Examination of Witnesses (Question Numbers
112 - 194)
6 DECEMBER 2010
Q112 Chair: Minister, welcome
this afternoon. I'm sorry we're running a tiny bit late, but we'll
get on with the business straightaway.
Before the Bill was presented, you indicated
your willingness to give evidence to the Committee shortly after
First Reading. The main value in taking evidence from a Minister
is the ability to put to him the comments made by other witnesses.
It is, therefore, common practice for Ministers to appear before
Select Committees at the end of inquiries. As you know, we have
been given less than a month to conduct an inquiry into a matter
of great complexity, and you now give evidence on the eve of Second
Reading. That may be keeping to the letter of your commitment,
but it is hardly keeping to its spirit. It has meant that the
Committee had to agree its report before having had the benefit
of testing your evidence.
My first question is as follows: the Government
have extended the Session until 2012, so why are you rushing the
Mr Lidington: The Bill is a key
part of the Government's legislative programme. We think, therefore,
that it is important that we take action to get it on the statute
book at the earliest possible opportunity. Obviously, I regret
that you and the Committee are dissatisfied with the amount of
time between First Reading and Second Reading. Clearly the Government's
business managers considered your request for a longer delay,
but they had to take decisions on this Bill in the context of
a very heavy, completely committed legislative programme for the
whole Session, taking us up to the next Queen's Speech.
Q113 Chair: Could you tell
me why the Secretary of State declined to come to the Committee
when we asked him?
Mr Lidington: The Secretary of
State took the view, which I share, that the Minister directly
responsible for the Bill and for taking it through its Commons
stages is best placed to come and give the sort of detailed evidence
to the Committee that you and your colleagues are seeking.
Q114 Chair: The Bill will
be considered in Committee of the whole House. No date is yet
set. Could you make representations to the business managers to
ensureI say ensurethat we are given more time before
the Committee stage, specifically so that consideration of part
1 of the Bill is not taken until the second week back after the
Mr Lidington: I will certainly
pass on that request to the business managers. My understanding
is that the arrangements for the Committee and subsequent stages
are under discussion through the usual channels and they are close
to being agreedthe Government very much hope that an agreement
can be reached through the usual channels on the best way forward.
Michael Connarty: I want to put it on
record that I also take a very dim view of the fact that the Foreign
Secretary did not accede to the Chair's request to come to give
evidence to this Committee. Certainly in my experience of the
past 12 years of this Committee, including my period of chairmanship,
I do not think that such an important matter as this has ever
not been addressed by the appropriate Secretary of State. I hope
that that message will be carried back. I don't know what the
logic behind it was, and I am in no way implying that the Minister
isn't adequate to the task, but I just think that the responsibility
lies with the Secretary of State, and he should have been here.
Q115 Chair: We will now move
on to clause 18the purported sovereignty clause. The explanatory
notes in part 3 of the Bill
have come in for trenchant criticism from the various witnesses
who have submitted or given evidence on that part of the Bill.
Not least, there is "great controversy", as Professor
Tomkins put it, about whether parliamentary sovereignty is, and
I quote, "a common law principle" and whether it can
be "put on a statutory footing".
It seems to us that the explanatory notes are far from impartial
in this respect.
So can you explainif you feel it necessary
to seek some advice from your legal adviser, we would be interested
to hear that advicehow the explanatory notes were drafted,
by whom and whom you consulted? If proper research and consultation
took place, why did they not accurately reflect the range of sharply
contrasting views on the status and scope of the doctrine of parliamentary
sovereignty? Why wereapparently, entirely deliberatelyrelevant
passages from the judgments in Macarthys Ltd v. Smith and
Thoburn not included? Lastly, why did your written evidence state
that Thoburn was a Court of Appeal decision? It certainly was
not; it was a decision, at first instance, in the divisional court.
Can you explain how that occurred? Was it sloppiness, or was it
that whoever prepared the explanatory notes didn't know the difference?
Mr Lidington: Chairman, I perhaps
ought to take the opportunity to introduce the two officials who
are accompanying me to this session. On my right is Alison Rose,
who heads the Bill team that will be taking the European Union
Bill through its parliamentary stages. On my left is Ivan Smyth,
who is from the legal advisers' side of the Foreign and Commonwealth
The first thing that I would say is that I want
to make it clear what we are seeking to do and what we are not
seeking to do with clause 18. What we are not seeking, and never
have sought, is to provide some all-embracing doctrine of parliamentary
sovereignty. From my brief look at the evidence given to your
Committee hitherto, it is clear to me that when the legal commentators
have discussed parliamentary sovereignty, they've talked not just
in terms of the relationship of United Kingdom law to European
Union law and to the authority of the European Court of Justice,
but have also alluded to the impact of the devolution settlements
and to the impact upon the doctrine of parliamentary sovereignty
of the European convention on human rights and the decisions of
the European Court of Human Rights giving effect to that convention.
Clause 18 is not concerned with those wider
definitions. It is about the means by which United Kingdom law
gives effect to European Union law in the territory of this country.
It is declaratory in intention and in substance. The clause states
in statutory form what the common law has hitherto declared to
be the position; namely, that there is only one reason why European
law has effect in this country and why European law is given primacy
over domestic law when the two conflict, which is that Parliament
has willed, by a sovereign Act, that that should be the position.
Q116 Chair: But you're saying
that in the context of the common law principle, are you?
Mr Lidington: I'm saying that,
in clause 18, we are declaring in statutory form what the established
common law position is at present.
Q117 Chair: When I say "the
common law principle", of course, there are those who claim
that it is the common law principle, but there are othersand
this is the great controversy to which Professor Tomkins has referredwho
say that there is no credibility to be attached to the argument
about the common law principle. There are those of us who might
believeand do believethat, in fact, you bought the
argument of some of our witnesses but disregarded that of others.
I think your legal adviser knows what I mean.
Ivan Smyth: The reference to common
law in this case is by contradistinction to statutory law, in
the sense that there is no statement of the principle of parliamentary
sovereignty in statute. That is the context in which you have
to read the reference to common law.
We'd like you to answer one or two of the other questions about
how the explanatory notes were drafted, by whom, who was consulted,
and what the basis of the research was. There are a number of
aspects of the explanatory notes that we find rather discouraging,
shall we say?
Mr Lidington: The truth is that
the explanatory notes were drafted in the way that all explanatory
notes areby officials in Whitehall. Certainly, when it
came to the framing not only of clause 18, but of the Bill more
generally, legal advice was taken from across Government.
Q119 Chair: So why were huge
chunks left out, such as the judgments in Macarthys, and Denning's
judgment in particular, which was about the whole question of
inconsistent law, where it is expressly and clearly stated, on
the one hand? And why, in the Thoburn case, were all these questions
about constitutional statutes left out? That was quite obviously
Ivan Smyth: If I may answer, Chairman?
The purpose of the explanatory notes is to explain what we are
actually trying to achieve with the clause, namely reflecting
what the courts have actually said about how EU law is imported
into the UK through the European Communities Act. There are lots
of comments and judgments that could be quoted in explanatory
notes, but those included were the comments which we thought were
most germane to the nature and purpose of the clause as drafted.
Chair: Well, some of us think it was
very distorted in the way that it was presented, even to the point
of negligence, but that is a matter of comment. James, would you
like to ask the next question?
Q120 Mr Clappison:
What a lot of people in the country are concerned about is the
constant drip, drip, drip of transfer of power to the European
Union. I know that this is a different point about sovereignty,
but we have had witness after witness come before the Committeehighly
academic and eminent witnessesand when we have asked the
same question, they have said that the Bill makes no difference.
I think that what you are telling us today is that what is in
the Bill confirms the existing position, but doesn't go further.
Mr Lidington: No, I don't
agree. It's not clear to me whether Mr Clappison's point refers
to the Bill in general, and not solely to clause 18.
Q121 Mr Clappison: The sovereignty
clause. One of the witnesses said that it might make things worse,
but all the others said that it made no difference. I think you
are confirming that, aren't you?
Mr Lidington: The purpose of the
sovereignty clause is declaratory, and I would disagree with your
witnesses who argue that it makes no difference. It provides a
very clear point of reference in statute, which is not there at
the moment, for both parties and judges in any future case where
the question of autonomousas opposed to parliamentaryauthority
of European law was being debated. It provides them with that
point of reference, written into statute for the first time. I
think that that will provide an extra safeguard against any risk
that jurisprudence would otherwise drift towards according European
law some autonomous status, which we do not believe it should
be accepted as having.
Q122 Mr Clappison:
But, we're fighting speculation that may take place in the future.
The witnesses told us that this is the position as it currently
stands, and you're confirming that.
Mr Lidington: Yes, absolutely,
and the Government have never argued that this was anything other
Q123 Mr Clappison:
So, it is a sort of battle against academic speculation.
I think it's more than academic speculation. These are arguments
that have been used, most obviously in the Metric Martyrs case.
They have also been deployed in cases, admittedly not referring
to European law, by judges such as Lord Steyn and Lord Hope in
other cases, in various obiter. These are live arguments in jurisprudence
at the moment.
Q124 Mr Clappison: They're
dead arguments, with respect, because they have been knocked on
the head. The Metric Martyrs case specifically disagreed with
the proposition that you are advancing. The Metric Martyrs case
put things on the same basis that you are putting them today;
it knocked the argument that you are frightened of on the head.
Mr Lidington: Yes, I think that
judgment was welcome, but I think that that should not prevent
us from trying to ensure that there are stronger safeguards against
the arguments that the prosecution put in that case succeeding
Chair: A Trojan horse is coming out of
Q125 Penny Mordaunt: In the
explanatory notes you say that parliamentary sovereignty is a
common-law principle, and so is decided by judges; is that not
in itself an attack on the principle that clause 18 supposedly
Mr Lidington: No, I don't think
that it is. I think that this is reinforcing the position that
there is only one source of European law's authority in this country
and that is Parliament, principally through the European Communities
Act 1972, but through certain other Acts as well.
I know that some have argued that putting clause
18 on to the statute book means that there would be a risk that,
if it were subsequently amended or repealed, the entire argument
that European law relied for its authority on Parliament would
be harmed. I do not believe that that is the case, because then
the common-law position would still obtain. If clause 18 had been
in law but was subsequently repealed, we would revert to a position
where it was simply a matter of successive judgments by individual
judges in particular cases that determined the position as regards
the authority of EU law in the United Kingdom. So you would not
have that additional safeguard that we are seeking to introduce
through this measure.
Q126 Jacob Rees-Mogg: If I
can continue on that, as I understand the evidence we have received,
the supremacy of Parliament is not a common-law principle. As
I understand it, we have been told that the common law is decided
by judges and precedents and so on, and that against that is the
fact of the supremacy of statute law. Saying that the statute
law's supremacy is a construct of the common law means that the
supremacy of Parliament was ultimately granted by judges, at some
point in the past, and therefore could be removed by judges. There
is a concern that by saying in the explanatory notes that the
sovereignty of Parliament is a common-law principle, a mistake
is being made, and that that phraseology needs to be clarified
to make it certain that it is known that statute law is supreme
as an original fact , and that it doesn't have a basis beyond
Mr Lidington: I'll ask Mr Smyth
to intervene, but I think Mr Rees-Mogg is tempting me on to very
important constitutional territory that goes beyond this piece
of legislation. Clause 18 is about the relationship between European
law and United Kingdom law. We have not sought to go beyond that
into broader questions about the origins and extent of parliamentary
sovereignty. That would quite properly be a matter for the Lord
Chancellor, who I am sure would be happy to come and give evidence
to the Committee, if it wished.
Ivan Smyth: As I said earlier,
the use of the reference to "common law" in this case
is in contradistinction to statute law. Lord Bingham recognised
that in a speech he gave to King's College, where he said that
there is no statute under which parliamentary sovereignty is established.
We have to be clear that that is the context in which the reference
to common law is being used here.
Q127 Chair: I'm sorry, Mr
Smyth, but in the whole of that lecture and, indeed, for that
matter, in chapter 10 of the book, The Rule of Law, which
I am sure you have read very carefully, Lord Bingham goes out
of his way to attack several Supreme Court judges with whom he
sat on the Jackson case, specifically becausein contradistinction
to what you have just saidhe so fundamentally disagreed
with their approach.
Ivan Smyth: What I am saying is
that the context is that we are actually using this because we
can't define parliamentary sovereignty by statute. There is no
statute that defines parliamentary sovereignty.
Q128 Jacob Rees-Mogg: I agree
with everything you are saying, with one exception. As I understand
it, "common law" has a very precise definition, but
it is being used in the explanatory notes in a very imprecise
wayin a way that most laymen would understand, but that,
to the lawyers, actually means something rather different. I think
the concern of the Committee is perhaps a rather pedantic one:
it is that the term "common law" is being used imprecisely
to create a false impression about what the statute is trying
to do. If this phraseology could be tightened, a lot of the Committee's
concerns would be answered.
Chair: Before you respond to that, Mr
Smyth and Minister, may I quote what Lord Bingham said? I think
that might help the Committee and the public. He said: "I
cannot for my part accept that my colleagues' observations are
correct. It is true of course that the principle of parliamentary
sovereignty cannot without circularity be ascribed to statute,
and the historical record in any event reveals no such statute."
He then went on to say, crucially: "But it does not follow
that the principle must be a creature of the judge-made common
law which the judges can alter: if it were, the rule could be
altered by statute, since the prime characteristic of any common
law rule is that it yields to a contrary provision of statute."
By the way, he also said that he regards the work of Professor
Jeffrey Goldsworthy in his books on parliamentary sovereignty
Mr Lidington: Before Mr Smyth
comments, I will just say again that, while these issues are important,
they go beyond the scope of this Bill. One reason why clause 18
does not include the word "sovereignty" is because it
does not have a precise statutory definition. When we have looked
for use of the term "sovereignty" in previous statutes,
we have found that it is used to describe territorial sovereignty
in, for example, the Cyprus Act, establishing Cypriot independence,
which refers to sovereignty in the context of the British sovereign
bases that remain in that country. Mr Smyth may want to add more.
Ivan Smyth: I can say little more
to you than what I have already said. If you look at the explanatory
notes in their entirety, you will see that they explain what is
being sought to be achieved by putting the principle of parliamentary
sovereignty on a statutory footing, so that people can see that
EU law is incorporated into the UK through the European Communities
Act, and that that is the only means by which it has been imported
into the UK.
Chair: One of our witnesses said that
he thought that the whole Bill was constructed as an invitation
to legislation. It seems to me that you are confirming that.
Q129 Jacob Rees-Mogg: Minister,
I think I know what your answer will be, but although the clause
is not trying to define sovereignty more broadly, because the
explanatory notes state that parliamentary sovereignty is a construct
of the common law, that opens it up to further interpretation
by the judges. Therefore, the Bill and its notes are taking on
something that they were not intending to, are failing to answer
the broader sovereignty question, and produce an opening for the
judges to get involved, if you take the clause in conjunction
with the explanatory notes.
Mr Lidington: I think that between
them, as Mr Smyth said, both the Bill and the explanatory notes
make clear the Government's intent, as well as the limits to the
intent and scope of this legislation. Certainly, we have never
argued that clause 18 is other than declaratory. We have never
sought to argue that it goes beyond a description of the means
by which European law has effect in the United Kingdom and is
given primacy in the United Kingdom.
Q130 Jacob Rees-Mogg: Finally,
is it your view that parliamentary sovereignty is derived from
Mr Lidington: Mr Rees-Mogg is
again tempting me on to territory that is properly the
Q131 Jacob Rees-Mogg: But
that's what the explanatory notes say. So, do you agree with your
own explanatory notes?
Mr Lidington: What I repeat to
Mr Rees-Mogg is that he needs to look at the content of the Bill
and the content of the explanatory notes in their entirety. I
think they make it very clear what the scope and the limits are
to what this piece of legislation seeks to achieve.
Mr Cash: I think the problem is that
you use the expression, "the common-law principle",
as if by assertion it is automatically the basis of the principle
whereby EU law takes effect in the UK through the will of Parliament
and by virtue of an Act of Parliament. The problem is that that
is a matter of great controversy and, not only that, it goes to
the question that Mr Rees-Mogg has just raised about opening the
gateway to the Supreme Court and the rather unsatisfactory declarations
by Lord Steyn and Lord Hope on the issue of sovereignty. I now
pass to Michael Connarty.
Q132 Michael Connarty: Thank
you very much, Chairman. Let me be quite honest, Minister, about
where I am coming from. Having looked at the Bill and the clause,
I see it as a piece of window-dressing hiding the fact that the
Government promised the people of the UK something and are not
delivering it. They promised them some definitiona clear
statement, a clear move forwardthat would somehow put parliamentary
sovereignty back on the statute book in a way that would be satisfactory
to those who are unhappy with the power of EU law. That is a fact;
that is what people thought they were getting.
What we have got from the evidence we have taken
confirms my view. I have asked the same three questions of all
the witnesses, and they are dismissive of the clause. It does
not alter anything. In fact, Professor Allan went as far as to
sayI quote"It is not, however, possible to
place a common law principle on a statutory footing, because the
principle concerns the nature of continuing legislative authority."
He then goes on to argue that if any new statute's purport was
to override or derogate from directly applicable EU law, it would
conflict with the legal consequences of the European Communities
Act, and we would be back in the courts, basically, and there
would have to be a judgment made in the courts on the matter.
Everyone seems to come to the conclusion that
clause 18 is only declaratory and a restatement of what is there
already. The evidence of many people is that it is therefore unnecessary.
We actually had evidence that it was in fact dangerous, because
it seemed to try to put some common law into a Bill that would
then cause more complications; as the Chairman has said, that
would lead to temptations and invitations to litigation, rather
than clarifying the position. The question is, apart from being
window-dressing to try to pacify those people who were conned
into voting for a Eurosceptic Conservative manifesto, why is the
clause needed, since it changes nothing?
Mr Lidington: We've never argued,
as I have said repeatedly, that it changes the current law position;
it declares the current position.
Michael Connarty: Not since you got into
Government, but you promised before you got there.
Mr Lidington: The position, as
Mr Connarty knows, is that the coalition programme promised that
we would examine the case for a sovereignty Bill and come forward
with our conclusions, which is what we have done. I think Mr Connarty
is inviting me to comment on the Conservative party manifesto.
My recollection of that document is that it said that the Conservative
party would enact a sovereignty Bill to make sure that ultimate
power rested with the British Parliament. Now, I would argue that
clause 18 does that by making it clear in statutory form, for
the first time, that the only source of authority for European
law and the European Court of Justice in the United Kingdom is
the deliberate Act of a sovereign Parliament. It therefore provides
a statutory test that helps to guard against any risk that the
current position, established by the judges in successive cases,
might be eroded through future judicial decisions. That is the
purpose behind this.
Mr Connarty invited me to look at the hypothetical
situation in which a future Parliament might decide explicitly
to change the law in some way that was at odds with the United
Kingdom's obligations under the European Union treaties. Now,
what I am clear about is that Parliament has the right to do that,
if it so wishes. That would clearly precipitate a political crisis,
because the UK would be acting in a way that was quite deliberately
at odds with binding treaty commitments that we had entered into.
There would have to be a political solution if a political argument
were to take place.
Q133 Michael Connarty: You
haven't quite explained to me why the clause is needed, given
that all the evidence we had was that without clause 18, we would
be in the same position anyway. You would have to have this same
judgment made and challenges made in the courts. Without clause
18, there would still be the same argument about where we stand,
in relation to the dualist position that we are in at the moment,
and about many other thingsthere is the argument that there
is never such a thing as sovereignty of Parliament anyway, because
it is always moderated by the courts and the rule of law and all
the other factors. So it does not add anything, but it confuses
people, because it seems to tell people that the promise has been
delivered, and that clarity has been added to the law by having
this clause. Everyone has heard evidence saying that it does not
lead to clarity at all. So why is it needed, apart from as a fig
leaf for the Government's promises?
Mr Lidington: I think it does
give the clarity that Mr Connarty seeks, in the way that I have
described on a number of occasions so far this afternoon. Without
clause 18, we would be relying entirely on the continuing good
sense of the judges, case by case, to ensure that European law
was not accorded some autonomous authority in this country, not
dependent on Acts of a sovereign Parliament. We are providing
here for the first time a clear statutory point of reference for
any future court to consider if these arguments come before it.
Q134 Mr Clappison: I am relieved
to hear, Minister, that you feel that Parliament still has the
right to withdraw from the European Union if it wishes to, or
to act inconsistently with the European Union, but I have to say
there seemed to be a note of doubt in your answer. On the question
of the position of European law, this would not affect the supremacy
of European law over UK law as matters stand, would it? European
law would take precedence over UK law, as matters stand. United
Kingdom law that was found to be inconsistent with European law
by the European Court of Justice would be struck down. The same
would apply to any future European law that was made within the
competences of the European Union. That would remain the case,
Mr Lidington: Yes, those statements
are true and, of course, the reason why European law has that
primacy is because that was expressly provided for in the European
Communities Act 1972.
Q135 Mr Clappison: That primacy
will continue, and the areas within which there is primacy can
go on expanding as they have done since 1972, since when, as we
all know, they have expanded greatly?
Mr Lidington: The areas of primacy
are determined, as Mr Clappison said, by the competences given
to the European Union by successive treaties. The purpose of much
of the Bill is to provide additional protection by way of a requirement
for parliamentary authority, or for the authority of the people
in a referendum, if changes are proposed to add to those competences
in the future.
Q136 Mr Clappison: As we all
know, there is already a very long list of competences within
which the European Union acts. We have more questions on that
later. This is a political question. You talk about safeguarding
the present position, but it is the present position that concerns
so many people, isn't it?
Mr Lidington: Yes, and it is certainly
true that the Government have accepted that the position established
by the various treaties up till now, and up to and including the
Treaty of Lisbon, is our starting point. We work within that legal
framework. Both Mr Clappison and I remember voting against the
ratification of the Lisbon Treaty when that came before Parliament,
but the Government have taken a considered view that, Lisbon having
been ratified, we work within that framework.
Q137 Mr Clappison: I support
what the Government have done on that; I think it is actually
correct, but presentation-wise, there has to be some care taken,
doesn't there, that we don't mislead people into thinking that
this Bill does more than it does, with ringing declarations about
sovereignty and the ultimate sovereignty resting with Parliament,
when the present position will continue to prevail?
Mr Lidington: I don't think those
two points are contradictory. The ultimate sovereignty does remain
with Parliament, and I think that clause 18 of the Bill entrenches
that position in a way that has not been the case up till now;
but it is certainly the caseneither the Foreign Secretary
nor I have claimed otherwisethat the Government's starting
point is the legal framework and the competences established by
Q138 Chris Heaton-Harris:
Following up on this point, the Law Society says it's not convinced
about the need for a declaration of parliamentary sovereignty,
given that there's already a principle in common law that Parliament
is sovereign. It's concerned to ensure that the consequences of
the declaration of parliamentary sovereignty are fully assessed,
together with the principle of primacy of European law, and is
concerned that legal certainty is undermined by the clause. What
would you say to the Law Society?
Mr Lidington: I don't think it
is right in saying that the doctrine of ultimate parliamentary
control is undermined. For the reasons I've previously given,
I think that, on the contrary, it is strengthened if clause 18
is enacted. I don't think, either, that I'm persuaded by the
argument that, because the courts up till now have upheld the
position that we are seeking to embody in statute, in clause 18,
we would be right simply to rest on the assumption that that is
the position that will always be upheld. I feel that we will
be on surer ground if we have the additional safeguard provided
Q139 Michael Connarty: A very
simple question: let's put it in terms for people who are interested
in the promises made at the election, who might then say, "What
is this law going to change for us?" If the British Parliament
passed a law that contradicted a power given to the European Union
under either the European Communities Act or the Lisbon Treaty,
but that did not contain a clause amending either of those treaties,
or repealing them, would you expect the UK courts, without having
to go to the European Court of Justice, to strike down that law
and say that it cannot be applied and that EU law should be applied
Mr Lidington: I have to preface
what I say and make it clear that I am not a lawyer, but my belief
is that in those circumstances, if the British Parliament were
quite specifically to pass a statute that repealed or disapplied
a particular piece of European legislation, the British courts
would follow that decision by Parliament here.
The consequences, though, would be that the
European Commission would almost certainly begin infraction proceedings;
and we would, I think, have an unsustainable position in front
of the European Court of Justice, which would be likely to apply
the various penalties incurred by any country that was in default
of a particular piece of binding European legislation. So the
position that the Government of the United Kingdom and the Parliament
of the United Kingdom would be in, in those circumstances, would
be a matter of whether they wished to embark upon a course of
action that would certainly lead to a major crisis in relations
between this country and the European Union.
It is no part of the intention of the present
Government to seek to provoke such a crisis, and I cannot, off
the top of my head, think of a hypothetical situation in which
a future British Government or Parliament might wish to follow
the course that Mr Connarty has suggested, but I think that the
sequence of events would be as I have described.
Q140 Chair: Could I ask a
question on that? After all, we have instanceswe know that
they are going on in the German constitutional court at the momenton
bail-outs, the stability and growth pact, the question of constitutionality,
and the current issue of the Roma and the French. In all those
cases, are you not really exaggerating when you talk about provoking
a crisis? I think that this is just a lot of flummery, if I may
say so. It is not going to constitute a crisis; it is simply that
if Parliament decided that it wanted to repatriate the Working
Time Directive, because it was in our national interest, that
Michael Connarty: Chairman, I was thinking
more of the common fisheries policy, and instructing that all
fish that are caught should be landed and not thrown back into
the sea, which has been ongoing for the past 20 years.
Chair: We could draw up quite a substantial
Mr Lidington: I am sure that everybody
here could draw up their own list. I am sure that if we were talking
to our counterparts in a number of other EU countries, they would
have lists of their own, which might include single market measures
that we regarded as being very much in the interests of this country
to have at a European level. That is the bargain that EU membership
I have lost my train of thought for the moment.
Chairman, you had a question.
Chair: It was with respect to the question
Mr Lidington: The Germans and
the German constitutional court.
Q141 Chair: It was also the
question of national interest and which prevails?
Mr Lidington: Whether national
interest prevails is a decision that Governments and Parliaments
in particular countries have to take, bearing in mind the consequences
for their membership of the European Union. In your question,
you referred to the German constitutional court. It is striking
that so far, although the German constitutional court under the
competence-competence doctrine has declared that it possesses
the ultimate right to determine whether or not a piece of European
law breaches the fundamental law of Germany, it has not actually
put that to the test in terms of a particular judgment. The constitutional
court has rather shied away from ever defying a piece of European
legislation or the authority of the European Court of Justice.
Q142 Chair: We might have
a moment to consider that when we look at the implications of
extending the financial stability mechanism to Portugal, Spain
and other countries. That would be an interesting one.
By the way, I would just mention the fact that
I think you voted for my clause, which had a "notwithstanding"
provision in it, when we were in opposition. I am sure that that
is worth putting on the record.
Mr Lidington: I'll have to check
the Division list.
Chair: I think you'll find that I'm right.
Michael Connarty, would you be good enough to look at questions
21 and 22?
Q143 Michael Connarty: One
of the things that came up in the evidence, being volunteered
by our invited legal brains, was a problem about the legislation's
proposed system of referendum locksit is as if the sovereignty
of future Parliaments is being limited by the Bill in relation
to legislation on the EU. Do you not think that recourse to a
referendum sits ill in this Bill, which is supposed to be designed
to place parliamentary sovereignty on a secure footing?
Mr Lidington: The Bill is designed
to put on a more secure footing the position that European law
has authority in this country only by virtue of Acts of Parliament,
but it also seeks to do other things. It is quite deliberately
providing for Parliament to have more of a say in how decisions
are taken by Ministers in the European Union on behalf of this
country. For example, there is a provision in the Bill that any
future treaty change, no matter how minor, must require a full
Act of Parliament for ratification rather than, as is sometimes
the case under our present law, simply a resolution of the two
We have also taken a decision that it is rightwere
an attempt to be made at a further treaty change to transfer competencies
from this country to the European Union, or to give up important
vetoes over decisions on particular areas of competencethat
ratifications should have the authority of the British people
freely expressed in a referendum. It is a limit not so much on
Parliament as on the power of Ministers to take decisions in the
In future, Ministers will have to have much
more regard to opinion in Parliament and in the country. It is,
of course, rightI think this lay behind Mr Connarty's questionthat
since no Parliament can bind its successor, it would be possible
for a future Parliament to decide that it would repeal or amend
this legislation and decide that it did not wish to require referendums,
or it wished to give the Government of the day more power to take
through new European initiatives unchecked. I think, though, that
the politics of such a decision would be horrendously painful
for the Government concerned. It is that political cost to any
future Government of trying to get Parliament to go back on the
safeguards that we are providing here that offers the best protection
that this is going to be enduring.
Michael Connarty: I am sure we'll come
back to it in other questions, Chair.
Chair: I would like to turn to the issue
of part 1 of the Bill, which is the restrictions on treaties and
decisions relating to the European Union.
Q144 Henry Smith: It begs
the question: wouldn't a proper sovereignty clause be the answer
to future political angst? With regard to some of the issues listed
in clauses 4(1) and 6(4), how can you guarantee that there would
be sufficient voter turnout in a move from a special to an ordinary
legislative procedure? In reality, a substantial enough turnout
would not occur, would it?
Mr Lidington: I would put my answer
in two parts. I think that if there were to be a move to amend
the treaties by means of the ordinary revision procedure, that
is such a time-consuming and politically arduous process involving,
as it does, not only a full intergovernmental conference butunless
the European Parliament waives its right to insist on onea
convention involving EP member states and national Parliaments
all debating the contents of the treaty. It is not going to be
attempted unless it is a package of fairly ambitious treaty changes
of the sort that we have seen most recently with Lisbon and previously
with Nice, Amsterdam and Maastricht. So I think that, in those
circumstances, the turnout would be pretty large, because the
issues raised would be so obviously of political importance, and
the debate over the content of such a new treaty or set of amendments
would have been going on for a considerable time.
Mr Smith's concern about a ridiculously low
turnout for a referendum might have more weight if we were talking
about the simplified revision procedure where we can have a much
more narrow treaty change, or the passerelle clauses where we
have also provided for a referendum lock. In answer to that,
I would say two things. It would be illogical for us to say that
the transfer of new competencies or powers to the EU is so politically
importantover, say, common foreign and security policythat
we should have a referendum, if that is done by the ordinary revision
procedure. But no referendum should apply if the same objective
is to be secured through simplified revision procedure, or through
a passerelle clause, which is possible in respect of common foreign
and security policy through the surrender of vetoes. That would
almost invite a Government that wanted to see such a change take
place in the future to go for one of the latter routes, rather
than the full treaty-making process of ordinary revision procedure.
Secondly, we have made a distinction in the
Bill, in a limited number of areas, between those things that
are significant enough to attract a referendum and those that
are not. There is a blanket referendum commitment for any transfer
of or addition to competence, but, in a limited range set out
in clause 4 and when we come to the passerelles, we have tried
to distinguish in detail in the Bill between those things that
we think are politically significanton which, therefore,
it is right to ask the public to express a view and on which,
for that reason, the public will be willing to turn out and voteand
those things that we think are less significant.
The only other thing that I would add to Mr
Smyth is that any talk of treaty change presupposes that the Government
of the day have decided that they want to take part in it, because,
obviously, if the British Government of the day are against such
a treaty change, they have a complete right of that veto, so that
change would not happen.
Q145 Henry Smith: On that
point, although the question might be on a specific area, would
it not inevitably become a referendum on this country's membership
of the European Union?
Mr Lidington: No, I don't think
it would. I think people are mature enough to take a decision
on the basis of the choice put in front of them. If, to take an
example from the news at the moment, there were to be a proposal
in the future that the United Kingdom should join the euro, it
would be quite right that that decision should be put to the people,
because it would be so far-reaching in its long-term effect on
this country and the conduct of economic policy. I think that
the people would distinguish between wishing to join the euro
and wishing to remain a member of, or leave, the European Union
as a whole.
Q146 Henry Smith: Finally
for now, on some of those more technical points, when the Bill
was being drafted was consideration given to an alternative method
for determining whether some of those more technical competences
could be transferred or nota two-thirds majority of the
House of Commons, for example?
Mr Lidington: We looked at a whole
range of alternatives at different stages of the Bill's preparation.
At the very beginning, we looked at the option of not specifying
in any detail the occasion on which a referendum would be required,
but instead writing in a test expressed in more general language
and, therefore, leaving it much more to the discretion of the
Government and the Parliament of the day to decide whether that
test of significance had been met. We looked at a number of options
in terms of parliamentary safeguards. The Government's collective
decision was that the distinctions set out in the Bill, between
a referendum requirement, a requirement for an Act of Parliament
and a requirement for an affirmative resolution of both Houses,
is the most sensible way in which to proceed.
Q147 Chair: You speak of competences
and powers, and, in fact, the coalition agreement and, for that
matter, other explanatory notes make the distinction. A competence
is generally understood to be a provision that enables, under
the legal base in question, the establishment of a new European
jurisdiction. A power is distinguishable from that and is, shall
we say, of a lesser order. Let's leave to one side competences,
on which I don't think there is any dispute.
Why is it that with respect to the word "power",
it is assumed, so it would appear, that in terms of the implementation
of the Lisbon Treaty, which does transfer matters such as are
contained in the investigative order, for example, or, in the
past, the Working Time Directive, those powers are not to be regarded
as an extension of power? When you're dealing with the past, quite
clearly you're dealing with a situation that would not give rise
to a referendum in the future, but when you're dealing with something
where you're implementing Lisbon, are you not thereby transferring
Mr Lidington: No. We've made a
distinction between two things. First, we have accepted the Lisbon
Treaty as our starting point. We've therefore accepted that the
Chair: I'm talking about law, not policy.
Mr Lidington: Yes, but this goes
to the point that you're making, Chairman. We've accepted not
just the areas of competence set out in the Lisbon Treaty, but
the means by which those competences are translated into particular
European Union measurespieces of legislationso if
something takes place by qualified majority vote, we have accepted
that that is how the United Kingdom Government have to operate,
and we have to seek to get what we want through that process.
Power, as you rightly say, is not defined in
the treaties or European law in the way that competence is a well
understood concept. The decision that we took was to define power
in terms of important and irreversible changes to the way in which
decisions were taken within the European Union to take decisions
and to bring forward legislation, so in the Bill, as you will
have seen, we use the term "power" largely to apply
to the surrender of vetoes, to moves away from the special legislative
procedure to the ordinary legislative procedure, and to measures
that would take us from a unanimity requirement to a qualified
We are not seeking to impose new rules on measures
where the EU already has competence to act, provided that there
is unanimity. We're saying that if a British Government sign up
to that, that is fine. To go back to my common foreign and security
policy point, the 27 member states were able to agree on a common
programme of sanctions against the Iranian nuclear programme.
That was done under the authority of the existing treaty arrangements
for common foreign and security policy. We're not seeking to question
that. What we are saying, though, is that if there were a proposal
in the future that that type of decision should be taken by QMV
rather than by unanimity, that would attract the locks in the
Q148 Chair: So it's really
a sort of grand cherry-picking operation, isn't it?
Mr Lidington: No, not at all.
Q149 Mr Clappison: You were
telling us earlier, Minister, about competences and what Ministers
accepted. You had no choice but to accept them: that was the European
law to which we all signed up and what was included in the Treaty
of Lisbon. On the question of competences, could you tell us this:
if a question arises about whether the EU is acting within its
competences in an area where there is qualified majority votingor
even where there is unanimity, but let's say qualified majority
votingwho decides whether the EU is acting within its competence
or not, ultimately?
Mr Lidington: Well, the European
Court of Justice decides on the interpretation of European law,
but the European Commission, the Council, can take action only
on measures where competence is provided for in the treaties.
Q150 Mr Clappison: But the
question whether the treaties provide that competence or notwhether
it can be interpreted so as to provide the competence to make
the decision or to pass the legislation in questionis entirely
for the European Court of Justice. Everything that you've told
us is correct, but makes no difference whatsoever.
Mr Lidington: I disagree very
strongly with Mr Clappison's last proposition. He is, of course,
right in what he is saying by implication, which is that there
have been occasions in the past where, for example, a treaty base
involving the single market was used to justify a measure that
the British Government of the time thought properly ought to have
been on a health and safety basis. At that time, from memory,
I think what we favoured would have attracted a requirement for
unanimity, whereas what the Commission, supported by the Court
of Justice, wanted was a single market treaty basis, which would
be dependent upon qualified majority voting instead.
Mr Clappison: Well, you'll be happy to
know that health and safety is now an EU
Mr Lidington: That is a matter
of subsequent treaty change that has put that beyond any doubt.
To argue that this makes no change at all is
quite wrong. I think that one of the things that is true about
Lisbon, for all its imperfections, is that it does define the
scope of European Union competence much more precisely than in
the past. It is not just the United Kingdom, but other member
states that are pretty vigilant now on avoiding any risk of competence
creep. That is something that the European Affairs Committee of
the Cabinet is keen to keep under very close scrutiny, and I am
sure that this Committee is committed to doing so as well.
Mr Clappison: We
were invited to do the same thing with the pillars, actually,
back at Maastricht, if you can remember.
Q151 Michael Connarty: To
try to bring us back now to the level at which people might be
discussing what is proposed, a question was asked by my fellow
Committee member, Henry Smith. I just cannot imagineI would
like to ask the Minister to try to estimatewhat interest
there would be and what kind of turnout there would be for a referendum
on, for example, the decision to move from majority and unanimity
to qualified majority voting on something like an EU carbon tax,
which is an example that has been suggested.
It is such a huge list that it seems to be overpowering
people with all the options that referendums might be used in.
I don't particularly find myself attracted to referendums at all.
I think that Lisbon, for example, was well dealt with in the House
and would not have received such thorough scrutiny if there had
been a referendum run by the red tops and the popular tabloids.
In that situation, if we decided to have referendums, how can
you justify a referendum on an issue like that, where it would
cost a lot of money and would not be likely to attract many people?
It comes back to the point that it would have to beit would
no doubt be generated by the very same popular pressa referendum
on membership of the EU, regardless of what was the actual question
on the paper, which would be about moving from unanimity to qualified
majority voting on a very specific area of policy.
Mr Lidington: I disagree with
Mr Connarty about Lisbon. I actually think that one reason, but
not the sole reason, for the depth of public disaffection with
European Union membership in this country is that people feel
that they were promised a referendum on Lisbon and then were denied
that, especially when they saw their neighbours in the Irish Republic
Q152 Michael Connarty: I don't
deny that at all in such a large issue like that, but I am talking
about what is in this Bill, not what is in the past.
Mr Lidington: Let's go to the
carbon tax example that Mr Connarty cited. What the proposition
before people would be is that not just for a particular measure
to do with carbon tax, but permanently, in the future, decisions
about environmental taxation at European level could be taken
by qualified majority and the United Kingdom outvoted on measures
that would impose new or additional taxes upon the population
of the United Kingdom, without the United Kingdom electors being
able to get rid of the politicians who had been responsible for
imposing them. That seems, to me, to be something that would attract
the public to the ballot box.
Q153 Michael Connarty: You
would only, as a Government, put that to a referendum when you
had decided that you want to do it.
Mr Lidington: Yes.
Q154 Michael Connarty: So,
it would lie in the power of the Parliament not to do it, and
in the power of the Government not to do it. Is that not the legitimate
purpose of a sovereign Parliament with a Government, that you
do not do those things, that you would only put a referendum to
the people when you decided as a Government to do them? The Bill
is all superfluous, because surely the Government's responsibility
is to say, "We would not give that power to the European
Union at any time."
Mr Lidington: I would hope that
that is the position that a future Government would continue to
Michael Connarty: So do I.
Mr Lidington: The point of having
the referendum lock is to guard against the risk that, in future,
powers would be transferred to the European Union, without the
consent of the British people in the way that has happened in
the past. I very much want to see the UK not only remaining a
member of the EU, but being a very active participant as well.
One of the difficulties in us taking on that role with confidence
has been the fact that people in this country feel that vital
decisions have been taken in the past, about which they were not
consulted and about which they ought to have had a say, and about
which the populations of other European countries have been able
to have a say.
Chair: Like the Maastricht Treaty.
Q155 Chris Heaton-Harris:
Minister, as you know, first of all, I do not think that the Bill
goes far enough, but you would expect me to say that based on
our conversations in the past. I am very interested in a couple
of detailed aspects of the Bill. Anybody who has followed European
law understands the description of the salami slice. That happens
when Europe wants something and it cannot get the big principle
agreed by everybody at the start. It tends to cut away and get
little pieces of it all the time, and all of a sudden you have
what you did not want in the first place.
We are very happy that the European Public Prosecutor's
Office is covered by the Bill, because we are not in favour of
it. Having been involved in the debate on the European Public
Prosecutor when it first came up, what were the significant points
in that debate? They were the European arrest warrantgot
thatand European investigation ordersgot them. In
lots of these issues in justice and home affairs we have this
opt-in, opt-out thing going on, where Parliament does not have
much of a say and nor does anyone else. I am concerned that if
those things are not properly covered by clause 6, a future Government
could allow the European Public Prosecutor's Office to be established
by other member states, without the UK. At the end of the day,
we might say, "Well, we've got it anyway" and seek to
opt-in. The Bill seems to apply no parliamentary or public control
on such a course of action. Can you tell me where I can find that
in the Bill?
Mr Lidington: It is in clause
6(4), paragraphs (c) and (d). Those are the key parts of the Bill
in this matter. If other member states went ahead and set up the
European Public Prosecutor's Office, as Mr Heaton-Harris suggests,
there would still, under the Bill, need to be a referendum before
a future Government decided to opt into that particular operation.
Were we a participant in a future EPP, the referendum lock would
still apply to a move to enlarge the scope of the European Public
Q156 Chris Heaton-Harris:
The Tampere summit, ages ago, described what a European Public
Prosecutor would be and, through agreements that we are opting
in or out of, we are now getting the whole thing, without the
icing on the cake, which is the European Public Prosecutor's Office.
I am wondering when Parliament and the people of the United Kingdom
get their say on those issues.
Mr Lidington: Parliament can have
its say on opt-ins that were part of the Lisbon Treaty through
the collapsing of the pillar structure, partly by the vigilance
and actions of the Committee.
Mr Clappison: No, I'm not having this.
Mr Lidington: It is open to the
Committee to ask for a debate and table a motion that is amendable.
Q157 Mr Clappison: The Minister
is making a very fair point in a very fair way, but there is a
big "but" here. The procedure for dealing with opt-ins
is totally unsatisfactory. We have had two significant ones so
far in this Parliament. I don't think that the first, the European
investigation order, even came before this Committee for it to
decide whether or not to have a debate, for various reasons to
do with the composition of the Committee. The second one, the
European information order in criminal proceedings, was a very
important order indeed, and we debated it in a Committee on Thursday.
Chair: Last week.
Mr Clappison: Last week. It was set up
at the last minute so that a Minister could go to Brussels the
next day and give his assent to it. All we could do was take note
of that at the end of the Committeethere was no point in
having a voteand it is down on the Order Paper for this
evening, without debate, in the House. I am not sure whether anybody
can vote on it tonight. I think that that is it, as far as that
legislation is concerned.
Could you, by way of an amendment, look at the
whole question of the opt-ins, which are significant? At the moment,
we have an opt-out as far as the relevant chapter is concerned.
Could we have at least a parliamentary vote under the parliamentary
procedure that you set up in this Bill? That would be a much more
satisfactory way of dealing with thingswhere we can have
a resolution in front of both Houses of Parliament, a proper debate
and a vote on any opting-in to the home affairs chapter; unless
you are going to tell me that what I have just described is covered
by paragraph 9, but I don't think it is. I think it is very limited
and it looks as though your expertyour assistantagrees
with my proposition. Can you look at that as an amendment?
Mr Lidington: A number of justice
and home affairs areas are caught by the various provisionswe
can go into those if Mr Clappison or other members of the Committee
wishbut the question was about the JHA opt-in procedure
under Lisbon. I think that there are two practical difficulties
with what Mr Clappison is suggesting. One is that there is a strict
time limit attached to our opt-inthat we have to take that
decision within three months. It takes the Government, through
interdepartmental consultation, some time to work out what their
own assessment of a particular measure is once it is published.
The other is that we would expect a lot of theseperhaps
40in the course of a year. We can't be certain of this
because it is still new, but our estimate is that perhaps 30 to
40 JHA measures may be brought forward in the course of a year.
There is an issue of providing adequate parliamentary time, but
I will take note of what Mr Clappison has suggested.
Mr Clappison: Can I come back on those?
The first part of that was quite unsatisfactory, if I may say
so. What you are saying is that we are all too busy to be bothered
with Parliament. That's basically what you were sayingwe
can't fix up time for a parliamentary debate within three months
because our interdepartmental consultations are more important.
The second point, which I can imagine a Government
business manager looking at, was that there might be quite a lot
of these things. If that's the case and if they are not controversial,
presumably they will go through the House without too much trouble
or too much time being taken on debate. If there is something
controversial in them, we can debate them. That's what we are
here for as MPs, rather than to act as rubber stamps.
Q158 Henry Smith: Following
on from that point, I think it unsatisfactory that the answer
to the potential transfer of some fairly fundamental principles
is that we don't have enough time for due process in this place.
Following on from some of the matters that Mr Connarty was talking
about, isn't that even more reasonwe are talking about
the points made by Mr Clappison and Mr Connartyto have
a proper sovereignty clause, rather than clause 18 as currently
Mr Lidington: What is meant by
"proper sovereignty clause" in this context?
Henry Smith: Something wider than the
scope that this Bill is fairly narrowly
Chair: Something that enables us to go
back into the European Communities Act, any treaty or, for that
matter, any provision made under a treaty, in line with what Lord
Denning had in mind, and simply to say that we would apply the
principles of McCarthys Ltd v. Smith in that way, and to
guarantee that, if we wanted to repatriate in the national interest,
we would actually do so. However, I think we can move on from
that to Kelvin Hopkins, because he has some questions.
Q159 Kelvin Hopkins: Thank
you. In his evidence to the Committee, Professor Hix says that
increasing the constraints on British officials in COREPER and
our Ministers in the Council when making decisions can strengthen
the hand of our delegates in negotiations.
How far are the domestic constitutional constraints intended to
strengthen the Government's negotiating hand in Brussels?
Mr Lidington: Our prime motivation
here has been to give the British electorate and the British Parliament
new powers over how Ministers take decisions in the European Union,
which the people and Parliament don't have at the moment. The
question of strengthening our negotiating hand is a secondary
consideration. It is not what motivated us to bring forward the
Bill in the first place. I think that an awareness that a particular
change has to win approval from Parliament, or from the British
people, or both, is a useful check to have. I have noticed that
other countries represented at Council of Ministers meetings are
very concerned about whether a particular proposal might cause
a referendum in their own nation, and that is something their
colleagues around the table take account of in discussion.
Q160 Kelvin Hopkins: Professor Hix
also says, by contrast, that the member states might start to
develop creative ways to "move forward without the UK."
I would not describe it as moving forward, but that is what he
says. Indeed we heard from James Clappison about the salami-slicing
approach to get through things that we don't like.
Mr Lidington: There are provisions,
as Mr Hopkins knows, in the treaties for an enhanced co-operation
procedure. There are elements of variable geometry written into
the treaties, including our opt-out from justice and home affairs
matters, including our being outside Schengen, including our being
outside the euro. Denmark and the Irish Republic have certain
comparable arrangements over particular areas of EU competence.
But I think it implausible to assume that the other member states
and the Commission are going to want to find a way to press ahead
with absolutely everything agreed at the level of the 26, pushing
the United Kingdom into a corner on its own. It has been striking,
for example, that in the debates within the EU about economic
governance, the German Government, in particular, have said that
even though Britain is not in the euro, it is very important that
the United Kingdom is at the table when important discussions
about economic strategy are taking place.
Q161 Kelvin Hopkins: My own
view is that if we are sidelined in negotiations, we have a right
to say, "Well, if they come to a conclusion, it should not
apply to us." That is not simply QMV, but if they negotiate
something without our being involved and they sideline us, we
can just say that it does not apply to us.
Mr Lidington: That is self-evidently
true. If there is provision under the treaty for enhanced co-operation
and for other member states to go ahead and act on their own,
and it is we who decide to remain outsideit is not necessarily
us who would be the country who wished to remain outside the enhanced
co-operation processthen by definition, that is not going
to apply to us.
Q162 Kelvin Hopkins: This
approach could leadwe have talked about a two-speed Europeto
a multi-speed Europe. Even now, to an extent, some could argue
that we have a pick-and-mix Europe and we have chosen to have
derogations on a number of areas. There are some countries that
are outside the euro, some that are in, some that are unlikely
to join and some that want to get out of it. All sorts of possibility
arise. Would that not lead to the kind of Europe that many of
us would want, which would be a looser arrangement with a higher
degree of independence for democratic states?
Mr Lidington: I think that what
one journalist called a Europe of consenting adults is a good
model to have in mind. I think that the larger and more diverse
the European Union becomes, the more it will make sense for different
countries to co-operate more closely on particular areas of policy.
We see this, for example, in the way in which the Baltic and
Scandinavian countries are getting together to talk about a Baltic
strategy and Romania, Bulgaria and the Visegrad countries are
talking about a Danube and Black sea strategy, to be pursued within
the ambit of the EU, but which particularly involves those nations.
At the same time, though, I think I have a word
of warning for Mr Hopkins, which is that there are some aspects
of the EU's workmost obviously the single marketwhere
it is very much in the interests of this country that we maintain
a Community-wide approach, rather than allowing individual countries
to opt in or out of single market measures. There are some countries
that would love the chance to have more state aids, or to impose
new restrictions upon free trade. That's not in the interest
of the UK.
Q163 Chair: Would you not
agree, on that point, with Professor Roland Vaubel of Mannheim,
who says that under the single market and the majority voting
arrangements countries have developed a very sophisticated method
of what he calls regulatory collusion, whereby they gain comparative
advantage by using the majority voting system in order to enhance
their own particular interests, so that this idea that somehow
we'd be held hostage is countered by the fact that countriesand
Germany in particularare using the majority voting system
in a way that's very satisfactory to their own national interests?
Mr Lidington: I think the truth
is that every one of the 27 member states of the EU pursues its
own national interest extremely vigorously.
Q164 Chair: You mean to get
further and deeper in
Mr Lidington: I think that
the United Kingdom needs to be more adept at using the European
system in order to get our wayto pursue our interest.
I would like to see, for example, a much higher priority being
given in the Commission's work to new measures to extend and deepen
the single market; to measuresas President Barroso declared
as his intentionto cut the costs of European regulation
upon small and medium-sized enterprises; to enlarge the scope
of the EU's free trading agreements with other nations and regions
of the world. Now, not every member state is going to share our
ambitions, but we need to be very energetic and active in building
alliances in order to secure those objectives, and I'm confident
we can do so.
Q165 Kelvin Hopkins: I think
we are digressing into what are political debates. I would like
to debate the single market any time; but, on the principle of
derogations, we have a number of those already, but they've been
negotiated at the time they've been imposed. Is it not a possibilityI
would certainly hope it would bethat we could give notice
that we might seek further derogations? My particular concernsand
I've mentioned these many times in the Chamberare the common
agricultural policy, which I think is a nonsense, and the common
fisheries policy, which I think is a nonsense. But at least keep
that possibility of further derogations open, so that we could
have something that would certainly be to the benefit of Britain.
Mr Lidington: As Mr Hopkins knows,
there's an ongoing process of negotiation. It think it's probably
fair to say that the EU is engaged in a process of permanent negotiations.
Obviously the option of derogation from particular measures,
either permanent or transitional, is something that can be considered
during any particular discussion of one or other dossier.
Kelvin Hopkins: Oh well, that's good.
I shall continue to pursue those two issues.
Q166 Mr Clappison: Two quick
points, Minister. You said a few moments ago how frustrated people
felt when they saw other countries having referendums, and they
weren't able to have one. Can I ask you about the process for
the way in which the treaty deals with the accession of new member
states? Under clause 4(4) it would seem that if a treaty only
involves the accession of a new member state it is provided that
there won't be a referendum. I can understand the problem that
you may have with non-controversial countries, perhaps small countries,
acceding to the European Union, but one can think of examples
without too much difficulty of where the accession would be controversial,
and where there will certainly be referendums in other countries,
some of which are required by constitution and others which I
believe have been promised in certain cases. Wouldn't this rule
out having a referendum in those cases?
Mr Lidington: Yes, it would in
terms of this legislation. The reason is that we have followed
a particular principle; which is that a referendum should be required
where there is a transfer of competence or power, and an accession
treaty transfers competence and power from the acceding state
to the EU. I would add, which may give Mr Clappison some heart,
is that, of course, every accession treaty will have to be ratified
by a separate Act of Parliament here.
Mr Clappison: That is the case already.
Mr Lidington: Yes, and what that
means is that, although I personally sitting here today would
be against imposing such a requirement, it would be open to Parliament
when enacting that Bill to ratify an accession treaty, to introduce
an additional requirement for a referendum in that case.
Q167 Mr Clappison: But, of
course, as we all know, you are still going to have a problem.
If there isn't a referendum, and people in other countries are
having a referendum and people here aren't, people are going to
say, "Why aren't we having one?"
Mr Lidington: I think that one
of the great triumphs of the European Union has been enlargementa
British initiativeand that has entrenched the rule of law,
democracy and human rights in parts of our continent where those
traditions were crushed for most of the 20th century.
Q168 Mr Clappison: No doubt
those arguments could be made but people could have their own
say on this referendum in a particular case. Time is running short,
so can I take you on to another matter where there has been a
lot of adverse press comment? The witnesses we had were scathing.
Under some of the provisions of the treatyclause 5(4)if
certain events take place, a referendum is not required if the
Minister thinks it is not "significant" enough. Our
witnesses were just scathing about that. One wonders if this would
not be improved if there were not some sort of mechanism for Parliament
having a vote, so that all MPs could say whether they thought
it was significant or not, rather than just leave it to a Minister
sitting in his office, saying, "No, I don't think I'll have
a referendum on this one."
Mr Lidington: Well, Parliament
will have vote and the Minister will be accountable to the possibility
of judicial review as well.
Q169 Mr Clappison: Our witnesses
were particularly scathing about that. They said hey had never
seen that in a Bill before, catering for the possibility of a
judicial review. It is something that Parliament should be doing
itself, not leaving it to judges. That is what the witnesses said.
Mr Lidington: Let me take Mr Clappison
through the argument. As he knows, under clause 6(4), there is
a list of a dozen, I think, criteria, that if met would require
a referendum. I'm sorry, I am being corrected, I meant to refer
to clause 4(1)(i) and (j). If a treaty change or an article 48(6)
decision fell within any of the categories other than (i) and
(j) or in addition to (i) and (j), then the referendum lock would
apply. The significance test only comes into consideration if
we have a proposal which only attracts the referendum lock because
it falls within either (i) or (j).
Q170 Chair: If I may, Minister,
perhaps you might like to ask your legal adviser to come in at
this point because the words "in his opinion" are well
established in terms of judicial review, and the question of whether
or not it would be successfully challenged if anybody did do so,
is rebutted by the use of the words "in his opinion".
Is that not right?
Ivan Smyth: When providing his
statement, he is going to have to give a fully reasoned statement.
Obviously, one of the criteria for judicial review is that the
reasonableness test will apply to what the Minister has put forward.
Q171 Chair: Yes, but if you
took out the words "in his opinion", would that make
you feel a lot less comfortable?
Ivan Smyth: No, because it is
his opinion that has to be reasonable.
Q172 Chair: So you would be
happy to see the words "in his opinion" removed from
Ivan Smyth: No. I don't think
that there needs to be an amendment to the Bill.
Chair: I'm sure you'd say that.
Q173 Chris Heaton-Harris:
I have a couple of issues about "significance" and I
am sure that you will be able to help me.
First, the Bill very kindly describes what we
are talking about, namely, article 48(6) decisions, which are
simplified revision procedures, are they not? Does that mean that
the Lisbon Treaty would not have fallen under this Bill, because
that was not "significant"?
Mr Lidington: The Lisbon Treaty,
the Amsterdam Treaty, the Nice Treaty, the Maastricht Treaty would
all have required a referendum under this Bill.
Q174 Chris Heaton-Harris: Okay.
So amending treaties all require a referendum?
Mr Lidington: Amending treaties
under the ordinary revision procedure, which transfers competence
Q175 Chris Heaton-Harris: So
that's on top of the provisions of article 48(6)?
Mr Lidington: Yes. The significance
test only applies to proposals under the simplified revision procedure
and only applies to that type of proposal that falls under (4)(i)
or (4)(j) and not under any of the other tests listed under clause
4 of the Bill.
Q176 Chair: Can I just ask
a question in relation to the financial stability mechanism treaty?
We were told by officials in Hungary when we visited there last
week that, in fact, it is already agreed, other than the mechanics,
so this would be a treaty extending our role to a permanent arrangement,
or at all, which would be significant or not.
Mr Lidington: I'm afraid that
I can't be helpful to the Committee on that point, Mr Chairman,
because whatever Hungarian officials may believe, that treaty
has certainly not been approved by Ministers and indeed no text
has yet been circulated among Ministers here.
Chair: Interestingbut we heard
it quite unequivocally at the time.
Q177 Mr Clappison: Minister,
may I just come back to you on my earlier point? Your answer to
me was that this might not arise very often and that it is only
in these very limited circumstances where it would arise. However,
it remains the case that you have catered for them in the Bill
and you have this mechanism where a Minister makes a statement
as to whether, "in his opinion", the change is "significant"
and then has to make such a statement to the House. What is the
problem with giving Parliament a vote on this, to say whether
Parliament thinks that it is "significant" or not? The
Bill could be amended to do that.
Mr Lidington: I think it's
important that we have some means of addressing the point that
Mr Smith raised in an earlier question, about distinguishing between
a change that imposed significant new obligations on the UK and
something that, although it imposed new obligations on the UK,
imposed obligations that were very minor. The example that we
cite would be if there were some new carbon trading system.
Q178 Mr Clappison: I take
all that on board. However, that is all in "the opinion"
of the Minister. Are you in the business of thinking about amendments
to this that could improve the Bill? Are you thinking about them?
Mr Lidington: It is open to any
Member to table amendments and the Government will look at whatever
amendments are tabled. However, I think that Parliament will have
the right to second-guess the Minister. Let us say that the Minister
produces his reasoned opinion that this is an insignificant addition
to the obligations on the UK and that either there is no challenge
by judicial review or that there is a challenge which is unsuccessful.
That amendment, under the simplified revision procedure, still
has to come before Parliament for a full Act in order to ratify
it. So Parliament then can use that opportunity to second-guess
the Minister's opinion.
Q179 Mr Clappison: That is
true of any Act. I am more worried about what Parliament decides
rather than what the courts decide. I am suggesting to you that,
rather than the Minister saying, "This is not significant
enough for a referendum", the parliamentary approval mechanism
should be used, which is in the Bill, and applied to this, so
that it is Parliament that says something is not significant enough
for a referendum. We can all make amendments to Bills; we can
try to amend anything we want. The problem that will comeI
can see it in my mind's eyeis that a Minister will turn
round and say, "Well, this isn't significant enough and Parliament
has catered for just this possibility, because it said in the
Bill that we do not need to have a referendum if it's not significant
enough and I don't think it's significant enough, so there you
are". And there is nothing that MPs can do.
Mr Lidington: Yes, they can, because
that treaty change can only be ratified by means of an Act of
If Parliament, by the resolution that Mr
Clappison is advocating, were going to overturn the Minister's
verdict or to substitute a different opinion of its own, it would
have exactly the same right and opportunity to do that under the
mechanism that we are establishing.
Q180 Mr Clappison: That's
an argument against having any of the referendum locks at all,
because you could do that in any of the cases that you have put
forward in the Bill. You could do exactly the same thing. You
could have an Act of Parliament and say, "Well, let's leave
it to Parliament to move a motion, or to put an amendment down
for a referendum." Why leave it to the Minister's own opinion?
What is wrong with letting Parliament have a say on it? I come
back to that point. Surely Parliament's view of significance carries
far more weight than just the Minister's.
Mr Lidington: What we have sought
to do here is to go further even than giving Parliament the final
say, which would be necessary anyway because of the requirement
for an Act to ratify any treaty change. We are saying that in
addition to Parliament having that rightbearing in mind
the fact that you can have Parliaments with extremely large majorities
for the Government of the day, and a number of us served in such
Parliaments in which it was possible for a determined Government
using a large parliamentary majority to take something through
if it so chosethe judicial review possibility provides
an additional safeguard, over and on top of what Parliament is
aiming to do.
Mr Clappison: You can't get into an argument
of saying that the electorate were wrong there. I am in favour
of the principle of parliamentary democracy, not of saying, "Well,
I don't agree with the Parliament that has been sent by the electorate."
If the electorate choose that Parliament, it is a matter for them.
I am saying that it is Parliament rather than the courts that
should have the decision on this.
Chair: I think we have covered quite
a lot of that ground, and very effectively.
Q181 Chris Heaton-Harris: Are there
not a couple of loopholes in here, though? I am thinking especially
of clause 7(2)(d), relating to own resources. We are saying that
own resources, as currently defined, just need approval by an
Act. You know and I know that the State of the Union address that
President Barroso gave a few months ago talked about a redefinition
of own resources to include an EU income tax, for want of a better
word. That is a fairly fundamental shift that surely must trigger
Mr Lidington: I'll ask my colleagues
to comment on the detail of this. What we are doing over own resources
is following existing requirementsnamely that we need an
Act of Parliament to approve an own resources settlement. What
can be included in a multi-annual financial framework depends
of course on the extent of competence given by the treaties. At
the moment, I think I'm right in saying that the European Union
has no power to levy an income tax of the sort that Mr Heaton-Harris
Q182 Chris Heaton-Harris:
But it has power to levy own resources, which are based on a whole
Ivan Smyth: It is subject to unanimity.
The own resources decision is subject to unanimity of votes.
Q183 Chris Heaton-Harris:
That's a matter for a vetoI am very glad that you have
pointed that out. We don't get many vetoes nowadays; there are
very few ever around. Surely a veto involves a transfer of power
that is significant, and therefore that should trigger the significant
Mr Lidington: Loss of veto over
the own resources multi-annual financial framework would trigger
Q184 Chris Heaton-Harris:
Mr Lidington: Yes, absolutely.
Q185 Chris Heaton-Harris: So it doesn't
need to have the significance test?
Mr Lidington: No, the significance
test does not apply to that.
Q186 Chair: Under clause 4(1)(e),
Minister, there is an obligation on the United Kingdom to have
a referendum before there is an extension of the EU's competence
in a field shared with member states. The reality, though, is
that the Commission can already propose legislation in a field
of shared competence where it thinks that the member states have
not acted without any revision to the treaty. When it does so,
the Court of Justice upholds its actions and says that member
states cannot propose their own legislation in this field. That
is the doctrine of the occupied field. Do you agree that the Bill
does not address this extension of EU competence, and how do you
think that can be addressed?
Mr Lidington: As I've said on
a number of occasions, we are accepting the current situation
as regards treaties and the acquis. What clause 4(1)(d) does is
to require a referendum before the treaty is changed to provide
for a new area of shared competence. Where there is an existing
area of shared competence
Q187 Chair: We are referring
to clause 4(1)(e).
Mr Lidington: Yes, clause 4(1)(e)"shared
with the member States". If that competence is extended by
way of treaty change, a referendum would be required.
Q188 Chair: The problemif
I can help, Ministeris that this is actually more about
practice. The question, which I am sure your legal adviser will
be able to deal with or at least address, is about the problem
where it is a matter of practice by the Commission that it takes
this particular line and the Bill does not actually deal with
Ivan Smyth: It doesn't deal with
the situation where we are acting within existing areas of shared
competence. What clause 4(1)(e) is designed to deal with, as the
Minister has correctly stated, is if we were to expand the number
of areas listed under the treaty that are subject to shared competence.
Mr Clappison: It is quite difficult,
because there are such a lot of them already. There's not that
much left that isn't.
Q189 Chair: In fact, the doctrine
of the occupied field has reached the point where there is almost
nothing left in the field anyway, but that's another story.
The final question relates to where, for example,
a Minister may inadvertently agree, in breach of a provision in
the Bill, to an EU proposal that extends its competence or power,
and that proposal is directly effective or applicable and would
automatically become an enforceable right under section 2(1) of
the European Communities Act. Case law suggests that the ECA is
not an Act that can be impliedly amended. So, in your view, should
provision be made in the Bill to clarify that an EU proposal that
does extend competence or power in breach of part 1 of the Bill
can never become an enforceable right for the purposes of section
2(1) of the European Communities Act?
Mr Lidington: There are already
checks and balances in the system to stop that happening. First,
the EU institutions are legally bound to act within the confines
of the treaties. Secondly, we have the detailed scrutiny against
competence creep, both through this Committee and the Committee
in the Lords, and through what the Government are doing through
their European Affairs Committee. Thirdly, we will, under the
existing arrangements, as a Government, lobby and build alliances
against competence creep, but if we were outvotedfourthlywe
would take the case to the ECJ.
The problem with the sort of amendment that
you are proposing, Chair, is that it would introduce enormous
uncertainty into the system. That would affect everybody who has
to comply with EU lawbusiness and individuals. If it led
to infraction proceedings for non-implementation of EU law, it
would be costly and it could lead to claims for Francovich damages
against the United Kingdom, so we are not attracted by that course
Q190 Kelvin Hopkins: Presumably,
we could have a situation with a rogue Ministereven a rogue
Prime Ministerwho could just give away something on the
hoof, as indeed Tony Blair did at the end of our last presidency
with the budget. Apparently to the astonishment of fellow European
leaders, he gave away billions on our rebate without so much as
a telephone call, it seems.
Mr Lidington: With respect, Mr
Hopkins, that is a different argument, because the former Prime
Minister agreed to a particular bargain in the course of a negotiation.
He then came back and got approval through the mechanisms that
existed at that time for what he had negotiated on behalf of the
country. That all took place within the framework of the treaties,
as they existed at that time. What the Bill is about is changes
to the treaties and Article 48(6) decisions. It is not about particular
legislative measures under existing treaty powers.
Q191 Kelvin Hopkins: I think
there is a fine line, at points, between what is constitutional
and what is policy. I use that as an example. A constitutional
point might be given away by a rogue Prime Minister who was a
secret federalist trying to defy Parliament. Perhaps he would
even sacrifice his own parliamentary career and say, "I did
the right thing by Europe."
Mr Lidington: The reason why we've
gone into such detail in trying to anchor this Bill to particular
articles of the treaties is precisely to guard as best we can
against the sort of risk that Mr Hopkins describes.
Q192 Jacob Rees-Mogg: In terms
of the whole Bill and this theory of Lord Justice Laws in Thoburn
about constitutional Acts, if the Bill becomes an Act, would it
be a constitutional Act in your opinion?
Mr Lidington: I'm afraid I am
going to be completely straight and duck that question. It is
an important question, but one on which any Minister would seek
legal advice from the Law Officers as well as from his own Department.
The whole Laws description of a category of Acts that have a particular
constitutional status is one that, quite properly, is a matter
for the Lord Chancellor rather than me.
Q193 Chair: Minister, in conclusion,
do you believe that this Bill as a wholegiven that it includes
clause 18, on which we are issuing our report this evening, and
in relation to the whole referendum questionreally is a
de minimis operation? We are witnessing increasing integration
of European governance on the Irish bail-out and the question
of investigation orders. There is a whole streama tsunami,
if you likeof provisions that are going ahead, yet we're
given something in this Bill that doesn't deal with the 1972 Act
in its application to past arrangements, where we might need repatriation
in the national interest, but actually is merely looking to the
future. Would I be right in saying that what you're really doing
is just drawing a line under past legislation, saying, "We're
not going there," and simply allowing the floundering European
Union, with its economic problems with the euro and so on, just
to continue without actually any serious attempt to re-address
the question of the relationship between ourselves and the European
Union in terms of the Lisbon Treaty and previous legislation?
Mr Lidington: I think it's a lot
more than a de minimis measure. I think that the introduction
of additional powers for Parliament to insist on giving its assent
before certain decisions are taken, and the new powers for the
people to have the final say over any future proposal to transfer
competence, are very significant changes to our law. What is true
is that the Bill does not set out to revisit previous treaties
or the existing legal order as regards the directly effective
nature and primacy of European Union law in this country.
What the Bill is doing is delivering two of
the Government's commitments under the coalition programme. It
brings in legislation to require a referendum before transfers
of competence and to require primary legislation before passerelle
clauses are used. Secondly, it delivers on what was in the coalition
programme simply as an agreement to consider the case for a sovereignty
Billthat Bill is being introduced by the means of clause
18. There was a third limb to the coalition programme's commitments
on Europe, which was to examine the balance of competencies between
this country and the European Union and, in particular, to examine
ways in which the operation of the Working Time Directive could
be made less onerous. That work is going on.
Q194 Chair: I have one last question.
Could you possibly tell usin fact we would be very glad
to knowhow many days the Bill will receive in Committee
on the Floor of the House?
Mr Lidington: My understanding
is that there will be five days allocated in Committee. I understand
that that is the proposal that has been agreed through the usual
channels and that will be on the Order Paper tomorrow.
Chair: Minister, thank you very much
2 Bill 106, Session 2010-11 Back
Q 106 Back
See HC 633-II, Ev 44 Back