European Union (Amendment) Bill

I rise as a non-lawyer to trespass on a series of legal minefields. I recall the line in one of Shakespeare's history plays when at the start of a riot, Dick the Butcher says:"““The first thing we do, we kill all the lawyers””," not a course of action that I would recommend, if only on account of my hon. Friend the Member for Stone (Mr. Cash) in his place behind me and the kind welcome given to my new clause 5 by the hon. Member for Cambridge (David Howarth), my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve) and, indeed, the right hon. Member for Leicester, West (Ms Hewitt), who has just concluded. It seems that my modest proposal has gained a degree of cross-party alliance, which I hope will commend it to the Minister when he replies. Before I speak to my new clause, let me touch on amendment No. 13, which I strongly support. It is wrong for this Parliament to be placed under any sort of legal obligation by a treaty, so the wording is very important. The word ““shall”” persists in the article on the role of national Parliaments, so we shall be required to co-operate with the European Parliament and other Parliaments and one can envisage a situation in future when we may wish not to co-operate. It is risky for the legal obligation to apply, particularly when disputes are decided by the European Court of Justice—an activist, interventionist and centralising Court that takes it cue from the existing requirement for ever closer union. Indeed, I have already drawn attention in an earlier intervention to a new requirement in the treaty whereby the Court as an EU institution will have to practise ““mutual sincere cooperation””, not with member states or national Parliaments but with the other institutions of the EU, including the European Parliament. hat seems very dangerous. The wording in article 8C has been modified, and the word ““shall”” has been taken out—although not in the French version, as my hon. and learned Friend the Member for Beaconsfield noted. That simply creates confusion and ambiguity. It is worth reading out the sentence from the European Scrutiny Committee report on that:"““Given its constitutional significance, we must emphasise that this is not an area in which any ambiguity is tolerable and we shall look to the Government to ensure that its original undertakings are met in any new text.””" It is interesting that the Committee described the matter as of constitutional significance, because it undermines the Government's attitude that the treaty has been downgraded from a constitution to simply an amending treaty. Ambiguity is not tolerable. Whether it is from feebleness of negotiation or from a deliberate belief that national Parliaments should be part of a European legal order, the Government failed in that respect. It seems to me—again, as a non-lawyer—that the phrase in article 8C cannot simply be descriptive and refer to a state of affairs whereby national Parliaments contribute to the functioning of the European Union. This is a legal text. It is designed to create obligations and responsibilities. It is not a text from an observer status. It is designed to do something—to change things—and it is almost certain that the drafters regarded it as conferring a new obligation. That is what the Court, in my view, will follow. It is right that the Government return to the matter and at least give an account of why they did not discharge their original undertaking to the European Scrutiny Committee to remove the ambiguity completely by inserting the word ““may”” rather than ““shall””. New clause 5 would reinstate a requirement that was in the original European Union Bill to make the Government justify all new EU proposals on grounds of subsidiarity. It would add conferral and proportionality to those grounds. However, it is a reinstatement, because that Bill, which received a Second Reading in 2005 and was withdrawn only when the French and Dutch referendums destroyed the constitutional treaty, contained a similar clause. Is it not appropriate to reinstate that proposal? That is the force of my new clause. I should say at once that I have no real faith in the subsidiarity principle. The European Scrutiny Committee, of which I am a member, sees many proposals that are pretty clear breaches of subsidiarity, which is the principle whereby the European Union legislates only when the action in question has to be taken, or can only be taken properly, at EU level and cannot be done adequately at national level. Almost at random from my file, I pulled out proposals that came to the Committee. One, of a year or two ago, proposed action at EU level on violence at work. That is obviously a serious problem and we all want to deal with it, but it was not clear why the EU should legislate on that when it was clearly a breach of the subsidiarity principle. We corresponded at some length on that. What is interesting is that the Commissioner at the time, Commissioner Dimas, justified EU action on the grounds of"““awareness raising, information, exchange of good practice and practical guidance.””" If those are the reasons to justify EU action, there is no policy area in which such action could not be justified as there is always scope for the exchange of good practice. Another legislative proposal to come before the ESC was for a programme to counter violence against children. Again, the Committee wondered what added value was supplied by adopting an EU-level approach, and we asked whether the proposal breached the subsidiarity principle. The answer was that the proposed action was intended to ““identify and disseminate”” best practice. A more recent example was rather topical, in that it was about the assessment and management of floods. The Committee wanted to know how river flooding in England was a matter for the EU. We asked what would be added by EU action but, again, it was never explained. The ESC suggested that some EU action could be appropriate when a river crossed the boundary between member states, and we noted that there was such a river in Northern Ireland. However, that was not good enough for the EU, which was intending to tackle all river flooding, and the assessments thereof, by means of EU action that satisfied the subsidiarity principle. It is not difficult to see from those few examples that the principle of subsidiarity is almost meaningless. The detailed protocol on subsidiarity has been a feature of EU law for more than 10 years but, given the widespread breaches, I do not have much faith in the ability of the EU or the ECJ to police the system. The treaty contains one innovation. Its proposed yellow card system would allow national Parliaments collectively to object to a proposal for legislation on the grounds of subsidiarity. That proposal was advanced in the Convention on the Future of Europe as an extension of the rights of national Parliaments, but it was nothing of the kind. National Parliaments—and the ESC as well—already lodge objections on the grounds of subsidiarity. We never make any progress: for example, the EU was required only to review the yellow card proposal, but not to withdraw it. The British Government wanted a much stronger, red card system whereby a proposal would have had to be withdrawn if national Parliaments objected to a proposal on the grounds of subsidiarity. The system that we proposed failed, of course. If I may, Sir Alan, I should like to suggest the adoption of a new convention in our debates. When we objected to something in the Convention on the Future of Europe, the Government almost always ended up objecting to it too. The same thing continues to happen—although the difference is that we can maintain our objections, whereas the Government must pretend that they never had any. Well, we were all on the same side in the Convention on the Future of Europe: we failed, but the objection remains valid that the treaty contains no real, new powers for national Parliaments. We now have what is called the orange card system. The colour has been changed, but the proposal could almost be called a green card, or a green light, for all the difference it would make. Under the new system, if a majority of national Parliaments object to a legislative proposal on subsidiarity grounds, and if they are joined by a majority in the European Parliament, the proposal has to be reviewed and could be withdrawn. However, if so many people and national Parliaments object to a proposal, it will be withdrawn anyway, on other grounds. No proposal could succeed if it was opposed by a majority of member states and European parliamentarians. The subsidiarity principle is therefore largely meaningless, and it is certainly not much of a safeguard. Any case is to be decided by the ECJ, but no one can recall an occasion when the Court decided against a proposal on subsidiarity grounds. The question that needs answering is whether national Parliaments can object on the grounds of subsidiarity to the European Court of Justice, which is the supreme arbiter in the matter. Again, there is an ambiguity. The Committee that deals with European matters in another place raised it with the Government and received no clear answer. We do not know whether Parliament—or the Government—can make an objection on the grounds of subsidiarity. There are no additional powers for national Parliaments. Meanwhile, powers are haemorrhaging from Parliament upwards to the European Union in almost every aspect of policy. New clause 5 would require the Government to justify EU proposals not only on subsidiarity and proportionality grounds but on that of conferral. Conferral is the principle whereby the EU enacts only measures that national Governments and member states grant it the power to enact. The problem is that the division of powers between member states and the European Union in the treaty has been determined decisively in favour of the European Union. The principle of conferral, which provides that all powers remain with national Governments unless they have been conferred, has been overtaken by provisions that deal with exclusive and shared competences. The origins of those provisions go back to discussions on the Convention on the Future of Europe, where they were immediately perceived to be key matters. After all, constitutions divide powers—between states and the federal Government in the case of the United States, and between member states and EU institutions in the case of Europe. Those provisions have been included wholesale in the treaty of Lisbon and it is therefore a constitutional measure, whatever the Government say. When considering the Convention on the Future of Europe in 2002, a working group was set up to look into the matter. It produced a report, which was highly sympathetic to the position of member states, possibly taking its cue from the suggestion in the Laeken declaration that some powers should revert to member states. The working group examined and was critical of article 308, which is the flexibility clause—sometimes called the rubber article. It grants the power by unanimity in the Council of Ministers to create new powers that the treaty does not contain. That is highly controversial and means that the treaties, including the treaty of Lisbon, will not be limiting because article 308 endures in a slightly amended form in the new treaty. Any temporary Council of Ministers could agree to move into new territories and acquire new powers not seen by those drafting the treaty. The working group was critical, and that created consternation in the upper reaches of the convention—among the presidency and the secretariat, who ensured that none of the proposals appeared in the final document. Instead, the definition of shared competences endured. That definition is curious. Shared competence allows member states to legislate in many matters only if the European Union has not done so. To put it the other way around, as soon as the European Union legislates in any policy areas, member states lose their ability to legislate or decide. That is an odd definition of sharing. If I were to share a meal with someone on that basis, they could eat the lot and give me nothing yet claim that they had shared the meal. In truth, national Parliaments are given only a residual power to legislate. Nor is the list definitive or exhaustive. It specifies 11 policy areas, some of which—such as freedom, security and justice—are very general, but it also states:"““Shared competence… applies in the following principal areas””." That is the worst of all worlds. The article gives the European Union substantial new powers without limiting them in any way. My new clause applies here as well. It was not just me who objected to the wording; the Government objected to it, and we both lost. It is in the treaty. I can maintain my objection, but the Government must now defend what they regarded then as indefensible. Then there are the areas of exclusive competence, in which member states cannot legislate at all and the principle of subsidiarity therefore does not apply. We discussed fisheries yesterday, so I will not repeat those arguments, but competition policy has also been asserted as an area of exclusive competence, and my new clause applies to that too. The Government did not like the proposal. but it was approved. They lost, and now they must pretend that they do not mind it after all. International agreement is a significant new power for the European Union. When the negotiation and signing of international agreements becomes a matter of exclusive competence across policy areas such as the environment, transport, energy and crime, this country will not be able—and therefore this Parliament will be forbidden—to conclude or negotiate such agreements with third parties or international organisations. That is an enormous extension of the powers of the European Union. The exclusive competence and shared competence clauses have huge implications for the powers of the House, and also for the supremacy of EU law. Other new clauses in the group deal with the supremacy and I will allow my hon. Friend the Member for Stone to make the case for them later, but let me say now that supremacy is asserted not just in declaration 17, which takes the case law of the European Court of Justice and inserts it in a treaty, but through the shared and exclusive competences. I was puzzled when the hon. Member for Cambridge said that we were supreme in our own legal order but not in the European order. How can we be supreme in our own legal order when the national Parliament will be entirely and completely forbidden to legislate in areas of exclusive competence, and will be forbidden to conclude international agreements with third parties?