European Union Bill

James Clappison Excerpts

Tuesday 11th January 2011 Commons Chamber

In conclusion, will the Minister outline why the Government feel that clause 18 is so important and explain the impact of its deletion on the Bill overall and on the UK’s relationship with the European Union?

[Mr James Clappison (Hertsmere) (Con)]

Like several colleagues who have already spoken, I was a member of the European Scrutiny Committee that considered this Bill. I think that the Committee performed a very useful exercise, and I am very grateful to all the esteemed academics who came along to give evidence

The hon. Member for Dunfermline and West Fife (Thomas Docherty) was not entirely fair to the Government in his comments. I think that my right hon. and hon. Friends were absolutely right to ask the question, “Is there a need to entrench parliamentary sovereignty?” and to identify the threats to parliamentary sovereignty, which probably intensified during the period of the previous Government—threats coming not only from the European Union but from judicial activism and the role that judges have assumed for themselves in some aspects of our country’s governance. Ministers need to ask themselves whether the clause, as it stands, satisfactorily meets the objectives of entrenching parliamentary sovereignty that they set themselves. Having taken part in the proceedings of the Committee, I am afraid that I have reached the conclusion that it does not.

My hon. Friend the Member for Daventry (Chris Heaton-Harris), who spoke very well, was good enough to refer to the various academics who came before the Committee. I am used to hearing from experts and academics evidence that is so wildly at variance that one cannot see how they could be experts in the same subject, let alone come to the same conclusion. However, the weight of the evidence from the experts to the Committee was almost unanimous; in fact, it was unanimous about clause 18. In their opinion, the clause did not meet the objectives that the Government had set for it. One or two of them went even further and said that because of its being restricted to the European Union in its declaration of sovereignty, it could possibly damage this House and parliamentary sovereignty as regards whether parliamentary sovereignty was part of common law and could be dealt with as such by judges. The evidence that we heard was conclusive that the clause does not meet the objectives.

Professor Tomkins from Glasgow university has been referred to, and I can do no better than to quote his conclusion:

“For all of these reasons, clause 18 as presently drafted may be seen as an opportunity missed. Parliamentary sovereignty is under considerable challenge from multiple sources. For those who seek its robust defence and protection, clause 18 falls substantially short of the mark.”

Professor Craig from Oxford university, another distinguished academic with a different perspective, came to the same conclusion. He could identify only two occasions on which the clause could be relevant. One of those concerned what would happen in the interim if this country were ever to leave the European Union, and what the status of European Union law as opposed to British law would be in such circumstances.

[Mr Cash]

I very much agree with my hon. Friend’s speech. Does he agree that the expert witnesses were all agreed on the judicial trend, except that the common law radicals among them wanted it, whereas the others—Tomkins and Goldsworthy—most emphatically did not? It was our judgment that the last two were right and that the common law principle people were wrong.

[Mr Clappison]

My hon. Friend is right, as were those experts. As a House, we are right to address this matter, and Ministers are right to address it.

It was interesting that earlier in the debate, the hon. Member for North Durham (Mr Jones)—a Labour Member—seemed to put forward at some length the view that we should defend the judges and not the will of the people, as expressed through this House. That was an interesting proposition to hear from the Labour party, and seems at odds with its history. The conclusion that I have come to is that the clause does not accomplish the objectives that the Government set themselves. The question is how we can meet those objectives.

[Zac Goldsmith (Richmond Park) (Con)]

Have the same experts provided my hon. Friend with an opinion on whether the amendments would make clause 18 more meaningful?

[Mr Clappison]

The amendments are not mine, although I would be happy to put my name to them. They were drafted after we received the evidence from the experts, and as a Select Committee member I believe that they are entirely consistent with what the experts told us. Other hon. Members might say more about that. The amendments would better meet the threat that was identified by the experts, for all the reasons that my hon. Friend the Member for Stone (Mr Cash) set out in his considered speech.

[Mr David]

I think that the hon. Gentleman is about to refer in detail to the amendments. Before he does so, will he tell us what the point was of the Government putting forward clause 18 in the first place if it does not meet their objectives, or his?

[Mr Clappison]

The hon. Gentleman would do as well to ask what is the point of his amendment. The gist of his speech was that the clause will achieve nothing and we are going to have a report on it every year saying how it has achieved nothing. This is not a party political speech, but I think that the Labour party could have produced something a bit better than amendment 52, which is just a marking-time amendment that gave the hon. Gentleman the opportunity to make a few random points, but does not deal with the problems that we face. To be fair to Ministers, they have tried to face those problems.

The clause does not sufficiently address the situation because it is a restatement of the existing position, under which the present challenges to parliamentary sovereignty have developed, as has been said. It does not go much further than what people were told before the referendum on the European Union in 1975, to which hon. Members have referred. Interestingly, the Labour party said that it would never have a referendum and yet it was the Labour party that put the issue to the people after the negotiations had taken place and after the country had joined. The people decided to stay in the European Union. I am sad to say that I am old enough to have taken part in that referendum, which probably makes me past it, as the BBC would say.

--- Later in debate ---

[Mr Clappison]

My hon. Friend is right to point out that judicial activism is a living organism. That activism is not only in the courts of this country but in the European Court of Justice, which has a free-ranging way of interpreting European law. We must beware of its activities and the precedents it might set in interpreting any piece of EU legislation to which we give assent.

I draw the Committee’s attention to the excellent speech of my right hon. Friend the Member for Wokingham (Mr Redwood), who talked of the distinction between sovereignty and the exercise of power, and whether the exercise of power can grow to such an extent that sovereignty becomes a piece of fiction and withers on the vine. He drew an interesting parallel with the erosion of the sovereignty of the Crown, through the continued exercise of sovereignty by Parliament. We must ask the same questions about the European Union, irrespective of the clause, because the power that we voluntarily concede to the European Union in so many areas will, over time, inevitably erode parliamentary sovereignty, however robust our reaffirmation.

[Henry Smith (Crawley) (Con)]

My hon. Friend makes a powerful argument. As we have heard a lot this evening, we have an evolving constitution in this country, and an evolving European Union. Is now not the time, as the hon. Member for North Antrim (Ian Paisley) said, to send a clear signal domestically and internationally to Europe that this Parliament reaffirms its sovereignty?

[Mr Clappison]

The interesting point that was missed out by the right hon. Member for Rotherham (Mr MacShane) in his contribution and by the Labour Government in their referendum literature, which tried to portray the European Union as simply a trade organisation akin to the World Trade Organisation, is that there is a commitment to an ever closer union. Attention was drawn to that at the time of the original referendum, but sufficient account was not taken of it. That commitment continues today. The European Commission has signed up to measures that promote ever closer union. Measures and proposals come before us all the time that transfer further power from this House to the European Union. There is no underground supply of new power that the House can create and hand out. Power is exercised either here or in the European Union, and over the years we have conceded more and more power to the EU, which must inevitably have an effect on sovereignty.

We need a reaffirmation of parliamentary sovereignty as far as the EU and other potential threats are concerned, but we also need Ministers who are prepared to stand up to the EU, say no and not make voluntary concessions. I am sorry to say that under the provisions of the treaty of Lisbon, we will see the creation of the European External Action Service, which can only result in more power and authority being drained away from our foreign policy and going over to the EU. The Union Jack is being hauled down throughout the world and the EU’s flag run up in its place.

The EU and the European Parliament are champing at the bit to get their hands on our security policy, and the European Commission’s second-top priority in its immediate programme is the creation of its area of freedom, security and justice. There is a constant stream of directives on the matter, and let us be clear that those directives are not about picking a measure here or there that will improve the standard of justice. The point of the European area of freedom, security and justice is to create a common European legal system, which is being put together piece by piece. We currently have an opt-out from that, and Ministers need to find the resolution to maintain that opt-out and refuse to opt in to any further such measures.

I have not mentioned the list of financial regulations and proposals for economic governance that we heard earlier, but it is very long. If we sign up to all those individual measures, they will result in a transfer of power that will have an effect on our sovereignty. We need an improved sovereignty clause in the Bill, to send a clear signal of what we are about, and we need Ministers who will stand up to the EU. I am sure that they will do that, but they need to find the determination to do so and we need to support them in finding it.

[Mr Jenkin]

It is a great pleasure to follow my hon. Friend the Member for Hertsmere (Mr Clappison), who made an absolutely outstanding speech. I should like to echo a great many things that he said, but brevity does not allow. I do, however, point out that the context of the debate is the fact that the current deluge of initiatives, the possible ending of opt-outs, the new legislation that is coming through and the expansion of the legal order do not require the expansion of competences. The competences for those things are already in place, so they will not trigger referendums.

My hon. Friend was right to emphasise a point that my right hon. Friend the Member for Wokingham (Mr Redwood) made. We live with an unwritten constitution, and institutions have powers that are not written down anywhere. If those institutions do not use those powers, suddenly the lights will come on one morning and they will be gone. That is what we have found during our membership of the European Union. Although it seems unthinkable that that could happen to the sovereignty of Parliament itself, we have to recognise that possibility.

The European Scrutiny Committee’s extraordinarily powerful report on clause 18, and the unanimity of the evidence given to the Committee, underline the threat to the sovereignty of this Parliament from the behaviour of our own Government. I would very much like to have welcomed the clause, but I cannot bring myself to do so. It simply does not deliver the reassurance, the finality and the end to ambiguity that we promised our voters at the last general election.

My hon. Friend asked about the nature of sovereignty and power. People tend to use those terms interchangeably, but power is the ability to produce intended effects and can be used legally or illegally, with or without authority. Authority is the legitimate use of power, and legal sovereignty is the ultimate source of authority. This House has had legal sovereignty, pretty well uncontested, for the past 300 years or so, and that lies at the heart of our unwritten constitution and the democratic control thereof, as my hon. Friend the Member for Stone (Mr Cash) so ably explained.