European Union (Amendment) Bill

I want to take a close look at the impact of the extremely good amendment in relation to the way in which we legislate in the House. In particular, I want to focus on subsections (4) and (5), and to try to draw out the fact that I believe there to be somewhat more at the heart of this than seems to have been apparent so far. I have alluded many times to the manner in which the whole of the legislation that leads us to this specific focus arose. It arose from a mandate. The proper discussion with the European Scrutiny Committee that usually takes place in these treaty-making arrangements did not take place this time, because the House and the European Scrutiny Committee were bounced when the German presidency put together a mandate, at extremely short notice, in order to wriggle out of the mess that the original constitutional treaty had got into. I shall not trespass on your patience, Sir Michael, with respect to the relevance to the amendment of what I am going to say, but I want to make this point clearly. A vast amount of European legislation is made through statutory instruments—far more than Members of the House appreciate, and far more than is made by Acts of Parliament. Contrary to what the Liberal Democrat spokesman said just now, the powers that are given to enable those statutory instruments to be made in respect of European legislation have the character of Henry VIII clauses, because there is a power to use the statutory instrument procedure to modify Acts of Parliament under section 2 of the European Communities Act 1972. In other words, this is an explosive provision, because within it lies the power to generate amendments that could lead to amendments of Acts of Parliament. I think that the Minister, who I am sure has been properly briefed, will know exactly what I am saying. This is a huge Trojan horse and a very substantial incubus within which Acts of Parliament will be affected and amended. This mandate is used to describe negotiations between member states’ Governments with a view to amending those treaties—that is, all the existing treaties. As we have already heard, the transmutation of arrangements under the European Communities and their conversion into the Union is much bigger than it might seem at first sight. The power to make statutory instruments to modify existing Acts of Parliament in pursuance of sections 2 and 3 of the European Communities Act 1972 is mutually interdependent with the change that took place, as I shall explain. The mandate suggests an amending treaty that would amend, but not replace, the EU and EC treaties. The latter treaty would be renamed the treaty on the functioning of the Union, as we discovered in previous debates, but the word ““Community”” would be replaced by the word ““Union””, with the Union having a single legal personality and replacing and succeeding the Community. That is one of the reasons, as I explained previously to the hon. Member for Wolverhampton, South-West (Rob Marris), why the treaty has a constitutional character. By replacing and succeeding the Community, as my right hon. Friend the Member for Wells (Mr. Heathcoat-Amory) explained—I backed him up in my interventions—the pillars get changed, so there is a constitutional change. It is directly relevant to our discussion about affirmative or negative resolutions and directly relevant to the way in which the House legislates, as I shall explain more fully later. The mandate argues that the amended treaties"““would not have a constitutional character””." However, the European Scrutiny Committee made the position absolutely clear through its expert legal adviser, to whom I pay tribute again for his work. For, as the Committee went on to say, ““this could be misleading””. If the effect of the changes is to bring about the collapse of the pillars, which we know it is, with established doctrines of Community law such as direct effect, exclusive external competence and a full jurisdiction for the European Court of Justice, the change is, as I said in previous debates over the past few weeks, substantial and constitutional. In other words, there is a substantial equivalence between the original constitution and the one that we are now debating, which would bring what is done intergovernmentally within the more supranational framework of the Community method. That poses an enormous constitutional question. It may sound difficult; it may even sound boring; it may be turgid; it may be arcane, as my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) mentioned; but it is significant. I listened with fascination to the way in which the Government and Labour Members attempt to elide and slide over those questions. The reason for having a referendum is contained in this whole body of law that I have described, this Community method, this fundamental constitutional change in how we are governed—and its direct impact on the daily lives of our constituents who vote for policies and laws in general elections. Those people will find—and have already found by virtue of previous European legislation—that they are effectively excluded from the democratic process because they cannot change it subsequently. For all that to be done by a statutory instrument is proof of the significance of what I am saying. People outside will not believe that legislation can be properly discussed in respect of the tens of thousands of statutory instruments or amended in respect of Acts of Parliament. If a statutory instrument has the power to modify Acts of Parliament as well, I am sure you would understand me, Sir Michael, if I said that the incubus whereby a statutory instrument effectively becomes an Act of Parliament is of immense constitutional significance. [Interruption.] I hear the hon. Member for Wolverhampton, South-West saying that it is not. I am always more than happy to give way and I would be delighted to hear his reasoning. When he hears what I have to say later, perhaps he will reflect on it, but I am happy to give way to him now.