European Union (Amendment) Bill

It is like ““The Devil Rides Out””, but the devil is in the detail. Instruments subject to negative resolution procedure become law unless there is an objection from the House. The instruments are laid in draft and cannot be made if the draft is disapproved within 40 days. That is significant because it is not possible under the 1972 Act to disapprove a draft; one is not allowed to as a result of the implications of sections 2 and 3 of that Act. Clause 3(5) of the Bill states:"““An order under subsection (4)—""(a) may include incidental provision""(b) shall be made by statutory instrument, and""(c) shall be subject to annulment in pursuance of a resolution of either House of Parliament.””" That is nonsense. It is quite clear that such an order cannot be made if the draft is disapproved within 40 days. It is not, however, possible for the House to disapprove it because of sections 2 and 3 of the 1972 Act, so this provision in the Bill is a complete nonsense. I would like the Minister to address that point. It has taken me quite a long time to reach it, but it must be right because I am referring to a House of Commons factsheet. It states that statutory instruments that are subject to the negative procedure"““cannot be made if the draft is disapproved within 40 days””," but there is no power to do that under the 1972 Act—which, incidentally, is part and parcel of the entire operation of the Lisbon treaty. Therefore, as I have said, this provision is complete nonsense. It would be preferable for the instruments to be subject to affirmative procedure, because under those arrangements instruments cannot become law unless they are approved by both Houses. I say with due deference to my right hon. Friend the Member for Wells that although I agree that it is important for us to have something better than the negative procedure, the reality is that even if we have the affirmative procedure and do not use primary legislation, we will run straight into the problems of the acquis communautaire and the 1972 Act. Furthermore, even primary legislation can be overridden—which is why I tabled new clause 9 on the supremacy of Parliament. Therefore, we are in a fine old mess, and I do not think it is possible for people to appreciate quite how much power has drained away from this House. There is a body called the Joint Committee on Statutory Instruments; I have served on it. There is also a new Lords Committee on the Merits of Statutory Instruments. It was first appointed in December 2003, and it complements the work of the Joint Committee. The merits Committee’s task is to consider the policy implications of statutory instruments and to decide whether a statutory instrument should be drawn to the House of Lords’ attention on certain grounds, including"““that it is politically or legally important or gives rise to issues of public policy likely to be of interest to the House””" and"““that it inappropriately implements EU legislation””." Therefore, in relation to the provisions under clause 3, it can ask whether any instruments inappropriately implement EU legislation. I do not, however, believe that it will ever say that any instrument does do so inappropriately. I dispute the primacy of European law, as do many of my colleagues—more than 40 Members have signed my amendment on supremacy, and many others of all parties agree. The arrangements stipulated in relation to the primacy of European law—asserted by the European Court of Justice and weakly accepted by our Government and other Governments—even assert powers over our constitutional rights. They must be rebutted. I regret having had to explain this situation at some length, but it is important to understand that my speech has not been just a European filibuster or a Eurosceptic rant. It is about the way we legislate under the procedures prescribed in clause 3, the inadequacy of the control that we have over them, and the inability to be able to deal with European legislation in many instances because of sections 2 and 3 of the 1972 Act. It is therefore necessary for us to reassert in practical terms—not just as a matter of general principles or abstractions, or in theological dissertations—how we can ensure that where negotiations have failed, we legislate on behalf of the voters of this country, so as, in relation to burdens on business for example, to guarantee economic competitiveness in the manner suggested by the current leader of the Conservative party.