European Union Bill Debate
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William Cash
Main Page: William Cash (Conservative - Stone)Department Debates - View all William Cash's debates with the Foreign, Commonwealth & Development Office
(13 years, 5 months ago)
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Mr Hague
I am not here to answer for the party policies of other members of the coalition but for the coalition Government as a whole. The hon. Lady can rest assured that both parties in the coalition join strongly in their support for the Bill. It is sponsored by the Deputy Prime Minister and the Prime Minister, and it is therefore easy for people in a third party to join us in supporting it, as the hon. Lady will no doubt want to consider doing.
Mr Cash
Given that we stood united as a party in opposing the Lisbon treaty and supporting a referendum, and given that we voted for that, will my right hon. Friend explain why we have done a U-turn on that within the coalition Government? Will he also explain why he was not prepared to come to my European Scrutiny Committee to explain the circumstances behind the Bill?
Mr Hague
On the first point, I do not think the coalition Government have done a U-turn, as the Bill implements part of the coalition agreement that was set out in the few days after the general election. It is true that the Conservative party, when the Lisbon treaty was ratified last year, said that in those circumstances we could no longer hold a referendum on the treaty. That, of course, was made clear before the general election. My hon. Friend is being a little unfair to both parties in the coalition.
On the second point, I understand that my hon. Friend the Minister for Europe gave a splendid exposition of the Government’s position to the European Scrutiny Committee. As the Minister who was most involved in drafting the Bill, he was best equipped to go before the Committee. I look forward to discussing these issues with my hon. Friend the Member for Stone (Mr Cash) on many occasions. Let there be no fear about that.
Mr Hague
I will in a moment, yes. Like any ministerial decision, it will be open to any member of the public—yes, any member of the public—who is entitled to vote in a referendum to challenge the Minister’s judgment through judicial review. The reasoned statement set out in clause 5 makes any such ministerial decision as amenable to judicial review as is possible. That provides a powerful reason for Ministers to stick to both the letter and spirit of the law, and not to seek to sidestep the requirement for a referendum. We have ensured that we are as precise as possible about what would require a referendum.
Mr Hague
I will give way again in a moment, but I shall give way to my hon. Friend the Member for Clacton (Mr Carswell) next.
We have also provided further clarity on the scope of the referendum lock by setting out certain categories of treaty change that would not require a referendum: first, the accession of a new country to the EU—the hon. Member for Birmingham, Edgbaston looks surprised—would not require a referendum, although each accession treaty would still require approval by an Act of Parliament; secondly, a treaty change that, while it would have to be agreed and ratified by all member states, would not apply to this country; and, thirdly, a treaty change that merely sought to codify EU practice in relation to the previous exercise of an existing competence. The Bill does not cover any use of the EU’s existing competences as defined in the treaties, because those competences have already been transferred and the extent of the competences is set out in European law.
Mr Hague
We welcome the right hon. Gentleman back to the House. It is traditional in these circumstances to sit on the Front Bench below the Gangway in a menacing posture towards his own party, and we notice that he has gone to sit in that particular position. There is some political significance in that.
I thank the right hon. Gentleman for stressing the detail into which the Bill goes and the extent to which we are insisting that a referendum should be held, because that should be of enormous reassurance to some of my hon. Friends. On the specific subject of the advocates-general, one of the matters that I said would not be subject to a referendum is the loss of our veto on the number of advocates-general.
Mr Cash
I am extremely grateful again to my right hon. Friend. Does he recall that in the evidence that was given to my Committee and in the conclusions of the report that it produced last night, there was an assertion and a conclusion that the Bill invites litigation in the courts? He has just confirmed, with regard to the circumstances of a referendum, that he too would invite litigation. Does he not think that the time has come when this House, as the ultimate authority of the law of this land, should decide such matters, and not just buck them over to the courts?
Mr Hague
The Bill is about many matters being decided in this place or by the people. The hon. Gentleman’s point is distinct from the one that was raised in the European Scrutiny Committee report about clause 18. I made the point that an executive ministerial decision is subject to judicial review, which is always the case. The decision of the right hon. Member for South Shields (David Miliband) on the Lisbon treaty was taken to judicial review by Mr Stuart Wheeler, albeit unsuccessfully. Ministerial decisions are subject to judicial review and that is not changed by the Bill.
The right hon. Member for South Shields is still looking puzzled about the position of the advocates-general. The loss of the veto in the appointment of advocates-general and European Commissioners would be a significant loss of national—
Mr Hague
No, I must make a bit of progress.
The Bill will give Parliament more control over whether the Government can agree to a number of other important EU decisions, sometimes referred to as the self-amending provisions of the Lisbon treaty. Those decisions, which are known as passerelles or ratchet clauses, contain built-in mechanisms that allow modifications to EU treaties or the exercise of one-way options, without recourse to either of the formal methods of treaty change.
The Government have identified three types of ratchet clause, although I hesitate to go into detail after the comments of the hon. Member for Blackley and Broughton (Graham Stringer). However, it is important to be clear on this matter. There are clauses that allow for a change of legislative procedure, clauses that allow for changes in voting procedure and clauses that allow for the expansion of the scope of an article allowing the European Union to act.
Given the lack of a universal definition and the Government’s aim of ensuring that our proposals are as clear as possible to Parliament and the public, we have set out explicitly which treaty articles require additional levels of control. As with future treaty changes, passerelles or ratchet clauses that entail a transfer of power or competence will require the consent of the British people in a referendum. There will be a referendum requirement on any methods in the treaties for giving up vetoes that we have deemed to be significant. Clause 6 covers the simplified revision procedure and six provisions in the treaties that allow for vetoes to be given up without formal treaty change.
Clauses 8 and 9 provide for parliamentary controls over two types of decision: the use of article 352 of the treaty on the functioning of the EU—the so-called broad enabling clause—and the use of three ratchet clauses in the field of justice and home affairs. Some additional proposals that require a vote in both Houses, rather than a Bill, are listed in clause 10. They are mostly articles that modify the composition, rules of procedure or statutes of existing EU institutions or bodies.
The coalition stated in its programme for government that it would examine the case for a United Kingdom sovereignty Bill. I announced in October that, following that examination, we had decided to include a provision in this Bill to place on a statutory footing the existing common law principle of parliamentary sovereignty. The doctrine that EU law has effect here for one reason only, namely that authority has been conferred upon it by Acts of Parliament and subsists only for as long as Parliament so decides, has been upheld consistently by the courts. However, we can see considerable merit in placing that position beyond speculation on a statutory footing. That will guard against any risk that in future, common law jurisprudence might drift towards accepting a different argument. In other words, we have included a clause that underlines the fact that what a sovereign Parliament can do, a sovereign Parliament can undo.
Mr Cash
I wish to put on record the fact that, in the conclusions to the European Scrutiny Committee’s report issued last night, we unequivocally rejected the notion of a common law principle, because it would offer the courts a gateway to take over jurisdiction in areas that we regard as unacceptable in UK constitutional law.
Mr Hague
Yes, I have read the report, of course, and I note the concerns about the references to the common law in the explanatory notes. However, those references are meant simply as a contradistinction to statute, given that the principle of parliamentary sovereignty is defined nowhere in statute. They are not meant to be determinative of the origin of the principle, which is an issue that goes far beyond the scope of the Bill.
As I set out a few moments ago, under current law any proposal to amend the EU treaties using the ordinary revision procedure can be ratified by the United Kingdom only once parliamentary approval has been obtained by Act of Parliament. We have therefore made provision in the Bill for Parliament’s approval of the transitional protocol on MEPs. That will allow 18 MEPs from 12 member states, including one from the UK, to take up their seats without having to wait until the next scheduled elections in 2014. As that protocol does not transfer any power or competence from the UK to the EU, a referendum is clearly not required. As it is a treaty change, however, all member states are required to ratify it. The Bill also makes the necessary provisions to elect our new MEP, who will, based on the recommendation made by the Electoral Commission in its report last month, represent the West Midlands.
Yvette Cooper
I am afraid that the hon. Gentleman is not picking a fight with me; he is picking a fight with his Government, whom I quoted, and the European Scrutiny Committee, which I quoted. His disagreement is with them, but I hope that he agrees that clause 18 does nothing at all to change sovereignty. In fact, the hon. Member for Crawley (Henry Smith), who asked about a written constitution, got further than anybody else in raising the key question about sovereignty that the hon. Gentleman’s Government are pretending to solve while, in fact, doing nothing of the sort.
Mr Cash
I simply make the point that our Committee report is utterly clear on that subject. What the right hon. Lady quoted is correct. However, her Government were as responsible as any for giving more and more judicial authority—ultimate authority—to the courts. Their main policy over many years could be characterised as handing over more and more powers to the judges at the expense of this House.
Yvette Cooper
I know that the hon. Gentleman has immense expertise on the details of the legal changes, but he and I have a long history of disagreeing over what is important in a particular case, and I suspect that we will continue to do so.
Mr Redwood
It means that when a British Foreign Secretary makes foreign visits, he or she will be kept waiting while the EU ambassador is received and considered, because the latter will speak with more authority on behalf of more people and more states.
It is the third area that we have always reserved for national veto and national competence—central economic policy making—to which I shall address the remainder of my brief remarks in this truncated debate. Literally as we meet here this afternoon, crucial and massive issues are being hammered out in secret around the Council table in Brussels. Quite likely to be on the agenda is the issue of European sovereign bonds and the effective creation of a European sovereign in financial matters that issues debt and guarantees debt on behalf of member states. Do we want that? Are we in it? Is it not a transfer of power if we go along with it? Is it not an issue on which we should be invited to express our views?
Another item on the agenda may be the future membership of the euro. The Council could be considering in secret whether all member states are able to stay in the euro and whether the strong or the weak members should leave. If they are to keep the euro area together, what will be the arrangements for the large transfer payments that need to be made if the single currency is to have some hope of a decent life in the future, as all successful single currency areas have much bigger transfers of tax revenues, subsidies and money around them than the euro area currently has?
Mr Cash
My right hon. Friend portrays so accurately the realities that lie behind this Bill, which is about the economic crisis in Europe as well as many other matters. Does he agree that one serious current problem is the financial stability mechanisms and that if we do not assert our rights in this House and make certain that the courts cannot get their hands on an interpretation that would go the other way, we could end up paying for other countries beyond Ireland—Portugal, Spain and others?
Mr Redwood
My hon. Friend is absolutely right, which is why the transfer of power, if not of competence, is such a crucial issue and why we need to engage in a public debate at this very moment about how far this should go.
I hasten to stress to the House—particularly to my critics, who like to misconstrue what I say—that I wish our partners every success and prosperity with their single currency. I know that if that is the way they choose to run their economies, it is in our interests for it to work. We want them to be happier and more prosperous, and we like to benefit from trading with them, just as they like selling us a lot of their products. My worry is that in the process of our enthusiasm for that, we will draw in Britain—with her rather stretched budgets, even after the changes that the Government have rightly and wisely made—at a time when we do not have the financial strength to go to the aid of all these other euroland countries that are in some difficulty under the euro scheme.
I am a critic of the Irish loan. Of course I do not want to see the Irish economy go down, but I do not happen to think that lending the country lots of money at that juncture, as a result of a crisis deliberately created by the European Central Bank, was a terribly good way to behave. I do not believe that if Britain had declined to make some money available, the Irish loan would not have been negotiated. It would have been negotiated quite successfully by the architects of it—the powers behind the European Central Bank, who literally decided to withdraw funds from the Irish banks at a difficult time and made that decision public, thereby precipitating the crisis. We were engaged in a refinancing package for the European Central Bank. I think we should be told the truth; we should be told why it was a good idea for a country that rightly stayed out of the euro because it did not want the financial risk and hassle, to be drawn into helping finance the consequences of an ill-judged currency without a political union.
A successful currency needs a sovereign to love it and support it. That is why the sovereign’s face traditionally appears on the coinage and why there has to be a symbol to show that the whole weight of legal and economic authority stands behind a currency. If Europe is to have a successful euro, she needs a sovereign. I do not want my country to be part of the euro, and I think that around 80% of the British people agree with me. I think that even Opposition Members temporarily agree with me on this issue; they are not rushing to say that now is a good time to join the euro. We should be open and honest with the British people and say, “We wish the euro well.” We are doing it a great favour by not trying to join it—we would have been an over-mighty subject in it, which might even had led to its toppling earlier—and we are not currently in a financial position to make all the transfer payments available that are necessary for full members of a single currency area.
The House needs to understand that while we are debating some abstruse language and pledging this and future Governments to hold a referendum on treaties unknown about competences unspecified, a potentially massive transfer of power is under way yet again from the member states to the centre. There has to be; the thing cannot work without more central power behind the banks and the economic institutions.
The British Government say that they will accept a treaty extending the centralising powers in the economic sphere because the penalties on these will not apply to the UK Government. Well, I am delighted that the penalties will not apply, but I see no reason why the requirements should apply either, because we are not part of the euro. We should offer our support for a strengthening of economic governance for the euro area alone and make it clear that all the regulations and the directives apply only to that area. I think that my right hon. Friend the Foreign Secretary got it wrong when he said that none of those applies to Britain; several of them do, although without the ultimate penalties. There could be other penalties, incidentally, which might apply to Britain.
When we surrender our veto and allow this treaty to go through on that condition—that it applies only to euroland—we should say that we want something back. We should seek to establish that we believe the European Union already has too much power and that we want something back. Do we want our fisheries back; do we want control over our borders back; do we want control over elements of taxation that have already gone to Europe through common taxation and a series of court judgments?
Power is seeping away as we meet. A massive debate is under way. Will the Government please take this Parliament and the British people into their confidence? Will they take us seriously? Will they give us an adult debate on the reality rather than this show Bill?
Mr William Cash (Stone) (Con)
People have fought and died over many centuries over the need to affirm parliamentary sovereignty—in the civil war and at the time of the defeat of the Stuarts in the 17th century, when the Stuarts’ absolute sovereignty was literally killed off. Since the advent of modern democracy in 1867, people have fought and died in two world wars to preserve the right to govern themselves through their own Parliament by freedom of choice in the ballot box.
The European Union claims sovereignty over our democratic Parliament, and this mouse of a Bill does little to preserve it. Given the present European crisis with the euro, as my right hon. Friend the Member for Wokingham (Mr Redwood) so accurately pointed out, and given the failure of economic governance in which we are absorbed and the coalition Government’s continuing acquiescence in European integration and their refusal to repatriate powers, the Bill does little or nothing to improve the situation.
The European Scrutiny Committee reported last night, to an eerie silence from the BBC, and as we clearly indicated, the Committee’s report is essential reading for those who really want to know what is going on. There are grave objections to the principle, the methodology, the distorting and misleading explanatory notes that accompany the Bill, and clause 18 itself. Clause 18 is a judicial Trojan horse leaping out of Pandora’s box. It is not, as the Foreign Secretary claimed, an enlightened act of national self-interest.
Parliamentary sovereignty is not built on a common law principle, as the Government claim. It is built on the sturdy foundations of the freedom of choice of the voters of this country, and not the whimsy or the Euro-integrationism of some Supreme Court judges. They increasingly claim that they are upholding the rule of law, but I have to ask which rule and whose law.
Shortly before he died last year, Lord Bingham, the late Lord Chief Justice, in his book “The Rule of Law” took on three fellow members of the Supreme Court who had previously adjudicated on the Jackson case with him in the House of Lords a few years ago as to their views on parliamentary sovereignty, as set out in our report. This is an extremely unusual situation and was greatly merited. I do not impugn their motives, but I criticise their judgment.
Only a couple of months ago, Professor Drewry of London university stated in a lecture that
“one can perhaps detect in the recent pattern of House of Lords and Supreme Court decisions, an appetite on the part of the Justices—encouraged by some continuing developments in EU and human rights law—to begin to get to grips with constitutional issues that previous generations of judges would have regarded as completely off limits.”
In this context, judicial activism is on the march. It has been there for a long time and it is increasing its tempo. The judges are not toying with all this, as was suggested by one witness. I suggest that Members read not only our report, but the articles, many of them written by these judges, and the speeches, for example, of Lord Steyn and Lord Hope, and many others that are quoted in our report.
The Bill, as Professor Adam Tomkins said in evidence, and as I mentioned in an intervention on the Foreign Secretary, is an invitation to litigation and, I would say, deliberately so. It has been left in a dead letter box in the precincts of the Supreme Court across Parliament square.
Clause 18 is not a proper sovereignty clause, when it could have been what was promised in our manifesto. Last night the Minister for Europe said that the Bill
“delivers on what was in the coalition programme simply as an agreement to consider the case for a sovereignty Bill”,
and that the Bill—that is, a sovereignty Bill—
“is being introduced by the means of clause 18”.
I am bound to say that it is not that at all. It is even dangerous.
Thomas Docherty
As the hon. Gentleman says, this is a mouse of a Bill. Does he agree that what we need is genuine reform of the European Union so that it delivers what it should be concentrating on, and that sovereignty should remain in Parliament and not be passed across to shyster lawyers arguing the case in the Supreme Court?
Mr Cash
I strongly agree with that sentiment. Indeed, I go further and say that I have always argued for an association of nation states based primarily on trading and political co-operation. Above all else, we must ensure that we make those decisions in the House on behalf of the electorate. Where we find it impossible to make those decisions, it is increasingly argued that it should be done by referendum, when we abdicate the power in the House to the people as a whole.
Clause 18 defies the sovereignty clauses on which the shadow Cabinet, the Whips and Back Benchers voted on several occasions before the general election, using my “notwithstanding” formula. Our report, based on clear evidence from constitutional experts, upholds both the principle and the wording of the “notwithstanding” formula, which I proposed in amendments to the Legislative and Regulatory Reform Bill when we were in opposition. The Whips even asked me to put in their own tellers. As I said to the Minister for Europe last night, he too voted for those provisions. Why not now, therefore, and in the Bill?
We have no hope of resolving the effect and implications of the European crisis on our country, or of reducing by deregulation the impact of European laws on our businesses, including our small businesses, and our deficit, if we do not remove the overall burden of the 50% of economic regulation now on our own statute book, according the House of Commons Library on 13 October.
Mr Jenkin
Is not the real question, which those on the Government Front Bench must answer, why they will not put a declaratory clause, notwithstanding the European Communities Act, into the Bill. Are they saying that that itself would put us in breach of the European treaties? I submit that it would not. Should not they accept that by putting a “notwithstanding” clause into clause 18, they would, notwithstanding the European Communities Act, be reaffirming the supremacy of the House, which is long overdue?
Mr Cash
I agree, and the evidence that we received indicates that the courts would have to accept that..
We are a parliamentary democracy, not a judicial autocracy. The common law principle, wrongly asserted as the basis for parliamentary sovereignty by the Government in their explanatory notes, gives the courts the interpretative means to walk through the gateway of our constitutional law into their application of EU law, including even the assertions of the European Court of Justice over our own Parliament and our own constitution, as well as our own laws.
Our report repudiates the means whereby the courts could gain, and some of them want to be the ultimate authority in the land. We were against Lisbon and for a referendum as a party. We can veto any treaty in future if we wish to do so, so why not do so? The Bill makes no provision for our current predicament, and provides only relative safeguards for the future, subject to the baleful influence of a Minister’s decision as to whether a referendum would be required or not. One issue has been described by our witnesses as both dangerous and unnecessary, namely clause 18 in the context of the Bill as a whole.
This debate is about trust—the trust that the British people for centuries have granted to their elected representatives to do what is right by them and uphold the democracy for which people fought and died. The Bill betrays that trust by doing nothing to unwind the effects of failed European integration and its impact on us, and does little or nothing to provide security for the future as Europe flounders around in ever-decreasing circles and chaos.
The Bill is an opportunity missed to stop the acquiescence in the failed European integration at every turn, as I put it to the Prime Minister a few days ago. It is also a missed opportunity to reaffirm our parliamentary sovereignty with a proper sovereignty clause. The Bill is a missed opportunity and I shall not vote for it.
Mr James Clappison (Hertsmere) (Con)
It is a great pleasure to follow the hon. Member for Luton North (Kelvin Hopkins). The sentiments that he expressed—a feeling of disconnection with the European Union, concerns about its lack of accountability, and even a feeling of crisis in the European Union—are ones that we have heard throughout this debate. That is not something that has been invented by parts of my party or got up by the press; it is a deep-seated feeling across parties and among voters of all parties.
To be fair to those of my party on the Front Bench, they tried to respond to that in the general election. It was no doubt with concern about Europe in mind that they made the following promise, which they were right to make, in the manifesto, on which I was proud to stand, just as every other Member of my party did:
“We will be positive members of the European Union but we are clear that there should be no further extension of the EU’s power over the UK without the British people’s consent…We will work to bring back key powers over legal rights, criminal justice and social and employment legislation to the UK.”
That was described in the Conservative manifesto as a liberal Conservative policy, and it is indeed in accordance with the tenets of classical liberalism. However, since then we have actually had a Liberal-Conservative policy.
I understand that, and I understand the reasons why it has come about. However, I am sure that my right hon. and hon. Friends will understand when I say to them that although I appreciate the fact of the coalition and the way in which it is working, I still hold to what was said in the manifesto, which I supported, and that I wish to accomplish the ends of that manifesto, particularly in respect of not allowing the extension of any further power to the EU, as well as repatriating existing powers—I thought that that would be a tall order, but it was worth trying. It is certainly still in order to seek to prevent any further extension of EU power. However, I am afraid that the Bill as it stands does not fully accomplish that end, and my hon. Friends would be testing my credulity if they claimed that it did.
Indeed, clause 18 does not even seek to do that. This is a matter of academic debate, but clause 18 is a restatement of the existing position—there are different academic views on that—and it certainly does not set out to stop any further transfer of power to the European Union. Nor, I would suggest, do the other parts of the Bill fully accomplish the end of preventing a transfer of power to the European Union, however many referendum locks they contain, particularly in so far as they concern transfers of any further competences to the European Union. If one studies the list of competences that are already possessed by the European Union, as set out in the treaty of Lisbon, one can see that virtually every field of policy—indeed, every type of human activity—is covered by a competence of one type or another. Even where those competences do not give the European Union a law-making power—and in many cases they do—the European Union can still use the competences that it holds in other fields to make law and policy in those fields where it does not have a formal competence, and the European Commission, backed up by the European Court, has not been slow to do that.
The problem that we are faced with is that which the hon. Member for Vauxhall (Kate Hoey) described earlier: the drip, drip, drip of power to the European Union, through European directives, European regulations, all the soft law that comes from the European Union, and the new objectives that are set for the European Union, which influence policy makers. All that goes on as before. As far as the European Union is concerned, it is just business as usual. Those are the problems that we need to address, and although it is difficult to take them on, I would urge Ministers to do so.
Already in the lifetime of this Government we have seen transfers of power to the European Union that—I think I am right in saying—would not have been captured by the Bill’s referendum provisions. Most people would understand a transfer of power in any ordinary sense to include giving the European Union power to set policy, or giving the European Commission the power to take initiatives or, most particularly, to make law. I am thinking in particular of the advent of the External Action Service, which has attracted so much bad publicity in this country. However, the External Action Service is bad for this country not just because it is extravagant—although it clearly is—but because it will act in such a way as to supplant British power and the exercise of independent British representations. I suspect that this is something that we will see more and more of in times to come.
We have also seen the Van Rompuy report on economic governance, which most people would see as a prospective transfer of power, in any ordinary sense of the word, to the European Union, framing, as it does, the criteria by which our economic policies are made and the guidelines that Governments must observe in their fiscal policies. The report also gives the European Union the power to impose sanctions on this country, in the form of placing it under certain procedures—not financial sanctions, but sanctions of other forms, which could be influential with policy makers. The report is certainly intended by the European Union to be an instrument of economic governance over this country, even though it is not a member of the eurozone.
We have also seen a significant transfer of power into the European so-called area of freedom, security and justice, caused by opting in to directives of the European Union in that area, even though this country had an opt-out from those policies—something that the previous Government said was the key difference between the constitutional treaty and the treaty of Lisbon. Now we are seeking to opt in. We have already opted in to six directives—two are very significant directives indeed—that give the European Union legislative authority over this country and, more importantly, give the European Court of Justice jurisdiction over our criminal procedure and criminal law. Those are all matters that are not covered by the Bill as it stands.
Mr Clappison
I am afraid that my hon. Friend is correct. We are deepening and extending the jurisdiction of the European Court of Justice.
What to do about all this? There is one improvement that can be made to the Bill—an improvement that I put to my right hon. Friend the Foreign Secretary. It would be a great improvement on the Bill, and would be in keeping with what we have been saying about parliamentary democracy, if we made the exercise of the opt-ins subject to a vote in this House—something that does not take place at the moment, however heroic and detailed our efforts at European scrutiny are, as we cannot cause this House of Commons to have a vote on something of that nature. That would be easy for Ministers to agree to, and I cannot think of a good reason against it. My right hon. Friend said, “Well, there might be too many of these things,” which rather bears out the point that my hon. Friend the Member for Stone (Mr Cash) just made about the extent of the penetration of the European Union’s jurisdiction. However, the fact that things might take up too much of the House’s time is not a sufficient reason not to have a vote—perish the thought!—on such matters. I remind my right hon. and hon. Friends that we specifically promised in our manifesto to allow Parliament more time to scrutinise legislation. My proposal would be in keeping with that, which would be a good thing.
It would also be appropriate for Ministers to consider amendments to the provisions dealing with the question of significance, because at the moment, whether we have a referendum under the circumstances detailed in the Bill depends on whether Ministers think they are significant enough. What a thing! Ministers are to decide whether something is significant enough, and the explanatory notes to the Bill then tell us that anyone who is aggrieved by such a decision should go off to the courts to seek a judicial review. What on earth is Parliament for? Are we not allowed to hold Ministers to account as well? Are we now going to have to subcontract that to the courts?
The Minister for Europe (Mr David Lidington)
I think that the brevity of the speech by the Labour spokesman, the hon. Member for Caerphilly (Mr David), is indicative of the absence of content in the Opposition’s case today. We have heard from no less than the Leader of the Opposition that he regards his policies as a blank sheet of paper, and that is what we have heard from the hon. Gentleman this evening.
Like the hon. Gentleman, I want to pay tribute to every right hon. and hon. Member who has taken part in the debate, and I am glad that so many Members, on both sides of the House, have managed to participate. I want to respond briefly to a number of specific issues, and then move on to the questions about clause 18 and the referendum lock, which have occupied most of the debate. I might be unable to cover all the ground today, but I will look forward with relish to the five days of debate on the Bill on the Floor of the House—in Committee of the whole House and on Third Reading—in the new year.
My hon. Friends the Members for Harwich and North Essex (Mr Jenkin) and for Daventry (Chris Heaton-Harris) asked about the commencement of the Bill and whether it would take effect in the lifetime of this Parliament. As they know, the Government have made it clear, as a policy commitment, that we are not going to agree to any treaty change or new treaty that transfers additional powers or competences to the European Union for the duration of this Parliament. That is a policy commitment. Clause 21 provides for the commencement of the whole of part 3, including clause 18, on Royal Assent. The rest of the Bill comes
“into force on such day as the Secretary of State may…appoint.”
To avoid any misunderstanding, however, I want to make it clear that the Government intend to use the provisions of the Bill for any future treaty change. The House will know that one such change is being contemplated now. We also expect to use the provisions on increased parliamentary control during the lifetime of the Parliament, because we expect that there will be some proposals, possibly including an agreement on a new multi-annual financial framework, that will trigger the need for an Act of Parliament under the terms of the Bill.
My hon. Friend the Member for Daventry also asked me whether it would be possible for a European prosecutor to be built up bit by bit, thereby avoiding a referendum. The Bill is very clear on that. The United Kingdom could not take part in either a European public prosecutor established under article 86.1 of the treaty or the extension of the powers of such a prosecutor, if set up, under article 86.4 without a referendum. As the treaty provides a specific treaty base for the establishment of a European public prosecutor, that action could not be taken on a different treaty base.
My hon. Friend the Member for Witham (Priti Patel) asked whether there would be any way for the European Union to prevent us from holding a referendum in this country. The answer to that question is no. There is nothing in the treaties that puts any constraints on the way in which the United Kingdom or any other member state decides how to cast its vote on a treaty amendment or a treaty change. The Bill sets out more stringent requirements before a British Minister can assent to something on behalf of this country at the European level. That is a matter for national law, not for European law.
Let me turn to the points made in particular by my hon. Friend the Member for Stone (Mr Cash), but also by a number of other hon. Ladies and Gentlemen, about clause 18. I want to be absolutely plain that the Government are not attempting through clause 18 to address the wider constitutional issue of the sovereignty of Parliament in the way alluded to by my hon. Friend the Member for Esher and Walton (Mr Raab) when he referred to the European convention on human rights and the Human Rights Act 1998, for example—or the sovereignty of Parliament and what that means in the context of the devolution settlements for Scotland, Wales and Northern Ireland.
What clause 18 does is more specific than that—this point was referred to by my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg). Clause 18 deals with the way in which European law, including judgments of the European Court of Justice, is given effect in this country. The clause asserts, for the first time in statutory form, what is already the position in common law as a consequence of decisions by various judges in leading cases: that there is only one reason why European law has effect in this country, and one reason too why, where the two clash, European law is given primacy over United Kingdom law, and that is because Acts of Parliament—notably, but not exclusively, the European Communities Act 1972—provide for such effect to be given to European law.
Mr Cash
Does my hon. Friend agree that the very fact that this provision is being included in statute inevitably means that the courts will have the opportunity to apply the common law principle and that therefore he cannot, by a speech in the House of Commons, restrict the manner in which the courts subsequently interpret the provision?
Mr Lidington
What I would say to my hon. Friend is that to some extent we are repeating the exchanges that we enjoyed in his Committee yesterday. Clause 18 places firmly on the statute book a point of reference to which any future court that considers an argument about the source of authority for European law in this country must have regard. My hon. Friend the Member for North East Somerset put it in terms of turning the clock back to 1972. As my hon. Friend the Member for Harwich and North Essex said in an intervention, it is not the case that the argument that European law derives its authority solely from Acts of Parliament has gone unchallenged. It was not only in the prosecution arguments in the metric martyrs case, but in the obiter from Lord Justices Steyn and Hope, to which he referred, that a very different case was asserted—namely that, over time, European law has acquired some kind of autonomous authority in this country. Hitherto, the United Kingdom courts have rejected that argument and upheld the doctrine that it is only through Acts of Parliament that European law has authority here. The clause will provide in statute for the first time a clear point of reference to which the courts must have regard.