European Union Bill
Jacob Rees-Mogg Excerpts(13 years, 2 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr MacShane
No, I did not resign, simply because I work in a team. When the hon. Gentleman graces the Front Bench, as I hope and I am sure he soon will, he will have to learn that there is something called teamwork, and that until he becomes Prime Minister he will take rather than give orders.
I am not sure that it would have been any particular help to have published all my animadversions immediately afterwards, although I told my steelworker community friends privately what had happened. Frankly, one cannot do business in that way. I am not even sure whether, constitutionally or legally, suggestions made before a decision is taken can then go fully into the public domain if they belong to other people. I think we may find, legally, that there are certain rules on what is the property of other states. We do not publish every communication with the United States, France, or any country, for good and sensible international legal reasons.
Jacob Rees-Mogg (North East Somerset) (Con)
The process in Europe is legislative. When this House legislates, the debates are published, regardless of the ultimate decision, so that the British people know how the debate has been formed in the legislature. As the Commission, Council and Parliament of Europe are legislatures, the information should likewise be public.
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 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.
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.”
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?
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.
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 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.”
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.”
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.
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 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.
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 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.
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 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
Well, that sounded better to me when I was writing it down. It seemed perfectly logical for this to be a matter for both Houses, and the other place does scrutinise European matters, as we have discussed. It has a depth of expertise on European matters, although it might be completely wrong in its conclusions.
Jacob Rees-Mogg
The House of Lords has an absolute veto on statutory instruments and many other things. It is only legislation introduced in the House of Commons on which the Lords does not have a veto. It would therefore have been illogical to have excluded it.
Chris Heaton-Harris
I could not have put it better myself.
Moving swiftly on, new clause 4 addresses the post-2013 financial framework. We are about to enter into very important negotiations about how much money we give to the European institutions over the next financial framework—that for 2014 to 2020. We have had many assurances from the Government that they will seek a very tough settlement, and I thought it would be wise to encapsulate in a new clause this Parliament’s view of a tough settlement. I thought it might be a good idea to spell out the situation if we do not get a freeze on the amount of money we are spending per year in that financial framework at EU level—or indeed a cut, which I hope we might be angling for. I wanted to make it clear that if we failed miserably in our negotiations and had to accept—perhaps for reasons of diplomacy, as I am unsure whether we would have to accept this as we have a veto on these matters—a rise in the amount of money that could be spent in that financial framework, that would also become part of the Bill. In fact, I would like that to be put to a referendum so that people can vote on whether we should give a lot more money to institutions that we do not completely trust. That is the main purpose of new clause 4. I hope its being moved will give the Minister another chance to state on the record exactly what our position will be going into negotiations on the financial framework post-2013.
European Union Bill
Jacob Rees-Mogg Excerpts(13 years, 3 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr Lidington
My hon. Friend, as always, reminds us of practicalities and of the real world. As I said to our hon. Friend the Member for St Albans, the legislation for democratic representation must make provision for all conceivable eventualities, even if they seem highly improbable to us.
Jacob Rees-Mogg (North East Somerset) (Con)
If the Bill were simply to say that Anthea McIntyre were elected, it might be in danger of becoming hybrid legislation.
Mr Lidington
I bow to my hon. Friend’s constitutional knowledge. I suspect that having the Bill declared hybrid is the last thing that any of us want.
If we reached circumstances in which none of the candidates from 2009 was available or willing to be returned, a by-election would be held. The returning officer would confirm to the Secretary of State that the seat could not be filled, and the Secretary of State would lay an order by statutory instrument to specify the date of a by-election. I stress that the by-election is very much a last-resort option, and that, given the short time between the 2009 elections and now, the Government are confident that the process outlined in schedule 2 is likely to identify a candidate to fill the additional seat.
Question put and agreed to.
Schedule 2 agreed to.
Clause 19
Financial provisions
Question proposed, That the clause stand part of the Bill.
Mark Reckless
I am saying that the principle of an in/out referendum is important. The Liberal Democrat position, as I understand it, is that the British people should decide whether we stay in the EU with Lisbon, or whether we leave. Let us have that referendum.
The most important point in respect of the Bill is that Ministers seem not to have noticed that the world has moved on. A Bill that would have been perfectly satisfactory in 1992 at the time of Maastricht is now, after 19 years of further transfers of powers to the EU, utterly inadequate for its task. My constituents are not especially concerned about referendums on technical transfers of power five or six years—at the earliest—down the road; they want to vote on our membership of the EU, and they want to do so now.
Ministers have made a serious mistake in thinking that the Bill will somehow buy off dissent, or that my constituents will believe it really changes the EU situation. My constituents believe that the transfer of powers to the EU has already gone much too far. The only thing that can deal with that situation is an in/out vote, so that we can re-establish our independence as a nation.
I am more surprised about the political error that Ministers are making in thinking that the Bill is sufficient. They do not consider what they leave themselves open to if the right hon. Member for Doncaster North (Edward Miliband) flips position, as I believe he might. We have debated the Liberal Democrats’ position, but Conservatives cannot assume that we will always be on the popular side of the argument relative to the pro-European Labour party. There are very few Labour Members in the Chamber, but what defines the Labour party in respect of Europe is not that it is pro-European but that it does not feel that strongly about Europe relative to other issues.
My friend over the water whom I mentioned says that there is a first rule of politics. He says that, essentially, all parties in government are pro-European, and only Opposition parties become genuinely Eurosceptic. What will happen if in two or three years, the right hon. Member for Doncaster North flips position and says, “The Labour party is pro-European and we want to put that case, but it is for the British people to decide.” Where will that leave the Conservatives? Will the Minister accept that the principle of the in/out referendum is now overpowering? Will he allow the British people their choice?
Jacob Rees-Mogg
New clause 11 is extremely interesting and worth looking at with care, because it comes out of a mix of genius and anger. The genius of it is that it has succeeded in initiating a debate on the question of an in/out referendum, which is clearly not the purpose of the Bill. I know that deft parliamentary draftsmanship was required to have such a proposal selected for debate, and I am full of admiration for that and for the genius that is generally the attribute of my hon. Friend the Member for Wellingborough (Mr Bone), who is a great parliamentarian. Every time one listens to him, one is inspired by the thought that people care about the powers of this House and of the people who send us here.
The proposal is also, however, the product of anger—a righteous anger that the British people have seen their powers given away, but been denied the opportunity to decide whether that ought to have happened. Whether that was done by the Single European Act, or by the Maastricht, Lisbon, Nice or Amsterdam treaties, does not really matter. The British people were not properly consulted, and many of them are upset about that.
Unfortunately, that combination of genius and anger leads to a proposal that makes no sense, which is why—reluctantly—I oppose it. The difficulties are manifold, but the main problem is that it proposes that one thing leads to another automatically, without any consideration of the first thing. My hon. Friend the Member for Cheltenham (Martin Horwood) made the very obvious point that we cannot have it both ways. Under the new clause, we could decide by referendum not to transfer powers, and then follow that up with a vote to stay in altogether. If we vote to stay in altogether, surely we would be signing up to everything with gusto, but that is the last thing we would want to do if we had recently objected to a treaty that gave more powers to the EU. Therefore, if we vote to stay in, we could contradict a no vote that we had just achieved.
Mrs Main
I am following my hon. Friend’s logic, but it is possible to say, “I want to stay in the European Union, but I am not happy with that transference of powers.” I do not see that a no vote on a transference of powers and wanting to stay in the EU are mutually exclusive.
Jacob Rees-Mogg
I thank my hon. Friend for that intervention, but I think there is a slight confusion. If we have an in/out vote, and it is won by the pro-Europeans, it is a vote for the EU as it exists and with all the powers that it has. Those of us who support this referendum lock Bill do not want further powers going to the EU or to get accidentally into a situation in which we sign up to things we probably opted out of. That is the complication of having an in/out vote that is won by the “in” side but not on the issue discussed and subject to the referendum lock. That is the danger; that is the unintended consequence.
The unintended consequences go further than that. Should there ever be a Labour Government again—I am sorry to say that there probably will be, although possibly not in my lifetime—those of us who support the Bill would want them to accept it and ensure that the referendum lock held as an important constitutional change. We would also want any change to the powers of the Europe Union to be subject to a referendum of the British people. However, if the Government concerned were unpopular, as happens to Conservative Governments too—and even, possibly, to coalition Governments—and felt they had to sign up to some marginal European treaty requiring a referendum, but knew that it could result in an in/out vote, they would be more likely to repeal the Bill lock, stock and barrel and say, “Look, we cannot do that because we would then have a vote against us at the second stage.” The second unintended consequence, therefore, is that we would weaken the whole effect of the Bill by making it less likely to become the accepted constitutional practice, which is what I would very much like to see.
Mr William Cash (Stone) (Con)
Does my hon. Friend accept that this is in fact a debate about an ingenious device—I hope I am right in thinking he mentioned the word “genius”—and that it is about the principle of continuing membership? Does a question not then arise that has not yet been answered—namely, membership of what?
Jacob Rees-Mogg
My hon. Friend always puts his finger on the nub of any European matter. I agree that the new clause is a device concerning a strong principle—that is the genius and anger I was talking about. The problem is that in its anger, it could achieve the wrong result. We do not want to set our firm principles on a weak base and a new clause that would actually undermine what those of us who are supporting the Bill wish to see achieved.
I agree with many hon. Members that there may well come a time when we would want an in/out referendum, but it needs to come when it has been the subject of important and urgent debate up and down the country; it needs to come when the British electorate are marching to say, “Now is the time to decide whether we should stay in this rotten institution, corrupt as it is, or whether we will put up with it in spite of its corruption, its inconvenience and all the problems associated with it, because there are some marginal trading advantages and we have got a few sanctions against Iran”—or whatever the other arguments are in favour of it. We need to have the referendum at the right time, as a matter of a discussion of and about itself, not as a result of the random collision of atoms and following a debate on something completely separate—for example, a minor extension of some European power or competence.
Neither should an in/out referendum suddenly follow a referendum in which 20 people or 20% of people—let us be generous—have voted. Suddenly, we would have thrown all the balls in the air without any proper consideration or deliberation, and without having set out the framework for the debate we want. Those of us who are broadly Eurosceptic should oppose the new clause, because it undermines exactly what we want to achieve, and should support the general thrust of the Bill, which is designed to protect this country from further sacrifices of our authority and the people’s power. We should rightly remember—it being a referendum lock—that it is not the power and mystique of these green Benches that are being given away, but the power and mystique of the British people themselves. They are the people we should trust. We should trust them with a referendum lock, and not rush headlong out of anger into a confusing and mistaken new clause that would undermine this lock that we are giving to the Great British people.
John Mann
I am approaching my conclusion, when I will do that, but first there is another factor that ought to be re-stressed. There has been a lot of talk about what the people think. I will tell the Committee what the people think: the people think it is an absolute disgrace that, when the health service is being cut to ribbons and maternity units across the country are being destroyed, time is being taken up constantly discussing the Conservative party’s obsession with the European Union rather than major issues.
New clause 11 should address whether what the Conservative party signed up to under Margaret Thatcher and John Major, in the spirit of Edward Heath, which allows unfettered labour migration into this country, is the way forward, or whether there should be restrictions that protect the jobs and livelihoods and standards of living of workers in this country. That is the debate that this Government are scared of, and that is why they like to pander to the pretence that there could be some debate about whether the country is in or out of Europe. This Government should be held to account for their failure to negotiate properly in Europe on that and on bankers’ pay. They are wholly miserable in their efforts in doing so. That is what Parliament—
Jacob Rees-Mogg
I thank the hon. Gentleman for giving way in his brilliantly enthusiastic speech, but he is not being his usual even-handed self, because he accuses the Conservatives of allowing people to come from eastern Europe, but it really was the last Labour Government who let in most of them.
John Mann
Fair point. That is precisely why, on those demonstrations at Staythorpe with Unite and other unions, I was the only parliamentarian who spoke on behalf of the workers in my constituency and others. However, I know that I am not the only one; perhaps the hon. Gentleman would wish to join me on such picket lines in future, in protecting the interests of British trade unionism and British workers. That is the debate—on what is really needed in the future, in this Parliament and in Europe—that this unholy coalition alliance Government are refusing to allow to take place.
Those Back Benchers who wish to strengthen against the ever-onwards and upwards movement of big business in Europe should also create the opportunity for votes on these things, rather than simply going back to basics. Therefore, I call on them to join in the battle for a real debate on Europe, but not to the exclusion of the cuts in public services that this coalition, with these Liberal traitors, is bringing to this country, because that is the debate that the country wants.
European Union Bill
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Mr Lidington
I agree. Quite apart from any constitutional or legal significance, it would be politically and diplomatically counter-productive to go down the route that my hon. Friend has rightly warned against. Whether the UK as state party should continue to have the relationship with the European convention on human rights that we currently have is a matter of intense in the debate in the House, and Members on both sides of the Committee have their views on that.
The point for the purposes of this afternoon’s considerations is that the accession of the EU to the ECHR would make no practical difference to the UK’s position. The Government see some advantages in EU accession, because the European Court of Human Rights in Strasbourg could act as a direct check on how EU institutions exercise their powers, in exactly the same way it acts as a check on the actions of all other signatories to the convention. I know that some of my hon. Friends will say that they believe that the European Court of Human Rights should not have that type of authority over this country, but I say to them that it is my belief that the EU and its institutions should be held to the same standards on human rights as we expect of member states.
Jacob Rees-Mogg (North East Somerset) (Con)
I thank the Minister for giving way and for his patient responses to so many questions. I wonder whether it is necessary for the EU to sign up to the ECHR, because we have already debated the question of how EU law comes into effect in this country, which is by Act of Parliament. Therefore, any decision made by the EU can come into effect here only under our own laws, which are of course already justiciable under the European Court of Human Rights. This is not so much an added safeguard as a symbolic step towards creating the European Union as a state.
Mr Lidington
We certainly need to guard against that. The Government have accepted, as did the Conservative party before the general election, that the ratification of the Lisbon treaty is a political and legal reality and that we will work within that context. The treaty states that the EU shall accede to the ECHR, and it also provides that the judgments of the European Court of Human Rights should be considered, once accession has taken place, as general principles of EU law. In those circumstances, one would expect that those in the Commission who are responsible for drafting European directives and other legislative initiatives would have regard to the judgments of the Court and would frame draft European legislation in order to meet the standards of that jurisprudence.
Jacob Rees-Mogg
Will the Minister clarify Her Majesty’s Government’s view of the Lisbon treaty, because it seems to me that they are in quite a strong position to say that things that have not already been done, which are subject to unanimity before they can be implemented, need not be implemented by the Government?
Mr Lidington
There is a clear statement on the face of the treaty that the EU shall accede to the European convention on human rights, and the Government’s position is that we accepted that statement and that commitment as part of the Lisbon treaty. As I hope to explain shortly, the law and our procedures in this House provide a number of safeguards that, I believe, will enable the House of Commons and the other place to scrutinise in detail any proposal for accession when it comes forward.
Mr Lidington
The hon. Lady says that the Labour Government never sought to compromise. That might explain their result at the last general election.
The answer to the hon. Member for Caerphilly is that there is a collective discussion, and it is a matter of public record that every decision about European policy is routed through the European Affairs Committee of the Cabinet. The membership of that Cabinet Committee is published: it comprises two thirds Conservative Ministers and one third Liberal Democrat Ministers. That is the balance of all the Cabinet Committees. There are discussions and exchanges of points of view, and there is an outcome to which everyone collectively is willing to sign up and support. That seems to be a sensible, constructive way in which to do the business of government.
Jacob Rees-Mogg
I thank the Minister for giving way once more. Would he be kind enough to clarify this point about the coalition? Can we take it that the Conservatives do not wish to opt in wherever an opt-in is available, so that whenever we do so, it is because we have been bullied into it by the Lib Dems?
Mr Lidington
No, I do not think that my hon. Friend should jump to that conclusion. In yesterday’s debate, I cited some counter-terrorist measures such as the European initiatives on passenger name records or on the tracking of terrorist finance, and it is very much in the interests of the United Kingdom for us to take part in them. The US Government, who have a strong interest in these areas of policy, very much want a transatlantic agreement on such counter-measures and look to us to try to persuade other European Union member states to support a vigorous counter-terrorist policy and effective measures that will satisfy Washington as well as London.
European Union Bill
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Mr MacShane
The hon. Gentleman is perfectly right, but we could all list examples in Britain of improper arrests. It does not vitiate the need for international co-operation against criminality—I mentioned trafficking, but there are other examples—if that is what we want. International co-operation on the basis of, “Well, you’ll co-operate with us, but we won’t co-operate you”, will never happen. I am glad that there was not a referendum lock on the EAW, because otherwise that gentleman from 7/7 would still be waiting in Rome until we had had our referendum.
Jacob Rees-Mogg (North East Somerset) (Con)
The right hon. Gentleman seems to think that the example given by my hon. Friend the Member for Stone (Mr Cash) was invalid, but that his own similar individual example is valid. Why is it valid when it supports his argument, and invalid when it does not?
European Union Bill
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Mr David
This party does not make promises which it breaks. [Laughter.] I would point out to Government Members that, as I recall, there was a clear commitment on the Lisbon treaty. The hon. Member for Devizes (Claire Perry) cannot get out of that by saying, “Well, it was already endorsed. It was ratified. We couldn’t do anything about it,” because they could have done. If the Conservatives had wanted a referendum on a treaty change, they could have had one. It is political will that this Government lacked.
Although I am not suggesting that a future Labour Government would want to change the Lisbon treaty, are this Government serious about introducing some of the changes that they claim they want to introduce? Are they seriously suggesting that we should have a referendum on the voting system for introducing a European patent, for example? Are they seriously suggesting that we would have a referendum on how judges are appointed to the European Court? [Hon. Members: “Yes.”] It seems that some Members are quite happy to have referendums, even on the proverbial paper clips. But seriously, the place to make a decision on the merits of any potential changes that are not of constitutional significance is in Parliament.
Jacob Rees-Mogg (North East Somerset) (Con)
Is it not in fact remarkably important to have a detailed Bill that sets out all the conditions? The habit of Europe has been to accrete power by stealth; therefore, when added together, things that seem to be minor turn out to be creating a European Government, about which the British people should have the choice.
Mr David
The important point to stress is that it would not be our committee, but Parliament’s committee. We are not saying that it should be a partisan body; its membership should be drawn from all parties in this House and from the other House. To allow the Executive simply to make their own decisions on what is or is not important and on what should or should not have a referendum is to undermine the sovereignty of Parliament.
Jacob Rees-Mogg
There is a slight contradiction. The hon. Gentleman is worried on the one hand about judicial activism and Parliament giving away its sovereignty, and on the other that the judicial review will not be operative anyway. It cannot really be both ways around. He also says that the committee will come to its decision, which will be voted on. Is he promising that when the vote takes place neither House will be whipped, so it will be genuinely independent, or is it just going to be part of the great party machine?
Mr David
On judicial activism, I read the explanatory notes, and they gave me the impression that I should not worry if the Government decide not to have a referendum, because there will be the ultimate safeguard of judicial reviews. The notes made that point not once or twice, but four times, and many Members said, “Fair enough; we will have an opportunity to challenge a decision in the courts because we believe that right is on our side and the strength of our argument is self-evident.” That opportunity does not really exist, however, because all the evidence suggests that all the Government are proposing, as the European Scrutiny Committee concludes in its report, is an illusory safeguard. At the end of the day, the Executive will decide in many, many areas whether there will be a referendum.
Mr Clappison
I do not wish to be unkind to the hon. Gentleman, but I believe that I dealt with that point in my reply to my hon. Friend the Member for Dover. As I have said, this is not an either/or situation; the amendment provides an additional safeguard. I repeat that the powers that are transferred may or may not be significant, and this House and the other place may or may not vote in favour of the transfer. It is a question of whether the decision is made by Parliament or by an individual Minister—a Minister of the Crown, as the Bill puts it.
Jacob Rees-Mogg
As my hon. Friend knows, I have considerable sympathy with his amendment, but I wonder whether he may be looking a gift horse in the mouth. Given that an Act of Parliament is superior to a resolution of the House, if a resolution of the House were rushed through with remarkably little time and heavily whipped, it would be a great deal harder to insist on a referendum when the stage of the Act of Parliament was reached. Although, on first reading, I rather like my hon. Friend’s amendment, I am increasingly concerned that if it were passed, those of us who wish to insist on a referendum would have a harder task to fulfil.
Mr Clappison
My hon. Friend has clearly given the matter great consideration, but I think that he is wrong, and that if others agree with him, they are wrong as well. The procedure for which my amendment provides is exactly the same as that which the Government propose in other parts of the Bill relating to other transfers of power, including those relating to the title V provisions on justice and home affairs. If my proposed procedure is defective, so is the Government’s proposed procedure, because the terms of the amendment are the same as the Government’s. If the Minister’s opinion was that the effect was not significant enough to warrant a referendum and Parliament did not agree with that opinion, there would have to be a referendum, because the significance test would not have been met. That provision is in the Bill, so I do not think that it could be any stronger.
Mr Clappison
My hon. Friend is right. The amendment follows the scheme of the Bill. Unless a Minister says that the transfer of power is insignificant, there will have to be a referendum, because the significance condition will not have been met. The amendment provides that if the significance condition is met because the Minister says that the transfer is sufficiently significant, there must be a vote in the House to prove that what the Minister has said is correct, and if the significance condition is not met, there must be a referendum.
Broadly, the question is this: does Parliament decide, or does a single Minister decide? The Government propose that a single Minister should decide, but, as my hon. Friend knows, there is a fall-back position, namely that the Minister should be challenged not in the House but by means of judicial review. I find that somewhat strange, as did some of the distinguished academic witnesses who gave evidence to the European Scrutiny Committee.
Under the Bill, if one of our constituents is aggrieved by what the Government propose, his recourse will be not to his Member of Parliament but to the courts, through judicial review. I think that that in itself sends a very odd signal. What should I tell a constituent who comes to my surgery and complains about the European Union, as some of my constituents do when it introduces a regulation that has an adverse effect on their jobs or companies, or when they disagree with some transfer of power? Should I say, “I am sorry. You may want a referendum, but you have come to the wrong place: you need to visit the solicitor’s office down the road”? I do not think that that is a very satisfactory state of affairs. We are told that clause 18 entrenches parliamentary sovereignty, but I think that if we adopt the proposal in this clause, we will bypass that.
Jacob Rees-Mogg
A Minister’s decision can be subject to a judicial review, and, under the Bill, the House would have an opportunity to insist on a referendum. If, on the other hand, the House voted against a referendum in a resolution, that would not be subject to judicial review, because procedures in the House cannot be reviewed by any court. I am beginning to think that the Government’s proposal for an Act is a stronger safeguard, because the Minister’s decision could be challenged and then voted on as part of the legislative process, whereas if the House were whipped to oppose a referendum, that would not be subject to any judicial review.
Mr Clappison
I fear that I must part company with my hon. Friend if he is suggesting that our democratic safeguard should lie in recourse to the courts rather than to Parliament. I am afraid that I must put Parliament first. In any event, as was demonstrated by evidence given to the European Scrutiny Committee by esteemed legal experts, it is very unlikely that a challenge to a decision by either a Minister or the House of Commons would succeed in a judicial review. I think that we are being led down a blind alley. In my opinion, even if the possibility of a judicial review of a ministerial decision had been contemplated in the explanatory notes or in ministerial statements, judges would be extremely reluctant to challenge a political decision on the significance of a particular transfer of power. I also believe that the fact that we are contemplating such a step as the main challenge to a Minister’s decision risks undermining the House of Commons while not providing any further safeguard.
Charlie Elphicke
My hon. Friend makes a fair point, so let me to clarify my position. We will hopefully have an Act of Parliament that will state that there will be referendums in the case of matters that are of significance. A Minister might then come along and say that he does not think that a matter is significant. An individual will be able to go to the courts to seek a judicial review, saying that they think that the matter is significant on objective criteria. The court will then rule on that ministerial decision. That has to be right.
Jacob Rees-Mogg
What exactly will the courts do on a judicial review? Will they say that the Minister has not followed the correct process in coming to his decision, or will they try to overturn his decision? My hon. Friend is a lawyer, so I would be grateful for his explanation.
Charlie Elphicke
I believe that they would refer the decision back to the Minister to take into account relevant considerations, which would prevent a perversity. For example, if a Minister were to say that joining the euro was not significant, and if there were no other checks and balances in the Bill, an individual might decide that the matter was very significant and seek a judicial review. The courts would then tell the Minister that that was a perverse and an unreasonable decision.
European Union Bill
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Mr Jones
I had moved on to dealing with a new point, but I am willing to go back. I am glad that the hon. Gentleman raised that point, because I can now mention a couple of issues in response. First, any law passed in this country will be interpreted by the courts. If they do something that we do not agree with, this House has the power to change it. The danger with including the sovereignty argument in clause 18 is that courts would then have debates about sovereignty, and that would be strange. How would this House then be able to change the law or interpret a court’s interpretation of sovereignty?
Jacob Rees-Mogg (North East Somerset) (Con)
I believe that what Lord Hope is saying is that this House could pass an Act that was not, in itself, lawful. What amendment 41 would achieve is a reassertion of the fact that this House could not do anything of the kind and that any act of this House is superior to any judgment of any court. If these arrangements are based on the rule of law, rather than the supremacy of Parliament, the judges could always overrule Parliament, and that is extraordinarily dangerous.
Mr Jones
Judges often do overrule Parliament on the interpretation of the law. The danger of going down the line that the hon. Gentleman is suggesting is that we might be saying that when we pass a law it could never be challenged or changed. Would we be saying that every law passed in this Parliament is perfect and will never be in need of amendment or interpretation? As has been said, the entire case law of this country and the way in which we have developed laws in this country has resulted from people challenging laws, including in terms of European legislation. The Thoburn v. Sunderland City Council case clarified the position. I am not a lawyer, but I have employed many lawyers over the years at great expense and so I know that they will argue different ways around things. Sometimes they will do so to make a point, but on other occasions they will do so to get their fees up. On laws such as this or on health and safety legislation, which was the area that I was involved in, case law precedents always develop. In the cases I was involved in, that went on to bring justice to many people who had been involved in the asbestos industry. The important question is: do we really want judges to start giving interpretations of sovereignty? That is the danger in what the hon. Member for Stone is proposing in his amendment.
May I return to what I was discussing before I was interrupted by the hon. Member for Aldridge-Brownhills (Mr Shepherd)? I am always pleased to take interventions from him because, as he knows, I am a great fan. Amendment 52 would be useful, not only for the debate, but as a safeguard. If we were in a situation where we thought that European law was somehow infringing on not only the rights and liberties of our citizens, but the activities of this House, it would be important. This is not an ideal situation. The Government are always talking about unnecessary legislation and it is possible that this entire Bill is just that. Clause 18 certainly is unnecessary because it simply declares what is already the case. That is an important point. There is an idea that the Government have dressed this up and that they are going to make some great fundamental change or are going to protect against any changes in European law, but that is not the case at all. It is also important to make it clear that future Parliaments will interpret European law and will disagree with what is being put forward in this Bill. We cannot allow this Parliament to leave future Parliaments hamstrung in relation to freedoms.
In conclusion, clause 18 was introduced as a political fudge and I doubt whether it will placate the red-blooded, anti-Europe sceptics on the Tory Back Benches. Neither will it placate the commentators in the press who want us to withdraw from Europe. The clear option is to amend the 1972 Act, which would be more honest. This has exposed the Prime Minister not only in that the detoxification of the Conservative brand clearly has not taken place but because, judging by tonight’s attendance, it has put him on a collision course with large sections of his own Back Benchers. As this Parliament goes on, we will increasingly see the true nature of the new Conservative intake.
European Union Bill
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Chris Bryant
I do not think Margaret Thatcher had anything to do with the advance of freedom in Spain, Portugal or Greece. Mrs Thatcher achieved many things—in the Rhondda we are certainly aware of, and resent, many of them—but the hon. Gentleman cannot claim that the advance of freedom was because of her, except that she was pro-European; in that regard, she did do something in the interests of the whole of Europe.
My problem with the Bill is that it does not do what it says on the tin. It is not an effective referendum lock, which was the promise. Two or three hon. Members have already made the point, in questioning the Foreign Secretary, that the House has perfect freedom to amend these measures in future, so if a Minister wanted to advance legislation implementing some change in the relationship between the United Kingdom and the EU, and if they thought it would offend against the measures in this Bill, they would have only to add a clause saying that the measures in this Bill did not apply. Of course they would have to take that change through both Houses, so there is an element of a brake, but the Bill is in no sense a substantial referendum lock.
Jacob Rees-Mogg (North East Somerset) (Con)
Is it not true of every piece of legislation that it can be repealed later? There is a political cost in repealing legislation that makes this a lock.
Chris Bryant
It is true that every piece of legislation can be repealed or sidestepped, and there may be a political cost in doing so. In a few weeks’ time, when a number of extra peers have been added, the Government will have a majority not only in this House but, uniquely since the second world war, in the other House as well, so there will be a further slowing down. The Bill provides not a lock but a brake—that is all. It does not do what hon. Members want, which is to draw a line regarding all further innovations in the relationship between the UK and the EU.
The Bill will not deal with the real problem. The right hon. Member for Wokingham (Mr Redwood) and my hon. Friend the Member for Vauxhall (Kate Hoey) are right that my views on the EU are those of a minority. I know that partly because my father sends me an e-mail every Sunday to remind me of that fact and also to remind me that he moved to Alderney primarily so that he does not have to abide by any EU laws. He also regurgitates vast quantities of things that I hear regularly from hon. Members. I think it is a great embarrassment to him that I was not only the Minister for Europe but the Labour Minister for Europe.
The problem in Europe with those whom others have referred to as the elite and with ordinary members of the public is that there are real difficulties in advancing the European cause because there is no single European demos or political opinion. The waves of views crash upon the electoral shores in different parts of the EU at different times and it is very rare for two meetings in a row of the General Affairs and External Relations Council to include the same set of Ministers. Consequently, it is a phenomenal triumph to achieve any European co-ordination.
Some of the EU’s founding principles—indeed, the economic ones—are very powerful, such as the right to freedom of movement and to work anywhere in the EU. In the UK, Labour brought in civil partnerships—I have benefited from those changes this year—and other EU countries have introduced other ways of recognising same-sex unions. Many of us believe there ought to be a system for recognising those unions in every other country in Europe; otherwise there will clearly be discrimination against people whose partnership cannot be recognised for the purposes of taxation, benefits and the right to freedom of movement around the EU. I do not want Europe to decide the law on marriage in any European country, but I do want it to be able to enforce the basic principle of freedom of movement, and that will require a shift so that civil partnerships in this country, or same-sex marriages in Spain, can be recognised in every other country. Otherwise, married same-sex Spanish couples who move to France will have to divorce and form a new civil partnership there. The seeds that have been sown in the underlying principles of the EU will not go away. The British people who live in Spain and demand that Europe should act on property rights in Spain are arguing for an extension of the EU’s powers although many of them are profoundly Eurosceptic.
I am not a fan of referendums, because I believe in representative democracy. I believe that we are elected to come here and that the sovereignty of Parliament is the important principle on which we should act.
Jacob Rees-Mogg (North East Somerset) (Con)
I, too, will support the Bill at this stage, although I was deeply concerned by what my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) said about its not being introduced, for the main part, until after this Parliament has been completed. If that is correct—I hope the Minister will give us some comfort on that point—the whole of this exercise is entirely pointless.
Mr Lidington
May I make it clear that I nodded to indicate that I would respond to my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) in my concluding remarks?
Jacob Rees-Mogg
I would not wish to anticipate the excitement that we all hold for the Minister’s speech on that crucial point.
The Bill is important and broadly good. Let us be absolutely clear that there are many of us on the Government Benches, and on the Opposition Benches, who want powers to be brought back from the European Union. The European Union is a state in decay. It is rotten at its very core. It is corrupt. It is dishonest. It is bullying. It has a currency that is failing as I speak, a currency that is bankrupting several of its nations and putting ruinous conditions on Ireland, Portugal and Greece—and the Spanish and the Italians will follow.
The European Union has not been in British interests. It is not the common market that people expected it to be and we need root-and-branch reform. I know that we are in a coalition and that we have made concessions to our coalition partners, as they have made concessions to us. They have not yet realised how dreadful the European Union is, but as one hon. Member said to me earlier, “The more they get to know about it the worse they will know that it is.”
Let us look in detail at this Bill and at why it is welcome as far as it goes. The element on the referendum is very important and I was delighted that Vernon Bogdanor, the extremely distinguished constitutional historian, quoted John Locke in his evidence to the European Scrutiny Committee. My delight is all the greater because John Locke grew up in Belluton, which, as right hon. and hon. Members know, is a village in North East Somerset. John Locke said in his “Second Treatise of Government”:
“The Legislative cannot transfer the power of making laws to any other hands. For it being but a delegated power from the People, they who have it cannot pass it to others”.
That is the essence of our constitution.
People talk learnedly about the sovereignty of Parliament, but what do they really mean and where does it come from? I think this was all settled in the 17th century. There were two choices: one was that sovereignty came from God and was given to the King, and the other was that it came from the people and moved upwards and that it was borrowed by Parliament for a period. The sovereignty of Parliament is a great thing. We should bear in mind that the Supreme Court is established by Parliament, as are the very monarchy and the laws of succession. That precious sovereignty is ours not because we are the great and good of the land, or because we sit on green Benches in a fine Palace, but because the British people have given it to us for a period, and we may not bind it or give it away. We may not give it to Europe or the United Nations; only the British people can do that, and they must have a referendum lock on it.
We heard a characteristically well-phrased speech from the hon. Member for Rhondda (Chris Bryant). He was concerned that the Bill would not provide a lock because it could be repealed by subsequent Parliaments. That is true, of course, but a lock can be unlocked if one has the right key, and the key will be the considerable political capital that would be expended by any Government who wished to remove, dilute or give away the power of the sovereign British people. So, the lock is worth while. There has been an interesting development in law about constitutional Acts having a higher standing than ordinary Acts, and the European Communities Act 1972 is considered to be such an Act, as Lord Laws mentioned in the Thoburn case. If that is right, I hope we will get some guidance from Her Majesty’s Government on whether the Bill would be a constitutional Act that could not be subject simply to implied repeal but would have to be repealed directly. The referendum lock is important and beneficial even though it is not enough in terms of our relationship with the EU.
Clause 18 affirms the sovereignty of Parliament and provides that we allow European law to take effect only because of the 1972 European Communities Act. I welcome the clause, but it was a matter of great dispute among much more learned people than me during the European Scrutiny Committee’s deliberations. I welcome it because of the nature of our constitution, which evolves without things necessarily being written down. We discussed this issue during Committee deliberations on the Fixed-Term Parliaments Bill. There are things that the sovereign could do by royal prerogative that are so unlikely and improbable, because they have not been done for so long, that they have fallen into disuse and effective decay. My worry is that without this clause, the 1972 Act might be viewed as one that cannot be amended or repealed and that we might get to a stage, perhaps in 50 years’ time, when the courts hold that it is so important that it is of a different order of magnitude than any other statute.
Clause 18 turns the clock back, which is rather gratifying because we are told that the Tories never turn the clock back. Evelyn Waugh said that he voted Tory all his life expecting them to turn the clock back but that they did not put it back 10 minutes. On this occasion, we are putting it back by 38 years; we are resetting the constitutional position to where everyone would have known it was in 1972. I think that is important, even though I thoroughly accept the point made by many right hon. and hon. Members that it is not a complete statement of the whole theory of the sovereignty of Parliament. I hope that would be unnecessary because the sovereignty of Parliament comes from the British people and cannot be taken away, however much one says so.