Formal Minutes

Wednesday 14 November 2007

Members present:

Michael Connarty, in the Chair
Mr Adrian Bailey
Mr David S Borrow
Mr William Cash
Mr James Clappison
Ms Katy Clark
Jim Dobbin
Mr Greg Hands
Mr David Heathcoat-Amory
Mr Keith Hill
Kelvin Hopkins
Mr Lindsay Hoyle
Bob Laxton
Angus Robertson
Mr Anthony Steen

1. Scrutiny of Documents

Draft Report, proposed by the Chairman, brought up and read.

Ordered, That the draft Report be read a second time, paragraph by paragraph.

Paragraphs 1.1 to 7.7 read and agreed to.

Paragraph 7.8 read, amended and agreed to.

Paragraphs 8.1 to 19.08 read and agreed to.

Paragraph 20 read.

Amendment proposed, in the Headnote,  to leave out the word “Cleared” and to insert the words “Not Cleared”.  - (Mr David Heathcoat-Amory.)

Question put, That the Amendment be made.

The Committee divided.

Ayes, 6

 Noes, 8

Mr William Cash

Mr Adrian Bailey

Mr James Clappison

Mr David S Borrow

Mr Greg Hands

Ms Katy Clark

Mr David Heathcoat-Amory

Jim Dobbin

Angus Robertson

Mr Keith Hill

Mr Anthony Steen

Kelvin Hopkins

 

Mr Lindsay Hoyle

 

Bob Laxton

Headnote agreed to,

Paragraphs 20.1 to 20.19 read and agreed to.

Paragraph 20.20 read amended and agreed to.

Paragraphs 21.1 to 22 read and agreed to.

Resolved, That the Report be the Second Report of the Committee to the House.

Ordered, That the Chairman do make the Report to the House

2. Oral Evidence

Rt Hon Lord Williamson of Horton GCMG CG gave oral evidence.

3. European Union Intergovernmental Conference: Follow-up report

Draft Report, proposed by the Chairman, brought up and read.

Draft Report, proposed by Mr William Cash, brought up and read as follows:

1. We reported on the Commission’s Opinion on the IGC for Reform Treaty and the Government’s White Paper on 2nd October. On the basis of that report, we took evidence on 16th October from the Foreign Secretary, having already taken evidence from the Minister for Europe. This evidence, far from allaying the concerns we had already expressed in our report of 2nd October, has increased our concerns in all respects and we also draw attention to what we said then about the lack of transparency and information marginalising the United Kingdom Parliament, which has characterised the negotiations and discussions leading to this Treaty.

2. We included in that report a derivation table comparing the substance of the Constitutional Treaty to the Reform Treaty. We concluded that “The new Treaty produced an effect which is substantially equivalent to the Constitutional Treaty” and we would add  that even where derivations or opt-outs for the United Kingdom have been sought by the Government that these do not provide anything like adequate protection nor guarantees for the United Kingdom, its electorate and its Parliament. This substantial equivalence, together with the substance of the Reform Treaty, and the merger of the existing treaties into a union amounts to substantial constitutional change warranting a referendum in accordance with the Government’s own criteria for referendums.

3. We also draw attention to the legal obligation which the Reform Treaty seeks to impose on our sovereign Parliament by the words of Article 8cEU, “National parliaments contribute to the effective functioning of the European Union”, to be taken with Article 9 of the Protocol on the Role of National Parliaments and Article 63.  In combination, these proposals have constitutional significance amounting to substantial constitutional change warranting a referendum in accordance with the Government’s own criteria for referendums.

4. The Foreign Secretary in his oral evidence on 16th October conceded that the Reform Treaty would collapse the so-called Third Pillar (police and judicial cooperation in criminal matters) so that QMV and co-decision would generally apply to Justice and Home Affairs with a corresponding increase in the powers of the Court of Justice and the Commission so that, through the application of Sections 2 and 3 of the European Communities Act 1972, our own courts and our own Parliament cease to be the ultimate source of law for our own electorate. This has constitutional significance amounting to substantial constitutional change in the Government’s own criteria for referendums.

5. The Reform Treaty, as compared to the Original Constitutional Treaty, requires a referendum of the electorate of the United Kingdom because it is the equivalent to the Constitutional Treaty, even if not the same. It is a distinction without a proper difference and, in the words of our 34th report, is "substantially equivalent to the Constitutional Treaty".

6. A referendum is required for the following constitutional reasons: the Reform Treaty with the merger of the TEC, based on the Treaty of Rome (which was the genesis of the European Economic Community), followed by the Single European Act on the one hand and the TEU (with its genesis in the Maastricht Treaty which deals with European government, followed by Nice and Amsterdam), on the other, into a Union with an overarching single legal personality and a self-amending text is "substantial constitutional change", even "fundamental change" in terms that warrant a referendum according to the government's own criteria.

7. The present Minister for Europe stated to the Foreign Affairs Select Committee on 12 September that a referendum would be required if a Treaty created "substantial constitutional change". The former Prime Minister stated that a new Treaty "should not be proposing the characteristics of a Constitution". The former Foreign Secretary stated to the European Scrutiny Committee on 7 June that the government was intending a Treaty "that was very different from the Constitutional Treaty". The correlation between the Constitutional Treaty and the Reform Treaty in terms of the specific provisions incorporated into the latter demonstrates that this statement can now no longer be substantiated. The government has also stated that a referendum would be required where there is "fundamental change" and where the structure of the relationship between the United Kingdom and the European Union is altered by virtue of the European Treaty. The fundamental nature, not only of the merger of the Treaties, but also the individual proposals in the Reform Treaty, alters the relationship by way of substantial, even fundamental, constitutional change. There are also specific provisions arising in respect of the Charter of Fundamental Rights, the Common Foreign and Security Policy, the legal obligations imposed on the united Kingdom Parliament, measures relating to the criminal law, and measures related to Title IV which are deeply contentious and would require specific exclusion from having effect in UK law which for the avoidance of doubt could only be achieved by excluding their effect by the use of a provision preceded by the words "Not withstanding the European Communities Act 1972". Such a formula would be essential but the government, by all accounts, would not be prepared to employ such wording, thereby putting the vital national interests of the electorate in jeopardy.

8. The Reform Treaty on all these tests requires a referendum. It would be a deceit of the electorate (even by the criteria for a referendum set out by the Government) to refuse to hold one, unless the Treaty itself was rejected by the Prime Minister before signature in December. Unless this occurs, refusal to hold a referendum would be a breach of trust with respect to the Reform Treaty (let alone past promises about the original Constitutional Treaty made in 2004) and would run clearly contrary to the assertions of the present Prime Minister that he is committed to restoring good governance, democracy and trust.

9. The accumulation of the existing Treaties since 1972 combined with the merger described above, has in itself culminated in such fundamental change as warrants a referendum. There are 27 million people who have not had an opportunity to express their view on our continuing membership of the European Union. The Labour government to its credit provided a referendum on continuing membership of the then European Economic Community, following its enactment of the Referendum Act of 1975. The present Government has already passed legislation authorising referendums in matters of constitutional change in relation to Scotland and Wales where devolution has given rise to the division of competencies as between Westminster and the respective legislatures of Scotland and Wales. The Reform Treaty itself makes provision for the division of competencies as between Westminster and the European Union and there is no justification for refusing to call a referendum on the Reform Treaty. This division of competencies, in respect of the European Union and in respect of devolution, is ultimately dependent upon legislation passed at Westminster (e.g. the ECA 1972 in respect of the European Union) and therefore, as in 1975, a referendum is not only justified but constitutionally appropriate and necessary no less than in the case of devolution.

10. Contrary to the assertions of the present Foreign Secretary, Parliamentary sovereignty is not diminished but actually is enhanced by the granting of a referendum by parliamentary enactment. The electorate and not Members of Parliament nor the Government are the ultimate source of parliamentary authority, sovereignty and democracy all of which Members of Parliament and members of the Government merely hold on trust subject to re-election at a general election every five years. This Reform Treaty and the merger of all the existing Treaties into a Union of European government, also contains a self-amending text which would effectively obstruct any future referendum arising out of a future IGC. All this clearly requires Members of Parliament to hand back to the voters an impartial question authorised by Parliament and across the political divide a decision in a referendum as to the manner in which the electorate as a whole wishes to be governed.

11. This Reform Treaty therefore must not be put into effect by a Prerogative Act of a former Prime Minister signing the Treaty and departing and then a new Prime Minister implementing into UK law the decision through the Whips in Parliament, without a referendum.

12. It would be a constitutional outrage, in the absence of a rejection of this Treaty to do otherwise.

13. The Reform Treaty has not yet been signed so that an opportunity for the Prime Minister and the Government to review the present decision not to have a referendum and even to reject the Treaty is still open. This is particularly the case as the decision expressed and the announcement made by the Foreign Secretary and the Prime Minister not to have a referendum has been taken prematurely. The European Scrutiny Committee is specifically charged by Parliament under its own standing orders to report on the political/legal importance of the proposed Reform Treaty and has not cleared the text (the opinion of the European Commission - COM(07)412). Moreover, this announcement is apparently in compliance with the so-called binding mandate of the Member States of the European Union of 19 June 2007. This certainly cannot constitutionally bind the Prime Minister, the United Kingdom Parliament or the electorate of the United Kingdom. The Government has erroneously accepted the Commission’s opinion on the ICG. The Committee therefore calls on the Government either to reject the Treaty or to hold a Referendum. This is on the basis that on both political and legally important grounds, the Government has misleadingly denied that the Reform Treaty is a Constitutional Treaty of the first order, amounting to substantial and even fundamental change to the Constitution of the United Kingdom and to the structure of the relationship between the United Kingdom and the European Community and the European Union.   The conduct of the Government and the deceitful manner in which this Treaty has been conducted calls to mind the words of John of Gaunt, “England, bound in with the triumphant sea... is now bound in with shame, with inky blots and rotten parchment bonds: that England, that was wont to conquer others, hath made a shameful conquest of itself.” It would appear that now only Parliament can retrieve this situation by authorising a referendum and the Committee calls on all Members of Parliament to pass legislation authorising a referendum on the Reform Treaty.

14. The Committee does not clear the Commission’s opinion on the IGC from scrutiny and, in consequence, having regard to our duty to Parliament under Standing Order 143, calls upon the Prime Minister to put down a motion for a debate on our report, which we insist should be a two-day debate on the floor of the House held in good time before the proposed signature of the Reform Treaty.

Motion made and Question proposed, That the Chairman’s draft Report be read a second time, paragraph by paragraph.-(Jim Dobbin.)

Amendment proposed, to leave out the words “Chairman’s draft Report” and insert the words “draft Report proposed by Mr William Cash”.-(Mr William Cash.)

Question put, That the Amendment be made.

The Committee divided.

Ayes, 4

Noes, 6

Mr William Cash

Mr Adrian Bailey

Mr James Clappison

Mr David S Borrow

Mr Greg Hands

Ms Katy Clark

Mr David Heathcoat-Amory

Jim Dobbin

 

Bob Laxton

 

Angus Robertson

Main Question put and agreed to.

Ordered, That the Chairman's draft Report be read a second time, paragraph by paragraph.

Paragraphs 1 to 7 read and agreed to.

Paragraph 8 read.

Amendment proposed in line 22, at end add “We regard this lack of communication and candour as vitiating the IGC process and regard this undermining of the United Kingdom Parliament as of itself so serious as to require the calling of a referendum by Parliament itself in the absence of the Government’s willingness to do so.” - (Mr William Cash.)

Question put, That the Amendment be made.

The Committee divided.

Ayes, 4

Noes, 6

Mr William Cash

Mr Adrian Bailey

Mr James Clappison

Mr David S Borrow

Mr Greg Hands

Ms Katy Clark

Mr David Heathcoat-Amory

Jim Dobbin

 

Bob Laxton

 

Angus Robertson

Paragraph agreed to.

Paragraph 9 read.

Amendment proposed, in line 5, at end add "Indeed, all legal obligations imposed on the United Kingdom arising under the Treaties derive exclusively from their implementation by the United Kingdom Parliament itself which enacted the European Communities Act 1972. As the United Kingdom Parliament is the sole source of legal authority, it cannot itself be placed under any form of legal duty by treaty, which is merely the creature of the prerogative and cannot displace the sovereignty of Parliament. This goes to the very heart of the constitution of the United Kingdom."€” (Mr William Cash.)

Question put, That the Amendment be made.

The Committee divided.

Ayes, 4

Noes, 7

Mr William Cash

Mr Adrian Bailey

Mr James Clappison

Mr David S Borrow

Mr Greg Hands

Ms Katy Clark

Mr David Heathcoat-Amory

Jim Dobbin

Mr Lindsay Hoyle

Bob Laxton

Angus Robertson

Paragraph agreed to.

Paragraphs 10 to 15 agreed to.

Paragraph 16 read.

Amendment proposed, in line 9 , at end add "Failure to achieve this would amount to substantial constitutional change, warranting a referendum in accordance with the Government's own criteria for referendums." €” (Mr William Cash.)

Question put, That the Amendment be made.

The Committee divided.

Ayes, 3

Noes, 8

Mr William Cash

Mr Adrian Bailey

Mr James Clappison

Mr David S Borrow

Mr David Heathcoat-Amory

Ms Katy Clark

Jim Dobbin

Kelvin Hopkins

Mr Lindsay Hoyle

Bob Laxton

Angus Robertson

Paragraph agreed to.

Paragraphs 17 to 19 read and agreed to.

A new paragraph €” (Mr David Heathcoat-Amory.) €” brought up and read, as follows:

"The Reform Treaty extensively modifies the existing EU Treaty provisions on CFSP and adds almost all of the proposals in the Constitutional Treaty. In particular, the limiting CFSP objectives are greatly expanded, and there is a new requirement for, "an ever-increasing degree of convergence on Member States' actions." An External Action Service is created, and QMV will apply when adopting proposals presented by the High Representative at the request of the European Council. A passerelle clause will allow for QMV in additional cases if the European Council agrees unanimously, but without the requirement for national parliamentary approval."

Question put, That the paragraph be read a second time.

The Committee divided.

Ayes, 5

Noes, 4

Mr William Cash

Mr Adrian Bailey

Mr James Clappison

Ms Katy Clark

Mr Greg Hands

Jim Dobbin

Mr David Heathcoat-Amory

Bob Laxton

Angus Robertson

Paragraph agreed to.

Paragraph 20 (now paragraph 21) read.

Amendment proposed, in line 3, to leave out from "that" to end of paragraph and insert the words, "the provisions in the Treaty which provide for a more centralised and integrated CFSP must call into question whether Declaration 30 will in practice be sufficient to maintain the independence of the UK's foreign and security policy and the intergovernmental character of decision making".€” (Mr. David Heathcoat-Amory.)

Question put, That the Amendment be made.

The Committee divided.

Ayes, 4

Noes, 6

Mr William Cash

Mr Adrian Bailey

Mr James Clappison

Ms Katy Clark

Mr Greg Hands

Jim Dobbin

Mr David Heathcoat-Amory

Mr Lindsay Hoyle

Bob Laxton

Angus Robertson

Paragraph agreed to.

Paragraph 21 to 26 (now paragraphs 22 to 27) read and agreed to.

Paragraph 27 (now paragraph 28) read.

Amendment proposed, line 14, at end add "We also believe that to avoid any doubt that the Charter would extend to enable any court to strike down UK law that the Government must include in any Bill implementing these provisions the words "notwithstanding the European Communities Act 1972" so that no UK or European Court could apply the Charter as against UK law."€”(Mr William Cash.)

Question put, That the Amendment be made.

The Committee divided.

Ayes, 4

Noes, 7

Mr William Cash

Mr Adrian Bailey

Mr James Clappison

Ms Katy Clark

Mr Greg Hands

Jim Dobbin

Mr David Heathcoat-Amory

Kelvin Hopkins

Mr Lindsay Hoyle

Bob Laxton

Angus Robertson

Paragraph agreed to.

Paragraphs 28 to 40 (now paragraphs 29 to 41) agreed to.

Paragraph 41 (now paragraph 42) read.

Amendment proposed, in line 6, at end add "Failure to include such words as we have recommended in the Protocol would amount to substantial constitutional change requiring a referendum in accordance with the Government's own criteria for such referendums. Furthermore, we therefore insist that to avoid any doubt that the Charter would extend to enable any court to strike down UK law that the Government must include in any Bill implementing these provisions the words "notwithstanding the European Communities Act 1972" so that no UK or European Court could apply the Charter as against UK law."€” (Mr William Cash.)

Question put, That the Amendment be made.

The Committee divided.

Ayes, 4

Noes, 5

Mr William Cash

Mr Adrian Bailey

Mr James Clappison

Ms Katy Clark

Mr Greg Hands

Jim Dobbin

Mr David Heathcoat-Amory

Bob Laxton

 

Angus Robertson

Paragraph agreed to.

Paragraphs 42 to 53 (now paragraphs 43 to 54) agreed to.

Paragraph 54 (now paragraph 55) read, amended and agreed to.

Paragraphs 55 to 64 (now paragraphs 56 to65) agreed to.

Paragraph 65 (now paragraph 66) read.

Amendment proposed, in line 11, at end add, “This amounts to substantial constitutional change requiring a referendum in accordance with the Government’s own criteria for referendums.”- ( Mr William Cash.)

Question put, That the Amendment be made.

The Committee divided.

Ayes, 4

Noes, 5

Mr William Cash

Mr Adrian Bailey

Mr James Clappison

Ms Katy Clark

Mr Greg Hands

Jim Dobbin

Mr David Heathcoat-Amory

Bob Laxton

 

Angus Robertson

Paragraph agreed to.

Paragraphs 66 to 68 (now paragraphs 67 to 69) agreed to.

Paragraph 69 (now paragraph 70)  read.

Amendment proposed, in line1, line 12 to  leave out “may” and  to insert “will”.  - ( Mr William Cash.)

Question put, That the Amendment be made.

The Committee divided.

Ayes, 4

Noes, 7

Mr William Cash

Mr Adrian Bailey

Mr James Clappison

Ms Katy Clark

Mr Greg Hands

Jim Dobbin

Mr David Heathcoat-Amory

Kelvin Hopkins

 

Mr Lindsay Hoyle

 

Bob Laxton

 

Angus Robertson

Another Amendment proposed, in line 3, leave out from “justice” to end of paragraph and insert the words, “For the reasons given in Paragraph 65,  we believe that the whole question of the red line in relation to Justice and Home Affairs is profoundly unsatisfactory and amounts to substantial constitutional change such as to require a referendum in accordance with the Government’s own criteria for referendums.” at end add “The Committee notes that this abolition of the third pillar would be irreversible, as it reflects vitally important aspects of UK criminal law and procedure where in future, the UK does participate in such JHA measures and under ECA 1972 would be legally binding on the UK. It is therefore essential to reject these provisions as they stand.” -( Mr William Cash.)

Question put, That the Amendment be made.

The Committee divided.

Ayes, 4

Noes, 5

Mr William Cash

Mr Adrian Bailey

Mr James Clappison

Ms Katy Clark

Greg Hands

Jim Dobbin

Mr David Heathcoat-Amory

Bob Laxton

Angus Robertson

Paragraph agreed to.

Paragraph 70 (now paragraph 71) read.

Amendment proposed, in line4, at end add "This lack of candour has vitiated the entire process of the Reform Treaty such as to require a referendum to be insisted upon by Parliament itself in the absence of the Government's willingness to do so."€” (Mr William Cash.)

Question put, That the Amendment be made.

The Committee divided.

Ayes, 4

Noes, 5

Mr William Cash

Mr Adrian Bailey

Mr James Clappison

Ms Katy Clark

Greg Hands

Jim Dobbin

Mr David Heathcoat-Amory

Bob Laxton

Angus Robertson

Paragraph agreed to.

Paragraph 71 (now paragraph 72) read.

Amendment proposed, in line 4, at end add "Failure to remove such ambiguity would amount to substantial constitutional change for the reasons given in Paragraph 16 such as to require a referendum in accordance with the Government's own criteria for referendums."€” (Mr William Cash.)

Question put, That the Amendment be made.

The Committee divided.

Ayes, 4

Noes, 5

Mr William Cash

Mr Adrian Bailey

Mr James Clappison

Ms Katy Clark

Greg Hands

Jim Dobbin

Mr David Heathcoat-Amory

Bob Laxton

Angus Robertson

Paragraph agreed to.

Paragraph 72 (now paragraph 73) read.

Amendment proposed, in line 4, at end add "We regard this lack of effectiveness and guarantee as amounting to substantial constitutional change such as to require a referendum in accordance with the Government's own criteria for referendums. In the circumstances, we also call on the Government to include in the Bill, to avoid any doubt that the Charter would extend to enable any court to strike down UK law, the words "notwithstanding the European Communities Act 1972" so that no UK or European Court could apply the Charter as against UK law." €” (Mr William Cash.)

Question put, That the Amendment be made.

The Committee divided.

Ayes, 4

Noes, 5

Mr William Cash

Mr Adrian Bailey

Mr James Clappison

Ms Katy Clark

Greg Hands

Jim Dobbin

Mr David Heathcoat-Amory

Bob Laxton

Angus Robertson

Paragraph agreed to.

Paragraph 73 (now paragraph 74) read and agreed to.

Paragraph 74 (now paragraph 75) read.

Amendment proposed, in line 4, at end add "We regard such a transfer of jurisdiction and loss of protection as amounting to substantial constitutional change such as to require a referendum in accordance with the Government's own criteria for referendums." €” (Mr William Cash.)

Question put, That the Amendment be made.

The Committee divided.

Ayes, 4

Noes, 5

Mr William Cash

Mr Adrian Bailey

Mr James Clappison

Ms Katy Clark

Mr Greg Hands

Jim Dobbin

Mr David Heathcoat-Amory

Bob Laxton

Angus Robertson

Paragraph agreed to.

Paragraph 75 (now paragraph 76) read, amended and agreed to.

Annexes agreed to.

Resolved, That the Report, as amended, be the Third Report of the Committee to the House.

Ordered, That the Chairman do make the Report to the House.

Written evidence was ordered to be reported to the House for printing with the Report.

Ordered, That embargoed copies of the Report be made available, in accordance with the provisions of Standing Order No. 134

[Adjourned till Wednesday 28 November at 2.30 p.m.