdom’s negotiating position in the discussions that are held in European Councils. So long as we have to put up with being a member of the European Union—or, indeed, are enthused by that fact—we need to negotiate well and get the best possible deal for this country.

Martin Horwood: I originally intended to speak in support of the comments made earlier in the debate by my Gloucestershire neighbour, the hon. Member for Stroud (Neil Carmichael), but I found myself in a surprising degree of agreement with the hon. Member for Dover (Charlie Elphicke), who gave a learned analysis of the implications of the new clause, as opposed to its intent.

As described by the hon. Member for Birmingham, Edgbaston (Ms Stuart) and others, the intention is to create more transparency and openness—that is obviously a good thing, which we would all support—but somewhere in the drafting of the new clause it has become a little confused, or perhaps awkward, in the attempt to bring it within the scope of the Bill.

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The effect of the new clause would be to reveal a great deal of documentation, but after the decision had been taken. The decision to which the statement under clause 5 related would have already happened. Although much of the documentation would be relevant in the sense that it related to that decision, it might not prove to be very pertinent to the decision. Much of it might be advice, even legal advice, that was ultimately rejected. So it would not have materially affected the decision under consideration. What really mattered would be the outcome, and the proposals that the British Government were putting to Parliament and, perhaps even in a referendum, to the people of this country. We could discuss that without the benefit of all the paperwork that had been discarded earlier in the process.

The second problem with the new clause is that a lot of what the hon. Member for Birmingham, Edgbaston said was about trying to add transparency to the process at European level—to the Commission’s decision-making processes and the debate in the Council of Ministers. The hon. Member for North East Somerset (Jacob Rees-Mogg) compared that to the former secrecy of debates in this Chamber, but the new clause would not reveal the debate that took place at European level. It would reveal only the background paperwork, which would be rather like getting a House of Commons briefing, but with no copy of Hansard to follow.

The new clause would not bring great openness or transparency to European processes. The only transparency that it would provide would be on the British negotiating position. Then we would start to have a problem, because although that would be revealed after the event, the nature of the advice, especially the legal advice, could have profound implications for future negotiations. If we revealed all that documentation, that would clearly impact on the position of British Ministers in subsequent negotiations. It would almost certainly impact on the advice, especially legal advice, that officials felt able to give to Ministers, because they would know that it was not private advice, but would become public in due course. Clearly, that would put British Ministers at a disadvantage relative to other Ministers in the European Council. It would undermine the British interest and thereby achieve, presumably, the reverse of what the new clause intends. It would, in a real sense, send British Ministers naked into the Council of Ministers. In some cases, that is a very sobering thought indeed.

Mr Ian Davidson (Glasgow South West) (Lab/Co-op): Has not the Liberal position traditionally been to want British Ministers to go naked into the conference chamber of the EU? Does the hon. Gentleman agree that his and his colleagues’ Europhile tendencies contributed towards the Liberals’ stunning success in coming sixth in the Barnsley by-election?

Martin Horwood: I am not sure that we have a party policy on nakedness in general—although I shall certainly consult my colleagues on that.

I shall not detain the House long, but it seems clear that the new clause would result in the undermining of the British interest in terms of ministerial participation in negotiations. There may be measures that should be introduced to add more transparency and openness to the EU at Commission level, and certainly at Council of Ministers level, and I am sure that I, and Liberal

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Democrat Euro MPs and Members of this Parliament, would be sympathetic to them. There may even be methods that we should explore similar to the Finnish model about which we have heard so much. Those would also be greeted with a lot of sympathy, but the new clause would not deliver any of those things, so I am afraid that hon. Members should throw it out.

Ben Gummer (Ipswich) (Con): My hon. Friend the Member for Aldridge-Brownhills (Mr Shepherd) reminded us that the purpose of the new clause is to deal with the manifest lack of trust that the public have in the negotiation, on behalf of the British public, of grave constitutional issues in the European Council and elsewhere. The new clause would itself introduce a considerable constitutional change, and I hope that hon. Members will allow me to say that I would find that not a necessarily unhappy change, but a change none the less. That is the fact that, heretofore, Ministers of the Crown negotiated and treated on behalf of the British people and of the Crown, and Parliament, if it saw fit, studied the results of that treaty after the event.

That is not necessarily a good way for Ministers to discuss the nation’s interests in the councils of the world, but it is the situation as it stands. I would suggest, therefore, that if we are to see a change to that protocol—as was, to a degree, anticipated by the previous Government in their discussions on the royal prerogative—it may be appropriate to consider in the round the other international bodies and instruments to which we are party, and not just our relationship with the EU.

Hon. Members have rightly said that the EU is of considerable concern to many of our constituents. It is, but so are our World Trade Organisation negotiations. The EU has not yet created a riot on the streets outside Parliament—not yet, at least—yet a few years ago we had the anti-globalisation riots, which arose directly out of our negotiations in the WTO.

Mr Davidson: Does the hon. Gentleman agree that our constituents generally take European matters much more seriously than almost any other international matter? Proof of that is the fact that in the Barnsley by-election, the UK Independence party managed to beat the Conservatives. What does that say about public confidence in the Conservatives’ position on Europe?

5.30 pm

Ben Gummer: The hon. Gentleman has made a powerful point, but the public often have interests beyond the European Union. So far they have created a riot on trade issues. I happen not to agree with what the rioters were doing or with their motives, but the matter raises extreme passion among our constituents. Members know perfectly well that we are regularly written to by people who are concerned about globalisation and world trade rules. Our negotiations in the Security Council are another case in point. We as a nation are currently discussing Libya, a matter of considerable concern to our constituents. Perhaps we could have an understanding of the Government’s negotiating position on that, so that we might study and better understand what the Government plan to do.

Our constituents have considerable concerns about security matters with the United States, Commonwealth allies and other partners. I have been written to far

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more often about our security co-operation arrangements with other nations than about the European Union. Here, too, it might be appropriate for the House to have some sort of structure, such as that proposed by my hon. Friends the Members for Dover (Charlie Elphicke) and for South Swindon (Mr Buckland), whereby we see what the Government propose, in anticipation of their negotiating.

In the matter of declaring war, the House had a cursory and temporary assessment of the merits of conducting war against Iraq. It is shameful that even the papers relating to that cannot be released to the Iraq inquiry so that we might see the decision-making moments that happened in that most extraordinary and important decision that the House and the Government have taken in the past decade.

Although I support the broad thrust of the new clause, it would be more appropriate to consider all the international organs and bodies on which we sit, and to do so on the basis of a much wider consideration of the constitutional powers that our Ministers wield when they are negotiating and treating on our behalf.

Mr Greg Knight (East Yorkshire) (Con): I think my hon. Friend is making a strong case for a full and wide review of the royal prerogative. Is that what he is arguing for?

Ben Gummer: My right hon. Friend has expressed that with much greater concision than I have managed, and embarrassed me in the process.

There is so much concision in the new clause that it is difficult to understand precisely what the proposers are getting at. It says that the papers relating to the negotiations should be released

“during negotiation of the treaty or decision.”

One of the proposers, the hon. Member for Birmingham, Edgbaston (Ms Stuart), related the negotiation of the European working time directive and the fact that it took from 1992 to 1999 to make that decision. At which point during that long negotiation would the papers relating to it be released to the House? If released after the negotiation had been concluded in 1999, would they have helped to understand the Government’s position in 1992?

Ms Gisela Stuart: The release of the papers would indeed have helped. The subsequent interpretation of the working time directive and the detail of how it should operate by the Court of Justice would have made it clear that none of the Governments involved in the original negotiations had intended certain interpretations to be made. That would have strengthened the House’s hand in saying, “No, that’s not what was intended, even by our Ministers.”

Ben Gummer: The hon. Lady has clarified that beautifully. It argues for wider consideration of such issues in the kind of structure anticipated by my hon. Friends and the process in Finland that she described.

There is a broader transparency that the House enjoys, which is to put to the electorate a manifesto at the time of elections. In the past 10 years a party has put forward a manifesto proposing a referendum on the European

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constitution, lately called the Lisbon treaty, yet that referendum was never granted. The purpose of this Bill is to ensure that such mendacity cannot be repeated. I therefore propose that the new clause be advanced at a later stage and on a wider basis, but I support the broader purposes of the Bill.

Laura Sandys: Does my hon. Friend agree that taking that proposal forward and evolving it over the next couple of years and months must be done on a multilateral basis, not a unilateral UK basis?

Ben Gummer: My hon. Friend makes an important point, because it is patently obvious how difficult it is for the United States, our ally, to negotiate at the moment, following the unilateral release of its documents to the world’s media, which was not its choice. If this is to be done, clearly it must be on a multilateral basis, especially with our key allies in the Commonwealth and the United States, as well as those in Europe.

I support the main aims of the Bill. I am greatly attracted to the thrust of the new clause, but I suspect that it would have more power and greater reach if it were advanced at a different stage and on a wider basis.

Mr Buckland: I want to make a few brief remarks about what is, on the face of it, a very laudable new clause. It is proposed by a number of Members whose reputations for seeking more openness in the transactions of government precede them. However, I hesitate to support it for several reasons, many of which have been ably outlined by other Members during the debate. In an intervention, my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) really got to the heart of one problem with the terminology used in the new clause, particularly the word “relevant”, which is used in subsections (1) and (2).

Mr David: The hon. Gentleman may well have a point. He focuses on the word “relevant”, but does he agree that the same arguments could be used against the word “significance”, which is used throughout the Bill?

Mr Buckland: I disagree, because I think that the term used in the Bill in relation to significance is very well couched. It has been explained very carefully and is backed up by a careful and clear text. There is a list in the Bill of the particular aspects that will trigger a referendum. I am afraid that I do not think that our points about those two words are analogous.

The word “relevant”, which I am focusing on, causes lawyers and all those with an interest in the law much difficulty in a wide range of issues. For example, an application for relevant documentation made before a criminal trial can cause much debate and argument on precisely what the term means. Frankly, I can see the same thing happening with the new clause and the issue going before the courts. In other words, I can see a judicial review of a particular laying of documentation by a Minister as part of the process, which again would make juridicable those issues that are properly dealt with by this House. I do not think that that is the intention of the Members who tabled the new clause, but it would be an unfortunate and unforeseen consequence of the use of that terminology, because what is relevant to one person will not be relevant to another. I can see a

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long and exhaustive list of documents being laid before the House and yet more requests being made for further documentation, which will then have to be ruled on by a court. Those would be regrettable consequences that none of us wants to see.

Another main problem with this rather wide-ranging new clause is the fact that not all the documents would be in the possession or ownership of the UK Government. It is clear from the phrasing of the new clause that many of the documents will have been drafted by either EU officials or other member states. Therefore, they are not under the ownership or control of the UK Government; they are what we call third-party documents.

The new clause would therefore have a great impact on the position of other member states and the institutions of the European Union. As we have heard, from my hon. Friend the Member for Dover (Charlie Elphicke) in particular, other member states have their own procedures and ways of dealing with pre-negotiation positions, and many are dealt with in secret. Are we to say that this House has a right to interfere directly with the procedures of other member states?

My hon. Friend the Member for Aldridge-Brownhills (Mr Shepherd), in his eloquent speech, said that what is for the Danes is a matter for them, but I am afraid that the new clause would drive a coach and horses through that, because what is for the Danes would no longer be a matter for them; it would become a matter for us. In effect, we would decide to disclose documentation that they, under their procedures, did not want formally disclosed, and that would have a consequence for our relations with other member states in the context of freedom of information.

Such a decision would also have a consequence for existing regulations on access to EU documents. The current regulations, to which this country is a signatory, provide rights of access to documents held by EU institutions, and with the consent of those institutions the documents can then be disclosed to the public. The new clause would override and potentially conflict with that rule, and that is a problem—a practical difficulty—which makes questionable the fundamental deliverability of the aims of the proposed change. We cannot legislate in a vacuum, and we cannot ignore the rules of other member states or the rules and regulations to which we are a signatory.

Ironically, in an attempt to assert the power of this House to scrutinise negotiation and legislation, we risk interfering directly with the domestic arrangements of other member states, and I am absolutely sure that many who have spoken in today’s debate, who always speak so eloquently about the rights of nation states in the European Union, would not want that to happen.

I yield to no one in my fervent belief in transparency and openness. I believe fundamentally that some of the previous Government’s conduct was a negation of democracy, and, if the European Union is to be sustained as an institution that is worthy of the trust and support of not just its members but its peoples, much more must be done to increase that transparency.

Finally, I also believe fundamentally that we have to be realistic and strike a balance between the interests of openness and the interests of efficient and effective negotiation. My hon. Friend the Member for Dover, in his speech—

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Ben Gummer: His excellent speech.

Mr Buckland: His excellent speech; I am happy to be corrected. My hon. Friend the Member for Dover made an important and helpful analogy between the negotiations that he as a lawyer would conduct on behalf of his clients and the work of Ministers representing this country in the Council of Ministers and in other European institutions. He quite rightly said that it would be—I paraphrase somewhat—rather absurd for him to be forced to reveal to his opponents his entire menu of options during a negotiation.

I adopt that analogy but take it one stage further: it would be even more absurd for my hon. Friend, as a lawyer justifying his decision to his clients, then to be forced to disclose not only the documents that he generated as a result of his negotiation, but the documents generated by his opponents. That would potentially prejudice not only his position but that of another party to the negotiations. Indeed, I am sure that he took part in negotiations with more than one party.

5.45 pm

One can therefore see how the entire house of cards comes tumbling down as regards the freedom to indulge in a human negotiation. Let us face it, we are all human—we all know the constraints that can be placed on us if we know that everything that we say and do is, as in this place, taken down and recorded. If negotiations are to mean anything, there has to be an element of freedom within which our elected Governments who represent us on the European stage can conduct themselves. For all those reasons, I oppose what is otherwise a very well-intentioned new clause.

The Minister for Europe (Mr David Lidington): This has been a genuinely interesting debate which—somewhat unusually for European debates, dare I say it—has developed in a way that I did not altogether anticipate. We started by discussing a new clause dealing with transparency and public and parliamentary access to information concerning European negotiations, but as the debate continued it developed along the broader theme of the adequacy or inadequacy of our current arrangements for the scrutiny of decisions taken by successive Governments of the United Kingdom on behalf of Parliament and people within the institutions of the European Union. I thank all right hon. and hon. Members who have taken part in the debate.

The key choice that has to be borne in mind in considering the proposition put forward in the new clause tabled by my hon. Friend the Member for Hertsmere (Mr Clappison) and the hon. Member for Birmingham, Edgbaston (Ms Stuart) concerns the most effective balance between, on one hand, appropriate access to information that provides the flexibility to allow citizens and other interested parties to see documents that contributed to policy making and, on the other hand, the need to preserve a space for candid, confidential discussion, deliberation and negotiation to ensure the best possible outcome in the interests of our country. I have sympathy for many of the arguments—certainly the motivations—of the hon. Members who tabled the new clause, but I do not think that it would deliver the right balance. I will make my arguments in more detail in due course, but I hope that at the end of the debate they will not press the motion to a Division.

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I want to start by addressing some of the broader issues that have been raised. The hon. Member for Birmingham, Edgbaston said that we needed to know when and how Ministers voted. Of course, one of the changes introduced by Lisbon is that we have new rules for the workings of the Council, including not only a public record but a public broadcast of the final deliberations at a Council session on legislative dossiers. At that point, it is apparent how each member state has voted, if indeed there is a formal division, and the arguments or the statement of position that the Minister or other representative of a member state chooses to put forward are also be made public. I have sat through a number of those public sessions over the past 10 months. I do not think that they will ever command a mass audience on a Saturday evening. I am not aware that they have ever been broadcast as part of the regular prime-time news bulletins in this country or any other member state.

The new clause and many of the contributions to the debate have tried to get at how Parliament, on behalf of the public, can hold Ministers to account more effectively, not just for that final, often rather formal, process of taking a decision on live TV, but for how the negotiating position of the United Kingdom is shaped in the numerous bilateral contacts and contacts with European institutions that are undertaken by Ministers and officials, sometimes over many months. A number of ideas have been suggested. My hon. Friend the Member for Ipswich (Ben Gummer) said that we need to look at the matter in the context not only of the EU, but of our participation in other international institutions and considering the use of royal prerogative powers more generally.

It is interesting that no hon. Member has mentioned the House of Lords, which has distinct and different scrutiny arrangements. There is a question for parliamentarians at both ends of this building as to what methods of scrutiny experience teaches us work best and most effectively. If Government and Parliament are to agree on new scrutiny arrangements, the position of both Houses will have to be taken into account.

Mr Cash: I am sure that the Minister would not want to misrepresent the differences between the two Scrutiny Committees. I know he is aware that the House of Lords has more generalised debates, whereas under our Standing Orders, our debates relate to particular legislative documents. To align the two might be a bit of a mistake.

Mr Lidington: That would be a matter for debate. I have heard dissatisfaction with the current scrutiny arrangements and a wish to explore the alternatives from several Members from all parts of the House this afternoon. At the moment, we have a model in the House of Commons and a model in the House of Lords. This business is done in various ways in other member states. Such a debate would take all those approaches into account.

The hon. Member for Linlithgow and East Falkirk (Michael Connarty) and my hon. Friends the Members for Dover (Charlie Elphicke), for South Swindon (Mr Buckland) and for Cheltenham (Martin Horwood) talked more generally about how we could improve our scrutiny arrangements. It seems to me that we need to

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keep the distinction between Parliament and Executive clearly in mind. Parliament’s role is to hold Ministers to account for their decisions, not to take on the role of the Minister. There is a strong case for saying to Parliament—perhaps I should be more cautious and say suggesting to Parliament—that rather than drowning parliamentarians in paperwork, about which the hon. Member for Linlithgow and East Falkirk made a good point, Parliament and its Scrutiny Committees could seek to call Ministers before them, including in advance of Council decisions rather than necessarily waiting for the final version.

Ms Gisela Stuart: Will the Minister say how he thinks the House can overcome the problem of collective memory? In Whitehall, there is collective memory within the Administration, and if there is a change of Government, it is handed from one Administration to the next. Parliament has overcome the problem through successive Select Committees. However, if the knowledge is not in Parliament, once an Administration are gone it has no access.

Mr Lidington: When speaking on behalf of the Government, I must be careful not to presume to represent a collective Government position that does not yet exist, nor to pre-empt the views of parliamentarians from all parts of the House on the most appropriate method of scrutiny.

Mr Cash: The Minister is moving away from the proposals put forward by the hon. Member for Birmingham, Edgbaston (Ms Stuart) into a much deeper question, and I know that he is taking this opportunity to do so. As Chairman of the European Scrutiny Committee, I ask him to consider also that because the decisions made by the Council of Ministers are of a legislative character and are binding on Parliament through section 2 of the European Communities Act 1972, it is incumbent on him to consider the idea—in fact, to implement it—that Parliament may decide to vote against proposals that have been cultivated by the Government and to reject provisions that have been decided in the Council of Ministers. Perhaps the Minister can throw that point into the pool of his considerations.

Mr Lidington: That is clearly already possible under our system if a European measure comes forward that requires primary or secondary legislation to transpose it into the law of the United Kingdom. It is up to the Government of the day, of whichever party or parties it is composed, to retain the confidence of Parliament and to persuade a majority in Parliament to endorse their preferred approach.

The hon. Member for Birmingham, Edgbaston challenged me on the question of collective memory. The hon. Member for Linlithgow and East Falkirk said that he regretted the switch from European Standing Committees with fixed memberships to European Committees with shifting memberships. I spent my first Parliament, among other things, doing duty on European Standing Committee A. There is no doubt that I learned a great deal by virtue of that continuity, not least through the example of the late and great Gwyneth Dunwoody on how to hold Ministers to account. She used to deliver a master class in reading the documents in advance and picking out the weaknesses in the Government’s argument.

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Michael Connarty: I could share many happy memories of that lady turning up in Standing Committees of which she was not a member and holding Ministers to account because of her interest in the subject. Cross-border health care, for example, although not her speciality, was a cause célèbre for her.

I compliment the previous Government and the present Government for continuing to send draft Council conclusions to the European Scrutiny Committee. That is what a lot of Members, such as the hon. Member for Dover (Charlie Elphicke), have been talking about—actually seeing the proposals that are before the Council before they are discussed in the Council. The difficulty is that they are “limité” documents and are therefore semi-confidential. If there was a method that allowed a Committee or group of people in Parliament to have that responsibility—as is done in Denmark and Finland—and to interrogate the Minister on those documents, it would be a great step forward.

Mr Lidington: That is certainly an interesting suggestion. I am grateful to the hon. Gentleman for his compliment. We intend to continue the practice of supplying “limité” documents whenever appropriate.

There is sometimes an issue about where the boundary of responsibility should lie between the European Scrutiny Committee and the various departmental Select Committees. If I have one reflection to offer from my experience in the 10 months that I have held my responsibilities, it is that parliamentary debate on this country’s engagement with the EU tends to take place in a metaphorical annexe. It is as though Parliament had constructed a separate, padded building, where the equivalent of the teenagers with their drum kits could get up to what they wanted. There is a serious question to be asked about whether our arrangements do justice to the fact that the European decision-making and legislative process should now be regarded as part of the mainstream of politics in the UK, rather than as something that can be relegated to an annexe.

6 pm

Mr Cash: I would very much welcome the idea of having, for example, European questions in the House. I have many proposals that would make the system more efficient. I remind my right hon. Friend of the current Home Secretary’s pamphlet, which recommended not only that European Committees should have their proceedings properly advertised, but that if, for example, 150 Members decided that they wanted to have the matter in question debated on the Floor of the House, there should be a free vote on a motion to overturn a decision taken in the Council of Ministers, whether or not the Government had approved the provision there. Some of us would be more interested in the results of a vote than in a mere discussion.

Mr Deputy Speaker (Mr Nigel Evans): Order. Can we bring the debate back, please, to new clause 1?

Mr Lidington: I will try to bring this part of my speech to a conclusion, Mr Deputy Speaker, by saying that this has been an interesting discussion of the broader themes involved. We have heard allusions to various Scandinavian models of European scrutiny.

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Mr David: Before the Minister finally moves on, I point out that I have been thinking long and hard about what to buy the hon. Member for Stone (Mr Cash) for Christmas, and now I am going to buy him a drum kit.

I welcome the tone and content of the Minister’s comments about having more scrutiny in the House. May I suggest to him that we really need to reinstate the twice-yearly debate about Europe before the Council meetings? Before he responds that that is an issue for the Backbench Business Committee, I once again implore him to ensure that Government time is provided for those debates.

Mr Lidington: I know that the hon. Gentleman has at least been consistent in pushing that line, but I have to remind him that his party, when it was in office, and all other parties, agreed unanimously to changes to our procedures and the organisation of parliamentary time that explicitly gave responsibility for those biannual debates on European matters to the Backbench Business Committee rather than the Government.

We have heard this afternoon about the importance of decisions in the EU to everybody in the country, and it would be a good expression of Parliament’s understanding of that point if Back Benchers of all parties put pressure on the Backbench Business Committee to make a debate on Europe a priority, instead of debates on the other matters that the Committee has chosen in response to Back Benchers’ demands. Back Benchers’ priorities should be debated in Back-Bench time, and I believe that most of us present this evening would like the Committee to feel that a debate on Europe was what Back Benchers wanted. I hope the hon. Gentleman will persuade his colleagues of that.

Mr Deputy Speaker (Mr Lindsay Hoyle): Order. I am sure that we want to deal with new clause 1, and I am sure the Minister recognises that he is drifting away from the subject. He has been tempted all over the place, but I am sure he will want to deal with what is before us.

Mr Lidington: I simply remind all hon. Members who want to take forward these wider arguments that I said in my written ministerial statement on scrutiny on 20 January, which referred mostly to justice and home affairs, that the Government would

“review the arrangements for engagement on EU issues in consultation with Parliament.”—[Official Report, 20 January 2011; Vol. 521, c. 52WS.]

I invite them to take advantage of that opportunity.

I turn to the detail of new clause 1, which causes me concern because it would result in the United Kingdom having a substantially different policy with regard to information on EU decision making from that on domestic policy making. It would also represent a substantial impediment to the UK’s ability to negotiate effectively in an intergovernmental conference, in the European Council and in the Council of Ministers. As a number of Members have said, it could have a negative impact on our relationship with other member states and the EU institutions, and more generally on the process of good policy making and legislation.

The negative effect on our ability to negotiate at the Council of Ministers concerns me most. First, action to comply with the statutory duty that the new clause would impose on Ministers could reveal sensitive

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information about the UK’s long-term negotiating approach in a number of areas. I do not believe it is sufficient protection to say that the negotiations would be complete or substantially complete by the time the documents were made available, because it is very rare that negotiating positions taken in respect of one piece of legislation do not have a read-across to positions on other matters that will probably still be live dossiers when that legislation has been agreed to.

Secondly, complying with the new clause would mean that our tactics in negotiations would have to take into account the duty to make negotiating positions on proposed amendments public at a later stage. For example, there are occasions on which we try to persuade other member states to propose, or take the lead on, particular amendments so that we can concentrate our time and energy on different amendments that perhaps have less widespread support. If a Minister knew that he might be criticised if it became public that he had not sponsored a particular amendment, that would constrain our negotiating tactics and weaken our negotiating strategies.

I quite understand that the proponents of the new clause might want to see how a decision is made at EU level and the details of what part the UK has played in that process, but I do not want any Ministers of any Government who are fighting for Britain’s interest in future discussions and negotiations to be doing so with one hand tied behind their back. It is absolutely essential to our national interest that Ministers can negotiate effectively on behalf of our country.

As a number of Members have said, including my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips), the new clause would also have implications for information that we have on record about the positions of other member states. There is even a risk that its requirements could put us in conflict with existing European legislation. As a member state of the EU, we are party to the terms of the access to documents regulation, article 5 of which requires that when any member state intends to disclose a document originating from one of the EU institutions, it must consult that institution before public disclosure. If, under the new clause, we had to release a text submitted at a Council working group that included proposed amendments from each member state, and the agreement of the Council as a whole had not been sought or obtained, we could potentially be at risk of infraction proceedings and ultimately a fine. As the new clause is drafted, it is quite possible that our obligations as an EU member state could be at odds with the statutory duty that the new clause would create.

Mr Cash: Has it not occurred to the Minister that if a serious question of accountability arises as a consequence of what he just said, as it does, there is a simple remedy if we are sovereign in this House: we simply override the EU and tell it to get lost?

Mr Lidington: The remedy that my hon. Friend seeks can be obtained by Committees and the House being energetic in holding Ministers to account for the positions that they take and for the way in which they agree to whatever compromise is eventually negotiated.

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Importantly, the proposed new clause does not specify in any way to what “relevant documentation” refers. That came up earlier in the debate. It is not clear, for example, whether “relevant documentation” covers so-called non-papers submitted by member states, which are intended to be “without prejudice” contributions to discussions. Does it include Council working group documents that give the position in summary of each and every member state on a particular issue? There could easily be widely diverging views on what comprises “relevant documentation”.

That lack of clarity could also cause confusion in relation to UK documents. Reference was made during the debate to whether legal advice given to the Government would be required to be made available under the terms of the proposed new clause. If so, that would clearly undermine the principle of legal professional privilege, the significance of which the Information Commissioner has generally recognised in the context of the Freedom of Information Act. Governments need to receive free and frank legal advice without fearing that it must be drafted in a form that is suitable for later public consumption.

Hon. Members may argue that we should try to use the current renegotiation of the access to documents regulation to implement the provisions of proposed new clause 1, but that measure would take us a long way beyond what would be acceptable in terms of releasing documents that are used at EU level for deliberations and decision making. The positions of other member states in respect of the documents that they make available to their Parliaments and public vary dramatically. Domestic regulations in several states lay out specific criteria on which documents can and cannot be released. Such criteria often allow for a great deal of discretion for Ministers or their officials, or impose strict limitations on the type and origin of documents to be released.

In some member states, the approach is to accept the general principle that as much documentation as possible should be released, with the only limitations being the prevention of harm, with harm often being defined in terms of personal, legal or economic impact.

Mr Cash: My right hon. Friend is expertly demonstrating the complete, total lack of democracy in the EU. If ever a case needed to be framed and put in everybody’s loo, it is this one.

Mr Lidington: I look forward to visiting my hon. Friend and seeing the framed Hansard extract of my argument. I could return the compliment by wallpapering one of my rooms with the Hansard report of one of his speeches.

Hon. Members referred to a number of EU member states in the debate. Denmark was cited more than once as the prime example of an open country, but the documents that the Danish Government must provide to the European Affairs Committee of the Folketing do not include the positions of other member states or amendments that they have proposed, and nor are the Danish Government required to provide documents that have been prepared for their internal use, such as inter-ministerial correspondence. Even in Denmark, the right of access is subject to limitations when protection of, for example, public financial interests is essential.

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6.15 pm

I could run through a list of other countries and cite similar limitations and the categories of exemption that they choose to apply, but I will deny my hon. Friends and hon. Members that particular treat this evening. As a matter of general principle, the most effective way to operate in the EU is to build alliances and mutual trust with other member states that share our objectives, or that we can persuade to do so. That would be undermined by the approach embodied in proposed new clause 1.

Many member states would, with good reason, be concerned if the British Government were under a unilateral obligation to disclose documents relating to their positions in Council deliberations. Imagine the reaction here if the Spanish or Slovenian Government were to say, “Because our laws say so, we’re going to make public your initial position on this proposal and any detailed amendments that you have brought forward whether you like it or not, and regardless of whether you were subsequently persuaded to accept a different approach.” We must respect the sovereign rights of those member states. Revealing confidential information on other Governments’ amendments and negotiating positions would not enable us to forge the coalitions that we need to defend our national interest, but would make that considerably more difficult.

Although I am sure that this is not the intention of the supporters of new clause 1, one consequence of releasing Council deliberations routinely into the public domain would be to put it at a disadvantage with the European Parliament under the ordinary legislative or co-decision procedures. If we want to maintain and maximise British influence in the EU, we need to promote an effective and cohesive Council. It is not in the Council’s interest to reveal to the European Parliament all details of its negotiations, including the balance of argument and how compromises are struck. I know that some in the European Parliament claim that their committee meetings are open to the public and therefore that Council working groups should be similarly open, but it is understood that often, the real negotiations in the European Parliament take place outside Committees—I am glancing over my shoulder at my hon. Friend the Member for Daventry (Chris Heaton-Harris)—in corridors, coffee bars and restaurants.

I see no merit in anything that encourages the Council to move in the same direction, which I fear proposed new clause 1 does, and nor do I see merit in enacting a measure that would encourage people within the British Government, and perhaps within the Governments of other member states, not to commit their thoughts and ideas to paper, but to conduct negotiations verbally or by Post-it notes that could easily be disposed of subsequently.

The very things that my hon. Friend the Member for Hertsmere denounced—decisions taken in secret and informal meetings arranged to fix a compromise in advance of a formal discussion—would be made more likely and not less by new clause 1. For those reasons, I cannot support it.

Mr Clappison: I am grateful to my right hon. Friend the Minister for the care and attention that he has taken in answering this debate and for the manner in which he has done so. I am sure that it has been of great assistance

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to the House, and I will now be going to the Library to seek out a copy of the European Union access to documents regulations—I certainly would not want to fall foul of them, given what we have been told this afternoon.

My right hon. Friend has approached the debate in the spirit of the new clause. I am sure that the hon. Member for Birmingham, Edgbaston (Ms Stuart), in drafting the new clause, did not think that it was the finished article. It was a plea for greater transparency, and I hope that it has been taken as such. Despite possible problems with, for example, the phrase “relevant documentation”, what that might include, and what implications might flow from it, I hope at least that on the question of amendments proposed by a Government during treaty negotiations and treaty changes—that is what new clause 1 deals with—whether through the ordinary procedure or the new simplified revision procedure, members of the public and the House will be told what amendments are being, and have been, proposed by the Government, so that we, and members of the public, can judge, in due course, the strength of the Government’s position on what they ultimately recommend. We should be told whether a Government have been consistent in the amendments that they proposed and in what they subsequently recommend.

I will give one example. I was struggling earlier to think of one, although I know that there are a lot of them. During negotiations on the Lisbon treaty, Ministers in the then Government came to the House and advocated a certain clause or course of action, but it was discovered that during the negotiations on the Convention they had advocated exactly the opposite. One prime example was the creation of the European “foreign ministry” itself—the European External Action Service. During the debate, I have helpfully been told by the House of Commons Library that the then

“government’s amendments in the Convention to articles 1-27, III-197.1 describe the term ‘Foreign Minister’ as ‘unacceptable’ arguing that ‘he/she should have no ministry’. The government preferred the term ‘EU external representative’.”

Well we have our external representative—or rather, our High Representative—but perhaps that phrase conceals the fact that she is in reality a Foreign Minister, and the office was originally intend as such. We also have a European “foreign ministry” in the form of the EEAS, even though the then Government did not want it. They then had to come before the House, having apparently lost on that amendment, and argue from the Dispatch Box in favour of the creation of an external action service. The Minister will well remember, as I do, that on that occasion, Conservative Members opposed its creation. In the light of developments since, and what the public have come to learn and think about the EEAS and its conduct, I am not sure that our arguments against it have been entirely disproved. But there we are. That is one example.

The new clause was a plea for transparency. However, I know that there are important matters still to come before the House, and I do not want to delay them by pressing the new clause to a vote. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

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New Clause 2

Parliament Act 1911 in relation to sections 1 to 7

‘(1) The Parliament Act 1911 is amended as follows.

(2) In section 2(1), after “five years” there is inserted “or a Bill amending or repealing sections 1 to 7 of the European Union Act 2011”.’.—(Jacob Rees-Mogg.)

Brought up, and read the First time.

Jacob Rees-Mogg: I beg to move, That the clause be read a Second time.

The purpose of new clause 2 is to exempt most of the Bill from the functioning of the Parliament Act 1911. That would mean that were a Government to attempt to repeal it, they would have to do so with the consent of the House of Lords, without being able to re-present it a year later and get it into law regardless. The new clause would give the same protection to the rights of the British people to vote in a referendum on European matters as exists concerning the length of a Parliament.

It is one of the ironies of our constitutional system that the unelected Chamber has since 1911 been the final guardian of the democratic rights of the British people. Since 1911, it has been impossible to lengthen a Parliament without the willing consent of the House of Lords. It is the one part of the Parliament Act that the House of Commons cannot simply override. The last extension of a Parliament came, I think, in 1944, as a final extension—until the war had been completed—of the wartime Parliament. That principle clearly applies to referendum Bills, which relate to a right of the British people to exercise their democratic choice that should not be taken away from them lightly, and should be as protected as anything within the constitution can be.

It is worth mentioning—I hope that the Minister will be interested in this point—that one criticism has been made of the Bill by people who otherwise are sympathetic to it. It is that an incoming Government who wanted to push through the euro, or whatever, could simply repeal this legislation and go ahead with what they wanted to do anyway. Quite rightly, no Act of a Parliament can bind its successors, but the Bill contains no protection at all against a Government who do not want to follow it. Given that the whole purpose of the Bill is to protect the rights of the British people from further Europeanisation, it would be extremely sensible to exempt it from the Parliament Act in order to strengthen it. That would remove the one criticism made by people who are otherwise well disposed to the Bill. It would make it a stronger Bill, and one more settled in our constitutional situation. I think that many of us would like to see that.

An important constitutional development is noted in volume 1 of the House of Commons European Scrutiny Committee’s 10th report. It is a constitutional development that should concern the House, and on which the House should use its powers to set its seal, as it sees fit. It is essentially the Lord Justice Laws doctrine that came out of the metric martyrs case. He said:

“In the present state of its maturity the common law has come to recognise that there exist rights which should properly be classified as constitutional or fundamental…And from this a further insight follows. We should recognise a hierarchy of Acts of Parliament: as it were “ordinary” and “constitutional” statutes. The two categories must be distinguished on a principled basis.”

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Lord Justice Laws went on to set out his definition of a constitutional statute as opposed to an ordinary statute. In the Bills we pass, however, there is no such difference. It is a distinction thought up by the courts, particularly to exempt the European Communities Act 1972 from implied repeal. As a matter of the most urgent constitutional principle, if there are to be two types of Act, it ought to be this House and the House of Lords who decide and determine that, not the judges. The judges are there to determine what we have said and rule on it, not to say that a new type—a whole new category—of law has been created. It seems to me that one of the ways the House could get a round that is to make it clear when we think that a Bill requires particular and special protection. Fortunately—because, as some hon. Members may know, I am a great believer in tradition—we have a precedent for that in the Parliament Act, which allows the House of Lords to be overruled on everything, with the exception of a removal of a democratic right. The parallel with the Bill is exact: it is a protection dealing with a constitutional situation developed by the Lord Justice Laws doctrine.

Martin Horwood: With the hon. Gentleman’s combination of eloquence, erudition and traditionalism, he is well on the way to becoming a national treasure already. However, surely he would admit that he is really making a much better case for a written British constitution making such a distinction, rather than for giving extended powers to the unelected Chamber as the guardian of democracy. That seems quite quirky, even by his standards.

Jacob Rees-Mogg: I thank my hon. Friend for his intervention, but I am afraid that he entirely misses the point. In framing the new clause I have been working within the confines of our unwritten constitution, using the elements and protections that are already there, and extending them to the Bill. I absolutely accept that it is an irony of our constitution, as it already exists, that the protection against a Parliament lengthening its own life is an unelected Chamber a few yards down the way. However, that is the situation in our constitution, and it is one that has been enormously effective for 100 years.

Charlie Elphicke: Does my hon. Friend not agree that his argument would have more force and credibility if the sunlight of democracy shone over the other end of this building?

6.30 pm

Jacob Rees-Mogg: If my hon. Friend were to reread the Parliament Act 1911, he would see that it was introduced as an interim measure until the other place was reformed and until such time as the basis for selecting its Members had been changed. Again, therefore, I would say that my new clause is completely sympathetic with the unreformed House of Lords, and as the 1911 Act itself says, it would be part of a bigger reform of the balance of powers between the two Houses if the House of Lords were to be reformed.

I do not wish to take up much time with my new clause. It proposes an extremely simple, straightforward amendment: it serves the single purpose of making the Bill a little bit stronger, it uses a device already extant in our constitution, and it preserves and protects the rights of the British people to have a referendum against something potentially malign.

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Michael Connarty: I am grateful to the hon. Gentleman, whose speeches I always read, if not always hear. He is very erudite and thoughtful in what he proposes, but today he seems to be saying that this Bill should be raised to a higher level than all the others passed by this House, apart from the European Communities Act 1972, which was given that status, which he opposes, by the courts. He is trying to put this Bill on a par with that Act, and although he does not like the process whereby the courts allocate that status, he says that it should also be allocated to this Bill, by this place.

Jacob Rees-Mogg: The hon. Gentleman has half got what I have been saying and has half misconstrued it. I do not think it right that laws passed by Parliament should be put on a different level based on what judges think of them retrospectively. I do not think that that is a democratic way of deciding which law is important and which is unimportant. One may think that the judges will always get it right, but what if they decided that the Dangerous Dogs Act 1991 was amazingly important and this Bill was not, so that the 1991 Act could not be impliedly repealed, but one giving people a vote in a referendum could be? What I am saying is that it is better for us to take this power upon ourselves and say, “Okay, this is an important Act. We’re going to put that in, and say that it is exempt from the Parliament Act 1911.”

The hon. Gentleman asked a good question, which is: why start with this particular Bill? The reasons for starting with this Bill are, first, that the judgment putting the 1972 Act on to a higher plane is relatively recent, and secondly, that I was elected to Parliament only last May and have therefore not had the opportunity before to propose such a measure on a major constitutional Bill, other than the Fixed-term Parliaments Bill. The reasons for starting with this Bill are because of that judgment, and because I am now in a position to do this. It would have been a good thing to do earlier, on other constitutional Bills, including on devolution to Scotland.

Austin Mitchell (Great Grimsby) (Lab): I am always impressed by the hon. Gentleman’s displays of legal knowledge, but surely his whole point is spurious. The judges’ argument is irrelevant and wrong: there is no distinction between some laws passed by Parliament and others. We cannot say that some are constitutional and others are not. That distinction does not exist: they are all of equal standing. The point that he is trying to make is also irrelevant, because he is appealing to a constitution that does not exist. Essentially, the British constitution is what Governments can get away with, and they get away with it in this place.

Jacob Rees-Mogg: I so wish that the hon. Gentleman, who is a most distinguished Eurosceptic, were right, but unfortunately the judges have taken that power to themselves. I return to what Lord Justice Laws said in his judgment on the metric martyrs case:

“Ordinary statutes may be impliedly repealed. Constitutional statutes may not.”

The judges have set up for themselves two different types of Act. It seems to me that we should claim that power back for the democratically elected Chamber of Parliament, and say that when we think an Act is of

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significant constitutional importance, what we will do is not entrench it—that is against the spirit of our constitution—but give it a modest protection by saying that it can be repealed only with the full consent of both Houses. The great advantage of that, for those of us who remember what happened prior to 1911, is that it would require a Government to win a general election—to go back to the people—before they could get something through the House of Lords, if the House of Lords said no. That happened in 1911, with the reforms to the House of Lords, and in 1832, with the Great Reform Bill. That provision has been an historic and traditional way of protecting our democratic rights—one that, oddly, involves the undemocratic Chamber—and that is why I think it would improve the standing of this Bill. It would protect the democratic rights of the British people and deal with the constitutional situation as it is—as the judges have developed it—rather than the constitutional system as the hon. Gentleman and I might wish it to be.

Charlie Elphicke: It is not only an incredible privilege and honour to listen to the superb eloquence of my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), but an even greater privilege and honour to follow him. Nevertheless, on this occasion I do not follow him in the sense of agreeing with the new clause that he is propounding. I put it to him in an intervention that it was ironic that he was seeking to use the unelected Chamber as the guardian of the people’s democracy. His answer was, “Well, look at the preamble to the 1911 Act.” I was reminded of the dictum of St Augustine of Hippo, who, as I am sure he knows only too well, said, “Make me pure, Lord—but not yet.”

Mr Binley: Will my hon. Friend give way?

Charlie Elphicke: In one moment.

I do not think that it is an excuse to say that because the House of Lords is partly reformed, we can give it a role as the guardian of our democracy pending the completion of that reform. Given that we have been racing towards the reform set out in the preamble to the 1911 Act for 100 years, it may take another 100 years to complete it—and given the way things carry on in this place, I suspect that we will indeed be waiting for 100 years to come.

Jacob Rees-Mogg: I thank my hon. Friend for giving way, but I just wonder whether he thinks the House of Lords has done a bad job since 1911 in the one area in which it is exempt from the 1911 Act—that is, in defending the right of the British people to have an election at least every five years?

Charlie Elphicke: I do not decry the role of the House of Lords, the excellence of their lordships, the work that they do, their courage or the passion with which they advance their cases. Indeed, it is often said that the debates held in their lordships’ House are far more informed, considered, interesting and informative than our debates in this House. Having been in this place and not that place, I cannot compare the two. Nevertheless, it is a dangerous principle to say, “Let’s include a provision in the Parliament Act to say that the House of Lords should be not only the guardian of five-year Parliaments but the guardian of this Bill, to protect it from being altered.”

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I would have much more faith in the proposal if reform of the House of Lords had been completed—something that I hope will come to pass. One of the problems that I have with the House of Lords is not the people in it or their mental ability—many of them are excellent people and their mental ability is far superior to mine—but my concern that they do not hold a democratic mandate. It is an important principle that where we have representatives in our legislature, they should have a mandate from the people. I guess it is because I am a Lincolnian politician—I believe in government for the people, by the people, of the people—that I believe that the sunshine of democracy should permeate our entire legislature, and not just this House. I admit to some radicalism in my thinking on such matters, but I believe it is important that all our politicians should be elected and have a democratic mandate.

Mr Cash: Will my hon. Friend turn his mind to this radical thought? If the House of Lords were to become an elected Chamber, it would not make the slightest bit of difference in respect of the argument that he is presenting, because the Parliament Act would remain on the statute book. The argument that my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) has put forward would also apply to an elected House. The question, in a nutshell, is one of judicial supremacy, which is why I strongly support what my hon. Friend the Member for North East Somerset has been saying.

Charlie Elphicke: I take the view that this will be an important Act. It will introduce a referendum lock to ensure that we do not get dragged further into the European Union without consulting the British people. Inevitably, because Parliament is sovereign, it would be able to unravel the Act, to repeal it and to take away the people’s right to have a say in a referendum. That is the right of Parliament, but I do not agree with the argument for entrenching it to the same extent as the Parliament Act, as is suggested in the new clause. The Parliament Act is an entrenchment of our basic right not to have our democracy stolen from us. I would not place this legislation on that same lofty plane. It is important that Acts of Parliament should be able to be changed or repealed by a sovereign Parliament. The political issue is that any person or party that repeals an Act such as this will reap the whirlwind from the electorate. I am happy that we are able to pass and repeal Acts, and that the electorate should have the final say at an election, at which point they can condemn any such behaviour. I shall now give way to my hon. Friend the Member for Northampton South (Mr Binley).

Mr Binley: I have no wish to ask you a question.

Mr Deputy Speaker (Mr Lindsay Hoyle): Order. Can we conduct the debate through the Chair, please?

Charlie Elphicke: Thank you, Mr Deputy Speaker. I conclude my remarks.

Michael Connarty: First, may I compliment the hon. Member for North East Somerset (Jacob Rees-Mogg) on the eloquence both of the construction of his new clause and of his delivery in arguing for it? I believe that

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the new clause is flawed. He suggested that the evidence that we had received—he kept referring to Lord Justice Laws’ ruling—was correct, but we received evidence from many other people that it was incorrect. It was suggested that we could not establish two tiers of laws just because a judge decided to make a remark in court, and that all laws, including the European Communities Act 1972, stand the same and can have implied amendment and repeal.

If Parliament decided to pass a law here that was contrary to a ruling, directive or regulation of the European Union, it would still stand as a law. The dilemma would then be whether the European Court of Justice would have the right to overrule that decision or whether we would press on our courts our decision in the new Act, which would cause a judgment to be called for in the European Court. If no one called for such a judgment on an Act that we had passed contrary to a regulation or directive of the European Union, it would continue to apply. It would not be knocked down, and no penalties would be imposed on the UK, unless someone called for the European Court of Justice to make a judgment on that new Act. So it was nonsense to suggest that in 1972 we had suddenly created an Act that was incapable of implied repeal or amendment.

Jacob Rees-Mogg: The evidence that we received focused on the “notwithstanding” approach—that is, that one could not accidentally repeal, or move, an Act that was contrary to the 1972 Act; one would have to do it explicitly. That is different from most other Acts of Parliament that can impliedly be repealed. This is where we come back to Lord Justice Laws’ judgment, which has been de facto accepted.

6.45 pm

Michael Connarty: Just to remind everyone who reads these tomes, the 1972 Act embodied a decision by this Parliament that laws, directives and regulations drawn up by the European Union should take primacy over an Act covering the same area passed by this Parliament. It was our decision to use our sovereignty to give that primacy as part of the deal of going into the European Union.

My understanding of the evidence is that if we passed an Act that did not contain a “notwithstanding” clause or set out to be a deliberate challenge, and that simply put in place a law that we wished to have, it would have to be challenged and taken to the European Court of Justice before it created any conflict. So the question is: do we accept that that was right and that the judges have the right to do that?

I suggest that if the hon. Member for North East Somerset genuinely wishes to see that change, he should not apply to the good offices of the 1911 Parliament Act. I agree with the hon. Member for Dover (Charlie Elphicke) that it is wrong that we should appeal to an undemocratic institution. I believe that we should look to a justice Act of some kind to determine that judges cannot make such a ruling or decide that there are two kinds of laws in this country. Some people think that the European Union takes up a lot of time, but I think that the more important laws are those that will determine what is going to happen to people’s pensions in this country or to their employment rights. I hope that the hon. Member for North East Somerset will come back

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to the House with a justice proposal, which I would be happy to support, saying that the courts cannot make a ruling that overrules the right of this democratic Chamber to decide the law of this land.

Austin Mitchell: I am trying to follow the argument, but, being a European argument, it is very difficult to follow. Surely the situation is that if we pass a law that negates the implementation of a European Union law in this country, our courts would have to accept the European Union law rather than ours. We could not pass such a law unless we specifically exempted it from the European Communities Act 1972.

Michael Connarty: My hon. Friend’s point is correct, but that is not what we are talking about. He describes a situation in which this or any Government decided to challenge the original decision. A law could be passed that would continue to run contrary to European Union law; I believe that that is happening in many countries. We and the Norwegians are the most obsessed with trying to get everything right in terms of fitting in with European directives. A challenge could be made, however, and we would then have to decide whether it was right for us to negotiate a change in the relationship or to abandon our law and accept the ruling of the European Union. At the moment, that does not happen.

My main point is that we in this democratically elected Chamber can overturn these decisions at any time if we have the will to do so. We are not bound by them for ever. Like any other law, we will be able to challenge this legislation in this Chamber, which is why I do not believe that we have to go through the rather tortuous, although eloquently described, process of applying an amendment to the Parliament Act 1911.

On the ability of the Lords to protect us from changes to our democracy, they have not protected us from this shabby coalition, which is proposing a law that would guarantee that the coalition would run for five years—a proposal that I spoke against in the first debate in this place after the election—unless the shabby minority part of that shabby coalition, the Liberal Democrats, decide to pull it down, because no other person in this place could do that. If the Lords could protect us from that, I might have more confidence in the 1911 Act.

Mr Cash: I should like to endorse the general thrust of the new clause tabled by my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), although I must qualify that slightly by saying that I do not take the view that there is a difference between different types of statute. However, that does not make a material difference to the thrust of his argument, which is that we must at all costs preserve the right of this House ultimately to make the decisions. Indeed, in the 1870s—it might have been earlier—the statesman John Bright put forward the proposition that led to the Parliament Act 1911, some 30 years before it was implemented, precisely because he did not believe in privilege, in aristocracy or in the House of Lords as it was then constituted.

The reality is that we can achieve the objectives by adopting the new clause without necessarily accepting that the House of Lords could not become an elected body if that were the view of this House in due course. I do not accept the proposition put forward by my hon. Friend the Member for Dover (Charlie Elphicke) because

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so long as we have a second Chamber, the House of Lords will be the House of Lords—irrespective of whether it is elected.

The question of constitutional statutes has been introduced as a notion, but it is not intrinsic to the argument. What is essential is to ensure that we do not allow the Supreme Court to adjudicate over and above the decisions taken by our Parliament. That is the key issue. Some futile commentators—and, if I may say so, some Members of this House—mislead themselves from time to time by suggesting that sovereignty is not such an important issue. The reason for its importance is very simple: we Members are elected to make decisions, and all the other issues, such as dealing with burdens on business and so forth, stem from that. That explains my view of the European Union, which is that, where necessary, the sovereign Parliament should override through the “notwithstanding” formula to which my hon. Friend the Member for North East Somerset rightly referred and which I have employed on a number of occasions when I have been supported by Conservative Front-Bench Members—for example, when we were in opposition and with respect to the Legislative and Regulatory Reform Act 2006, and on other occasions.

What we need to insist on above all—it cropped up in the previous debate—is that this House on behalf of the electorate represents the democratic process whereby we are voted in to make decisions. We must insist on that at the expense of judicial supremacy. Even though I am the first to say that it is for the courts to interpret legislation, it is not for them to make it. That is the fundamental point. I thoroughly endorse both the sentiments and the wording of the new clause.

Mr Lidington: I thank my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg),who I know takes a strong interest in these important constitutional issues—and he is right to do so. Our short debate has allowed him and other hon. Members to seek a means to entrench the Bill once it reaches the statute book, and to protect it from future attempts at repeal. At the same time, the new clause has been drafted in such a way as to permit my hon. Friend the opportunity to raise broader constitutional questions about the ultimate authority to take decisions and whether that should lie with Parliament or with the judiciary. My hon. Friend cited in particular the leading judgment of Lord Justice Laws, which has been quoted on many occasions during our proceedings on theBill.

I am afraid, however, that although I agree with much of the sentiment that underpins the new clause, I cannot support the new clause for reasons that I shall shortly provide. Let me first explain a little about the Government’s interpretation of the new clause and its effect. It would introduce a new category of Bill, which could not be passed under the procedure provided by section 2 of the Parliament Act 1911.

As all hon. Members will be aware, section 2 of the Parliament Act 1911 makes provision under which most public Bills can be enacted ultimately without the approval of the House of Lords. There are, however, two exceptions to the general rule. The first relates to money Bills, which have their own procedure under section 1 of the Parliament Act. The second exception is for what that Act terms

“a Bill containing any provision to extend the maximum duration of Parliament beyond five years”.

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Under the new clause, there would be a third exception: namely, any Bill that sought to amend or repeal what would be provided for in sections 1 to 7 of the European Union Act 2011, which this Bill will become if Parliament agrees to its passing. In practice, this would mean that the legislation could not be either repealed or amended in respect of those sections without the express consent of the House of Lords.

I hope it goes without saying that I fully support the political intention of the new clause to help to ensure that the Act remains on the statute book for a long time to come. As my right hon. Friend the Foreign Secretary said on Second Reading, the Government believe that the Bill should become

“part of the accepted constitutional framework of this country”.—[Official Report, 7 December 2010; Vol. 520, c. 197.]

It is right to point out, however, that the Parliament Act 1911 has been amended only once, in 1949. Since then, Parliament has not considered it appropriate to single out any other pieces of legislation—for example, the Acts of Parliament passed to provide for Scottish, Welsh and Northern Irish devolution, the Constitutional Reform and Governance Act 2010 or, indeed, the European Communities Act 1972—for similar special status. Even enthusiastic supporters of the Bill would find it difficult to argue that this piece of legislation should be singled out in this particular way, which is denied to other items of legislation that might generally be accepted to have important constitutional significance.

Mr Cash: Even if my right hon. Friend were right in his general assertions about elements of the Bill, the implications of clause 18, as the European Scrutiny Committee report made clear, puts it into a very special category. Despite our attempts to amend that clause, which were sadly and tragically defeated, the fact remains that clause 18 makes a very significant change to this country’s constitutional arrangements. For that reason, the Bill should indeed be put into a different category.

Mr Lidington: I am grateful to my hon. Friend for acknowledging the importance of clause 18. We had a full day’s debate on that clause at the start of our Committee proceedings, but I rather think that you would warn me, Mr Hoyle, against recapitulating that debate this evening. It is hard to imagine why a future Parliament would choose to repeal this Act, thereby abolishing the referendum lock and the enhanced control and scrutiny that the Bill provides for Parliament and the British people. It would incur a high political cost for any Government who brought forward such a measure and, indeed, for individual Members of Parliament who were prepared to walk through the Lobbies in its support.

It is an important part of this Government’s commitment to rebuilding trust with the British people to make clear what the future arrangements should be. Although it is always possible that a future Government will decide to act differently, I find it hard to imagine that any such future Government would be able to defend taking away from the British people the right to have their say about further changes to the European treaties.

I have further concerns about the impact of the new clause on the long-standing relationship between this House and the House of Lords. It would alter the

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relationship by expanding the relative powers of the House of Lords. It has never been part of the Government’s intentions for this Bill that it should be used to alter that relationship.

Jacob Rees-Mogg: I am grateful to my right hon. Friend, not only for giving way but for taking the new clause so seriously, but I must say to him that the Bill does not really extend the powers of the House of Lords and is not a new category of Act. Both it and the existing protection under the 1911 Act refer exclusively to the voting rights of the British people, which is why I think that they are exactly the same.

7 pm

Mr Lidington: I hear my hon. Friend’s argument, but I could quite easily construct another argument. We have enacted other pieces of legislation in recent decades which are of great constitutional significance, which touch on the franchise—for example, the decision by, I believe, the Heath Government to lower the voting age from 21 to 18—and which could have been deemed to fall into a comparable category and to deserve equivalent protection.

This evening my hon. Friend is making a second attempt to persuade Parliament of the case for his proposal. A short while ago, he tabled an amendment to the Fixed-term Parliaments Bill that was very similar to this new clause. Indeed, it may have been identically worded. At the time the Parliamentary Secretary, Cabinet Office, my hon. Friend the Member for Forest of Dean (Mr Harper), expressed a view to which the Government and I subscribe. The rules governing the relationship between this House and the other place, as laid down in section 2 of the 1911 Act, have been in place for some time, and we do not intend to start changing that relationship.

I suggest to my hon. Friend the Member for North East Somerset that the political problem and the constitutional challenge that he has identified in the House of Lords judgment, namely the evolution within the jurisprudence of the United Kingdom courts of the idea of a distinct category of constitutional statutes which have a special status and which, in particular, cannot be impliedly repealed, should perhaps be addressed in the context of a more general proposal for constitutional reform. As my hon. Friend knows, my right hon. Friend the Deputy Prime Minister is considering the issue of possible reforms of the House of Lords. The best course may be for my hon. Friend to make representations to the Deputy Prime Minister as he considers what is the right way in which to proceed.

During one of the debates on the Fixed-term Parliaments Bill, my hon. Friend said:

“Our constitution should be safeguarded and preserved; it is not something that should be treated lightly or in an airy-fairy fashion”.—[Official Report, 18 January 2011; Vol. 521, c. 708.]

I strongly agree with the sentiment that he expressed. That is why it is so important for the House to scrutinise thoroughly the issues raised by his proposal, and that is why I have considered it so carefully.

I welcome the scrutiny that the proposal has undergone, both this evening and during consideration of the Fixed-term Parliaments Bill. However, for the reasons I have given, I do not accept that the new clause is an appropriate

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way for us to achieve our shared intention. Following the debate on my hon. Friend’s similar amendment to the Fixed-term Parliaments Bill, he withdrew the amendment. I sincerely hope that, having heard my arguments this evening, he will be prepared to withdraw his new clause.

Jacob Rees-Mogg: I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 3

Decisions subject to special referral procedure in TFEU

‘(1) A Minister of the Crown may not permit the United Kingdom’s participation in the final adoption of a decision to which this subsection applies unless subsection (3) or (4) is complied with in relation to the draft decision.

(2) The decisions to which subsection (1) applies are—

(a) a decision under the provision of Article 48 of TFEU that permits the adoption of legislative acts in the field of social security;

(b) a decision under the provision of Article 82(2) of TFEU that permits the adoption of directives establishing minimum rules in criminal procedure, unless the decision falls under section 9(4);

(c) a decision under the provision of Article 83(1) of TFEU that permits the adoption of directives establishing minimum rules concerning the definition of criminal offences and sanctions, unless the decision falls under section 9(4);

(d) a decision under the provision of Article 83(2) of TFEU that permits the adoption of directives establishing minimum rules concerning the definition of criminal offences and sanctions.

(3) This subsection is complied with if—

(a) a draft decision is before the Council,

(b) in each House of Parliament a Minister of the Crown moves a motion that the House does not believe the United Kingdom should request the referral of a specified draft decision to the European Council under the provision of Article 48 of TFEU, Article 82(3) of TFEU or Article 83(3) of TFEU, as the case may be, providing for such a request, and

(c) each House agrees to the motion without amendment.

(4) This subsection is complied with if—

(a) a draft decision is before the European Council,

(b) in each House of Parliament a Minister of the Crown moves a motion that the House approves Her Majesty’s Government’s intention to support the referral of a specified draft decision back to the Council, and

(c) each House agrees to the motion without amendment.’.—(Chris Heaton-Harris.)

Brought up, and read the First time.

Chris Heaton-Harris: I beg to move, That the clause be read a Second time.

Mr Deputy Speaker (Mr Lindsay Hoyle): With this it will be convenient to discuss the following:

New clause 4—Certain decisions under Article 312 of TFEU requiring approval by Act and by referendum

‘(1) A Minister of the Crown may not vote in favour of or otherwise support a decision to which this subsection applies unless—

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(a) the draft decision is approved by Act of Parliament, and

(b) the referendum condition is met.

(2) The referendum condition is that set out in section 3(2), with references to a decision being read for the purposes of subsection (1) as references to a draft decision.

(3) Subject to subsection (6), subsection (1) applies to a decision under Article 312(2) of TFEU to adopt a regulation laying down the first multiannual financial framework of the European Union for the period following 2013, where that multiannual financial framework would include—

(a) an initial annual ceiling on total EU payment appropriations that was higher than the ceiling on total EU payment appropriations for 2013 in the multiannual financial framework covering 2013, taking account of an adjustment of the 2013 ceiling for inflation,

(b) subsequent annual ceilings on total EU payment appropriations, some or all of which increased from the previous year, or could increase from the previous year without revision of the multiannual financial framework through the procedure laid down in Article 312(2) of TFEU, by more than an adjustment for inflation,

(c) an initial annual ceiling on total EU commitment appropriations that was not lower than the ceiling on total EU commitment appropriations for 2013 in the multiannual financial framework covering 2013, taking account of an adjustment of the 2013 ceiling for inflation, or

(d) subsequent annual ceilings on total EU commitment appropriations, some or all of which were at least as high as the previous year’s ceiling adjusted for inflation, or could be at least as high as the previous year’s ceiling adjusted for inflation without revision of the multiannual financial framework through the procedure laid down in Article 312(2) of TFEU.

(4) For the purposes of subsection (3), the only relevant adjustments for inflation are those used by the EU for the figures involved.

(5) Subject to subsection (6), subsection (1) also applies to a decision under Article 312(2) of TFEU to adopt a regulation revising the first multiannual financial framework of the European Union for the period following 2013, where that regulation would cause the multiannual financial framework to include provision identified in subsection (3) when the framework had not done so before.

(6) Inclusion of provision to enable EU payment or commitment appropriations to be reallocated between the annual ceilings of the same type of appropriation in a multiannual financial framework does not of itself cause a regulation laying down or revising a multiannual financial framework to fall under subsection (1).’.

New clause 5—Certain decisions under Article 311 of TFEU

‘(1) A Minister of the Crown may not confirm the approval by the United Kingdom of a decision to which this subsection applies unless—

(a) the decision is approved by Act of Parliament, and

(b) the referendum condition or the exemption condition is met.

(2) Subsection (1) applies to a decision under the third paragraph of Article 311 of TFEU to adopt a decision laying down provisions relating to the system of own resources of the European Union, where the decision adopted contains provision for payment to the EU as own resources, without the need for a further decision under the third paragraph of Article 311 of TFEU, of some or all of the revenues from a tax or other levy on natural or non-State legal persons that is established or which may be established by EU law (including by that decision).

(3) The referendum condition is that set out in section 3(2).

(4) Subject to subsection (5), the exemption condition is that the Act providing for the approval of the decision states that—

8 Mar 2011 : Column 831

(a) under the provisions relating to the system of own resources of the European Union in force at that time, revenues from the tax or other levy referred to in subsection (2), or from a tax or other levy that is very similar and which is established or may be established by EU law, are already paid in whole or part to the EU as own resources or may be paid in whole or part to the EU as own resources without a further decision under the third paragraph of Article 311 of TFEU, and

(b) the adopted decision to which the decision relates does not contain provision that is likely to require or allow a significant increase in the amount or proportion of revenue obtained in the United Kingdom in any one year from the tax or other levy referred to in subsection (2) that is or may be paid to the EU as own resources, compared to that required or allowed by the provisions relating to the system of own resources of the European Union in force at that time.

(5) Where a statement as per subsection 4(a) is made that revenues from a very similar tax or other levy to the tax or other levy referred to in subsection (2) are or may already be paid in whole or part to the EU as own resources, the statement for the purposes of subsection 4(b) may state that the adopted decision to which the decision relates does not contain provision that is likely to require or allow to be paid to the EU as own resources an amount or proportion of revenue obtained in the United Kingdom in any one year from the tax or other levy referred to in subsection (2) that is significantly greater than the amount or proportion of revenue obtained in the United Kingdom in any one year from the very similar tax or other levy required or allowed to be paid to the EU as own resources by the provisions relating to the system of own resources of the European Union in force at that time.’.

Amendment 1, page 4, line 8, clause 4, at end insert

‘except where any such provision substantially affects all or any of the political, economic, fiscal, social or constitutional relationship between the United Kingdom and other Member States of the European Union.’.

Amendment 6, page 4, line 43, clause 6, at end insert—

‘(2A) A Minister of the Crown may not confirm the approval by the United Kingdom of a decision under the provision of 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 unless—

(a) the decision is approved by Act of Parliament, and

(b) the referendum condition is met.’.

Amendment 8, page 6, line 21, clause 7, after ‘Union’, insert

‘, unless the decision falls under section (Certain decisions under Article 311 of TFEU)’.

Amendment 7, page 6, line 39, at end add—

‘(da) a decision under Article 312(2) of TFEU to adopt a regulation laying down or revising the multiannual financial framework of the European Union, unless the decision falls under section (Certain decisions under Article 312 of TFEU requiring approval by Act and by referendum).’.

Amendment 4, page 8, line 22, clause 9, at end insert—

‘(4A) For decisions under a provision falling within either paragraph (b) or (c) of subsection (2) that are subject to qualified majority voting, otherwise supporting a decision includes, for the purposes of subsection (4), permitting the United Kingdom’s participation in the final adoption of a decision.’.

Government amendment 3.

Amendment 5, page 9, line 3, clause 10, leave out subsection (2).

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Chris Heaton-Harris: I should begin by apologising to the House for being so keen to table a number of new clauses and amendments at this late stage. It is not as if there is anything better going on in my life. It is not that Arsenal are playing Barcelona tonight, and I could have been watching that. Actually, as a referee I do not like Arsenal that much, but I could have been refereeing the football game between the Press Lobby against the Crown Prosecution Service—and I have a family, and there is a dinner that I could have gone too.

However, I did want to point out to the Minister that there are some fairly big gaps in the Bill, which came to my notice rather later than they should have. New clause 3 concerns the emergency brake, especially in the context of criminal justice matters. New clause 4 concerns the post-2013 financial framework. New clause 5 concerns own resources decisions and EU taxes. I have also tabled a range of complementary amendments.

New clause 3 deserves some explanation. Certain European laws proposed under the treaty on the functioning of the European Union are subject to the emergency brake procedure. Such proposals are adopted by qualified majority voting in the Council, and relate to social security and procedural and substantive criminal law. When an EU law on social security is proposed under article 48 of the TFEU, a member state can declare that the proposal

“would affect important aspects of its social security system, including its scope, cost or financial structure, or would affect the financial balance of that system”,

and, having done so, can request that the proposal be referred to the European Council. The proposal is then so referred, and the Council suspends its consideration of the measure.

When an EU law on procedural or substantive criminal law is proposed under article 82(2) or article 83 and a member state considers that the proposal

“would affect fundamental aspects of its criminal justice system”,

that member state may request that the proposal be referred to the European Council. The proposal is then so referred, and the Council suspends its consideration of the measure. A member state’s ability to stop the adoption of a proposal subject to qualified majority voting in that way is known as the emergency brake.

After the proposal has been referred to the European Council, the Council may refer the proposal back to the other Council, which then resumes consideration of the measure, taking decisions by qualified majority voting. However, there must be a consensus in the European Council for the proposal to be referred back. That means that any member state can block the proposal. Under United Kingdom law, the decision on whether to invoke the emergency brake lies solely with the Government. Parliament cannot insist that this happen, and the Bill, alas, will not change that. In contrast, the German Parliament can oblige the German Government to press the emergency brake on any of those matters. New clause 3 would cover all EU proposals subject to the emergency brake except for the proposals that would fall under clause 9(4) of the Bill. It would, however, require the final draft of the proposals to go before both Houses of Parliament, either of which could require that the emergency brake be pressed.

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Back in January, in response to a letter that I had sent dealing with various aspects of the Bill, my hon. Friend the Minister for Europe wrote to me that there was nothing to prevent a member state from pressing the emergency brake repeatedly on a proposal. That means that, should Parliament remain dissatisfied with the proposal after it has been referred to the Council by the European Council following a use of the emergency brake, Parliament could insist that the brake be pressed again.

Subsection (4) of new clause 3 is intended to accommodate the possible scenario in which the European Council seeks to come to a consensus on a final draft of the proposal, which would be referred back to the Council for formal adoption straight away. It seems to make sense that the Government should be able to ask Parliament at that point whether the final proposal is acceptable, rather than the Government’s simply agreeing to refer it back to the Council and not insisting that the emergency brake be triggered.

I have been discussing new clause 4 with the Minister’s officials, and have been told that its provisions are probably covered in the Bill. A handful of proposals subject to the emergency brake would appear to be covered by clause 9(4). I would appreciate the Minister’s confirming that, at the end of a convoluted process—during which the British Government might know that a proposal under QMV is to be adopted so they do not vote for it or abstain, but vote against—we in this Parliament could still have our foot firmly on the emergency brake.

Steve Baker: I admire my hon. Friend’s tenacity, but I am only a simple engineer, so may I confirm that he has said that this House is unable to assert its sovereignty in relation to criminal justice?

Chris Heaton-Harris: I was not asserting that, although we have given away lots of justice and home affairs powers, and I do not think many Members or many of the British people fully appreciate how much we have potentially given away. This is an important point. Although the Bill has many problems, the referendum lock would ensure that we do not go down such a route in respect of the European public prosecutor and other matters to do with the criminal justice system. The measure I am talking about came in under the Lisbon treaty. No country has pressed the emergency brake yet. I would like to think that the Government would trust Parliament sufficiently for Parliament to have its foot on that brake, rather than for the Government alone to have their foot on it.

Kelvin Hopkins (Luton North) (Lab): I find the hon. Gentleman’s arguments very persuasive. At least we, as well as Germany, could stand up and be counted. If it is good enough for the Germans, it should be good enough for us. I would like such a provision very much indeed, but is not the worry for our Government in particular that our Parliament is especially likely to exercise that power over Ministers going to the European Council? Is not their concern that we might actually exercise our right to put our foot on the brake?