Yesterday, the House of Commons held its fourth day of the committee stage of the EU Bill. MPs discussed Clauses 7-10 (agreed without amendment) and Clause 14 (agreed with an amendment) contained in Part 1 of the Bill.
During the debate Bill Cash made the following interventions:
Chris Heaton-Harris (Daventry) (Con): I beg to move amendment 24, in clause 7, page 6, line 7, at end insert-
'(e) a decision under Article 218(8) of TFEU for the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms in accordance with Article 6(2) of TEU.'.
Chris Heaton-Harris: … I return to the proposal to move one part of the Bill from clause 10 to clause 7. I was speaking about the indirect effects on the United Kingdom that the accession of the EU to the EHCR might have. When the accession takes place, the EU will be able to be taken to the European Court of Human Rights, which will undoubtedly lead to more cases, more cost and impact and, most importantly, more jurisprudence on EU law.
I am seeking not to upgrade the requirement for scrutiny, but to maintain the present level. Furthermore, I am concerned that in clauses 6 and 7, a few article 48(7) ratchet decisions are not caught by the Bill. Such decisions would be those applying to the EU's ordinary legislative procedure where the EU treaties currently require a special legislative procedure, and the existing special legislative procedure does not require unanimity in the Council. In other words, while a switch in EU legislative procedure would be taking place, it would not involve abolition of a veto because a veto did not exist in the first place. However, the EU's ordinary legislative procedure entails the European Parliament having co-decision rights with the Council. It can table amendments to a proposed law and veto the Council's desired law. In general, a switch to the ordinary legislative procedure would take EU decision making further out of the hands of national Governments and give greater power to a supranational institution.
The article 48(7) ratchet clauses not covered by the Bill would confer new co-decision rights on the European Parliament in a few areas of EU law that I shall list now, and many more. Article 23 provides that every EU citizen has the right to diplomatic protection. We had a debate on what that might mean to the individual. I am speaking now about our power to scrutinise such decisions. Article 182(4) allows the Council to adopt, through qualified majority voting, but only after consultation of the European Parliament, specific EU research and development programmes. These must accord with the multi-year EU framework programme for research and development that is decided through the ordinary legislative procedure, but the decision on specific programmes sets their duration, the precise financial contribution by the EU-essentially by us-and the detailed rules for implementation. Furthermore, article 349 provides that the Council can adopt legislative measures on how EU treaties apply to areas known in wonderful EU parlance as the outermost regions. The way in which such specific decisions are dealt with in the Bill would be a retrograde step for democratic control, hence my amendment.
Mr William Cash (Stone) (Con): I rise to support my hon. Friend the Member for Daventry (Chris Heaton-Harris) in the arguments that he has adduced. Since the Maastricht treaty, I have been gravely concerned about the operation of co-decision, and that is the best part of 20 years ago. The bottom line is that the situation has become increasingly difficult and unacceptable. The European Parliament, which is not a real Parliament at all-I see the Minister sighing. He cannot understand that the difference in the manner in which the European Parliament is elected, the difference in its procedures, the extent to which it holds Ministers to account, the intrusion of the process of proportional representation and the manner in which that operates, and many other aspects of the institutional difficulties and the democratic deficit that exists in the EU, which are all part and parcel of the necessity to retain control in the hands of the national Parliaments. Unfortunately, for all the reasons given by my hon. Friend, in relation to these specific matters there is an extension of this strange creature which used to be called co-decision, but which now, in typical Eurospeak, has become the ordinary legislative procedure. It is not ordinary at all, it is quite extraordinary, and it is not a legislative procedure in the sense in which we are legislating in this House.
The Temporary Chairman (Martin Caton): Order. May I ask which amendment the hon. Gentleman is speaking to?
Mr Cash: I am speaking about the general principle relating to the question of co-decision in the context of the amendments-
The Temporary Chairman: Order. The hon. Gentleman knows that when we are dealing with amendments, we deal with the amendments, not with general principles. If he could come on to the amendments in the group, I would be grateful.
Mr Cash: I am dealing specifically with amendment 24, moved by my hon. Friend the Member for Daventry, and supporting his arguments. My amendments are, in general terms, supportable in accordance with the arguments I have set out, and I have no further comments to make on them at the moment.
Mr Nigel Dodds (Belfast North) (DUP): On the point made by the hon. Member for Daventry (Chris Heaton-Harris) about needing an Act of Parliament as opposed to a resolution of both Houses, is not one of the advantages of such a course that it gives more time for scrutiny, and that an Act is amendable in a much greater way than a mere resolution? Given the importance of the issues that the hon. Gentleman outlined, it is vital that measures to do not get passed into law here in the UK indirectly or by accident, or by unintended consequences, as so often happens.
Mr Cash: That is exactly the point. The combined effect of the amendments that we are discussing is directly related to what the hon. Gentleman says and to what my hon. Friend the Member for Daventry said. It is about time that the Committee understood that the importance of these debates is not being reflected by the votes or by the attitude Government's attitude. So far, they are not accepting any of the amendments. The European Scrutiny Committee has produced a report, and most of the amendments arise from it, including the ones we are discussing. My hon. Friend is a member of that Committee, and other members of the Committee are here as well. The net result is that we are not discussing the amendments properly.
The Temporary Chairman: Order. The hon. Gentleman seems to be talking about clause 9, but we are talking about two specific amendments to clause 7.
Mr Cash: I am happy to endorse the view that has been expressed. I wanted to make a general point, and that is really all I need to say at this stage.
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Mr Cash: Will the Minister give way?
Mr Lidington: I will give way, but a large group of amendments is listed on the Order Paper for consideration later today, and those amendments stand in the names of many hon. and right hon. Members. I want to try to limit my comments on the early group so that we have time for a thorough debate on those amendments on justice and home affairs, which I think the Committee would expect.
Mr Cash: I have already been helpful to the Minister in limiting my earlier remarks. Having said that, I would point out to him that this afternoon the European Scrutiny Committee has considered the document, "EU Accession to the European Convention on Human Rights", and set out in full, for the purposes of ensuring that the House is properly informed about what all the arguments amount to, both the questions and answers that he has given to that Committee. In particular, we include his letter of 30 June, our letter of 8 September and his letter of 21 September, and the detailed matters that arose on that, which take up two pages. We include our letter of 27 October and the explanatory memorandum of 15 November. The idea that the Minister can slide past this-
The Temporary Chair (Martin Caton): The hon. Gentleman is supposed to be making an intervention, not a speech.
Mr Cash: There is an obligation to answer this point.
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Chris Heaton-Harris: I do not want at all to talk about the detail of the European convention on human rights, but I make the point that we will probably need an Act of Parliament, or a resolution as it stands. I do not intend to press the amendment, but I wanted to ensure that the Minister completely understood my reasons for tabling and for wanting appropriate scrutiny of the points that it raises.
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Chris Heaton-Harris: I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn The Temporary Chair (Martin Caton): That brings us to the debate on clause 7 stand part. If I am reading the feeling of the Committee correctly, I shall allow this to be a fairly wide debate, obviating the need for further stand part debates on the later clauses. If we all understand that, I shall show considerable laxity.
Question proposed, That the clause stand part of the Bill.
Mr Cash: I shall discuss my earlier point about EU accession to the ECHR in the context of the broad view that you, Mr Caton, have taken about the necessity to get some of these issues out in the open. I shall also refer to the document that I cited in my intervention on the Minister, because we discussed it in the European Scrutiny Committee today. The document is a Council decision, the object of which is to authorise the European Commission to start negotiations with the Council of Europe on the EU's accession to the European convention on human rights. Our Committee reached the stage of a first report.
Chris Heaton-Harris: I very much apologise for not being at the European Scrutiny Committee meeting, but I was getting ready for this session. Government Members are giving the Bill the appropriate amount of scrutiny, but, looking at the Opposition Benches, I wonder whether anybody on that side cares.
Mr Cash: I could not agree more. My hon. Friend is right, and I am glad that the Minister also nods in agreement, because the accession is hugely important. I understand entirely that the Minister has a view about it. He has also heard the very good arguments that my hon. Friend the Member for Daventry (Chris Heaton-Harris) has made on the specific questions that arise. The Minister knows that it is a contentious issue, not least because we are also dealing with the interaction of the European convention on human rights, which came up in the statement on terrorism only an hour or so ago in this very House, and the crucial balance between security and freedom. We do not need to discuss control orders and counter-terrorism now, but I simply make the point that an enormous body of law could be affected by this.
The shadow Minister for Europe, the hon. Member for Caerphilly (Mr David), is attentive, was a member of the European Scrutiny Committee and is taking an interest in the debate. Of course, he has to be here, but I think that he would be here anyway. I find it strange that the Chamber is almost completely empty when we are considering these incredibly important issues, and it would be interesting to know whether there is any reason why. I am glad to welcome my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips), who also has great knowledge of these matters. I hope that he will contribute to the debate, because we have just discussed this point in the European Scrutiny Committee, so it is an opportune moment for us to look at the principles involved.
The Government support accession by the EU to the ECHR, as the Minister indicates. I am sorry that we got a little tetchy, but he gave me the impression that he wanted to move on from the subject fairly quickly, and I understand the necessity to move on to later amendments. Our entire proceedings, despite some considerable reservations on the one hand and downright hostility on the other, have been conducted in a civilised manner and in accordance with what I hope debates in this House should consist of, but we need to take a good look at what the provision implies, and this clause stand part debate gives us the opportunity to do so.
According to the Secretary of State for Justice and Lord Chancellor, accession will close the gap in human rights protection as applicants will for the first time be able to bring a complaint before the European Court of Human Rights directly against the European Union and its institutions for alleged violations of ECHR rights. It will enable the European Union to defend itself directly before the European Court of Human Rights in matters where EU law or actions of the EU have been impugned.
The Secretary of State also says that accession will reduce the risk of divergence and ensure consistency between human rights case law between the European Court of Human Rights and the EU's Court of Justice in Luxembourg. That is very important. Furthermore, he says that the EU will be bound by European Court of Human Rights judgments in cases in which it is a respondent, and like other contracting parties to the ECHR the EU will need to have regard to the Strasbourg jurisprudence.
I have heard the Secretary of State for Justice express views, albeit in other circumstances, in which he has raised concerns about the extent to which the judiciary is impinging on the sovereignty of this House, and I take him at his word. If he believes that, he might also consider that the EU will have to have regard to Strasbourg jurisdiction. Sovereignty, which we have debated at some length in relation to clause 18, is directly involved in that issue.
I do not need to repeat any arguments that I set out in relation to clause 18, and I have no intention of doing so, but the principle is about the use of jurisprudence from Strasbourg or the European Union Court, the European Court of Justice, and its effect on the legislative process in this House. There is also a constitutional question for the United Kingdom about the manner in which our judiciary is using Strasbourg precedents and importing them to their judgments in our courts. The Lord Chief Justice recently criticised that, because he is worried about the impact of accession on the manner in which we make our decisions and the invasion of common law precedent.
Stephen Phillips (Sleaford and North Hykeham) (Con): I hesitate to intervene on such an erudite speech by my hon. Friend, but one problem that the Minister might want to consider in the context of the clause is that accession by the EU to the convention will create essentially co-ordinated jurisdiction over some areas between the European Court of Justice on the one hand and the Strasbourg Court on the other. Indirectly, therefore, it might affect the rights of this place, because more law and jurisprudence will come from both Courts, and that might interfere with the way in which we conduct business and are expected both to represent our constituents and to make our own laws consistent with accepted doctrine of parliamentary sovereignty. I have intervened now because I think my hon. Friend will agree with that point.
Mr Cash: Absolutely, and it could not have been better put. I am grateful to my hon. and learned Friend, who is Queen's Counsel after all, as well as a distinguished member of the European Scrutiny Committee. He has been following the matter with great interest and makes the point very well.
There is a further point to make about the statement by the Secretary of State for Justice. He says that, additionally, European accession will mean that individuals who argue unsuccessfully in the European Court of Justice that the European Union has breached their fundamental rights-I stress "fundamental"-can, subject to the usual admissibility requirements, complain to the European Court of Human Rights that the EU has violated one or more of convention rights. The risk of confusion in that melee-that dual jurisdiction-is a serious potential problem. The Secretary of State for Justice went on to say that European Court of Human Rights judgments will be binding on the European Union as a respondent to the proceedings.
The Government, apparently, do not expect the European Union's accession to the ECHR to have any direct impact on UK law. As article 6(3) of the treaty on European Union confirms, the fundamental rights guaranteed by the ECHR already
"constitute general principles of the Union's law."
However, importantly, the Secretary of State for Justice concedes that an adverse judgment against the EU by the European Court of Human Rights may require the EU to amend its legislation to protect individuals' fundamental rights in a way that will have consequential implications for UK law. That is why I not only have sympathy for what my hon. and learned Friend said, but refer back to the Minister's assertion that it will not have implications for EU law.
As I said, we have had a number of exchanges with the Secretary of State for Justice. It is best if I pick out one or two of his points from the correspondence, all of which will be set out for the benefit of Members. I am delighted that the hon. Member for Birmingham, Edgbaston (Ms Stuart) has come to swell the ranks of Labour Back Benchers, whose presence would otherwise be non-existent. Unfortunately for the Minister, it is just possible that she will agree with what we are saying, but we will wait and see.
In the letter of 30 June, of which I am sure the Minister is aware, the Secretary of State for Justice wrote to the European Scrutiny Committee, advising that the EU had adopted this mandate. He went on to explain that the Government support EU accession and made the remarks that I summarised earlier. We replied to him on 8 September stating that the EU's accession struck the Committee as potentially a significant development in its internal legal order-despite treaty provisions to the contrary-and that it would amount to submitting the acts of EU institutions to independent external control by the ECHR. We also said it was a potentially significant development in the way in which EU citizens' human rights are protected. We used the word "potentially" deliberately because it was difficult on the information before us to know how much the EU's accession to the ECHR would be a symbolic gesture and how much it would lead to practical changes for United Kingdom citizens.
At this point, it is worth saying that these changes are not just generalisations, but that serious fundamental changes are being brought about by the manner in which the accession proposal is being put through. It is Government policy and it has significant implications for the daily lives of people. It is difficult in a debate such as this to give specific illustrations because the nature of the debate more or less precludes one from doing so. We are supposed to be talking about the generality of the constitutional change. However, I simply want to put on record that it will have a significant impact on the practical lives of the people whom we represent. That is the key reason for raising these issues.
We went on to note that the Cabinet Office guidance recommended that Departments should provide the scrutiny Committees with
"details of negotiating mandates as soon as they have been approved".
We were grateful for the explanation of the Secretary of State for Justice on how the Government view these matters. We asked him to explain further how the current gap in human rights protection will be closed by accession, and what he meant by the word "directly" when he said:
"applicants will, for the first time, be able to bring a complaint before the European Court of Human Rights"-
that is the Strasbourg Court-
"directly against the EU and its institutions for alleged violations of Convention rights".
After an exchange, what it boiled down to was that there is concern in academic circles that the charter of fundamental rights, which was brought in through a protocol in the Lisbon treaty, specifically allows for EU human rights law to provide "more extensive protection" than the ECHR, and that raises a problem. In light of that, it is difficult to see why the Secretary of State for Justice concluded that a key benefit of accession to the ECHR will be consistency between the two legal domains. On the contrary, there is concern in academic circles that the charter will lead to legal uncertainty on how human rights are applied in Europe by introducing the additional standard of "fundamental" right. Although in appearance that is an esoteric legal argument, it will have an impact on people's rights. That is the problem.
Ms Gisela Stuart (Birmingham, Edgbaston) (Lab): This may be one of the rare occasions when those on my Front Bench do not object to my intervention. I really do not know what the hon. Gentleman is going on about. I have tried to read clause 7 again. Let us go back. The fundamental charter of rights was introduced because of the judgment against the European Union as an institution over Gibraltar. Rather than signing up to the ECHR, which would have been the logical and consistent thing to do once we had given it legal personality, we now have two systems. In the UK, we are signed up to the ECHR. I would have preferred it if the EU had signed up to the ECHR. The charter of fundamental rights gives additional rights. I singularly fail to understand the point that the hon. Gentleman is making because the situation is no different.
Mr Cash: I am expressing the view of academics who have studied this matter, perhaps more than the hon. Lady. [ Interruption. ] I am not making any personal assertions. I am just saying that the evidence that we have is that the charter will lead to legal uncertainty over how human rights are applied in Europe by introducing the additional standard of fundamental rights. I am not criticising the hon. Lady, but simply replying to her question by expressing the view that is taken in academic circles.
Stephen Phillips: Does my hon. Friend agree that the problem that is being expressed is that there will be two competing and overlapping systems, adjudicated upon by two different Courts, which is potentially a recipe for disaster? I think that is the point that he is seeking to make.
Mr Cash: I have made that point and am entirely grateful to my hon. and learned Friend for repeating it. The issue is that there is a significant potential for uncertainty when there are two Courts.
Ms Gisela Stuart: I accept that there is a potential conflict, but given that we are already a signatory to the ECHR and that the EU is already a signatory to the charter, none of this adds to the complexity-the complexity already exists.
Mr Cash: I accept that. That complexity does exist, and part of the difficulty with the whole issue of human rights, whether in relation to accession, the charter or the jurisdiction of the Courts, is shown in the comments of the Lord Chief Justice in his Judicial Studies Board lecture. He said to the entire judiciary, "Brothers and sisters", referring to the other judges- [Interruption.] Well, that is their language. He said, "Brother and sister judges, will you please take note that our first obligation is to have regard to the manner in which we come to our decisions in the light of common law precedent?" He warned them against adopting Strasbourg's precedents as a means of arriving at decisions in our own courts. He actually used the words, "We must beware". I therefore entirely agree with the hon. Lady and with my hon. and learned Friend the Member for Sleaford and North Hykeham, and with the views expressed in the European Scrutiny Committee's report that has come out only this afternoon.
Mr Richard Shepherd (Aldridge-Brownhills) (Con): There is indeed a conflict of courts, which has been a matter of considerable concern for a number of years. It is the oldest question of all-who is the master? Where there is a conflict between a constitutional court-the European Court-and a human rights court, who prevails? That is the lack of clarity that exists and the worrying aspect for many people. It has been much talked about in the European Parliament in recent years.
Mr Cash: Indeed, and I add that my hon. Friend, who is a member of the Joint Committee on Human Rights, has been manfully seeking to contain the tsunami of opinions expressed in that Committee about the continuing onward movement towards accession of the type that we are discussing here and about the human rights culture and all that goes with it.
Mr Shepherd: I am not a lawyer, as is evident, but the great difficulty is that we have a common-law tradition, and the European tradition is civil law. Those are totally different ways of looking the world. It is the case law that I am worried about.
Mr Cash: Indeed, and that is because the abstract principles contained in the charter, the ECHR convention and so on have developed a completely different type of law from ours. In a way, this debate illustrates the difficulty that exists. I say to the Minister that as ever, the Government are acquiescing in greater movement towards the human rights culture.
I may say that if anyone knows of my record in relation to matters such as this, they will know that nobody is more likely to want to defend the rights of individuals. All Members are devoted to trying to ensure that there is proper protection. The trouble is how to get to that point. I believe, for example in relation to terrorism, that if we legislate in Westminster according to the principles of habeas corpus, due process and fair trial, and according to our established procedures, we can be sure that no suspect will be ill-treated in our prison cells, however much potential circumstantial evidence there is against them.
Habeas corpus is the first duty of the judge. Ask any senior judge and he will say, "My first obligation is to apply habeas corpus." He would go straight down from his chambers to the prison to make absolutely certain that a person was not being ill-treated. If a writ of habeas corpus is issued, that is that. It is one of our most fundamental protections of liberty for the citizen. A great deal of human rights legislation, and all that goes with it, is moving us away from that. There are also political judges in other countries. There are different systems of law, yet we are acquiescing in a process of change away from our established system.
It is difficult to grasp the broad sense of what is happening, but it has a direct impact. However, the Government are acquiescing in it on a significant scale. That was why, when I was shadow Attorney-General, I proposed the repeal of the Human Rights Act 1998. That was our policy up to the time of the coalition agreement, and the Prime Minister himself repeatedly said that he thoroughly endorsed it. It was Conservative party policy, but under the coalition it has been abandoned, which seems a big jump. In addition, during the debates on the Bill we have seen further acquiescence in the process of moving towards the abstract principle, instead of the concept of the common-law precedent, which my hon. Friend the Member for Aldridge-Brownhills (Mr Shepherd) mentioned.
Kwasi Kwarteng (Spelthorne) (Con): My issue with my hon. Friend's eloquent speech is that I do not understand the word "process" that he has been using. We are already under the convention regime. Whether we are in or out of that is a boundary question. He might want to get out, but that is a different debate. Nothing he can do to amend the Bill will fundamentally alter the fact that we are already signed up to the "process".
Mr Cash: With great respect to my hon. Friend, he came into the Chamber somewhat after my hon. Friend the Member for Daventry (Chris Heaton-Harris) explained why he wanted to amend the Bill to ensure that we retain greater sovereignty in relation to certain matters arising under the European convention. I do not criticise my hon. Friend the Member for Spelthorne (Kwasi Kwarteng) for coming in a bit late, but we have already discussed that matter-we are now on clause stand part and the general question of the principles on which the convention operates. Does my hon. Friend want to intervene again?
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Mr Cash: … My hon. Friend says, "We are where we are." In this debate and in the debate on the individual amendments, the Committee is dealing with some very important principles, including the principal question of the shift of accession. Therefore, it is important for us to explain and illustrate, by reference to documents, which I am not going through in detail, and by general principles, that with regard to the charter, the European Court of Justice, the European convention on human rights and the Strasbourg Court, there are important questions that will affect the constituents whom we serve.
For example, the Minister has told us that the only way that individuals can argue in the Strasbourg Court that the EU has breached their human rights is to bring proceedings against one or more member states. His answer to the question, "What do you mean by 'directly'?" was that once the EU has acceded to the convention, it will be possible for the EU itself to be the respondent and to defend claims in its own name. When we asked how accession will reduce the risk of divergence and ensure consistency between human rights case law, Strasbourg and Luxembourg when article 52(3) of the charter specifically allows human rights law to provide "more extensive protection" than the ECHR-my hon. and learned Friend the Member for Sleaford and North Hykeham referred to that-we were told that the EU must have regard to Strasbourg jurisprudence.
Our problem over and over again is that the answers that we get are a further extension of the principles that move us away from common law and precedent, and that instead absorb us into a system of law, judgments and courts that operate on abstract principles. It is as simple as that. That is the key question. When there is a divergence between the two Courts, those problems will become more conflated and confused.
Another question was how the EU autonomous legal order will be preserved in light of European Court of Justice opinions in certain cases, which I will not go into in detail. In a nutshell, we are grateful for the Minister's replies, which are included in the European Scrutiny Committee's report so that anybody who wants to read them can do so. I quite understand that those who have come into the Chamber very recently did not hear the arguments advanced by my hon. Friend the Member for Daventry and the specific issues that he raised.
Kwasi Kwarteng: If the remarks of my hon. Friend the Member for Daventry (Chris Heaton-Harris) were so fundamental, why did he not press his amendments to a Division?
Mr Cash: The short answer is that my hon. Friend the Member for Daventry did not do so because he had dealt with the questions that needed to be dealt with in relation to those amendments. I am concerned with the broader issue of the relationship between the European Court of Justice and the European Court of Human Rights in Strasbourg. That is the principal question in a clause stand part debate, which is why I am dealing with it now. That ought to be of great concern to the House, which is why the ESC has produced a special report and why I have gone into the detail in this debate rather than in a debate on specific amendments.
The draft report notes that-and I refer this section particularly to the Minister, because he may not have seen it yet-
"the guidance for Parliamentary scrutiny of EU documents states that 'Departments should ensure that the Committees are kept informed as much as possible about the scope and development of negotiations prior to conclusion of an agreement.' We look forward to being kept so informed. Meanwhile, the document remains under scrutiny."
This is a very important matter. It is complex and requires some appreciation of the direction of navigation, which is towards an abstract system of law based on abstract principles rather than common law and precedent. It involves an interaction of the ECJ and the ECHR. We fear the possibility of inconsistency and uncertainty as a result, and this is the opportunity to explain those fears.
I am grateful to my hon. Friend the Member for Daventry for raising the question specifically and to my hon. Friend the Member for Hertsmere (Mr Clappison) for his amendments. I thought it would be sensible if I took the opportunity to set out the position of the Committee in relation to the exchange of correspondence with the Minister. As a rider, I would just add that we appear to be acquiescing to the move to a system of abstract law, which is not in the interests of the people of this country. The issue is not that we are where we are: it is the impact that where we are is having on our constituents. That move towards acquiescence is causing me ever more concern, because we are being absorbed into a system that is changing the face of our politics, our judiciary and even our parliamentary sovereignty. For all those reasons, it should be taken very seriously. However, judging from the fact that yet again no Labour Back Benchers are in their places, we can form some judgment about the extent to which they care about their constituents in relation to matters that will have an enormous impact on their daily lives.
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Question put and agreed to. Clause 7 accordingly ordered to stand part of the Bill.
Clause 8
DECISIONS UNDER ARTICLE 352 OF TFEU
Mr Cash: I beg to move amendment 53, page 6, line 41, leave out '(3) to (5)' and insert '(3) and (4)'.
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Mr Cash: The amendments have been tabled by my hon. Friend the Member for Daventry (Chris Heaton-Harris) and myself, as well as several other Members, including my hon. Friends the Members for Aldridge-Brownhills (Mr Shepherd), for Harwich and North Essex (Mr Jenkin), for Wellingborough (Mr Bone) and for Northampton South (Mr Binley), and the right hon. Member for Belfast North (Mr Dodds) of the Democratic Unionist party.
We are dealing with a very broad provision in the treaty known as article 352, which is generally described as a flexibility clause but which has an ancient and controversial history. Even back in the 1970s, before I came to the House, when I was practising law, I was discussing a very controversial provision known as article 308, and I shall tell hon. Members why. When, in our legal processes and legislative procedures we pass laws, we do so on the basis of what is stated in an Act of Parliament and we consider the words. Some of the remarks I made in the previous debate on clause 7 about abstract principles are related to this issue. Ordinary statutes, particularly in the field of administrative law, frequently make certain provisions after a whole series of propositions in different sections. Right at the end, there is often an expression such as, "And all such measures as may be regarded as reasonably necessary to carry out these functions," but they are very carefully constrained by the administrative court, and the tests are quite significant. If there is a catch-all provision that has the effect of enlarging the existing treaty arrangements, it is incredibly important to make sure that what is included can be justified and has proper authority.
In the context of legislation that comes to the House and thereafter affects the daily lives of the electorate, we already know, for reasons that I do not need to enlarge on, that the manner in which legislation is implemented could, in a nutshell, be one or two lines or a paragraph in a treaty that are equivalent to an entire Act of Parliament. With that comes a whole process of interpretation that is different from our own, because it is not necessarily precise and because it looks at purposes-it has a purposive quality. Then there are provisions relating to subsidiarity that generally are not adhered to.
When we are dealing with a specific treaty and considering its wording and range, we should ask, when it becomes part of UK legislation through section 2 of the European Communities Act, as enforced by the courts and their system of interpretation, how far and to what extent it was anticipated that the legislation being spelt out, even in a treaty, would result in certain consequences in terms of the precise policies that will emerge from the process. It is incumbent on us to implement the law, under section 2, but at the same time there is a great degree of collateral within which the actual provisions in a treaty are brought into effect, and there is also their effect on the people to consider. In many instances, people could not reasonably have been expected to know exactly how that provision would turn out in policy.
I happen to be a bit of a traditionalist and I think that when we pass legislation it should be consistent with policy making, but sometimes I think that my hon. Friends-I say this with great respect to them-are not necessarily quite as conscious when considering such issues about the direct impact of it all on the electorate, or about the degree of discretion that we are giving both to the European Union and to Ministers in implementing these sorts of provisions.
What is the effect of article 352? I shall explain my concerns about the Bill in relation to that wide-ranging provision, and I shall quote from article 352. It is important to set that out, as it is the framework for my general concern. Article 352 states:
"If action by the Union should prove necessary"-
that is a big question; who says?-
"within the framework of the policies defined in the Treaties"-
which have an enormously wide ambit, including what they involve, their purpose, nature and interpretation-
"to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously"-
that is important-
"on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures."
The article continues:
"Where the measures in question are adopted by the Council in accordance with a special legislative procedure, it shall also act unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament"-
not Ministers, though they have the right to determine whether or not they will apply the unanimity rule.
There is then a provision stating that where subsidiarity arises,
"the Commission shall draw national Parliaments' attention to proposals based on this Article."
The article goes on to say that such measures shall not entail the harmonisation of member states' laws or regulations where the treaties say that there should not be such harmonisation. Finally, it states-this is important-that the article cannot serve as a basis for attaining objectives relating to foreign and security policy, and it imposes certain restrictions consistent with limits set out in article 40 of the Treaty on European Union.
That is what article 352 states. It is a very wide provision. It is certainly subject to unanimity by the Council. I therefore assume that my right hon. Friend the Minister will assure us that the veto would be used, were the existing treaties-wide and deep as they are and effective as they are on our constituents-to be amplified by the use of that extremely wide power. I should mention that a few years ago the European Scrutiny Committee went over to see the Commission and its legal advisers. We had a full report on the provision in question, which at that time described as article 308.
My amendments would knock out the provisions that would enlarge the Government's capacity to bypass-I use this language carefully-the principles on which I assume Parliament would want to insist. Because of the ambit of the measure, we should ensure that it is used as tightly as possible.
At the moment, the article can be used only where the existing treaties have not provided the necessary powers. Clause 8(1) provides that any one of the conditions in subsections (3), (4) or (5) has to be satisfied in relation to an article 352 decision, but subsection (3) contains the general rule, which is the one that I would insist on, which is that the UK may not agree to a decision under this broad article unless the decision has been approved by Act of Parliament. That is fundamental. Where there is this enormous expansion of power, fundamentally it should be done only where the decision has been approved by Act of Parliament. I have no problem with that whatever.
Subsection (4) provides for parliamentary approval of urgent or emergency uses of the flexibility clause without the need for an Act of Parliament. The explanatory notes say that this
"has been used in the past for urgent or emergency uses, where rapid EU action has been agreed but where there was no explicit legal basis on which to base that action",
and that certain sub-paragraphs stipulate
"that the UK may agree to the adoption of a measure based on Article 352 in urgent or emergency cases if"
approved by motion without amendment in each House of Parliament. I regard that as perfectly reasonable in the circumstances. So we have a process and an agreement. First, it has to be unanimous, then it comes to Parliament, and then it has to be approved by Parliament because it affects people and it is so broad that restrictive control needs to be kept over how the process operates in this House.
Subsection (5) provides
"that an Act of Parliament would not be required for any Article 352 proposal which satisfies any of the exemptions listed in subsection (6)."
According to the explanatory notes, the exemptions are to
"prevent…Acts of Parliament to approve measures which have been agreed in substance under previous measures using Article 352".
In those circumstances, a Minister has to lay a statement before Parliament saying that the use of a flexibility clause is for an exempt purpose, in which case parliamentary approval is not required. This is where I have great difficulty. The ambit of article 352 is such that it seems that there are no exceptional circumstances in which the exemptions specified in subsection (6) should divest Parliament of the opportunity to approve. Basically, the fundamental point that I seek to make is that those provisions should be left out.
As the debate proceeds, I hope that this point will become more obvious, because other amendments will give specific instances of the manner in which the arrangements would operate. I simply wanted to indicate that I am not in favour of the exemption that the Government are giving. Under subsection (6), the exempt purposes include-some of the language is rather arcane-
"to extend a measure previously adopted under that Article to another member State or other country".
I am extremely concerned, for many reasons that I have already touched on and hope to come back to later, where we say something will affect us as part of the EU only in certain circumstances.
My worry, which permeates much of my concern about the Bill, is about the cases in which someone might say, "Well, it affects only the eurozone, not us." I strongly believe that in such circumstances we must be vigilant, because the eurozone does affect us and whatever we do will affect us. It seems to me that we should be vigilant and ensure that parliamentary approval is needed in circumstances where a measure has been adopted under the article and extended to another member state. I am issuing a general concern about the whole area.
Article 352 is very broad, as I think the Minister will accept. I understand that it is subject to unanimity and that in limited circumstances there would be a case for something short of an Act of Parliament, but I do not think that there are circumstances, in the cases that I have described and within the framework of those exemptions, where it is so broad that Parliament should effectively be bypassed. That is my main proposition, but there are other specific matters that colleagues will raise.
…
Mr Cash: I understand exactly what the Minister says, but I am sure he will concede that that is all without prejudice to the fact that the measure is an expansion of what is a very wide provision in itself. For example, on the point that he has just made, there is a self-amendment provision in the treaty. It is difficult in such debates to get right down to the nuts and bolts, but basically this is a problem of an expanding treaty provision that was widely construed and widely drafted in the first place.
….
Mr Cash: I am happy to seek to withdraw the amendment in the circumstances, without prejudice to my concerns about the matter. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 ordered to stand part of the Bill.
Clause 9 APPROVAL REQUIRED IN CONNECTION WITH TITLE V OF PART 3 OF TFEU
Mr Clappison: I beg to move amendment 14, page 7, line 33, leave out from first 'of' to end of line 44 and insert 'any existing or proposed measure under Title V of Part 3 of TFEU.'
….
Mr Clappison: We come to a new subject area, that of freedom, security and justice, which used to be known as the judicial and home affairs pillar of the EU. As the clause stands, it would require parliamentary approval for a UK decision to opt in to certain provisions in the area of freedom, security and justice. At the moment, as I am sure the Committee knows, the UK enjoys an opt-out in that area. Were a decision to be taken to opt in to one of the matters specified in clause 9, parliamentary approval would therefore be needed.
Three such matters are specified in clause 9(2). Generally, they seem to cover further developments in the field that are not specifically set out in the freedom, security and justice chapter, which is chapter 5 of the treaty of Lisbon. I should say that that is a lengthy chapter containing many matters. I think I can see the Government's thinking, which is to cover further developments in European law and new ideas in the field of family law, criminal procedure and serious crime. I agree with that thinking, as far as it goes, because it means that opt-ins on those matters will require parliamentary approval.
It should be said straight away that that is an improvement on the current situation, in which there is no requirement for approval of any of the important matters specified in the clause. There will therefore be additional protection, if one wants to look at it that way, and there will certainly be an additional role for the House, which will be required to give its approval before the UK can opt in.
My amendment 14 would take matters further in a logical way, by making any chapter 5 opt-in subject to the same parliamentary approval that is required for the three matters specified in the Bill.
Mr Clappison: The hon. Lady has updated my information, which only goes as far as 30 November, by which point there had been six opt-ins. There have therefore been another two since, and they are coming along all the time. We heard evidence in the European Scrutiny Committee that 30 or 40 such opt-ins were due to take place. The EU has an ambitious programme in that regard-that is not an expression of opinion; it has admitted it. I shall deal with that later.
The hon. Lady is absolutely right that some of the opt-ins are on important points, and I shall come to one or two of them that I experienced under the previous procedure. I should like to ask the Minister how many of the provisions that we have opted in to since the present Government came to power would have been covered by the procedures in clause 9. I fully accept that those procedures are an improvement on the current situation, but I should like to know how well they cover the ground.
As the hon. Lady said, some of the opt-ins have been significant. I wish to mention two in particular-they were debated a little yesterday, so I will not take the Committee over the same ground. They are the European investigation order, which received practically no scrutiny in the House and on which we had no opportunity for a vote, and the draft directive on the right to information, which was also very important. We had a little more scrutiny of it, but no real opportunity for a vote unless one was prepared to trigger a deferred Division.
Under successive Governments, the UK has been very careful and vigilant about permitting the EU to deal with the so-called area of freedom, security and justice, which is dealt with in clause 9. That goes back to pre-Maastricht days, when such matters were dealt with on the basis first of informal co-operation, and then of slightly more formal co-operation, between Home Affairs Ministers. They were not dealt with as part of the treaties or Community institutions-Home Affairs Ministers simply met to co-operate as such.
The Maastricht treaty put that on a more formal basis with what was described as the justice and home affairs pillar, which was the third pillar of the treaty. The first pillar was the old matters within the treaty-the single market, fisheries and agricultural policy, and all the rest of it-and the second was common foreign security policy.
One or two hon. Members who are in the Chamber now were in the House at the time of that treaty, and there was much debate on the justice and home affairs pillar. We were assured-I remember being given a solemn assurance by an authoritative figure in the Government of the time-that the treaty settled the problem as far as justice and home affairs were concerned, that we need not worry about home affairs coming within the purview of the Community method and Community institutions, and that they were being kept separate. The same applied to the common foreign security policy. The implication was that the pillars in the treaty would stand for ever, and that they were all the protection and assurance we needed. I am reluctant to say this but I have heard similar claims in respect of many other so-called safeguards since then, including in the course of this debate.
Mr Cash: Does the word "lie" crop up in that context?
Mr Clappison: I am afraid that I was credulous. We were perhaps willing to believe and wanted to believe what we were told. We knew that it was right for the UK not to come within such matters in the EU so that we did not gradually integrate into a superstate or a federal united states of Europe. Many are still worried about that and we wanted to avoid it, and we thought the pillars were the answer.
Mr Cash: The hon. Member for Cheltenham mentioned the European Scrutiny Committee, so may I say that the investigative order is still subject to scrutiny? He may be assured that we will follow every step, but we have no confidence in that part of the coalition that voted for all these arrangements under the Lisbon treaty-by that, I do not mean the Scrutiny Committee because I am talking about myself.
…
Mr Cash: I congratulate my hon. Friends the Members for Hertsmere (Mr Clappison), for Daventry (Chris Heaton-Harris) and for Esher and Walton (Mr Raab) on their speeches.
After 26 years of scrutinising treaties of one kind or another, sometimes tabling as many as 120 or 140 amendments, debating them in detail and listening to the arguments put forward by Government spokesmen, who say, first, for example, that we have reached the high water mark, and then that the measure is not what some people fear, perhaps it is inevitable that I have developed a certain resistance to the assumption that what we hear from the Front Bench will necessarily occur-I hope that is a nice way of putting it-and that I have become if not cynical, which would be an unfair word, at least uncertain about the consequences that subsequent events may produce.
In other words, we do not get what it says on the tin, or necessarily what we are told we are likely to get. I am very sceptical, not just Eurosceptic. I question not the honesty of individuals, but the accuracy of their predictions. I therefore believe that this set of measures, as has been amply described by my hon. Friend the Member for Hertsmere and others in this debate, is hugely important, although not more important than any of the other provisions that are part of a continual stream of acquiescence in European integration.
Where the provisions speak of not allowing measures to go through by way of opt-in, by imposing the requirement for some kind of parliamentary approval, I am well aware that we table amendments, we argue the case, we have a European scrutiny process, we go through it in detail, it has been universally applauded by Ministers and people throughout the land-
Mr Jenkin: Except the BBC.
Mr Cash: Except the BBC, as my hon. Friend says, because it has not given any attention to the legislation.
The process has received a great deal of enthusiastic support, except when it comes to the votes. For all the flattering remarks made periodically about the members of the Committee and dedication and determination that they have applied, nothing happens. We do not get any of our amendments through and the Chamber is virtually empty. There is one assiduous Member on the Opposition Back Benches. I pay tribute to the hon. Member for Birmingham, Edgbaston (Ms Stuart). She has the seat which, I think, used to be Birmingham, Central in the 1880s. She was not around at the time, but she is carrying forward a fine tradition of ensuring proper scrutiny. Her predecessors in that seat were assiduous in ensuring that the interests of the people of Birmingham were well looked after. I pay tribute to her not only for the fact that she is here today on her own on the Opposition Back Benches, but that she is taking an active part.
Ms Gisela Stuart: I have no idea who held the seat in the 19th century, but I am encouraged, on matters European, that someone born near Munich now has Neville Chamberlain's old seat.
Mr Cash: That is an interesting insight. However, I shall not follow the hon. Lady down that route as it would take me into area in which I have a great deal of interest. The hon. Lady tempts me, but she will not succeed on this occasion.
I return to my concerns. I do not mean this as personal criticism of the Whips. They have a job to do. They are told what to do. It is part of a policy, and the question is whether we want this set of provisions on family law, criminal procedure, serious crime with cross-border dimensions and so on to be implemented at all. The problem we have relates to a decision whether to opt in. We should not be contemplating it. That is the problem. With great respect to my hon. Friends, I am not criticising; I am simply making a point.
I am concerned that we might congratulate the Government a little too much on their restraint in relation to giving approval by way of Act of Parliament or some motion, which, as my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) said, really amounts to no more than a resolution. After getting past what I call the pas de deux of the opt-in, we then move downstream into the question of whether the Whips would allow the vote to go the wrong way. We have already had the example of the opt-in in relation to the investigative order. We know from my hon. Friend the Member for Hertsmere that there are 40 such opt-ins on the way. This is the Europeanisation of our criminal system-
Mr Clappison: And civil.
Mr Cash: -and civil. Let us not get carried away by a few bits of paper and a few words in a Bill. They say that there will be restraint by way of approvals given by the House, but we know the realities. In relation to the opt-in on the investigative order-I think it was on 15 June, shortly after the general election-it can fairly be said that the Minister believed that she had to make that decision because, I think I am right in saying, there was a three-month period within which the decision had to be made. Perhaps there was some justification for the fact that she had to make the decision, but why did she make the decision to opt in? Why did she not make the decision not to opt in? That is my concern.
I plead with hon. Members not to be taken in by the effusions of reservation that emerge in letters, statements and the Bill. Right at the heart of this is the real question of whether we will end up with more Europeanisation of these matters, and the answer, emphatically, is yes. Chris Heaton-Harris: I am sure that my hon. Friend is aware of the findings of the German federal constitutional court, which protects these matters for that country. In one judgment it said:
"Securing legal peace by the administration of criminal law has always been a central duty of state authority…To what extent and in what areas a polity uses exactly the means of criminal law as an instrument of social control is a fundamental decision. By criminal law, a legal community gives itself a code of conduct that is anchored in its values, whose violation is, according to the shared convictions on law, regarded as so grievous and unacceptable for social existence in the community that it requires punishment."
It is desperately trying to protects its laws as well. Mr Cash: I am so glad to hear that. I was not precisely aware of that part of the judgment, but my hon. Friend has made an important and helpful comment. The argument is right, and it is by dint of the most awful experience in Germany that it has come to these conclusions over an extended period since 1945. It is vigilant about these matters because it does not want ever again to find itself in the circumstances in which it found itself by virtue of a lack of democracy when Hitler ran Germany. I have an absolute belief in the democratic instincts and principles of the British people, which have been born out of not only fighting that very Germany, but also previous wars, right the way back to at least the 17th century. We have built up a democratic system in which we decide what the legislation should be, and we give it careful consideration. We need some parliamentary reform. We are being given the impression that in relation to these matters we will be able to retain our criminal system, but unfortunately, because of the Whip system and the whole direction of Europeanisation, that will be removed by what will happen in practice. As helpful as all these procedures are in indicating the direction in which they might like to go in certain circumstances, I fear that we will have many opt-ins and that, in practice, the proposed procedures will be applied and the Whips will ensure that the measures go through.
I will give the European investigation order as an example. It is still subject to European scrutiny and there will be a debate on it-I cannot remember when-despite the fact that it was decided on 15 June last year. That is because the European Scrutiny Committee had not been set up by that time, but the rules still applied to that order. There will be a debate on that matter, but when it is debated, which in effect is the same kind of thing that the Minister refers to about parliamentary approval, up to a point, there will no doubt be a take-note motion-I cannot remember the precise motion- before the European Committee. The reality is that not once in the 26 years I have watched these matters has a decision of a European Committee not to take note, following a vote that went against a Minister, not been reversed on the Floor of the House by the use of the Whips. Why should I be confident that-
Mr Clappison: My hon. Friend has made some powerful points that are entirely borne out by my much lesser experience of the European scrutiny system. In the case of the European right to information order, which is another opt-in, the most we can do is vote against it in the relevant European Committee so that it comes back for a vote on the Floor of the House, but that is merely a deferred division on whether to take note of the document. We do not have the opportunity to say no to the opt-in. Is that his experience? We must have that option in the future if the Minister is to make good the promise, made in the statement of 20 January, that we will have the opportunity on a vote on the Floor of the House to say no to an opt-in.
Mr Cash: That is such a good example. In fact, I was in that debate with my hon. Friend-I was unable to vote in the Committee but took part in the proceedings. The reality is that that is how the system works in practice. This is about criminal law, but it is the same for everything else in the Bill. All the treaties, including all the laws, the entire encyclopaedia, all the work that is done in all the Departments and cross-departmental work-the whole country-are being run by a process of continuous European integration. The question is whether it is good for us or not. It is as simple as that, and that is a matter for us to judge.
However, because of the way policy is made, and with the help of the coalition, we are told that the Government think it is good for us. I do not agree, and I think that there are many other Members, and certainly many more people outside, who agree with what I have just said. Although the debates have been conducted with great courtesy and a great deal of substance on both sides of the argument, the real question is about what has happened. The short answer is that the Bill will go through and that we will put up a fight again in another motion under the arrangements proposed in clause 9, but in practice the process I have described will continue to happen. Ms Stuart: At the risk of being accused of encouraging the hon. Gentleman, I must say that when Ministers are terribly courteous it is usually an indication that we are not getting anywhere. The first rule of politics is that until they are rude, we are not getting anywhere. The real problem is that the UK Permanent Representative to the EU is politically unaccountable. My ultimate plea is to have the UKRep stand here once a week, as the Deputy Prime Minister does, and be politically accountable for the negotiations and deals that are done at Brussels. Until we have that, all this is- The First Deputy Chairman: Order. The hon. Lady's comments are going much wider than the amendments currently before us. I believe that there is sufficient meat in the amendments. Mr Cash: I am grateful for that, Mr Evans, because otherwise the hon. Lady might have tempted me yet again. She knows my soft point, and she knows very well that it would not take me long to get going on that issue, either. But, she is right.
I have tabled a number of amendments, but I do not intend to press them to a vote, because we have had a thoroughly good debate, and I, like my hon. Friend the Member for Hertsmere, think that further consultation between the Minister, his officials, the European Scrutiny Committee and our Clerks might help to ensure that we get the maximum out of the provisions, even if they do not really measure up.
In any case, we know what happens in our votes; we have watched them now for about a week. On one occasion, we reached 45 genuine-as I call them- abstentions. By the way, Mr Evans, your name appeared on one list, but I said, "No, he's Chairman of Ways and Means; this is not somebody you can count in." Anyway, on parliamentary sovereignty we had between 45 and 50 such abstentions, which is quite a lot, but it is not anything like as many as the number of Members who rather agree with us in the broadest sense. I shall not go down that route, but what happens in votes is not very edifying. We do not win votes, because people are being told to vote in a way that is inconsistent with what they think, and that is another democratic problem.
Amendments 99 and 98 are mischievous, simply because they were tabled only to demonstrate my concern, which I have just raised, that opt-ins should not be allowed under any circumstances. On amendment 47, however, regarding the harmonisation of criminal offences and sanctions, my hon. Friends the Members for Esher and Walton, for Hertsmere and for Daventry are right. I am reluctant to adopt a default position, but for the purposes of debate I want to get out into the open something that concerns me, because the harmonisation of criminal offences and sanctions, on which I dare say books could be written, ought to be as restricted as possible.
Article 83(2) of TFEU, as I state in amendment 47,
"permits the establishment by directive of minimum rules with regard to the definition of criminal offences and sanctions in an area subject to harmonisation measures by the same ordinary or special legislative procedure as was followed for the adoption of the harmonisation measures in question."
In a nutshell, I should like that to be one of those measures-from the written statement to which the Minister has referred-that ought to be discussed properly.
Let us think about what the harmonisation of criminal offences and sanctions affects and what its consequences are for the people whom we are elected to represent. If I cannot win the vote on my desire to throw out the whole measure, my minimum default position, however cynical and unhappy I am about opt-ins anyway, is to attempt to include it in the arrangements that the Government have provided.
Those are my thoughts on this group of amendments and on my amendments. If I sound a little concerned about them, I hope that Members will understand. As my hon. Friend the Member for Esher and Walton said, I see the provision under discussion as an enormous step. I am not sure that it is beneficial, because it assumes that there will be opt-ins. There are 30 or 40 of them, and there have already been eight in the past few months. The trend exists, and I do not see anything holding back the tsunami. Indeed, I see the tsunami being built up, and that is not in the interests of the democratic principles by which this House is elected.
…
Mr Lidington: … If my hon. Friend the Member for Hertsmere looks back to the debates on the Lisbon treaty, he will remember that he and I walked through the same Lobby, day after day, in opposition to that treaty. My recollection is that we had at least one day when we talked entirely about justice and home affairs matters. He knows the view that I took as a Front Bencher in a Conservative Opposition. I would much rather be either a member of or supporting a Conservative-Liberal Democrat coalition than spend another Parliament sitting fruitlessly in opposition, seeing measures being taken through the House to which I was vehemently opposed but which I was powerless to stop.
Mr Cash: My right hon. Friend is getting on to a very sensitive point, and I quite understand the sensitivities involved. When I wrote to my right hon. Friend the Prime Minister on 10 May last year about the coalition agreement, I specifically stated that, if there were to be a coalition-I had made it clear that I would have preferred a minority Government-it was essential that the Liberal Democrats should at least be required to abstain on matters relating to the European Union, for all the reasons that my hon. Friend the Member for Hertsmere (Mr Clappison) has just given. That is the problem, and we are now finding ourselves in an impossible dilemma. In fact, I would say that the situation is untenable.
…
The Chairman of Ways and Means (Mr Lindsay Hoyle): With this it will be convenient to discuss the following:
Amendment 82, page 8, line 16, at end add-
'(6A) A Minister of the Crown may not make a formal decision as to whether to exercise the right of the United Kingdom to make a notification to the Council under the terms of article 10(4) of the Protocol (No 36) on Transitional Provisions annexed to TEU and TFEU, unless-
(a) the decision is approved by Act of Parliament, and
(b) the referendum condition is met.
(6B) The referendum condition is that set out in section 3(2).'.
Amendment 83, page 8, line 16, at end add-
'(6C) A Minister of the Crown may not make a formal decision as to whether to exercise the right of the United Kingdom to make a notification to the Council under the terms of article 10(4) of the Protocol (No 36) on Transitional Provisions annexed to TEU and TFEU, unless the decision is approved by Act of Parliament.'.
Amendment 84, page 8, line 16, at end add-
(6D) A Minister of the Crown may not give a notification under Article 10(5) of Protocol (No 36) on Transitional Provisions annexed to TEU and TFEU that the United Kingdom wishes to participate in an Act that has ceased to apply to it pursuant to Article 10(4) of that Protocol, unless the notification in respect of the Act has been approved by Act of Parliament.'.
Mr Jenkin: Amendments 82, 83 and 84 concern what the Minister set out in a statement last week, in which he described the arrangements for the Government to give formal notification of whether they wished the UK to opt out of certain justice and home affairs matters by 31 July 2014. He made it clear in the statement-I think this is welcome-that the Government intend to allow the House of Commons and the other place to table a formal resolution to approve or disapprove of the action the Government take in these matters.
While we are listening to this debate, it is worth reminding ourselves of the magnitude of what we are talking about: a complete rearrangement of the civil and criminal legal system of our country that will move the whole civil and criminal system on to an entirely new basis. I hear what my right hon. Friend the Minister says about the number of advocates-general and about maintaining four judges in the European Court of Justice who represent common law jurisdictions, but that is a completely meaningless reassurance in the face of all the other judges and the history of the jurisprudence of the European Court of Justice, which simply is not interested in the common law basis of the jurisdictions of its member states.
Having fought against the Lisbon treaty in principle and most particularly on the basis of its potential to interfere in the criminal and civil law of this country, it is astonishing that the Government, since the election, have, for example, approved the directive establishing the European investigation order. Let us be clear: that allows another member state to oblige the United Kingdom to carry out almost any investigative action in the UK, including searching a house, intercepting telephone calls and obtaining DNA for the purpose of criminal proceedings in the requesting member state. The UK has supported the directive on the right to interpretation and translation of criminal proceedings, ceding jurisdiction in that area to the European Court of Justice. This all happened before the European Scrutiny Committee was sitting, so it was all unscrutinised by this House. Any weasel words from the Government about strengthening the scrutiny of the House of Commons should carry a health warning. The Government have decided to opt in to the Council decision on the conclusion of an agreement between the European Union and Georgia on the readmission of persons residing without authorisation, which makes binding on the UK as a matter of European Community law an international agreement between the EU and Georgia and means that the UK cannot conclude its own readmission agreement with Georgia, should it wish to do so. I just point out that had any of those decisions been in an international treaty outside the European Union's jurisdiction, they would have required an Act of Parliament, but these things are done by the stroke of a Minister's pen under the powers in the European Communities Act 1972.
Mr Cash: I am sure that my hon. Friend will recall what the Minister said about the European Affairs Committee of the Cabinet, and the fact that we have two thirds Conservatives and one third Liberal Democrats. For practical purposes, there cannot be a vote; otherwise, if we were to comply with our manifesto commitments, we would win the vote every time. It must be, therefore, that the Government are willing to agree with the Liberal Democrats' proposals, which makes it even worse. …
Mr Clappison: My hon. Friend is making an excellent speech and some telling points. Does he agree that the EU is being honest about what it wants to do? It wants, en bloc, to create an area of freedom, security and justice, and to have EU authority over that whole bloc. It is not a question of our Government looking judiciously at the odd measure here or there and whether things will be made better or not. We are confronted with an attempt by the EU to carve out jurisdiction across the piece in the area of freedom, security and justice. That is its stated ambition.
Mr Jenkin: My hon. Friend is absolutely right. We are going into this with our eyes wide open, except that this Bill has its eyes wide shut. The Bill pretends that there is no decision to be made between now and 2014 about this momentous change to our criminal justice system and the way the law is conducted in this country-to the protection that Parliament can currently afford to UK citizens but is now already being eroded.
So I have tabled a series of amendments. There are some choices for the Minister, and I would be interested to know which he prefers. Amendment 82 would mean that the Government have to gain the approval of a referendum before they decide that the UK should not opt out of these laws. Amendment 83 would require the approval of at least an Act of Parliament for the Government to do so. Amendment 84 is quite modest; it would require an Act of Parliament before the Government could opt back in to any of the laws that had ceased to apply following the 2014 opt-out decision.
This is a question of more or less power being transferred to the EU, which would fundamentally alter our criminal justice system, but it is being left entirely up to Ministers. Mr Cash: In the light of my hon. Friend's intelligent observations, does he also agree that the process of Europeanisation, not merely by default, but by activism, despite our manifesto and despite the common sense and the wishes of the people at large, who vote for us by the way, will mean that we increasingly hand ourselves over to an entity, a European Union, not Europe, which is manifestly failing on all fronts, with protest, riots, the whole place imploding-Greece, Spain, Portugal, Italy and Ireland? The whole situation is moving entirely in the wrong direction. That is the big landscape, and that is where the Bill fails.
…
Chris Heaton-Harris: I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 82, in clause 9, page 8, line 16, at end add-
'(6A) A Minister of the Crown may not make a formal decision as to whether to exercise the right of the United Kingdom to make a notification to the Council under the terms of article 10(4) of the Protocol (No 36) on Transitional Provisions annexed to TEU and TFEU,
unless-
(a) the decision is approved by Act of Parliament, and (b) the referendum condition is met.
(6B) The referendum condition is that set out in section 3(2).'.- (Mr Jenkin.)
Question put , That the amendment be made.
The Committee divided: Ayes 26, Noes 313.
