European Communities (Amendment) Bill (Hansard, 22 February 1993)

§ The Chairman of Ways and Means (Mr. Michael Morris)
Before we begin the debates on the Bill, I have a statement to make. Right hon. and hon. Members will see that the amendments and new clauses that appear for the first time on today's provisional selection list are identified by an asterisk. I hope that right hon. and hon. Members will find that innovation helpful. That procedure will continue in force until the end of this Committee stage, and will then be reviewed by the Chairmen's Panel.

§ Mr. George Robertson (Hamilton)
On a point of order, Mr. Morris. I refer to the statement made to the House last Monday by the Foreign Secretary, relating to the legal position on amendment No. 27, which was included in the group of amendments led by amendment No. 7, on the social fund.
Clearly, major issues are involved that need to detain the Committee. I put it to you, Mr. Morris, that they must be debated, and that there must be urgent consideration of the Foreign Secretary's remarks last week—which directly contradicted the comments made by the Minister of State, Foreign and Commonwealth Office, in Committee on 20January.
The legal implications also must be considered, and perhaps we ought to hear from the Law Officers—who were, after all, the architects of the Foreign Secretary's remarks last week.
The Committee faces a dilemma. Debate on the group of amendments that included amendment No. 27 has come and gone. We are therefore not in a position to consider either the legal points advanced by the Law Officers to the Foreign Secretary of the policy implications of the changed legal judgment in relation to the social chapter and social protocol.
My right hon. and hon. Friends and I believe that the Committee must be given an opportunity to debate those matters on two, almost separate, grounds. First, we must hear from the Law Officers—and they must be answerable to Parliament and not just to Ministers of the Crown for their observations—as to why the views that they expressed were so different from the comments of the Minister of State. Secondly, we need a debate in which to consider the policy implications of the new legal interpretation.
On Friday last week, the Prime Minister wrote to my right hon. and learned Friend the Leader of the Opposition, following a request for sight of the legal advice given to the Cabinet by the Law Officers. In his letter, the Prime Minister said: With their agreement, Douglas Hurd set out in his statement in the House on 15 February the advice of the Law Officers. If the House of Commons wishes to have further advice on the meaning and effect of the Bill, Law Officers will be present when the Committee Stage of the Bill resumes. I know that this pre-empts your authority to some extent, Mr. Morris, in as much as the Prime Minister appears to 684 be offering the House the services of Law Officers so that they can answer questions that—as you know—we wish to put to them. On the other hand, the Prime Minister's offer was made in the context of a legal view of an amendment that has already been debated. That is one of the dilemmas that now face the House.
Serious questions of substance have arisen, concerning not merely amendment No. 27 but the treaty itself. On 20 January, the Minister of State, Foreign and Commonwealth Office, said: The hon. Gentleman"— he was addressing the hon. Member for Inverness, Nairn and Lochaber (Sir R. Johnston)— knows that the social protocol is an integral part of the treaty of Rome. We shall be party to that protocol even if the arrangements of the 11 which are attached to it do not apply to the United Kingdom."—[Official Report, 20 January 1993; Vol. 217, c. 445.] That statement has now been reversed by what the Foreign Secretary told us last week, but it relates to the protocols, not just to one protocol. It seems to be a general policy statement relating to protocols as a whole—and that must have implications not just for the social protocol, but for other protocols attached to the Maastricht treaty.
In his statement last week, the Foreign Secretary said: I must make it clear that there can be no question of the United Kingdom ratifying the treaty except through the normal parliamentary procedures."—[Official Report, 15 February 1993; Vol. 219, c. 28.] We have here a contrast between a Minister who tells us that the protocols are part of the treaty, and a Law Officer who is apparently telling us that they are not. The Foreign Secretary, meanwhile, tells us that the principle to which he will adhere is the ratification of the treaty by Parliament. A massively important issue of principle regarding the legalities needs to be resolved, and I suggest to you, Mr. Morris, that that cannot possibly be done other than in a debate involving the Law Officers and enabling them to answer our questions.
I wish to raise some other issues, perhaps less significant than the one that I have just cited. First, there is the impact of the Law Officers' revision of opinion on other parts of the treaty that may have already been dealt with. Can the House feel confident that the legal views expressed by the Minister of State in our earlier debates are sound, or will a revision now take place across the board? I direct your attention specifically, Mr. Morris, to the debate on title I that took place at the beginning of the Committee stage. We relied on Foreign Office legal advice, which I understand came from Treasury solicitors.
I should also like to know whether there is a prospect of new amendments being tabled to that part of the treaty, or to the protocols relating to the social protocol, now that a debate on the issue—as distinct from a debate on the legalities—has come and gone. Many hon. Members are trying to find ways of tabling further amendments that would allow the House to make a specific judgment on certain aspects of the social protocol.
It would be outrageous if the House were bypassed in some way by a nitpicking legalistic exercise, simply to get around the political difficulties that face the Government when they are likely to be defeated on amendment No. 27. We require nothing short of a debate on the Law Officers' present views, which they refuse to put in the Library of the House and to give the House.
Therefore, I ask whether you will accept a motion, That the Chairman do report progress and ask leave to sit again.

§ The Attorney-General (Sir Nicholas Lyell)
Further to that point of order, Mr. Morris.

§ The Chairman
There cannot be anything further to that point of order, because at this stage I have to consider the motion put before me, and before I rule on that I must comment on the policy implications mentioned by the hon. Member for Hamilton (Mr. Robertson).
I am grateful to the hon. Member who leads for the Opposition on the Committee. I listened to the Foreign Secretary's statement, and subsequently read it, with the greatest care. We are some way off a vote on amendment No. 27, and other developments may occur at any time, but at this juncture I am minded to take seriously the need for a further debate before the Committee votes on that amendment.
I have also listened to the hon. Member for Hamilton and to the feelings of the House. He has sought to move a motion that I report progress and ask leave to sit again. In weighing up my decision, may I remind the Committee that Standing Order No. 33 lays down that the debate shall be confined to the matter of the dilatory motion—in this case, the effect on ratification of the treaty of carrying amendment No 27, as set out in the Foreign Secretary's statement.
I therefore accept the motion that I report progress and ask leave to sit again, and I call Mr. George Robertson.
Motion made, and Question proposed, That the Chairman do report progress and ask leave to sit again.

Several Hon. Members
Further to that point of order, Mr. Morris.

§ The Chairman
Order. There cannot be anything further to that, in that this is a very important matter. I call Mr. George Robertson. [HON. MEMBERS: "Further to that point of order, Mr. Morris."] Order. As I accept that what I said may have come as a surprise to certain hon. Members, I shall repeat what is laid down by Standing Order No. 33, so that there will be no misunderstanding. We shall keep the debate firmly within the confines of the Standing Order—that is, to the matter of the dilatory motion, which in this case means the effect on ratification of the treaty of carrying amendment No. 27, as set out in the Foreign Secretary's statement.

§ Sir Teddy Taylor (Southend, East)
In the Foreign Secretary's speech, in column 30, he said that the amendment on the Committee of the Regions was similarly affected. That is the amendment that we were discussing before the Committee stopped. While I accept that it is vital that we consider the statement on amendment No. 27, the Committee was considering an amendment relating to the Committee of the Regions, and the Foreign Secretary said: Another amendment that can be cited in this respect is the one about membership of the Committee of the Regions." —[Official Report, 15 February 1993; Vol. 219, c. 30.] Surely, as the Foreign Secretary mentioned that, and as the Committee is considering that amendment, the issue of its relevance to the Committee of the Regions could also be relevant. Is that not fair?

§ The Chairman
Order. When we return to the debate on cohesion and amendment No. 13, it will be in order to discuss that matter.

Several hon. Members
rose—

§ The Chairman
Sir Russell Johnston.

§ Sir Russell Johnston (Inverness, Nairn and Lochaber)
On a point of order, Mr. Morris. What duration will the debate on the motion be entitled to?

§ The Chairman
That is not a matter for me at this point.

§ Mr. Nicholas Budgen (Wolverhampton, South-West)
On a point of order, Mr. Morris. One of the issues that we did not cover in earlier discussions about the legal consequences of amendment No. 27 was the way in which the doctrine of judicial review might be applied to a situation in which a majority of the House were in favour of ratification of a treaty, which could not legally be ratified by that method. I hope that you will allow discussion of that issue and even suggest to the Attorney-General that he might explain his wider position because, as you well know, there is a conspiracy in this House among the three Front Benches to get the treaty ratified by hook or by crook. It is quite possible that that could be done unlawfully. We might be heading for a confrontation between a sovereign Parliament and the judiciary. It would be interesting—even vital, I suggest —to hear my right hon. and learned Friend the Attorney-General explain his position, as a Law Officer, in that dilemma.

Several Hon. Members
rose—

§ The Chairman
Does the hon. Gentleman want a reply?

§ Mr. Budgen
Yes.

§ The Chairman
I am most grateful for the hon. Gentleman's attention. Any speech that the hon. Gentleman makes should be related to the Foreign Secretary's statement.

§ Mr. Ieuan Wyn Jones (Ynys Mon)
A number of hon. Members wished to speak in the debate on Monday 4 February on the Committee of the Regions. Will you, Mr. Morris, make it perfectly clear to the House that whatever time is allocated to the debate on the motion will not be deducted from that allocated when the subject returns for debate?

§ The Chairman
Yes.

§ Mr. Nigel Spearing (Newham, South)
On a point of order, Mr. Morris. May I first thank you for your announcement about asterisked amendments, contingent on a point of order that I raised some time ago? May I draw your attention to another matter that may considerably assist the Committee and those outside—the possibility of showing on future selection sheets the votes that are permissible immediately after the end of each group of amendments? We shall encounter complications later, and that would simplify things.
In his statement last week, the Foreign Secretary said that he wished to make a statement on the process of ratification of the Maastricht treaty."—[Official Report, 15 February 1993; Vol 219, c.27.] Can we assume that his supplementary answers are also covered by the definition that you have just given?

§ The Chairman
On the hon. Gentleman's first point, I cannot anticipate votes or make a statement without 687 consulting my colleagues on the Chairmen's Panel. On the second point, the Law Officers will have heard the hon. Gentleman.

§ Mr. Dennis Skinner (Bolsover)
The hon. Member for Inverness, Nairn and Lochaber (Sir R. Johnston) asked how long we can debate the dilatory motion under Standing Order No. 33. I draw your attention. Mr. Morris, to the fact that, normally, reporting progress at the end of the day can be contested and debated, and the Government have to get a closure if necessary. Many such debates have taken two or three hours.
It is important to make it clear that this is not just a dilatory motion to debate progress on a Bill but is more important, as it is about what the Government had to say last week and the arguments that have taken place since. It is pretty clear that the Government are in a complete mess on the Maastricht Bill; the wheels have come off.
I argue that, like a motion for the Adjournment of the House, the motion should be debated for a full day. This matter affects everyone. The closure should not be accepted after two or three hours, because many hon. Members will want to speak.
The Government have thrown their Bill into turmoil. It has all the seeds of decadence of the years between 1977 and 1979, when devolution Bills were presented. You can smell it in the air. Almost every constitutional measure in recent years has finished up down a big black hole. We should debate the motion throughout the day, and the Government Whips should not contemplate closing it down after a short time.

§ The Chairman
I thank the hon. and experienced Member for his advice.

§ Mr. Ian Taylor (Esher)
On a point of order, Mr. Morris. As this debate is on amendment No. 27, could you clarify the fact that the amendment relates to clause 1(1) but not to clause 1(2), which deals with the European Parliamentary Elections Act 1978? It is vital to seek your guidance, because there might be an attempt to turn an important dilatory motion into a dilatory procedure with an effect on the passing of the whole Bill, on which many hon. Members want to make progress for exactly the reasons—this country's interests—outlined by the Foreign Secretary at the weekend.

§ The Chairman
I respectfully suggest that the hon. Gentleman reads amendment No. 27 again, as it will clarify the issue.

§ Mrs. Margaret Ewing (Moray)
On a point of order, Mr. Morris. While most hon. Members will welcome the opportunity to debate the dilatory motion, can you say whether a copy of the legal ruling on which the motion is based has been made available in the Vote Office? It would be especially helpful to us, together with guidance from the Law Officers of Scotland, where there might even be a different interpretation.

§ The Chairman
Not to my knowledge.

§ Mr. Tony Marlow (Northampton, North)
This is a very important issue, Mr. Morris, and I am sure that the House is grateful for your ruling. However, as you said yourself, it has come as a surprise to many of us, who were not expecting it. You will know that, even on the most charitable interpretation, the Government's legal advice has been a little erratic recently. Has the Attorney-General 688 also been taken by surprise by the ruling? It is important that he has had sufficient time to prepare his remarks in response to the debate.

§ The Chairman
No one knew of my ruling.

§ Mr. Donald Anderson (Swansea, East)
Hasty legal advice is bad legal advice. It is clear that the Attorney-General has not had time properly to prepare his speech. It is also clear that your ruling, Mr. Morris, is of considerable significance to the House and to the progress of the Bill as a whole, which is what many of us want.
In a Standing Committee, if something is important technically and practically, it is possible for the Committee to bring together a series of experts. In this case, we are dealing with an important point of legal interpretation, on which lawyers in this country and on the continent will have views which would be relevant to the Committee if the Committee is to make an informed decision. Is there any procedure whereby a Committee of the whole House could, like a Standing Committee, bring together relevant experts to ensure that, this time, we get it right?

§ The Chairman
There is no such procedure, but the Chair expects all hon. Members to be following the Bill —it has been a week since the Foreign Secretary made his statement.

§ Sir Russell Johnston
rose—

§ The Chairman
Again?

§ Sir Russell Johnston
I am sorry if I did not explain myself clearly enough last time, Mr. Morris. All I want to know is whether the debate can continue until a closure is moved and you accept it, or, if a closure motion is not moved, until 10 pm or, perhaps, until tomorrow? Perhaps you could also explain why the motion is called a "dilatory" motion, because it so admirably describes the Government's position?

§ The Chairman
The answer is that the absolute time limit is 10 pm.

§ Mr. Richard Shepherd (Aldridge-Brownhills)
On a point of order, Mr. Morris. The debate revolves around what, for many of us, are difficult legal points. The debate has been announced without preparation for those difficult legal points—[Interruption.] I am only trying to be fair. It seems that these matters will be determined in the end by the courts. There will be one opinion against another.
It is difficult to determine where the balance of the argument lies. A number of legal opinions have been available. Sir Anthony Lester, QC has given one opinion and Opposition Front-Bench Members have another. None of us has had the opportunity to see those legal judgments. You have accepted the dilatory motion, Mr. Morris, but could it not be debated later, when we have had time to prepare for it?

§ The Chairman
Mr. Robertson.

§ Mr. George Robertson
I am grateful to you, Mr. Morris, for your decision. It is right for the Committee and right for parliamentary democracy that we have this opportunity to consider the remarkable situation. The Secretary of State for Foreign and Commonwealth Affairs has unprecedently repudiated, almost completely, all that 689 his right hon. Friend the Member for Watford (Mr. Garel-Jones), the Minister of State, told the Committee on a previous occasion.
I know that I was not alone in being stunned a week ago to hear the Foreign Secretary tell the House that all that had gone before was wrong. He apologised to the House, it must be said, for that, but he entirely repudiated not only his own colleague in the Department, but the legal advice to which the Foreign and Commonwealth Office had held firm for the previous 10 months.
The Committee and the outside world must keep in mind the fact that amendment No. 27 was tabled on 20 May 1992–10 months ago. Amendment No. 27 was no ordinary amendment. It was not likely to be seen inside the portals of the Foreign and Commonwealth Office as simply one of the 450 amendments that were tabled immediately after Second Reading.
The social protocol—the opt-out from the social chapter—was the jewel in the Prime Minister's crown when he came back from Maastricht, with the Tory tabloid newspapers crying, "Game, set and match." The social protocol was at the heart of the Government's strategy, at the heart of the treaty and at the heart of the Bill which was given a Second Reading in the House last year.
Amendment No. 27, which sought to exclude the whole social protocol from the Bill, must have commanded attention deep within the recesses of the Foreign and Commonwealth Office, stretching from the solicitors who advised, through the clever officials who have given the Minister of State his speeches and advice, right up to the Foreign Secretary. The amendment must have transfixed them because of the impact that it might eventually have on the ratification of the treaty.
Last year, on the day following the date scheduled for the Danish referendum, the Committee was ready to deal with the Bill. The Committee was scheduled to have its first sitting last June. The Minister of State would have had his notes ready and available, and would have had his preparations made, as was true of many Opposition Members. It was believed then that progress on ratification of the Maastricht treaty might be quite swift.
There was no way in which the Minister of State, the Foreign and Commonwealth Office and even the Foreign Secretary could have held the view that the issue could be postponed, put off, shovelled under the carpet and simply left to be worried about another day. They knew about amendment No. 27. They had worked things out. They must have pondered closely the implications of the amendment.
The Minister of State, who had by that stage tendered his resignation and entered one of the longest periods of notice ever given by a Minister, intervened repeatedly in the debate on the group of amendments led by amendment No. 7. The right hon. Gentleman was not speaking off the top of his head. His remarks cannot be dismissed as one of "Tristan's flights of fancy", as some would have had us believe over the past weekend.
The right hon. Gentleman, who is a Minister of State at the Foreign and Commonwealth Office, is a far cleverer man than that. As he sits on the Treasury Bench today, he gives the impression of a man of casual habit, relaxed and laid back—almost to the extreme, now that he has handed 690 in his resignation—as he tries to pilot the Bill through the House. But there is nothing relaxed about him, as Baroness Thatcher found out to her cost.
When the right hon. Gentleman came to the House on 20 January, he knew what he was about. His speech had been worked out and planned in advance.

§ Mr. Anderson
My hon. Friend has made a valuable point about the Minister's speech, which had been worked out in advance. Is it not clear that, if the legal advisers in the Foreign Office had had any doubt about the accuracy of the opinion they were giving, they would have consulted the Attorney-General's office in any event? Apart from the importance and implications of the subject, if there had been a mere scintilla of doubt within the minds of those advisers, they would certainly have sought a second opinion from the Attorney-General.

§ Mr. Robertson
My hon. Friend has two areas of expertise that allow him to make that cogent point. First, he is a lawyer, and no one knows lawyers like other lawyers, even if they always disagree with each other. Secondly, not only did my hon. Friend serve with me for a long time as a member of the Opposition Front-Bench foreign affairs team, but he worked in the Foreign Office as a diplomat. Therefore, he knows only too well how cautious officials are inside the Foreign Office.
My hon. Friend has rightly put his finger on the matter. If there had been the slightest doubt in the minds of advisers about the advice they were to give to the Minister of State, and had they felt any caution about the strength of their opinion, the first thing they would have done was go to the Attorney-General, so that his Department could clear up the matter.
When the Minister of State came to the House on 20 January, his remarks were based on authority, and all the backing that comes from the heavyweight authorities of the Foreign Office who service him and the country. In reply to my right hon. Friend the Member for Copeland (Dr. Cunningham), the right hon. Gentleman said: The hon. Gentleman knows that the social protocol is an integral part of the treaty of Rome. We shall be party to that protocol even if the arrangements of the 11, which are attached to it, do not apply to the United Kingdom."—[Official Report, 20 January 1993; Vol. 217, c. 445.] The right hon. Gentleman repeated those remarks in the House and outside it. He even took to writing them in a letter to the hon. Member for Inverness, Nairn and Lochaber (Sir R. Johnston), in the faint hope that, somehow, the Liberal Democrats might be dislodged from their consistent support for the social protocol and the social chapter. There was no mistake about the meaning of the Minister's remarks.
I do not know when the right hon. Gentleman was taken aside by his boss—I do not know whether that was a private meeting or a public humiliation. One can only guess at the theatre that now takes place inside the Conservative Government. One can only imagine what it was like for the right hon. Gentleman, who is so laid back that he does not even have a desk in his office at the Foreign Office. He just sits in an armchair and greets the assembled dignitaries who come before him.
One can only imagine how stunned the right hon. Gentleman must have been when, at some point in the week before last, he heard from the Foreign Secretary that everything he had said was wrong, that he had misled the 691 House with the advice he had offered, and that the Foreign Secretary, no less, was going to have to come to the House on 15 February to apologise on his behalf, because everything he had said before was wrong. I think that that is material for a book—a novel, one might say—and there is no better man to write it, with all those characters, unbelievable though they may be, than the Foreign Secretary himself.

§ Mr. Marlow
Is not the reality that, when my right hon. Friend the Minister of State made his statement, he was in political mode? He was trying to put the frighteners on the Opposition parties. He knows that they want to get the Bill through, as he does. He was trying to say that what they were doing was against the interests of the Bill. At the same time, the Government were trying to put the frighteners on their Members by totally misrepresenting the social protocol and saying that, if hon. Members voted for the amendment, they would have the social charter thrust down their throats. However, that did not work, and they had to do something else to get themselves off the hook, so they approached the Attorney-General for new legal advice.

§ Mr. Robertson
I was about to come to the real modus behind the operation but, as usual, the hon. Member for Northampton, North (Mr. Marlow) has arrived at the conclusion faster than others. That is why, I believe, he is destined to keep his position below the Gangway, probably for the rest of his political career.

§ Sir Teddy Taylor
Does not the hon. Gentleman think that there might have been a simpler motive? Might not the Government, perhaps along with some of the other parties, have been trying to give Parliament the impression that it was deciding the great business? That was all right as long as Parliament behaved itself, but the moment that it seemed that the clever, saintly Members of Parliament who were carrying out such important work were going to vote against the Government, they pulled the rug away. The Government said, "We are terribly sorry, but your opinions do not count." Is that not a far more simple and objective possibility than all the complex legal suggestions?

§ Mr. Robertson
One only had to read the heavyweight newspapers last week—even the tabloids broke through the fog of the Government's propaganda—to see precisely what the Government were about: faced with defeat, they produced yet another legal opinion. We know that.
Sometimes, when I consider the Conservative Government, an old Glaswegian phrase comes into my mind: one sandwich short of a picnic. The Government seem so clueless, incompetent and capable of mismanagement that they have taken that policy to an art form. Anyone intervening at any time in the debate is likely to produce a more reasonable explanation of what happened than the one that we heard from the Foreign Secretary last Monday.

§ Mr. Budgen
Will the hon. Gentleman tell the House how many lawyers—in-house, as it were—the Foreign Office have? When they have to interpret a treaty, do they normally go to the Attorney-General for advice? It seems that the Foreign Office already has a substantial legal staff, headed by the gentleman who is a knight, and therefore presumably a most distinguished lawyer.
It seems odd that the distinguished legal advice, which must have been given carefully—and, I dare say, been 692 checked with other lawyers—should suddenly be swept aside as though the man offering it were an ignorant country attorney. The great, grand Attorney-General told him, "My good man, you have hardly been able to read either the treaty or the amendment properly—allow an educated person to give a better interpretation." It seems that the Government are either playing around with the House or being grossly insulting to the dignified and honourable lawyers of a great Department.

§ Mr. Robertson
The hon. Gentleman poses one of the most difficult questions when he asks me how many lawyers there are in the Foreign Office. The answer is, either too many or too few—I am not entirely certain. Last year, I was asked why I thought that the progress in Russia had not been as catastrophic as people had predicted. I suggested that it was perhaps because there were not enough economists there. At present, there seem to be too few or too many lawyers here.
I am impressed by the naivety of the hon. Member for Wolverhampton, South-West (Mr. Budgen), who seems to suggest that the fact that the head of the legal department of the Foreign Office has a knighthood gives him an automatic qualification. One has only to look at the dazzling row of medals among Conservative Members to see the naivety of his opinion. If the hon. Gentleman had voted differently in the paving debate, he might have had at least two knighthoods by now. He might even join Lord Tebbit in the other Chamber eventually.
I return to the issue, because, humorous as the chaos and confusion in the Government is, it is serious and devastating for the nature of parliamentary democracy. We are not talking about some simple issue. We are not dealing with a hair-splitting argument about some subsection of some clause of some ordinary Bill. We are talking about the constitution and future constitution of the United Kingdom, as will be enshrined in United Kingdom law.
That is where the joke ceases to be a joke, and descriptions such as that which Mr. Peter Riddell so prosaically wrote in The Times last week—of the Government appearing like a spiv business man with a sharp lawyer—encapsulate the nature of a Government who are sadly the Government with whom the people of the United Kingdom and all our constituents have to live and of whom they have to bear the consequences.

§ Mr. Skinner
Does my hon. Friend agree that probably the simple reason for the Government's decision and the statement made by the junior Foreign Office Minister, the right hon. Member for Watford (Mr. Garel-Jones), on 20 January was part and parcel of what many of us have experienced in the past 14 years? Our experience is of a Government imbued with arrogance and contempt not only for the British people but for Parliament and the House of Commons. Many times during the past 14 years, Ministers have trotted out smart answers such as were trotted out on 20 January. They always thought that they could obtain the requisite votes in the appropriate Lobby at the end of the day.
The past few months have been characterised by the Government not realising what is taking place. They did not realise that the Labour Opposition would vote solidly against them. They probably did not realise that perhaps 693 the tin-pot Liberals would deliver this time. They probably thought that the Tory rebels did not have the guts to go into the Lobby on the social chapter.
I am absolutely convinced that the statement that was made that day was born of the arrogance of the Tory party and the Ministers who sit on the Front Bench. They thought that they could get away with it. Now they know that, on this occasion at least, they cannot.

§ Mr. Robertson
I do not often agree with everything that my hon. Friend says. That is one of the sad accidents of the broad churches that our political parties represent. However, I agree with him wholeheartedly that we have on display an example of the arrogance that has come from too many years in power and too many assumptions that a Minister can simply be walked into the Chamber one day to say one thing to Parliament and walked out the next day and replaced by yet another Minister saying precisely the opposite, as if we were all expected to believe that both statements commanded authority and truth.

§ Mr. Spearing
Does my hon. Friend agree that the Government might have been saved a great deal of trouble? Everyone in the Committee will remember that we asked time and time again for the attendance of the Attorney-General when the Minister of State was in trouble over arguments of justiciability. Would it not have been better if the Attorney-General, who is after all a learned and knighted member of the Committee, had been in attendance on both 20 and 27 January, when he could have pulled the coat tails of his right hon. Friend? Does that not show that his opinion must have been asked only after those dates?

§ Mr. Robertson
I agree with my hon. Friend about our request for the Law Officers to be present in a previous debate. Perhaps a subject for later discussion will be whether that issue will be the subject of some other legal review, given the strength and vigour with which the statement was made. However, I have to say that I took the trouble to check on its legality, and was reasonably satisfied with what was said.
But I believe that my hon. Friend is wrong in assuming that, if the Attorney-General had been here for that previous debate, he would have pulled the coat tails of the right hon. Member for Watford (Mr. Garel-Jones), who has occasionally trailed his coat before.
The reality is that the right hon. Member for Watford spoke the truth at that time. The Attorney-General's view became apparent only later, when defeat on amendment No. 27 was staring the Government in the face. Not only have the Government the arrogance to push Ministers in to tell the Committee whatever it wants to hear, but Law Officers seem to be wheeled into the arena to offer contrary legal advice as and when it suits Ministers' political convenience. That is much more sinister.

§ Mr. Giles Radice (Durham, North)
Does my hon. Friend think that the Law Officers were consulted by the Foreign Office, and that they agreed with what the Foreign Office said on that day?

§ Mr. Robertson
I cannot answer that. No doubt the Attorney-General will answer it. It is one of the questions that I pose to him in endorsing what my hon. Friend says. It is inconceivable that, had the Foreign Office lawyers and the Treasury solicitors who may have been advising them been in any doubt whatever, the Attorney-General's office would not have been called upon to offer advice. The Committee demands answers from the Attorney-General in this short debate as to whether any such advice was sought and whether advice on any issue relating to the treaty was offered to the Foreign Office.

§ Mr. Radice
If not, why not?

§ Mr. Robertson
I agree with my hon. Friend.
I have a series of questions for the Attorney-General, who the Prime Minister said would help the House, but before asking them, I should like to put a central point.
All along, the Prime Minister and Ministers have made it clear that it was for Parliament to ratify the Maastricht treaty. They put down hon. Members who called for a referendum. They argued against a referendum, and may do so again in Committee, on the basis that it was proper and right for Parliament to decide. They said that it was for Parliament to consider the great, complicated, detailed and serious matters of the treaty.
I agree that it is right to consider such matters in Parliament, because the treaty is not a fitting subject for a simple yes or no in a referendum. However, I disagree with the Government, in that I believe that Parliament should have the power to ratify the treaty and be allowed to make decisions. I agree with the parliamentary Labour party and the Labour conference that we should not use amendments to wreck the treaty, but on some areas of the treaty, Parliament can make decisions.
Last week, Parliament, people throughout the country and those on all sides of the political spectrum were stunned when the Government said that, although Parliament would decide and ratify the treaty, those areas of the treaty amended by Parliament would not damage or destroy the treaty's integrity, and the Government would simply use the royal prerogative to avoid any voice, vote or decision by Parliament.
We were told at the beginning of the whole process that only some parts of the treaty needed to be ratified and put into domestic law. Titles 2, 3 and 4 of the treaty require an amendment to European Community legislation. Title 1 is excluded, and is therefore ratified by the royal prerogative, and, as we heard in the debate on that title, it was justiciable in the international court. Title 5, on home affairs and justice, and title 6, on common, foreign and security policy, and the final provisions of the treaty are not before the Committee. They are justiciable in international law and do not require amendments to the European Communities Act 1972, as amended by the European Communities (Amendment) Act 1986.

§ The Attorney-General
I am sure that the hon. Gentleman would not wish to mislead the Committee. Therefore, let me remind him what my right hon. Friend the Foreign Secretary said last week about ratification: I must make it clear that there can be no question of the United Kingdom ratifying the treaty except through the normal parliamentary procedures. The House will have the opportunity on Third Reading, after detailed consideration of all aspects of the Bill, to decide whether the Bill should pass 695 into law. The United Kingdom will not ratify the treaty unless the Bill is approved by Parliament."—[Official Report, 15 February 1993; Vol. 219, c. 28.] I should like the hon. Gentleman to acknowledge that nothing could be clearer.

§ Mr. Robertson
Let me say—

§ Mr. William Cash (Stafford)
On a point of order, Mr. Morris. We are here dealing with a Bill the long title of which says: make provision consequential on the Treaty on European Union signed at Maastricht on 7th February 1992. In the Bill, it is clear that the matters that are to be inserted —that is, to be dealt with in respect of the treaty of Rome and the Single European Act and the consolidated European treaties—include the protocols adopted at Maastricht on that date.
It must follow that, as the words "other than the social chapter" did not appear, we were intending to legislate not merely by prerogative but by legislation in respect of all those protocols. Therefore, I submit that the matters that we are dealing with now are matters that relate to the long title and, if we do not continue to deal with them under that long title, the Bill will have to be disbanded.

§ The Chairman
That is a matter for debate, not a matter for me.

§ Mr. Robertson
I agree with the Attorney-General in one respect. I do not intend to mislead the Committee. I wish that it were possible that Ministers, who have now varied their position 100 per cent., were in a position to say that all the time. The Attorney-General has read oat part of a statement made by the Foreign Secretary last week. I shall read it again, so that the Committee is certain of the quote: I must make it clear that there can be no question of the United Kingdom ratifying the treaty except through the normal parliamentary procedures."—[Official Report, 15 February 1993; Vol. 219, c. 28.] He referred to "the treaty". Something happened between the day when the right hon. Member for Watford came along with one legal view, and the taking of the view that is being expressed today—that the word "treaty" does not include the protocol on social policies. That is the difference and the distinction, and that is why the Attorney-General will have to explain, in some painful detail, why the change took place and what were the reasons for it. It is not clear to the majority of hon. Members that the change need have taken place, because it was not there at the beginning of the process.
When the right hon. Member for Watford said: the social protocol is an integral part of the treaty of Rome." —[Official Report, 20 January 1993; Vol. 217, c. 445.], he was stating a fact, based on a legal opinion that he had secured. The Attorney-General is now telling us another fact, but it is completely the opposite.
The titles that I mentioned do not have to be ratified by means of legislation, and the House will never again touch titles 1, 5, 6 and 7 of the Maastricht treaty in the ratification and implementation process, because that will be done by royal prerogative. The social chapter was not included in that category at the beginning of the process, but, magically, with defeat facing the Government, it is now included. What the Attorney-General said is right, because he is a fine lawyer making a fine point, but there 696 is a bigger issue at stake, and that is what he will have to answer. That is one of the crucial questions in the context of this debate.

§ Mr. Marlow
Will the hon. Gentleman give way?

§ Mr. Robert Maclennan (Caithness and Sutherland)
I would ask the hon. Gentleman to give way.

§ Mr. Robertson
I want to make progress, because I know that many other right hon. and hon. Members wish to catch your eye, Mr. Morris. However, I shall give way to the hon. Member for Caithness and Sutherland (Mr. Maclennan).

§ Mr. Maclennan
The Foreign Secretary said that there was no question of the United Kingdom ratifying the treaty except through the normal parliamentary processes."— [Official Report, 15 February 1993; Vol. 219, c. 28.] Does the hon. Gentleman accept that the right hon. Gentleman was merely stating the obvious and begging the question whether normal parliamentary processes under section 6(2) of the European Assembly Elections Act 1978 required the protocol to be enacted?

§ Mr. Robertson
Begging the question is one of the polite or legal ways that can be used to describe what is going on. Fine legal distinctions will not blind the House of Commons or the country to the way in which the Government are dealing with this exercise.

§ Mr. Marlow
Will the hon. Gentleman give way?

§ Mr. Robertson
No. I have already given way to the hon. Gentleman. I know that his intervention would be valuable and helpful, as ever, but I shall resist the temptation to allow him to intervene.
I have a series of questions for the Attorney-General. I believe that they are required to be asked before the Committee can move on to further consideration of the Bill. My first question drives to the heart of this debate: why is the House of Commons not getting a copy of the Attorney-General's legal opinion? It has been made available to Ministers, and it is being made available inside Government. It must have been offered as an olive branch to the head of the legal department of the Foreign Office. It was the basis of a volte-face by the Foreign Secretary last Monday.
The Attorney-General is, of course, a Minister in the Government. He advises the Government, but he is a Minister of the Crown. He must, by virtue of his office, advise the House of Commons as well. As we are dealing with matters that concern the authority of the House of Commons, why are we to be denied the formal advice that was offered by the Attorney-General?
Is the protocol part of the treaty? We do not want semantics, and we do not want questions begged. 'We merely want to know whether the Minister of State, the right hon. Member for Watford, was right when he spoke on 20 January. Is the protocol concerned with the social policy part of the treaty? Are all the other 20-odd protocols to the Maastricht treaty part of the treaty, or are they not? If they are not, why are they not? They certainly were part of it when we began our consideration of the Bill in Committee.
I ask the Attorney-General to tell us when it was that the view of the Minister of State was formally decided. When did the doubts creep in, and why? Who was involved 697 in making the decision that led to the abandonment of the Garel-Jones legal opinion and left the Minister of State hanging out to dry?
If titles I, V, VI, and VII were not needed and were specifically exempted from the necessity to be in domestic law for the United Kingdom, why is it that we have discovered only now that the social protocol is not on the list? Is it the Government's position that the protocol can be ratified? I use "ratified" in the context of the treaty of the European Communities. If the protocol can be ratified by royal prerogative, can our vote on amendment No. 27 be bypassed by a royal or executive push of the pen?
Will the Attorney-General tell us about the significance of the European Assembly Elections Act 1978, in which there is a specific instruction to government that no treaty can be ratified other than through Parliament if any extension of the powers of the European Parliament is involved.
There is no doubt whatsoever in anybody's mind that the powers of the European Parliament have been extended as a consequence of the Maastricht treaty—not just by the introduction of the novel negative assent procedures in respect of the Parliament's co-decision powers with the Council of Ministers, but also by way of its power to establish committees of inquiry, its right to be petitioned by citizens of the union, the right to appoint an independent ombudsman to intervene in matters relating to Parliament, and the power to request the Commission to make legislative proposals. These are the extended powers for the European Parliament laid down in the Maastricht treaty.
4.30 pm
Where is the legality of this treaty, and its ratification, in circumstances in which the extension of these powers impacts clearly upon the agreement attached to the social protocol? In the social protocol, the Twelve agree that the 11 may go ahead and make laws, involving the European Parliament, that will apply only to the 11 countries.
If amendment No. 27 is passed and social protocol is not included in United Kingdom legislation, and if, as the Foreign Secretary has stated, that does not create a problem, where precisely will it be justiciable? It will be part of a treaty. Either it will be part of the Maastricht treaty, or it is an independent, free-standing treaty. Would the Attorney-General care to tell us where it will be justiciable?
Can the Attorney-General tell the Committee what will happen if a member of the public, in this country or elsewhere in the European Communities, decides to take the United Kingdom to the European Court of Justice for being in breach of the overall laws that apply to the European Communities? Has anybody inside the Government sought the opinion of the European Court of Justice or any of its justices, with regard to the rather novel and surprising view that the Government have taken?
I should like now to put to the Attorney-General a question that he may be least qualified to answer but in respect of which he might care to tug on the coat tails of his right hon. Friend the Member for Watford, the Minister of State. What will happen to the elaborately stitched-together political package represented by the Maastricht treaty now that we are presented with this amazing new legal revelation?
698 We cannot ignore the politics of the Maastricht treaty. If the United Kingdom alone is to say that it does not have to ratify the social protocol, as its purpose can be achieved by some sleight of hand, where precisely is the package itself placed? After all, the Minister of State, during the debate on 20 January, made much of that very point.
I should like to ask the Attorney-General what the implications are for title I of the treaty and for the legal advice—the advice that title I need not be included in the United Kingdom legislation, because it is redundant and, indeed, dangerous—that we received from the Foreign Office at that time. Can Members of Parliament, can the country, rely on any legal opinion that has been produced up to now? Is the Attorney-General satisfied that it stands four-square?
The answers to the questions that I have just put to the Attorney-General might have been self-evident had the Committee been paid the courtesy of being allowed to see the document that the Attorney-General presented to the Cabinet—if it was ever presented to the Cabinet at all. These are questions to which answers are demanded, inside and outside the House. They need to be answered before the House of Commons can proceed with the Committee stage of the Bill.

§ Mr. David Winnick (Walsall, North)
On a point of order, Mr. Morris. Would it be helpful if the Attorney-General were to respond now to the remarks and very pointed questions of my hon. Friend the Member for Hamilton (Mr. Robertson): is it not true that, as we are in Committee, the Attorney-General is able to speak again? Speaking now will not prevent him from replying later to further points raised in the debate.
I want to seek your advice, Mr. Morris. As my hon. Friend the Member for Hamilton said, we are at a great disadvantage because we have not seen the legal advice given to the Minister of State, or the legal advice on which the Foreign Secretary based his opinions—

§ The Chairman
Order. The hon. Gentleman knows that I take only one point of order at a time. His first question was whether it would be in order for the Attorney-General to speak next. It is for hon. Members to rise in their places if they wish to speak. I look around and I try to keep a balance. It is a matter for individual Members.

§ Mr. Marlow
Further to that point of order, Mr. Morris. It may be that, when the Attorney-General speaks, everything that he says will be clear and non-controversial. On the other hand, he may leave some questions unanswered. If so, hon. Members may wish to participate further in the debate. I presume that the Government's business managers, in seeking the closure, will take into account the fact that, if the Attorney-General does not speak now, a significant number of right hon. and hon. Members may want to contribute later.

§ The Chairman
I cannot speak for the Government's business managers.

§ Sir Teddy Taylor
I want to put a few important and significant questions to the Attorney-General. There is no doubt that we owe you, Mr. Morris, a great debt for enabling us to debate an issue that is extremely important for democracy and for the way we handle these matters.
What the Foreign Secretary said in his statement did not come as a surprise to many of us who have been following the proceedings with great care. He made two 699 specific points. First, he said that, even if we voted in favour of amendment No. 27, that would not require the United Kingdom to apply the social chapter. That was not news to us. We had made that point time and again while Cabinet and other Ministers said quite the opposite on television and in newspapers.
As this is an important issue, no doubt the Attorney-General is aware that I appeared on two television programmes and offered £2,000 to anyone in Britain who could substantiate the views of Cabinet Ministers. One of the most worrying factors of this business is that Ministers, who we expect to maintain the integrity and standards of life in Britain, have time and again deliberately spoken a pack of nonsense on television and in the newspapers, in the full knowledge that it was nonsense. We knew, simply by reading the amendment, that what they said could not happen.
The second point raised by the Foreign Secetary was the complicated question of whether or not we could ratify the treaty. The basic issue of whether the social chapter would apply to Britain is obvious to any person who could pass the 11-plus. I hope that the Attorney-General will tell us that, as a result of such unfortunate occurrences, Ministers will make a special endeavour to tell the truth. I do not say that lightly; I have been a Member of Parliament for 28 years.
Many of the problems relating to European affairs, and much of the misunderstanding and party division, could be overcome if on basic issues we had the standard of integrity to which we are entitled. Of course, I am not referring to issues of judgment, which obviously divide hon. Members.

§ Mr. Winnick
I am sure that the hon. Gentleman agrees that it is unfortunate that the Attorney-General has chosen not to respond immediately. Was not the initial advice given by the Minister of State just a try-on because the Government were terrified that they would lose the vote on amendment No. 27? They were prepared to use any pressure, especially on Liberal Democrat Members it would not have worked on Labour Members—to avoid that.
Does the hon. Gentleman recall that the hon. Member for Inverness, Nairn and Lochaber (Sir R. Johnston) said, after listening to the Minister, that he would reflect carefully on the possibility that accepting amendment No. 27 would mean that the treaty could not be ratified? It is clear that the advice given to the House was misleading, with the intention of putting pressure on the Liberal Democrats.

§ Sir Teddy Taylor
I do not want to comment. I am sure that the hon. Gentleman has thought about that aspect very carefully, because he has attended these debates with amazing regularity—and I respect him for that. It is possible that his observations are true. On the complex issue of ratification, I can only tell my right hon. and learned Friend the Attorney-General that, when I was leaving this Chamber after the speech by my right hon. Friend the Minister of State, a senior and respected Member on these Benches who has held high office in the Conservative party—and whom all of us know and greatly respect—replied, when I asked for his view, "It's a load of codswallop." And that was from someone who is enthusiastic about the Community.
700 We must try to establish why the opinion in question was given in the way it was. There is an urgent need for further clarification of the statement. I want answers to three specific questions. My right hon. Friend the Foreign Secretary made a clear and helpful statement to the House indicating that, on further reflection, the Government now consider—in the light of the Law Officers' comment—that amendment No. 27 would not have the result either of obliging the United Kingdom to implement the social chapter or of preventing the Government from ratifying the treaty. As the protocol did not oblige the United Kingdom to do anything, it seemed that the inclusion or exclusion of the protocol had no great relevance.
However, it has now emerged in a letter that I received from my right hon. Friend the Foreign Secretary only a few minutes before this debate that, astonishingly, even if the Committee votes for amendment No. 27 and takes the protocol out of British law, the protocol will nevertheless be in the treaty that the Government sign. Is my right hon. and learned Friend the Attorney-General aware of any precedent or occasion in the history of the Houses of Parliament when the Government signed a treaty when Parliament had specifically voted that one part of it should be taken out? In my 28 years in the House I have never known an occasion when the Government have said, "We are going to sign a treaty with that part in it," when that part was something that Parliament had decided to exclude.

§ Mr. Marlow
The Government will probably say that is precisely what they intend to do. They might be entitled to do that, but politically and constitutionally such action would be a massive abuse of the House.

§ Sir Teddy Taylor
It is the abuse of the House that upsets me. All right hon. and hon. Members—including the few here who are greatly in favour of the EEC—know the score. They know that what we do does not matter at all. What offends me most is that the Government were going along with the pretence. We were not to have a referendum and the people were not to decide—instead, all the clever, talented, able, thoughtful and compassionate Members of Parliament were to decide for them. We were supposed to do that with great distinction—by attending debates and thinking carefully about every line of every amendment and every clause.
The Government, along with others, tried to give the impression that that was the score—that Members of Parliament would decide—but the first time right hon. and hon. Members decided to chuck out part of the treaty, they suddenly found that was not to be the case. Senior Members of Parliament have openly stated that our views on the protocol are utterly irrelevant. It is unfortunate that the Government should try to give the impression that our views counted.

§ Mr. Maclennan
Will the hon. Gentleman at least exclude from his criticisms and from the suggestion that we do not care about the procedures on the social protocol my right hon. and hon. Friends who have supported ratification? It goes to the heart of our criticism of the Government's position that they have in effect deprived not only the Committee but the European Community of effective ratification by seeking to withdraw this matter from our attention.

§ Sir Teddy Taylor
I have read legal opinions which make that view clear. I am not competent to make a judgment, but I am sure that the hon. Gentleman has studied that issue carefully and expresses that view after proper consideration. I hope that it will receive the attention that it merits. Even if the legal opinion obtained is correct, and even if the Government are legally off their heads and doing something hopelessly illegal, I hope that it will be remembered that the Liberal party's real strength lies in the times when it fought for people's rights—when it said that people counted.
The same can be said of the Labour party. I used to see Labour supporters in Glasgow marching down the streets, fighting for the rights of people and saying, "We will not allow people's rights to be taken away." Now, we are part of a gigantic conspiracy in which we are taking away people's rights and trying to fool them by saying that clever Members of Parliament will decide.

§ Mr. Quentin Davies (Stamford and Spalding)
indicated dissent.

§ Sir Teddy Taylor
My hon. Friend smiles and shakes his head, but he knows that that is the case. He heard my right hon. Friend the Minister say that. He knows that it was a load of codswallop, aimed at trying to give the impression that clever people were doing something that they had no power to do.
When has that happened before? If the protocol is in the treaty but not in European law, will the Government be empowered to make contributions in respect of the one twelfth share of administrative expenses required by the protocol? In answering questions after his statement, my right hon. Friend the Foreign Secretary stated clearly that that would be done from the Consolidated Fund under the powers of the treaty of Rome. My understanding is that the treaty of Rome gives authority for payments to be made only if they are Community obligations.
As the agreement to which the protocol relates is one of 11 member states only, there is no way in which payments can be regarded as a Community obligation. That is why the section of the protocol stating that Britain will pay a one-twelfth share was required. If I am not right, why on earth is it in the protocol that Britain will pay a one twelfth share of administrative costs?
No doubt one of my right hon. or hon. Friends who is a Euro-enthusiast will say, "There's not much money in it at all. The EC spends £250 million on dumping or destroying food, so what does it matter? It is only a small point." In fact, it is a terribly important legal point, and financially it might turn out to be substantial. A large section of Commission officers will no doubt be concerned with the social chapter. There will obviously be many conferences and seminars to which friends and EC enthusiasts will be invited. They will have a great time and stay in expensive hotels. That will all cost money. They will want to initiate studies and inquiries which will also cost a good deal of money. They will want to employ some of the most expensive people to undertake those inquiries.
Many of the organisations in the United Kingdom which speak enthusiastically about every aspect of the EC are making a fortune out of undertaking inquiries and studies for the EC. It would help our democracy if as well as declaring political contributions every trade association —including the big ones in high buildings—had to declare 702 in their annual reports how much money they receive from the EC for undertaking studies, inquiries and commissions. Whether it is a small or large amount, the key question is why it was included in the protocol that Britain would pay a one-twelfth share of the social chapter. There must have been a reason. If we are to chuck that out of United Kingdom law, on what basis can we make those payments?

§ Mr. Skinner
This has just crossed my mind—perhaps the hon. Gentleman will give me his view on it. As it seems that we are not to be involved—although we are not sure yet—in one twelfth of the issue, what will happen to British MEPs? Should they be paid the same as the other MEPs, in view of the fact that they will not be involved in as much work as those of other countries? I throw that out as a possibility. I know that they could make the money up by fact-finding tours, gravy trains and junkets or whatever, but someone might argue that they cannot get as much.

§ Sir Teddy Taylor
The hon. Gentleman, whom I much respect, is introducing some of the EEC arguments that I am sure would be relevant to this debate. I appreciate his point. If I had the power, I would feel the same way. I find it strange that British MEPs are supporting and voting for a social chapter that the Government say is terrible. I read the other day that the Conservative party is to allow some of the cushy parts of Conservative Central Office to be used by MEPs who are deliberately undermining Government policy by supporting the social chapter and its application in Britain. That, however, is a separate issue.

§ Mr. Marlow
As my hon. Friend has rightly said, there is the question of paying towards the administrative costs, but the protocol also says that the institutions of the Community can be used. When we are talking about administrative costs, are they part of the administrative costs of those institutions, or is it intended that those institutions should be used without being costed? If it is not intended that they should be used without being costed, how can one be taken from the other?
If the House votes for amendment No. 27, will it not be saying in effect that the institutions of the Community should not be used for the purpose of the social protocol? Would it not benefit the United Kingdom if that were the case?

§ Sir Teddy Taylor
We shall know in time whether the amount will simply be added to the EC budget, or whether there will be a separate fund, with any expenses being met from moneys relating to other EC decisions. However, whether the amount for the administrative costs can be quantified, or whether we shall simply have to pay a lump sum within the budget, we need a straight answer to one crucial question. On what authority will we pay that amount if it is not a Community obligation, which it is not —it is an agreement between the 11—and if Britain has not passed the protocol requiring us to pay our share of one twelfth?
Perhaps the Attorney-General is going to produce a smart answer. Perhaps he is going to say, "Don't worry; the obligation to pay is still there." Why, then, was it put in the protocol? If it is not needed—if it is just one of those petty cash slips which have to be signed—what was the point of including it? That is an important question.

§ Mr. Skinner
It has just crossed my mind that British Members of Parliament are allowed to go to Brussels once a year, paid for by the taxpayer. [HON. MEMBERS: "Strasbourg."] Strasbourg, is it? I have never been, but I know one or two hon. Members have already taken up the option. Would it be in order for Members of Parliament to go trotting off to Strasbourg to discuss the social chapter that Britain has not accepted? Or would that be ultra vires? Would they have to pay the money back? I foresee complications.

§ Sir Teddy Taylor
The hon. Gentleman is entitled to go to Strasbourg—or, indeed, Brussels—at the taxpayer's expense. He can travel first class if he wants, and stay at a top-class hotel, for any purpose. It is almost like the Taylor plan for agriculture, under which farmers would be given a cheque and told that they could do whatever they liked. It would save us a great deal of money if we offered every farmer a cheque for £127,000 on 1 January, to be presented at village halls. For the avoidance of doubt, let me tell the hon. Member for Bolsover (Mr. Skinner) that he can travel to Brussels or Strasbourg at any time, summer or winter. He can travel first class and he need not do anything at all.

§ Mr. Peter Luff (Worcester)
And the longer he stays, the better.

§ Sir Teddy Taylor
That is unfair. This is a serious issue: we are talking about people's money. My hon. Friend should be ashamed of himself if he thinks that this is funny. He should consider the tragedy of poor people today, of all the things that Britain needs and of the £250 million that is spent every week on dumping, destroying and storing foodstuffs. I feel terrible when I encounter the problems of the homeless.

§ The Chairman
Order. I should be grateful if the hon. Gentleman would address the Chair.

§ Sir Teddy Taylor
I am sorry, Mr. Morris. I am afraid that my hon. Friend the Member for Worcester (Mr. Luff) put me off. It is not right to treat these issues as laughing matters; they are deadly serious, and important to the people of Britain.
Finally, I should like specific advice about the issue of urgency. Like every other hon. Member, Mr. Morris, I appreciate your decision to allow us to discuss the matter today, rather than later. It was made clear—or appeared to be made clear—that what the Foreign Secretary said did not relate only to amendment No. 27; in his answers to questions, he plainly stated that it also related to the Committee of the Regions. Will the Attorney-General specify the areas of decision making, apart from amendment No. 27, to which we must pay the same attention? That is important, because we shall shortly have to vote on the amendment relating to the Committee of the Regions. The Foreign Secretary has told us to treat the Committee of the Regions in the same way as amendment No. 27. We want to know why we should treat it in the same way; we also want to know which areas of decision making should lead us to say, "There is no need to bother about this amendment, because it will have no effect on ratification."
I may be wrong, but I have a horrible feeling that what was said about amendment No. 27 might apply to everything, and that the Government could say, "We are going to ratify the treaty, come what may." I have a 704 horrible feeling—perhaps some of the lawyers will confirm it—that that applies not just to amendment No. 27 and the Committee of the Regions, the two matters on which the Government appear likely to be defeated, but that wider considerations may be involved. It would be unthinkable for the Committee to proceed to a vote without clarification of the issue. I accept that the Foreign Secretary's remarks appear to be correct in relation to the principal amendment that we may have to consider, but we must think carefully about what the issues really are.
I am glad to have been called early to ask my three specific questions. Let me tell the Attorney-General in all sincerity that he is a man whom we respect: he is one of the decent, straight guys. I do not think that I have ever heard him make one of those clever political remarks which attempt to distort figures or turn the facts on their heads. He must be well aware that something very nasty has happened on this occasion.
We know that the Attorney-General's views will not be published. I am sorry about that, as I am sure that they would be interesting and clearly expressed. We also know that the alleged legal opinions given to the Minister of State will not be published. That is unfortunate, but. I think that the Minister will be aware that something nasty has happened in Parliament—something that is not consistent with the standards of integrity that many of us, irrespective of our views, expect of a Conservative Government.
The right way for the Minister to proceed—I am sure that he will do so because he is a straight guy—is not to try to make any "bashing" points, saying that Labour is silly or that the Liberals are worse, but to answer specific questions fairly and precisely, so that we know the facts. That is the way to make progress in the European debate —by telling people the truth, rather than trying to distort the issues. The powers of the House of Commons, which some people consider important, should be clarified and not confused by what appear to be political purposes.

§ Mr. Maclennan
The House is indebted to you for your decision, Mr. Morris. It has enabled the debate to take place.
I say at the outset that it is a matter for regret that the Attorney-General has not tabled the advice on which the Government base their construction of amendment No.27. Is it desirable for the opinions of legal advisers to the Foreign Office—on which the right hon. Member for Watford (Mr. Garel-Jones), the Minister of State, Foreign and Commonwealth Office, based his earlier and entirely contradictory advice—not to be made public? Admittedly, it is not common practice to publish the advice of legal advisers to Departments of state—although, interestingly, they are a source of public international law. After the passage of time, they are cited in courts as indicative of the legal position of the time. The Committee would be assisted by the publication of earlier advice as well as that of the Attorney-General.

§ Mr. Spearing
Does the hon. Gentleman think it not only suspicious but undesirable, and to some extent unparliamentary, for the Attorney-General not to seek to follow the speech of my hon. Friend the Member for Hamilton (Mr. Robertson), and tell us directly what that advice was and whether it was parallel with the advice that he gave the Prime Minister?
705 His failure to do so and the difficulties in which that places hon. Members on both sides of the Committee is unparliamentary and wrong. We hope that the Chair will take notice of that when a closure is moved, so that some of us may speak again if we have spoken before the Attorney-General.

§ Mr. Maclennan
I regret that the Attorney-General did not publish his advice and that he did not place it in the Library before the beginning of today's debate. It is unsatisfactory that the debate should proceed on the basis of the Foreign Secretary's interpretation of that advice and that many hon. Members may speak before the Attorney-General chooses to intervene to explain his position, which presumably is that on which the Government rest their case. As he has not chosen to do so, it is best if I repeat the questions that my right hon. Friend the Member for Yeovil (Mr. Ashdown) asked the Prime Minister—[HON. MEMBERS: "We want answers."] I want specific answers to specific questions, and that is why I am speaking.
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My right hon. Friend questioned the Prime Minister on the basis of advice that he sought and was given by Mr. Anthony Lester QC, a distinguished authority on international public law and European law, who has taken the view that, if the social protocol is to be given international effect—as a treaty to which this country has subscribed as a high contracting party—it must be ratified by the proper procedures of our constitution. That is explicit in article R of the Maastricht treaty and is a necessary implication of the language in section 6(2) of the European Assembly Elections Act 1978, which introduced a provision to limit the powers of the Executive in this country—the Crown—to ratify any treaty, including any international agreement and any protocol or annexe to a treaty. Section 6(1) provides that any increase in the powers of the European Assembly, such as a treaty, cannot be ratified unless it has been approved by an Act of Parliament. The Foreign Secretary did not deal with that issue when he made his famous statement.

§ Mr. Marlow
I am interested in the hon. Gentleman's argument, and 1 read about Mr. Lester's advice in the newspapers. How does the hon. Gentleman react to clause 1(2) of the Bill, which states: For the purposes of section 6 of the European Parliamentary Elections Act 1978 (approval of treaties increasing Parliament's powers) the Treaty on European union signed at Maastricht on 7th February 1992 is approved"?

§ Mr. Maclennan
I shall deal with that, but it is best if I do so in a logical order.
From reading section 6(1) and (2) of the European Assembly Elections Act 1978, it is clear that the protocol requires explicit enactment or approval of the House, since the protocol and the annex to it enlarge the power of the European Parliament. It follows that we cannot accept, as an adequate expression of the law, the Foreign Secretary's statement that it would be desirable, but not strictly necessary, to ratify the social protocol by the approval of the House.
706 The Foreign Secretary seemed to focus on the incorporation of the protocol into our domestic law, but has the protocol been properly ratified as a treaty to which we have signed our names? That question affects not only our domestic law, but whether the social protocol will come into effect. Likewise, that treaty is required to be approved by the procedures of section 6(1) and (2) of the 1978 Act. If it has not been so approved by the House, the country will have failed to ratify the treaty and the protocol will lack effectiveness. The treaty will fail for lack of ratification.

§ Mrs. Gwyneth Dunwoody (Crewe and Nantwich)
I have followed the hon. Gentleman as well as I am able; I am non-legally minded. May I ask him one simple question? Since to ordinary men and women the situation is obtuse and seems to show that all sorts of decisions are being taken without any elected Member being fully aware of the implications, would it not be much simpler if the Attorney-General told us now exactly what he has advised the Government, so that we can proceed with a much more informed debate?

§ Mr. Maclennan
I realise that the hon. Lady would prefer to hear the Attorney-General rather than listen to me.

§ Mrs. Dunwoody
Never.

§ Mr. Maclennan
I have already made plain my view that it would have been preferable for the Attorney-General to speak, but he has not done so and I must therefore continue with my questions to him. I hope that the hon. Lady shares an interest in the questions and the answers that we shall get.

§ Mrs. Dunwoody
I should like to hear the answers.

§ Mr. Maclennan
The hon. Lady must possess herself in patience, as I am trying to do.
The Attorney-General must say how he seeks to distinguish between the necessary requirements of ratification for the Maastricht treaty and for the social protocol. Why is he prepared to tell the House and the Government that it is necessary for the House to approve specified parts of the treaty in clause 1(1) and (2) of the Bill, but that it is not necessary—although it would be desirable for reasons of incorporation—to enact the social protocol?

§ Mr. Bryan Gould (Dagenham)
I am listening carefully to the hon. Gentleman. I wish that he was right, but I do not think that he has a good case. I believe that the provisions of clause 1(2) are conclusive. Does he accept that, if he is to prove his argument, he will have to extend it not merely to the social protocol but to titles I, V, VI and VII and to every other part of the treaty that is not incorporated into domestic law by virtue of the Bill?

§ Mr. Maclennan
I hope that I shall deal with that aspect to the hon. Member's satisfaction before I conclude. It also relates to the remarks made by the hon. Member for Northampton, North (Mr. Marlow).
I suggest to the Government that it is important to ensure that we enact the social protocol properly, to enable it to come into effect, even if it is merely to achieve the Government's objective of keeping Britain out of the 707 operation of that protocol—although that may seem paradoxical. If the agreement is to have effect, we must enact it according to our procedures.
A non-legal argument is that United Kingdom electors have a substantial interest in the manner in which the European Parliament exercises the increased powers provided by the social protocol. On those grounds, we are entitled to some say in the matter—and not only on grounds of legal necessity.
As I understand it, the hon. Member for Northampton, North was saying that clause 1(2) would approve the entire treaty for the purposes of the 1978 Act, including the social protocol, that, since amendment No. 27 relates to clause 1(1) the House will be enacting the social protocol as required and that, in effect, those who drafted amendment No. 27—the official Opposition—failed to recognise that it might have been better to amend clause 1(2) to achieve the total deletion of the social protocol. There is a clear answer to the point. Clause 1(2) refers only to the treaty and not to the protocol. The social protocol, unlike other protocols to the treaty, expressly states: this Protocol and the said Agreement are without prejudice to the provision of the Treaty. That emphasises its independent character as an international agreement for the purposes of section 6 of the 1978 Act. It must therefore be separately and explicitly approved by the House.
Clause 1(1), in defining the Community treaties in section 1(2) of the European Communities Act 1972, refers to Titles II, III, and IV of the Treaty on European Union … together with the other provisions of the Treaty so far as they relate to those Titles, and the Protocols adopted at Maastricht … and annexed to the Treaty establishing the European Community. The use of the word "and" is important to emphasise, because it shows that, for the purposes of clause 1(1), the protocols are required as additional to the treaty rather than being an integral part of it.
The reference in clause 1(2) to the treaty of European union must be construed in the light of the provisions of the Bill as a whole, including clause 1(1). Even without amendment No. 27, there is an obvious difference between the reference to the treaty and the protocol in clause 1(1) and the reference to the treaty alone in clause 1(2). As Mr. Anthony Lester put it in his advice to us, clause 1(1) refers to bacon and eggs; clause 1(2) refers to bacon.
If amendment No. 27 is passed, the fact that clause 1(1) will deliberately exclude the social protocol will make it even more difficult to argue that the reference to the treaty in clause 1(2) is to be construed to include the social protocol.
As I understand the Government's approach, it involves inserting in clause 1(2) after the reference to the treaty the words and the Protocols adopted at Maastricht on that date and annexed to the Treaty establishing the European Community. It is our legal view that unless those words are added by amendment, it will leave great uncertainty about whether Britain has validly ratified the social protocol, and hence whether the protocol can lawfully take effect.
I put it to the Attorney-General that that view is a weighty one and if it remains unanswered—it has not been answered so far in the exchanges between my right hon. Friend the Member for Yeovil and the Prime Minister—it will be open to others to seek judicial review and 708 clarification in the European Court of Justice. It is beholden upon the Government to avoid that uncertainty by ensuring that there is no doubt that Britain has properly ratified the social protocol if it wishes to avoid the inevitable political uncertainties that will flow from pursuance of that legal action in our courts or the courts of Brussels.

§ Mr. David Lidington (Aylesbury)
As a non-lawyer, I have followed with care today's debate and the statement made by my right hon. Friend the Secretary of State for Foreign and Commonwealth Affairs.
It has always been clear to me that the Bill is designed not to ratify the Maastricht treaty but to bring into force in United Kingdom domestic law those aspects of the treaty agreed at Maastricht that require such legal implementation. The treaty has therefore always embodied two categories of measure—those that traditionally it has been the right of the Executive, using the prerogative powers of the Crown, to decide on behalf of the nation, and those that have required legislative embodiment in the corpus of our domestic law.
Our debates have covered both categories of measure. The Government have rightly decided that the Committee should be given an opportunity to debate matters that essentially have been of an intergovernmental nature, such as co-operation on foreign policy, even though, strictly speaking, it was not necessary to debate or vote on them before the Government could ratify the treaty.

§ Mr. Geoffrey Hoon (Ashfield)
Is the hon. Gentleman saying, therefore, that it would not be appropriate for the Committee to debate and subsequently vote on the question whether the United Kingdom should be bound by the social chapter?

§ Mr. Lidington
I am grateful for the hon. Gentleman's intervention. I made no such assertion. The Committee has every right to express a view to the Government on matters that require amendment to our domestic law and on matters for which the Government are using prerogative powers. I would oppose the Committee declaring itself in favour of the social chapter by some amendment other than amendment No. 27, but if it did so, the Government would have to take account of that view.
Having listened to the statement made by my right hon. Friend the Foreign Secretary last week and having read the Official Report and subsequent accounts published outside the Committee, I asked myself three questions. The first was whether amendment No. 27 would embody the social chapter in British law and bind Britain by the obligations that the other 11 voluntarily undertook. I am clear in my own mind—I believe that this view is generally accepted —that amendment No. 27, if passed, would not have that effect.

§ Mr. Cash
My hon. Friend is traversing a matter of some legal interest, and is asserting that he understands it. No doubt I am not alone in thinking that the confusion that has been generated would only be compounded by his remarks. The social chapter says that the "High Contracting Parties ‖ herein" agree. The 12 member states, including the United Kingdom, are parties to the inclusion of the social chapter in the treaty. It must therefore follow that it is part of the treaty. Any attempt 709 to exclude it would automatically go outside the treaty, and what my hon. Friend has said would conflict with the provisions of clause 1, which says: the protocols adopted at Maastricht on that date"— 7 February 1992— and annexed to the Treaty establishing the European Community shall be regarded as part of British domestic law. I have much difficulty in understanding how my hon. Friend can argue that the amendment could exclude Britain from the social chapter.

§ Mr. Lidington
As always, I am grateful to my hon. Friend the Member for Stafford (Mr. Cash) for his remarks. He has identified the next question with which I was about to deal, but I pray in aid the Library's research paper, which was compiled and published a month before my right hon. Friend the Foreign Secretary's statement last week. The paper makes clear the Library's view that if an amendment made provision in the European Communities Act 1972 for the UK to take full part in the Protocol on social policy at a later date, then the Government would still have the legislative underpinning necessary for the ratification of the Treaty in its present form. I do not accept—and I do not believe that those on the Opposition Front Bench accept—that passing amendment No. 27 would compel the United Kingdom to accept the social chapter.
My hon. Friend the Member for Stafford touched on the second question that I ask myself, which is whether the refusal of the British Parliament to pass the Bill as drafted, and our acceptance of amendment No. 27, would prevent the other 11 countries from going ahead with the social protocol, and would therefore bring down the entire edifice. That is certainly an outcome that my hon. Friends the Members for Southend, East (Sir T. Taylor) and for Stafford and others wish devoutly to secure.
I await with interest the comments of my right hon. and learned Friend the Attorney-General but it seems implausible to me, as a non-lawyer, for us to argue that paragraph 1 of the protocol on social policy would cease to have any effect if the British Parliament tried to exclude it from our domestic law.
Paragraph I is the agreement that the Community authorises the II member states who wish to use the social protocol to do so. If we were to assert that the acceptance of amendment No. 27 would make it impossible for the other 11 to proceed, the same principle would presumably have to apply to each of the other protocols which refer to groups of countries of individual countries but not the United Kingdom, to the protocol that safeguards the provision in the Irish constitution which covers the abortion law and to that which gives the Danes the right to stop Germans buying second homes in their territory.
I stress that I speak as a non-lawyer, but it seems that amendment No. 27, in as far as it deletes paragraph 1 of the protocol on social policy, would not prevent the Government from ratifying the treaty and, through their prerogative powers, enabling such ratification to authorise the other countries to proceed within the bounds of the treaty as negotiated.
Another question that I ask myself is whether, therefore, the amendment means anything. If the amendment does not compel Britain to accept the social 710 chapter and does not prevent the other 11 from proceeding, what is the point of the Government continuing to object to it?

§ Mr. Marlow
My hon. Friend is comparing the amendment with the Danish protocol, which stops the Germans buying second homes. Is not one of the main differences the fact that it allows the use of Community resources and institutions? If the House says no, through amendment No. 27, would it be proper for the Government to proceed and to allow Community resources and institutions to be used among the other 11 countries?

§ Mr. Lidington
The issue of Community resources is the one aspect about which I remain troubled, and I look forward to hearing what my right hon. and learned Friend the Attorney-General has to say. The expenditure involved and alluded to in paragraph 2 of the protocol on social policy concerns the administrative expenses of the institutions themselves, for whose costs there is already a subvention in our membership of the Community in any case.
Before my hon. Friend's intervention, I was wondering whether there is any reason why Conservative Members should continue to oppose amendment No. 27. I believe that there is, and it was mentioned by the hon. Member for Ashfield (Mr. Hoon) in a question to my right hon. Friend the Foreign and Commonwealth Secretary last week: how might the courts—the British courts or the European Court of Justice—seek to interpret the legislation if amendment No. 27 were passed? The wording of the protocol, especially paragraph 2, explicitly excludes the United Kingdom from the remit of the social chapter.
In the light of a recent judgment, the House of Lords is willing to examine Parliament's intentions, and the European Court of Justice has traditionally tried to discern the intentions of legislators before it reaches a decision. In view of those facts, it is only common sense for my colleagues who believe that the social chapter would gravely damage this country's prosperity to ensure that the British exclusion from the social chapter is made clear in any legislation.
For that reason, I shall certainly oppose amendment No. 27, and I hope that members of my party who share my view of the social chapter will also act accordingly.

§ Mr. Spearing
On a point of order, Mr. Lofthouse. May I consult you on an issue relating to the conduct of the Committee and, in particular, the circumstances of its conclusion on a motion to report progress? I understand that it is entirely within the Attorney-General's discretion to decide when to speak. However, some of us have difficulty in deciding whether to speak before him. Clearly, we have come prepared to comment on the opinion that he has given to the Secretary of State for Foreign and Commonwealth Affairs, but we are not able to do so until he endorses it.
The debate is due to finish at 10 pm, whether or not there is a closure motion. If the Attorney-General speaks towards the end of the debate and the Government move a closure motion near 10 pm, there will be little opportunity for further comment after the Attorney-General has spoken. Therefore, I submit that there will be no proper debate, as there should be in the tradition and working of the parliamentary democracy of this place. 711 Will you please confirm, Mr. Lofthouse, that what I have said is certainly a possibility? If so, the Attorney-General is condemned by his own silence.

The First Deputy Chairman of Ways and Means Mr. Geoffrey Lofthouse)
The hon. Gentleman will know that if the Attorney-General attempts to catch my eye, I shall consider calling him. It is not up to the Chair to decide when the Attorney-General or any other hon. Members rise to be called.

§ Mr. Winnick
Further to that point of order, Mr. Lofthouse. We are grateful for your advice. There are, of course, times when a Minister is not especially welcome. However, you may not be aware that then Mr. Morris was in the Chair, my hon. Friend the Member for Hamilton (Mr. Robertson) asked the Attorney-General a number of pointed questions. We are at a tremendous disadvantage. I accept what you said about an hon. Member trying to catch your eye, but the Attorney-General knows that we are at a disadvantage because of the conflicting advice. He has been asked some important questions. It is extremely discourteous of the Attorney-General, who is not normally discourteous—I am not sure whether he wants praise from an Opposition Member—

The First Deputy Chairman
Order. I have listened to the monitor earlier and I heard the Chairman of Ways and Means deal with the question, with which I shall deal again. If the Attorney-General wishes to catch my eye, he will no doubt attempt to do so. It is not for the Chair to decide when the Attorney-General wishes to speak.

§ Mr. Marlow
Further to that point of order, Mr. Lofthouse. You are a decent chap and a distinguished servant of the House. You know how important this debate is, so you agree, I am sure, that it will be a rum old do, as the debate is largely about what the Attorney-General is going to say, if the debate is not allowed to continue for some considerable period after he has spoken.

The First Deputy Chairman
Whom the hon. Gentleman agrees with is not a matter for me.

§ Mr. Spearing
Further to that point of order, Mr. Lofthouse. If there was any asperity in my submission a few moments ago, it was not in respect of the Chair, but in respect of the behaviour of the Government, who are accountable here. You said correctly—we all know this —that when the Attorney-General wishes to rise to catch your eye is within his initiative. However, will you cofirm —this is a point of absolute order—that if the Attorney-General chose to rise between 7 pm and 8 pm, or even a little later, the time available for subsequent speakers—this would probably rule out those who had already spoken—would be limited by the fact that the debate would continue either until 10 pm, when it would conclude automatically, or until there was a closure motion just before 10 pm? The opportunity for any hon. Member, including my right hon. and learned Friend the Member for Aberavon (Mr. Morris), to wind up the debate would therefore be limited. All I ask is that you confirm that that is the potential procedural position.

The First Deputy Chairman
The hon. Gentleman's points are all speculative. I shall repeat what I have said, 712 after which I shall take no further points of order on the subject. Whether or not the Attorney-General wishes to catch my eye is a matter for him.

§ Mr. Donald Anderson
I quote: Confusion now hath made his masterpiece! The hon. Member for Aylesbury (Mr. Lidington) made a number of interesting points. He said that amendment No. 27 either means something or means nothing; either it would have an effect or it would not have an effect; even if it were to mean something and to have an effect, no one knows what that meaning would be. In any event, the hon. Gentleman will support the Government. That gives some idea of the fog of obfuscation hanging over our debate.
With the best will in the world, the Committee is not at its best when it tries to come to a conclusions on what may be a narrow technical and legal point. There is a whole host of witnesses—"a cloud of witnesses", as the old book would say, and the word "cloud" may be relevant in the context. Sir Anthony Lester has said one thing and the gentleman who writes research notes for the Library has said another. Mr. Alan Watkins, the lawyer manqué of the Observer, has written a third thing. Everyone gives us the benefit of his views. What is the correct view?
It is important to get the matter right because there could be profound consequences if the Government proceeded incorrectly. It could take a long time to determine matters if they were put before the courts, either our own courts by way of judicial review, or before the European Court of Justice. We know from the Sunday trading legislation saga, for example, how long the learned judges of the European Court can take to reach a decision. The average time for preliminary judgments is close to 12 months. We could have a rather interesting time while we waited for the tablets to be brought down from Luxembourg.

§ Mr. Ian Taylor
The hon. Gentleman is right to say that there are many legal judgments on the matter. Will he confirm that the House has already shown, by an overwhelming majority of 244, its support for the Bill? Does he also agree that the House would probably not endorse the social chapter if there were a vote on it? That is what the public want to know. We should make progress. Many factors affecting this country's interests are at stake in the period in which we continue the debate.

§ Mr. Anderson
I acknowledge that this is a matter of considerable importance to our country, not least in terms of the confidence that comes from inward investment and the way in which we are perceived by our partners in the Community. Clearly that is part of the problem caused by the Government having tried to play it both ways. They have said that they want to be in, but not quite in. They give some sops to Members such as the hon. Member for Esher (Mr. Taylor), who is a believer in Europe, yet they give other sops to the more nationalist wing of their party. The problem is entirely of the Government's making.
If the Government had said that they would introduce a Bill simply to enact the Maastricht treaty, there would have difficulties—certainly not from my party, because there was a clear vote in favour of that at our party conference. But the Government have not introduced a Bill to enact the Maastricht treaty. The Bill seeks to enact the deformation of the treaty, which the Conservatives have brought about by the dual opt-out. The way in which 713 the Government are trying to play it, being partly in and partly out, is the reason behind the legal, technical and profoundly practical and political problems we now face.

§ Sir Russell Johnston
Will the hon. Gentleman make the point to the hon. Member for Esher that, if we had a genuinely open a free vote in Committee on the social chapter, it would also be carried?

§ Mr. Anderson
That is a matter of opinion. It could well be. The nearest that the Committee has been able to come to devising an amendment that shows support for the social chapter is amendment No. 27. If the Government, for technical reasons, choose to ignore that, they do so at their peril. They display the same arrogance that they have shown over the years. It would be profoundly anti-democratic for them to ignore the view of the Committee if it were, as I believe that it would be, in support of amendment No. 27.
What is the history of the saga? You will recall, Mr. Lofthouse, that on 20 January, the Minister of State came to the Committee with the authorised version of the Government's then view about the legal effect of agreeing to amendment No. 27. On 15 February, the Foreign Secretary came to the House with the revised standard version of what the legal effect would be. Why was there a profound and total contradiction between the two interpretations of the effect? How can two Government views be at such variance?

§ Mr. Winnick
I thank my hon. Friend, who is courteous as always, for giving way. Does he agree that it is extremely frustrating that the debate is taking place now, without the Attorney-General having been involved? My hon. Friend asks questions about the conflict of the advice given to the Committee by the Minister of State with the advice given by the Foreign Secretary last Monday. We pressed the Attorney-General to come to the House, which he has done now, but he refuses to speak until the wind-up. Would it not have been a far more informative debate if the Attorney-General had spoken at the earliest opportunity after the speech by my hon. Friend the Member for Hamilton (Mr. Robertson)? On the basis of what the right hon. and learned Gentleman has said, we could then have debated the matter.
As my hon. Friend the Member for Newham, South (Mr. Spearing) pointed out, we shall not be able to do that because, once the right hon. and learned Gentleman has spoken, the chance of debate, except for interventions in his speech, will be slight. That is discourteous. Whatever pressure the Whips have put on the Attorney-General, it is unfortunate that he has not risen and responded to the wishes of hon. Members of all parties. I include those who are in favour of the treaty as well as those who are opposed to it.

§ Mr. Anderson
I agree wholeheartedly. I believe that, on reflection, the Attorney-General would probably concur that it would have been for the convenience of the Committee if, immediately following the speech of my hon. Friend the Member for Hamilton, he had responded to the questions raised and given the Committee the benefit of his views. A debate could then have taken place in response to that speech and the platform that the right hon. and learned Gentleman had provided. Under the 714 procedures of the Committee and with its leave, he could then have responded to the debate as it progressed. Alas, the point raised by my hon. Friend the Member for Walsall, North (Mr. Winnick), though proper, is no longer relevant because the Attorney-General has chosen, for ill reasons, not to speak.
It is worth examining what happened between 20 January and 15 February. It is clear that the Government had adequate time to work out their response to amendment No. 27 and what the legal effect of passing it would be. After all, that amendment was tabled in the summer of 1992, and the Foreign Office legal advisers had plenty of time between then and January to examine it carefully.
It is important to compare the weight of the opinion of the Foreign Office legal advisers with that of the Attorney-General. Those advisers are a cadre of specialist lawyers who spend their time dealing simply with matters of this nature. Those who resort to law know that it is always appropriate to go to specialist chambers for advice and to someone who is an acknowledged expert in a particular subject of learning. If one wishes to seek advice on the import of the meaning of a particular treaty or the relevance of the implementation of a particular clause relating to that treaty, who better to go to than those Foreign Office legal advisers, whose job and whose expertise relate to such matters? After all, they spend all their time looking at the construction of treaties.

§ Mr. Budgen
Before Foreign Office lawyers give their advice to Ministers debating a treaty and a Bill such as this, would it not be their practice to give a copy of that advice to Ministers and the Attorney-General, in the knowledge that the Attorney-General might be called to the House and required to justify the opinion, which was, essentially, the opinion of those lawyers?

§ Mr. Anderson
The hon. Gentleman has raised an important point. In the generality of cases, Foreign Office legal advisers, because of their expertise, would not need to go outside for advice. However, given the certainty that this subject would be debated in Committee and its profound implications, it is likely that the advice that they tendered, or a draft form of it, would have been conveyed to the Attorney-General for concurrence. My first question, therefore, is whether, between May 1992, when amendment No. 27 was tabled, and 20 January, when the Minister of State made his statement, Foreign Office legal advisers consulted the Attorney-General. If so, did he concur with the opinion that they then gave?

§ Mr. Andrew Rowe (Mid-Kent)
I am listening carefully to the hon. Gentleman, and he seems to be making a subversive argument. I am not a lawyer, but the law of our country is based on the fact that specialist lawyers, however expert, may argue their case as well as they can, but, at the end of the day, it is subject to the opinion of people who may not be specialists in that point of law but who, by reason of their office—whether they be in the Court of Appeal, a judge or the Attorney-General—make the appropriate decision. It seems that the hon. Gentleman is arguing that, if one has a sufficiently "expert" expert, no other authority is required.

§ Mr. Anderson
I was not putting the Attorney-General in the role of a judge of appeal or whatever. The expertise 715 in this subject is more likely to be found among Foreign Office legal advisers than in the office of the Attorney-General. He has a generality of expertise and is not necessarily expert in this matter. With all respect to the Attorney-General, the fact that the strongly held view of Foreign Office legal advisers, decided upon after a long period of reflection and conveyed to the Committee on 20 January, was then undermined so quickly raises important questions.
The traditional role of the Attorney-General is to act as someone who is part in and part out of the Government. Although he is elected, he is there to give independent advice to the Government. It is a bad thing for the country if the impression is given, rightly or wrongly, that the Attorney-General has entered into a partisan role. He does not wear a partisan hat when he makes a great many decisions, and part of the strength, historically, of the office of the Attorney-General has been that, to some extent, it is above the party fray.
The speed with which the opinion offered on 20 January was changed raises questions. One hon. Member referred to the smell surounding this issue. I would not use that argument, because I have great respect for the Attorney-General, but he must accept that the issue raises questions that must be answered. I hope that the right hon. and learned Gentleman will give those answers when he speaks. For example, was the Attorney-General consulted prior to 20 January and did he concur with the opinion that was delivered to the Minister of State?
My next question, which follows chronologically, is in what circumstances was the question that had been answered so confidently by the Minister of State referred to the right hon. and learned Gentleman's office for a further opinion? Further, did he go outside his office to seek opinion or did he do so in-house, from the lawyers around him? They are probably not particularly expert in this matter. It is important for the health of our government that the lid is taken off these matters and that they are clarified.
I have already mentioned the problem that faces the Committee. We are all experts in our own way, but many in the Committee are not lawyers. We are being invited to address a profound legal question. For that reason, I raised the serious point—I was not seeking to be humerous —about the difference beteween our proceedings and those of a Standing Committee. When such a matter arises before a Standing Committee, one has the opportunity to call senior lawyers who can give the Committee the benefit of their views. We might even call Mr. Alan Watkins, who holds strong views on this matter. At the moment, we are unprepared when we give the Committee the benefit of our views. We can only probe the chronology of events in respect of the Attorney-General.
I have posed the key questions that I wished to raise, but there is another question, in part a legal one, but with practical implications, that needs to be considered. It is possible that the Government could have ratified many titles in the Bill through the Executive process arid the royal prerogative. Whatever the constitutional experts may say about the technical and legal possibility of doing that, I believe that the political implications of such an act should be paramount. The Government should never lightly ignore the expressed views of Parliament.
Leaving aside what the hon. Member for Caithness and Sutherland (Mr. Maclennan) said about the construction of the European Assembly Elections Act 1978, and the 716 way in which the Government are constrained by statute in respect of the protocol, even if it had technically and legally been open to them to use the royal prerogative in this case, they would have been wrong to do so, given the immense political implications of this matter. It would be an arrogant Government who ignored the clearly expressed views of Parliament.
I echo what my hon. Friend the Member for Hamilton said. It would not only have been wrong, practically, to ignore the will of Parliament, but it would fly in the face of the whole argument that the Prime Minister has used, rightly in my view, against a referendum relating to the Bill. The right hon. Gentleman has relied on parliamentary sovereignty. The final decision must rest with the House. One cannot clasp the doctrine of parliamentary sovereignty to one's chest as it suits, and reject it when it does not, as in this case. That is another cogent argument why the Government should listen to the voice of Parliament.
I was considering the way in which the law can be brought into disrepute when those who cannot find a convenient opinion look for another one elsewhere that may be a little more convenient. In doing so I was reminded of a jingle in relation to that great Welshman and Liberal, Lloyd-George—I hope that it will not be said of the Government: Count not my legal opinion as fine I meant it as I meant it at the time.

§ Mr. Cash
We have now reached a stage in the Lewis Carroll saga when we should recall "Through the Looking Glass", when Humpty Dumpty spoke of words meaning what he chose them to mean: 'The question is,' said Humpty Dumpty, 'which is to be master—that's all.' That summarises our position. There are conflicting opinions and words, but the whip, the bludgeon, the heavy instrument is driving the Bill through, irrespective of its impact on people, or their opinions or wishes. Therefore, to paraphrase Lewis Carroll, we are now in a position where opinions appear to mean what we or others choose them to mean, and the question is, when is Maastricht to be passed—that is all.
We have now moved beyond the purely technical questions on the social chapter, and the issue before the Committee is much greater. That is why it is the subject of the motion. The relationship between hon. Members and Parliament is rapidly moving into a black hole. If amendment No. 27 had been passed—or if it is passed in future—that will amount to Parliament instructing the Executive that the provision of the social chapter must be excluded from the treaty.
If that were done, irrespective of the argument about whether one may or may not ratify a treaty by prerogative, we should have to ask what the position would be if Parliament's views, arguments, determinations and will were to be overridden after Parliament had decided to exclude the social chapter. If that happened, we would face a new sort of constitutional problem.
Let us apply the same criteria to any other treaty. Let us suppose that Parliament decided that it did not want a treaty and passed a resolution to that effect. Anyone could immediately see that overriding that decision would constitute a defiance of Parliament. We would rapidly return to a position not far from that of James II, when he turned to the people of this country and said that he had 717 got the loot from Louis XIV and did not need Parliament, so Parliament could get lost. He said that he would suspend or dispense with the law, according to his prerogative. I am not sure whether the Government have realised the dangerous hole in their flank that they have opened up by their handling of the short-term issue of the social chapter.
At the beginning of our procedings on the Bill, I raised the issue of the Ponsonby rule. I wanted to elicit from the Minister of State the exact relationship between the prerogative and Parliament in relation to the Bill. I did so because, as I said then, only certain titles of the treaty—titles II, III and IV—together with the other provisions of the treaty so far as they relate to those titles, and all the protocols adopted at Maastricht on 7 February 1992, would be incorporated in the consolidated treaty arrangements of the European Community legislation. The Bill was a proposed addition to that.
Therefore, I wanted to know the position in respect of those other provisions—the so-called invisible and illusory pillars that the Government have erected through their prerogative. I wanted to know the position under the Ponsonby rule if, within 21 days of the treaty and the protocols being laid before the House, we legislated and then discovered that some parts of the provisions that were being dealt with by prerogative required express parliamentary approval.
The argument cuts both ways. If Parliament were to pass an amendment that overrode the use of prerogative, Parliament's views would not only have to be accepted, but would be imposed on the Executive by Parliament. A Government who decided to take such a step would be unwise. If amendment No. 27 excluding the social chapter were passed, we would be in exactly the same position as we are in respect of the prerogative provisions contained in the so-called pillars. There is a profound difference between the provisions presently contained in clause 1(1) (k) of the Bill and the position towards which we are moving. I do not believe that the Government have entirely understood how dangerous the position has become.
That problem has now been compounded by the competing legal opinions. As has been rightly said, it hardly matters which opinion is chosen. Some might wish to defer to the opinion of the Attorney-General and any external advisers that he had chosen. Others—I make no secret of the fact that I am included in the group—have been working out how best to address such important matters, and have been obtaining opinions and seeking advice from external sources.
About two or three weks ago in Committee—before the latest saga—I said that I had been involved in matters relating to the Constitution Act 1982, when I advised Quebec. That issue eventually made its way to the Supreme Court in Canada, and the views that some of us —myself included—had proposed were accepted by the Supreme Court. The Foreign Office advice that had been relied upon during the proceedings was found wanting. I could give many other such examples.
It is by no means unusual to discover that Foreign Office legal advice is wrong. We now have the authority of no less a person than the Foreign Secretary. He had to say that the advice was wrong. On 15 February, he said: 718 I regret that the legal advice then given to the House was not correct … we intend to press forward with the Bill so that we can ratify the treaty which I, my right hon. Friend the Prime Minister and my right hon. Friend the Chancellor of the Exchequer negotiated at Maastricht, and which won an overwhelming majority on Second Reading in this House." —[Official Report, 15 February 1993; Vol 219, c.28.] In the light of what I said earlier, it would be a massive defiance of the House if amendment No. 27 were passed and proceedings on the Bill continued despite the view that had been expressed by the whole Committee.
I do not take issue with the fact that there was, in numerical terms, an overwhelming majority on Second Reading; but the Prime Minister pointed out in an interview in a newspaper article about our scuttling out of the exchange rate mechanism, for good reasons, when it got hot that, when circumstances change, one has to change with them. Of course, circumstances have changed.
The "overwhelming" majority on Second Reading was obtained on the basis of the political landscape at that point. The circumstances have changed with the Danish referendum results, so the consideration that we should apply to amendments such as amendment No. 27 has changed.
In a letter to The Times which appeared in that paper only on Saturday, the hon. Member for Hamilton (Mr. Robertson) seemed to know that there would be an intergovernmental conference shortly, at which amendments would be passed to the Maastricht treaty. The hon. Gentleman will correct me if I am wrong.

§ Mr. George Robertson
The amendments to which I referred were to the EC treaties. They are consequential on the outcome of the Edinburgh summit. A decision was made to create a European investment fund. That requires a change to the statutes of the European investment bank, an institution which already exists. That requires a formal treaty amendment. The week before last, the European Parliament gave formal agreement for an intergovernmental conference to take place this week or next week. It is a technical change: it requires no huge fuss or constitutional chaos. I used it as an example in my letter to The Times to show that precisely the same thing could happen with the social chapter. But the amendments will be not to the Maastricht treaty but to the full EC treaties.

§ Mr. Cash
The letter left some uncertainty, and I am grateful to the hon. Gentleman for explaining the context in which he wrote it. However, it would be possible, although highly improbable, that an intergovernmental conference such as those convened at great expense at Birmingham and elsewhere would provide an opportunity to come together to resolve some of the other questions which have arisen, and dispatch the Maastricht treaty with it.
If the 12 Governments are to convene, they might just as well recognise the point which I made to my right hon. Friend the Foreign Secretary shortly after he made his statement. We have reached a position in which the treaty should be consigned to the dustbin of history, because the circumstances have so changed, and the likelihood that the treaty, in not only its present but its implemented form, would create turmoil throughout Europe, has grown so much that it should be dealt a final blow in a statesmanlike manner by the statesmen of Europe.

§ Mr. Michael Spicer (Worcestershire, South)
Is not the position which the hon. Member for Hamilton (Mr. Robertson) described in his intervention even worse than the one which my hon. Friend describes? My hon. Friend was describing the possibility of an amendment to the treaty of Maastricht, which has not yet been ratified. The hon. Member for Hamilton was talking about a mini-Maastricht behind our backs. The position is worse than my hon. Friend outlines to us.

§ Mr. Cash
My hon. Friend the Member for Worcestershire, South (Mr. Spicer) would be the first to discover something even worse than I described. I am grateful to him for showing how the appalling nature of the whole exercise has been compounded.
My hon. Friend the Member for Southend, East (Sir T. Taylor) made a point about the administrative costs which will arise under the social chapter as it now stands. As I said in a point of order, and in an intervention in the speech of my hon. Friend the Member for Aylesbury (Mr. Lidington), the 12 high contracting parties have agreed to the protocol on social policy. To some extent, some people have missed the wood for the trees. Certainly, 11 member states are the participants in the agreement within that protocol, but the same 12 high contracting parties which have entered into the treaty have agreed to the social protocol. They have decided that it will not apply to the United Kingdom.
However, from the long title of the Bill and its scope, and to the provisions of clause 1, it is perfectly clear that for the treaty to have effect it must do so as it has been put together by the 12 high contracting parties throughout. The ingredients of the agreement between the 11 parties is another, but important, question. Therefore, whatever advice my right hon. and learned Friend the Attorney-General might have received, there is a large question mark over whether the original advice should now be discounted.
Even if we knocked out provisions of a treaty to which the 12 member states had signed up, even though any protocol contained an exclusion—for example, for the United Kingdom on economic and monetary union—they are all part and parcel of one grand but dreadful treaty. One may say that the treaty is awesome in the powers that it will transfer away from the House.
The consequences of leaving out any one part of the treaty, if amendment No. 27 was passed, would be that the Committee had instructed the Executive not to include those provisions. Therefore, I would argue that we would immediately run into the problem of whether it was possible partially to ratify a treaty. One cannot partially ratify a treaty.
I am not referring to the agreement between the 11 member states. I am referring to the fact that the 12 high contracting parties have agreed to the protocol. On that argument, it would wreck the treaty to pass an amendment such as amendment No. 27. Of course, I should be delighted about that. On that point alone, a large question mark remains.
There is also an issue of administrative costs. If we excluded the social protocol by amendment No. 27, presumably the administrative costs would fall to be paid by virtue of the prerogative. According to the Government, that is the only basis upon which they would then be in a position to proceed. I should like to have the following question answered: would the Public Accounts 720 Committee be able to inquire into the manner in which the administrative costs were levied? Would such matters be within the remit of the Select Committee on the Treasury?
As some hon. Members have said, there are profound questions as to whether such matters would be Community obligations. If they were pushed through by prerogative alone, they would be not Community obligations but impositions on the British people. There would be a charge upon them through tax as a contribution towards the cost. The fundamental principle applying to the constitutional arrangements of the United Kingdom is that no such provision may be made without the full authority of Parliament. It cannot be done by prerogative.
I spoke earlier about James II. In this instance the Executive would tell Parliament what to do, and if we passed an amendment, Parliament would be defied if the Executive went ahead with the prerogative. That touches another of the central planks of the constitutional relationship between Executive, Parliament and people, that a charge or tax may not be imposed upon the people without their consent and the approval of their Parliament.
As I said when speaking about overriding the prerogative, only an unwise and imprudent Government would imagine that this matter is not central to the running of our affairs. In the past, some people thought that nothing much depended on that, but Pym and Hampden and others—not little Englanders but people who stood up for our citizens when they were faced with absolutism and authoritarianism—understood the principles upon which we then operated and on which we must still operate if we wish to sustain freedom of speech and the principles of free government. I wonder whether the Government appreciate the extent to which their arguments have dislodged that plank.
The explanatory memorandum says that the Bill will have no direct financial effect in the United Kingdom. Some hon. Members, including my hon. Friend the Member for Southend, East (Sir T. Taylor), have spoken about administrative costs and the prerogative. There is also the issue if title I, article F3, which deals explicitly with whether it would be right to use the prerogative. That title is not included in section 1(1) (k) of the Bill. Title I, article F3 would give the Community the power to provide resources to achieve the objectives of the "Union" without any apparent reference to Parliament. I shall not labour that point as it has already been made but it is important to add it to the discussion about the administrative costs of the social chapter. The two matters are linked and are symptomatic of a deeper problem.
Defiance of Parliament by the Executive in relation to the prerogative and the overriding of the principle of parliamentary approval to the payment of moneys representing a charge on the people are symptomatic of the draining away of the soul of Parliament. That is because the treaty represents a failure of political will to say no to the demands of Germany and France about economic and monetary union. Further, we did not refuse to accept the nostrums and the intellectual baggage that have developed over time. Circumstances changed when the Berlin wall came down, and there were changes when we had to leave the exchange rate mechanism.
The European framework that is being designed has a corrosive effect upon our parliamentary system. Policies, including the social chapter and the issue of whether we 721 should be excluded from it, are being dictated by Governments, influences and circumstances which are no longer as valid as they seemed to be when the whole business of the European Community, which as a whole I support, was being devised in the early 1950s.
6.15 pm
"German comments", published in July last year contained a simple reference by the editor. It is a publication by Konrad Adenauer Siftung, to which I have referred before. That reference stated: Voting has become an instrument of protest. This will make governing even more difficult than it was in the past. That was published after the Danish referendum, and it is a chilling observation.
A similar problem is arising in this debate. I agree that it is difficult to govern—no one has any serious doubt about that—but the way in which it is done and the extent to which we have regard to the procedures, manners and customs of Parliament and the necessity to ensure that we do not do anything to enable the prerogative to override Parliament, whether in relation to administrative costs or an amendment, remain critical.
My hon. Friend the Member for Southend, East referred briefly to another problem. I was astonished by the extent to which those of us who have taken a certain position about the treaty were smeared—I think that that is the right word—with the charge that we wanted the social chapter to be imposed upon British business. First, we never did; secondly, that is impossible; and thirdly, I understand that the smear was being put around even after the Foreign Secretary had made his statement. Some people, probably because they do not understand, have continued to say that.
Perhaps some further retraction is required of that smear, because we never intended what was alleged, and nobody is certain about what will happen to amendment No. 27. We were criticised for something that we had not done and, with few exceptions, nobody has declared his intention. Above all, the impression was given that we were about to do something that was not even possible. The Government and the Foreign Secretary have conceded that we were right; that in itself is of no little importance for the reputation of hon. Members and is the basis upon which we approach our opposition to the treaty and the Bill.

§ Mr. Stephen Milligan (Eastleigh)
I am interested in what my hon. Friend says about what is possible, and his claim that he would not support anything that was impossible. Does he go along with his supporter in another place, who said that he would be prepared to support the proposition that the moon was made of blue cheese if that would destroy the treaty of Maastricht? Would that not explain why some of us thought that my hon. Friend was prepared to vote for the amendment on the social chapter, the imposition of which might have had that effect?

§ Mr. Cash
I do not always take the advice of other people, however distinguished and eminent—I make up my own mind. But my preference is for Shropshire cheese rather than cheese that comes from the moon. My hon. Friend should not get too excited about what we may or may not do, because time will tell. The point is, first, that 722 we knew what the words meant, and secondly, that we made them clear. We explained to people why we were doing what we were doing.
It was only because other advice was being tendered about the imposition of the social chapter, as opposed to whether it would wreck the treaty—I make a distinction between the two—that we were led to the view that we would not be imposing the social chapter on British business. The Government have now conceded that, and it is important that it should be on record. That has little to do with cheese, from the moon or from anywhere else, or even with the opinions of some of my noble and distinguished Friends in the House of Lords.
Another issue that arises in the principles that are beginning to come out in the debate is the referendum. It is clear that, if the people were to find that the Government were ignoring Parliament and people, the case for a referendum would become unanswerable. The more that the debate continues day by day, the more complex and confused it becomes, the more the contradictions are revealed and the more the case for the referendum grows. Opposition Members are witnessing a travesty of procedure. They are watching, I have no doubt, with concern, the way in which an opinion goes one way and then another—the switching, the ducking and the weaving. One opinion is as good as another. The legal advice on which the treaty is based is now in serious doubt.
I would go further. When my right hon. Friend the Prime Minister came to the House after the Danish vote, I expected him to say that, because of that vote, the Government would have to reconsider the matter. We heard nothing of the kind. My right hon. Friend said that we were going to press ahead, and that has been the basis on which the matter has been treated since then. I put it to him then, on the basis of what seemed to me to be clear from the treaty—nobody has ever argued with me about this—that it is a centralising treaty. Therefore, I must conclude that, when he replied that I was wrong in every particular, that reply must have been based on the same legal advice that he had received from the Foreign Office in respect of this matter as well.
Therefore, I wonder why people should believe—not only in respect of the centralising realities of the Bill, including the concept of the central bank, subsidiarity and all that goes with it, and a whole raft of other stuff based on legal advice—that the legal advice underpinning the treaty is any more valid that that given about the social chapter. The answer is that it is not. That raises yet another question. I am glad to see him here today, but why is it that my right hon. and learned Friend the Attorney-General has deigned to indulge us with his presence for the first time only today? We have repeatedly asked him to come to answer the questions that I have asked over and over again. Answer came there none—nor did the Attorney-General.
We are dealing here not with a bilateral treaty but with a system of law, which is a legal framework. That is why questions of legal interpretation continually arise. I see my right hon. and learned Friend smiling and looking at his watch and, to go back to Lewis Carroll, he might do so before he slips down the black hole. The legal advice that lies at the heart of the treaty is wrong and imperfect. The agruments with which we are being presented cannot be evaluated against policy because there is no White Paper and no basis on which to form a judgment about the 723 connection between policy and the legal advice that underpins the relationship that will be created between the British people and their Eurogovernment.
For example, in relation to the social chapter, if a matter relating to the administrative costs of the institutions of which the British people would be paying under the Government's propositions, to be implemented solely by the prerogative, were to arise, and the Chancellor of the Exchequer were to appear before the Treasury Select Committee, he would be no more responsible for those decisions than he would be for the entire British Budget. It would be almost a waste of his time turning up.
He might have had some influence on the outside looking in but, for practical purposes, if the central bank provisions went ahead—that is the legal advice given by the Foreign Office, which has led to the treaty being made in line with policies that have not yet been explained—he would not have to give any answers that meant any thing to the Select Committee, because the main decisions would be taken by the unelected, unaccountable central bankers.
The Foreign Office has also given legal advice about the European Monetary Institute in stage 2. There is no doubt that, under article 8 of the protocol, the Governor of the Bank of England would effectively be under the thumb of the monetary institute. He would not have to take advice or instructions from the Chancellor of the Exchequer and the House. It would be of no value for the Select Committee on the Treasury to call him before it, because he would have nothing to say to it. He would say, "I cannot seek instructions; I cannot take instructions." Therefore, under stage 2, before we get to 1 January 1994, which is less than a year away, we shall be moving into the transitional phase. That is the basis on which advice is being given.
6.30 pm
We so often find that we fall back upon statements that are made as a matter of policy by Ministers. Only the other day, I heard my right hon. Friend the Foreign Secretary imply that practical considerations were more important than legal considerations. I heard him say much the same when the Danish referendum took place. To paraphrase him, he said that what the people of Denmark may think is more important than what might be contained in the treaty. I remember that pretty well. It is that approach that lies at the heart of the issue.
It must be recognised that there is a legal framework. It is no good Ministers hiding behind the privilege of the House of Commons and hoping that there are no legal implications in what is being done. The legal advice that is being tendered is fundamental. In the past couple of months, the House of Lords made a ruling which, combined with Factortam, raises an important issue.
As I said to my right hon. and learned Friend the Home Secretary only the other day, it is open to the courts as part of the travaux preparatoires to examine what is said in parliamentary proceedings in deciding the balance of their judgment in the context of the legislators' intention. I see that the shadow Attorney-General, the right hon. and learned Member for Aberavon (Mr. Morris), is nodding his head. He knows that what I say is true. He and I know also that there are difficulties for the Government.
When it comes to interpretation, including the provisions of the social chapter, centralising or not, and legal opinions that have underpinned the basis of the policy on which the Maastricht treaty has gone through, to 724 be considered also are the various remarks that have been made by Ministers. The time will come when the record is read. The history of the Bill will be mulled over against the background of many speeches that may now be regarded as beyond the pale because they are made by individuals who bitterly oppose the provisions contained in the treaty. As and when history unfolds and these matters are judged against the background of what happened, as compared with what it was said would happen, it will be realised that it was the underpinning legal advice that was at fault.
When we consider the treaty's provisions against the background of a massive transfer of power within a predetermined European policy that has drained away the will of the House of Commons and that of the Government to allow the British people to determine their own affairs within the European Community, it is clear that the umbilical cord has been broken by the sort of advice that is being presented. For example, stage 2 of the treaty would enable decisions to be taken on the basis of that advice by unelected and unaccountable persons that would be at variance with the constitutional usages and practices of the House of Commons.

§ Mr. George Robertson
I am grateful to the hon. Gentleman for giving way, because I know that he is just about to bring his remarks to an end. I am sure that he, like the rest of us, wants to hear the Attorney-General, who I understand will speak shortly. We certainly want the right hon. and learned Gentleman to answer some of the questions that have been put by the hon. Gentleman as well as by other hon. Members. In the hon. Gentleman's concluding sentences, will he bear in mind the fact that these matters have little or nothing to do with the law and everything to do with the political convenience of a Government who are facing defeat on amendment No. 27?

§ Mr. Cash
I am extremely interested in the hon. Gentleman's last remark. Without wanting to cast aspersions on the Government's motives, I must say that political convenience is frequently at the heart of major decision-making. It would, of course, be unfair in any way to suggest, or even to think, that legal advice has been tailored to suit political convenience.
The principle has been enunciated that we should go ahead. That is what my right hon. Friend the Foreign Secretary appears to be prepared to do, along with the rest of the Government, including my right hon. Friend the Prime Minister. The Executive, or the Government, seem prepared to go ahead with the social chapter irrespective of whether the Government effectively give an instruction that that should not be done. It seems that the Government are prepared to go ahead by prerogative alone.
If that is so, I am bound to say that the same principle could be applied to all legislation that flows from the European Communities Act 1972. The same can be said of the treaty. I am bound to concede that there is no good reason, according to our constitutional practice, why it should not go through by prerogative.
The distinction that I am drawing—again I notice that the shadow Attorney-General is nodding in agreement—is that which lies between the ordinary prerogative treaty, which is simply laid before the House, and prerogative treaties that have the effect of incorporating rights, duties and obligations into our domestic law, which have to be 725 passed by way of Act of Parliament in order to have effect on the people of this country. It is crucial that that distinction is remembered.
The issue turns not on the arcane theological argument about the ratification of treaties but on the extent to which rights, duties, obligations, functions and powers are created that have an impact on the people by virtue of enactment in the House of Commons. That is why I said at the beginning that the Government have opened up a dangerous flank. If they were to persist with the view that legislation can be taken through the House of Commons merely by prerogative, they would be saying, in effect, "We do not need Parliament."
If that were to be the position, why should we bother with all the legislation that emanated from the European Communities Act and the treaty of Rome back in 1971–72? The answer is that there would be no need for it. That, however, is at variance with the facts, the law, custom, practice and realities. There must be passage through the House of Commons; otherwise, we shall not create obligations, duties and powers.
Baroness Chalker of Wallasey recently made an interesting and revealing speech in the House of Lords. She said that the treaty does not impose any specific duties. This harks back to another question that I put to my right hon. Friend the Minister of State. I asked him about the whole question of citizenship and about the rights accorded to and the duties imposed upon the people of this country. The answer that I received was just the same as the one given by the noble Baroness.
But what I was told does not answer the legal question that lies at the heart of my intervention in the speech of the Minister of State. The people of this country need to know what duties are being imposed upon them and what powers are being accorded to them. Otherwise, their status as citizens of the United Kingdom will be uncertain. They will not know where they are. Are they to be part British and part European, or are they to be made exclusively European? These questions of citizenship must be addressed. They arise from the legal advice that has been tendered with regard to citizenship—a matter with which the noble Baroness did not deal.
The noble Baroness said that, in effect, this was a modest measure about which we should not get too exercised. But if we do not get exercised about the way in which we are governed, about our Parliament, about whether we are to be taxed without consent, if we do not bother ourselves about whether the executive can railroad provisions irrespective, and possibly in defiance of Parliament, we shall deserve the fate which will befall us.

§ Mr. Hoon
If the judges of the European Court of Justice, in their efforts to elucidate parliamentary intention, look at the speeches of Members of Parliament, I wish them every success in their researches into the undergrowth of the contributions of the hon. Member for Stafford (Mr. Cash).
My recollection is that we are debating the legal and constitutional effects of amendment No. 27, which specifically excludes the protocol on social policy from United Kingdom domestic law. Originally, Opposition Members understood that amendment No. 27 would prevent the Government from ratifying the Maastricht treaty without recourse to a new intergovernmental 726 conference. That is what the Minister of State told the House repeatedly and perhaps not in his most careful and considered manner, but rather gleefully—not carefully relaying legal advice, but obviously revelling in what he thought was a political bombshell for the Opposition. In the following days it became clear that it was the Government who were suffering the fallout from the bombshell when they realised that they were likely to lose the vote on amendment No. 27. Only then did their legal advice appear to change.
Last week, the Foreign Secretary's argument was that the passing of amendment No. 27 would have no effect on ratification, as ratification was a matter for the Crown. It was argued that, as the protocol on social policy had no direct effect in United Kingdom law, it would not have to be incorporated in United Kingdom legislation. Of course, that applies to any obligation under an international treaty. It is possible for the Crown to ratify without reference to Parliament. Any such international obligation would have to be put before Parliament in the form of a Bill only if the treaty concerned created obligations involving changes in United Kingdom law—changes which had to be incorporated in national legislation.
The Foreign Secretary was not stating anything new when he said that nothing in the protocol on social policy required United Kingdom legislation and that, as amendment No. 27 would remove the protocol on social policy—it was a negative—it would not create rights in the United Kingdom.
6.45 pm
That is all very clear and unexceptionable, except that, until that point, it had been assumed—not least by the Minister of State—that, if amendment No. 27 were passed, it would require a new intergovernmental conference. The Minister's point was that such a conference would open up the treaty and all the carefully worked out compromises made when the treaty was signed. His threat was that that would allow other countries to change their positions and would enable other considerations to be introduced and therefore raise the question of a fundamental change in the nature of the agreement—indeed, by implication, prevent any agreement at all.
The Government argued further that as some countries had already held referendums and thereby completed the process of ratification that their constitutions required, it would not be possible subsequently to change the terms of the treaty and the protocol without reopening the question of ratification in those countries. The Government were therefore deliberately raising the spectre of a re-run of the referendums in France and Ireland, knowing that the Opposition would be concerned about the prospect of a defeat in either of those countries allowing the Government to blame the Opposition for the collapse of the Maastricht treaty.
That is why there was such political glee about the legal opinion which was relayed to the House. This entire constitutional and legal debate arose simply because the Opposition wanted a means whereby Parliament could vote on the social chapter. They wanted a specific vote on whether the Government's opt-out from the social chapter was or was not a matter that the House of Commons could consider.
Surely, in a parliamentary democracy, it is appropriate that legislators should have an opportunity to debate in Committee the detail of a treaty. That, after all, is what we 727 have been doing. We have been considering in detail the provisions of the Maastricht treaty. However, we now understand the Government's position to be that there will be no opportunity to debate specifically whether or not the United Kingdom should adhere to the social chapter, and no opportunity to vote on that matter other than on Third Reading.
It appears that the Government's position and the Foreign Secretary's view is that, when the House votes on Third Reading, it will, in effect, be voting on the social protocol. In a parliamentary democracy, that cannot be acceptable. It must be open to us to consider specifically what was agreed at Maastricht and to vote upon it. That is why the explanation about ratification which has been given is not satisfactory.
Ratification means confirmation. Historically, it was not necessary—or not significant—for a treaty to be ratified. Essentially, a treaty was signed by the monarch, and ratification was no more than a formality. The significant process was the signature. In modern international law, the reverse is the case: the signature of an international treaty is, generally speaking, no more than a formality—ratification is the key process.
The reason is that, in most parliamentary democracies, ratification follows a parliamentary process whereby some democratic approval is given to the content of an international agreement. This makes possible a democratic veto on Executive action. Thus the practice has developed in virtually every parliamentary democracy, except our own. In the United States, it is necessary to have democratic approval before ratification.

§ Mr. Budgen
Does the hon. Gentleman agree that it is especially necessary to have democratic approval for a treaty which envisages a common defence policy and, possibly, the emergence of a common army? It is possible that, in future, people may be found guilty of treason if they do not want to fight in a Eueopean war. Therefore, the consent of people throughout the country is no small matter; it goes to the heart of whether the country consents to be governed in the way envisaged by the treaty.

§ Mr. Hoon
That is right. We have a representative democracy, so it is right that those decisions should be carefully considered by the House—or, at the moment, by the Committee. That is why I have argued that the Committee should have an opportunity specifically to 'vote on whether the United Kingdom should adhere to the social protocol.
The Government's argument has always been that because, in the Maastricht treaty negotiations, they opted out of the protocol, it is not necessary to put that before the Committee and, eventually, the House. The difficulty is that the social protocol binds the high contracting parties; it binds all 12 member states, including the United Kingdom. Even if the content of a protocol affects only one member state or fewer than the full 12 members, nevertheless it binds all 12, whatever its content. Each of the 12 member states agreed to the protocol on Denmark, which directly affects only the needs and concerns of that country. All agreed to allow the United Kingdom to opt out of economic and monetary union. Similarly, the protocol on social policy is, legally, made by the high contracting parties, which means all 12 member states, and it is necessary that all of them ratify it.

§ Mr. Cash
Does the hon. Gentleman agree that it would be almost fraudulent for an informal decision or agreement, outside the legal arrangements that he has described of 12 high contracting parties agreeing on a treaty, to give the Danes a special arrangement for matters which cover the whole range of the treaty? In other words, the opt-outs do not add up to a row of beans.

§ Mr. Hoon
The hon. Gentleman tempts me to stray from the specific debate, but I shall resist the temptation to join him in speculation along the lines that he suggested.
Where, in a parliamentary democracy, Parliament has specifically said that a certain provision of art international agreement should not be translated into United Kingdom law—which would be the effect of passing amendment No. 27—it would be hard to envisage how the Government could go ahead and ratify that specific provision. Yet if understood the Foreign Secretary correctly, that is what he has invited us to do. He is saying that, in effect, even if Parliament agrees to amendment No. 27 and states specifically that the protocol on social policy should not become part of the United Kingdom Bill or United Kingdom law, nevertheless the Government will still ratify because there is nothing in the protocol on social policy that requires it to be translated into British law.
In one sense, that is a political rather than a legal point. Legally, it is possible for the Government to do that, but politically and democratically it is hard to envisage how the Government could argue against what would be the clearest signal from Parliament that they should not ratify on the basis of a provision that Parliament has specifically resisted.

§ Mr. Iain Duncan-Smith (Chingford)
Will the hon. Gentleman enlighten us on his view on the supremacy of the European Court of Justice, which has a bearing on this matter? It is feasible that the Executive could ratify under the prerogative, knowing full well that various parts of the treaty make it possible, in a clash between national and Community law, for the European Court to force us to adopt this or other provisions that we have deliberately excluded. There is a very good case of that happening in, German basic law.

§ Mr. Hoon
So far, I have been dealing with what consider to be the international law implications of the action that the Foreign Secretary appeared to suggest last week. I want now to deal with some of the domestic implications of passing amendment No. 27.
Paragraph 2 of the social protocol was included at the behest of the Government's lawyers. That paragraph specifically excludes the United Kingdom from the terms of the protocol. Why was that paragraph included? Last week, the Foreign Secretary said that it was a tidying up exercise to ensure the avoidance of doubt. His lawyers had advised him which expression to use. If the Foreign Secretary was right, why was it necessary to include the paragraph in the first place? What would be the effects of its absence from the protocol?
That paragraph could have been drafted only by the Government's lawyers. There would be no advantage in a European Commission lawyer or a lawyer from France, Germany or Italy drafting that exclusion for the United Kingdom. It must have been negotiated by the United Kingdom, having been drafted by United Kingdom lawyers. In those circumstances, why did they think it necessary?
729 The reason is clear, and it was alluded to in the question to which I deferred responding a few minutes ago. It is because the Government want paragraph 2 as a defence, available in the event of anyone challenging the opt-out on the social chapter before either a United Kingdom court or the European Court of Justice. They want to be able to say, "Paragraph 2 includes a specific provision excluding the United Kingdom from the operation of the social chapter."
The Government created legal difficulties by negotiating the opt-out from the social chapter, which in effect allowed the creation of two quite separate legal systems within the European Community. They allowed for a system which would bind 11 member states, which could then produce directives under the social chapter—and eventually lead to cases before the European Court—and also for a system which would bind all 12 member states, which is the conventional legal system to which we are all accustomed.
What the Government never explained—I hope that the Attorney-General will consider doing so—is the legal position of the European Court of Justice when dealing with directives made under the social chapter. Directives will be issued and at some stage a provision in one of them will be challenged. Eventually, the case will go to the European Court. When the court considers such a case, it will not look simply at the narrow provisions of a particular directive; it will look at the directive, the treaty and a whole wealth of decided cases, and will then reach a conclusion.
If it is dealing with a particular interpretation of a directive made under the social chapter, will it say to the European Community "Ah, because this arises under the social protocol, the particular case binds only the 11 member states that signed the social protocol"? Can the European Court say that provision will be binding on only 11 member states? As someone trained in the legal profession in the United Kingdom, it is difficult to imagine a court saying, "This provision binds only some member states and not others."

§ Mr. Cash
Will the hon. Gentleman give way?

§ Mr. Hoon
I want to make progress and to allow the Attorney-General to answer some of my questions. I shall be grateful for the right hon. and learned Gentleman's advice. Essentially, the Government created the situation and it is they who must explain what it is that they are trying to achieve. The Government negotiated the opt-out and created considerable legal confusion in international and domestic law-potentially. It is appropriate for the Government to offer clarification, and I look forward to hearing the Attorney-General's explanation.

§ The Second Deputy Chairman of Ways and Means (Dame Janet Fookes)
I call Mr. Peter Luff.

Hon. Members
Disgraceful.

§ Mr. Luff
I have to say that I agree—

§ The Attorney-General
On a point of order, Dame Janet. I have been asked specially to listen to my hon. 730 Friend before I answer. I said out of courtesy that I would do so. I do not anticipate that my hon. Friend will take very long.

§ Mr. Luff
I shall first make the observation that— Interruption]

The Second Deputy Chairman
Order. The hon. Gentleman has the Floor, and I ask other right hon. and hon. Members to listen.

§ Mr. Luff
Many right hon. and hon. Members on both sides of the Committee occasionally complain that the Government do not listen enough. I welcome how carefully my right hon. and learned Friend the Attorney-General is listening to all the valuable comments made in all parts of the House on this occasion. One cannot have it both ways. If the Government do not listen, they are accused by some of arrogance and of not considering an alternative point of view. If they listen, they are criticised by others for doing that.
The same is happening in the debate on railway privatisation. In the early stages of that debate, the Government were again accused of not being prepared to debate the matter. They launched a debate through a series of consultation papers and the Transport Select Committee criticised them for not having a clear view of their objectives. I thank my right hon. and learned Friend for paying such close attention to today's debate.
I agree with the hon. Member for Swansea, East (Mr. Anderson) that Parliament is not always at its best when it debates closely argued points of law. In common with my hon. Friend the Member for Aylesbury (Mr. Lidington), I am not a lawyer, so it was with some trepidation that I ventured to intervene in such a careful, legal debate. I refer in particular to the speech of my hon. Friend the Member for Stafford (Mr. Cash), which drew widely on historical allusions. His allusion to Humpty Dumpty was particularly valuable, powerful and relevant. Many of us feel that this debate is being used by some as another opportunity to have Humpty Dumpty fall off his wall and experience more difficulty in being put back together again in the shape of the Maastricht treaty.
My hon. Friend the Member for Stafford confused the purpose of the Bill. In the early part of his speech, he seemed to suggest that the Bill seeks to ratify the treaty, when it does not: it seeks only to introduce into British law those elements of the Maastricht treaty which must be incorporated into British law. It is eminently sensible to propose that a particular amendment to a social protocol which will not affect Britain need not be incorporated.
While waiting to be called, I glanced briefly through the appendices on the protocols in Cm. 1934 and identified a number of protocols which surely would not significantly impede ratification of the treaty were we disinclined to integrate them in British law. I refer, for example, to the protocol on page 89 about the acquisition of property in Denmark, the protocol on Denmark on page 113, the protocol on Portugal on page 114, the protocol on certain provisions relating to Denmark on page 116, the protocol on France on page 117, and the derogation to Spain and Portugal on page 126 in relation to pollution from large combustible plants. None is central to ratification of the treaty by the British Government, and it is right that none should be incorporated into British law. The same is true of the social protocol.

§ Mr. Marlow
I wonder whether my hon. Friend has read in Hansard a written answer given to me by my right hon. Friend the Member for Watford (Mr. Garel-Jones) on Friday: The social protocol is an annexe to the treaty of Rome"— not an annexe to the Maastricht treaty— and is therefore an integral part of that treaty. It has been the United Kingdom's consistent legislative practice to incorporate all amendments to the Community treaties into domestic law."—[Official Report, 19 February.1993; Vol. 219, c. 364.] Why should we change?

§ Mr. Luff
My hon. Friend is entirely right. Maastricht is essentially an appendix to the treaty of Rome, as it seeks to amend that treaty in conjunction with it. The fact remains that the social protocol does not apply to and therefore there is no need to incorporate it into British law.
Tonight's debate exposes my central concern about the Bill's passage through the House. Many right hon. and hon. Members, while professing to stand for Parliament's practices and history, are using a series of parliamentary tactics in an attempt to destroy the Bill and to prevent the Government from ratifying the treaty. That is deplorable.
I am puzzled when I hear some of my hon. Friends and some Opposition Members vehemently defend Parliament's privileges and accuse the Government of riding roughshod over it when many of those same hon. Friends and Opposition Members are calling strongly for a referendum. Nothing would more fundamentally undermine the privileges, traditions and power of Parliament than a referendum on this issue.

§ Sir Teddy Taylor
Rubbish. Power to the people. Trust the people.

§ Mr. Luff
I do.

§ Mr. Hugh Dykes (Harrow, East)
I agree very much with my hon. Friend the Member for Worcester (Mr. Luff). Is it not worse still that the hon. Members to whom he refers are not only espousing a referendum, which would totally undermine the central sovereignty of this institution, but going further? They would undermine Parliament in an additional, reprehensible fashion, by saying that we must wait for Denmark's parliamentary decisions, legislation and referendum before agreeing to proceed. Is that not in stark contrast with the notion put forward by hon. Members that we should wait for the judgment or opinion of the European Parliament? That would be described by the same hon. Members as gross—

The Second Deputy Chairman
Order. I remind the hon. Gentleman and other right hon. and hon. Members that this is a dilatory motion directed at one particular point. We do not want a general, discursive debate.

§ Mr. Luff
I shall, of course, respect your ruling, Dame Janet, but I agree with my hon. Friend the Member for Harrow, East (Mr. Dykes). I make no secret of the fact—this is the thrust of my speech—that I want the Bill to make the most rapid progress possible. If I have any criticism of the Government, it is that progress has not been made fast enough. I want the Bill to pass through the House at the earliest possible date. It has always been my view that Parliament need not wait on the result of the Danish referendum.
732 I want to express my strongest possible support for my right hon. and learned Friend the Attorney-General and my right hon. Friend the Foreign Secretary in their revised legal judgment on amendment No. 27. There is always more joy in heaven over one sinner who repenteth, and I am always delighted when the Government have the courage to admit that they may have got something wrong. I can think of a number of issues affecting my constituents where I would welcome a similar change of heart by the Government. However, I am not one to join in the hue and cry of U-turn and scandal when the Government produce a revised opinion.
Opposition Members have difficulty in accepting unpalatable truths. First, they were led to believe that they could incorporate amendment No. 27 in such a way that it would not wreck the treaty. They were led into taking that view by their socialist friends in other European member states, yet they seemed prepared to continue to risk the possibility of wrecking the Bill, despite the advice of my right hon. Friend the Minister of State.

§ Mr. Edward Garnier (Harborough)
My hon. Friend says that Opposition Members have attempted to wreck the Bill by introducing the amendment. Does he agree that, if the social chapter were introduced into domestic law, it would wreck the economy of this country?

§ Mr. Luff
My hon. Friend is absolutely right. We have heard comments from a number of foreign Governments—and from Mr. Delors—about the likely impact of the incorporation of the social protocol, and the social chapter, into domestic law. It is no coincidence that we now hear noises from other member states—especially Spain and Greece—suggesting that they are having second thoughts about the wisdom of the social charter, and are recognising the social and economic penalties that they could pay for incorporating it into their domestic law.
Amendment No. 27 does not achieve what Opposition Members hoped that it would achieve. They hoped that it would force the British Government back to the negotiating table at a new intergovernmental conference. Now, they are disillusioned and disappointed.

§ Mr. Bob Cryer (Bradford, South)
The hon. Gentleman keeps saying that the amendment will not achieve what Opposition Members wanted. In column 27 of Hansard, 15 February 1993, the Minister of State is quoted as saying, on 20 January, that if amendment No. 27 were carried, United Kingdom law would not conform to the provisions of the treaty and that the United Kingdom would therefore be unable to ratify the treaty."—[Official Report, 15 February 1993; Vol. 219, c. 27.] It is nothing to do with Opposition Members; the Minister of State said that. The Government were in a desperate plight looking around for another legal explanation—and, like all lawyers, they got hold of a lawyer to give them the explanation that they wanted. That lawyer happened to be the Attorney-General. I will give the hon. Member for Worcester (Mr. Lull) some guidance: he should be wary of trusting any lawyer, especially the lawyer sitting on the Front Bench whom he says he is going to trust.

§ Mr. Luff
Some Conservative Members might give similar advice to the hon. Gentleman about the lawyer who leads his party. He should be similarly distrustful of that lawyer. It must be extremely disappointing for the hon. Gentleman to discover that an amendment drafted by 733 a party led by a distinguished lawyer will not have the effect that his party hoped that it would have and will not force the Government into the social charter against the will of the people of this country.
Treaties are difficult to negotiate, and I find it surprising that the Committee should seek to compound the difficulties. Already this country operates the most thorough scrutiny of Government proposals for treaties and of their successful negotiations. I do not think that any other European Community state has such detailed procedural methods of scrutinising treaties. A clear choice faces the Committee. The suggestion that amendment No. 27 is the be-all and end-all of parliamentary sovereignty is ludicrous. Plainly, a further choice faces the House—Third Reading. If Opposition Members feel that the omission of the social charter from the Bill, and therefore from the treaty that we ratify, is such a serious point of principle, they have the option of voting against it.
I believe that a meeting of the parliamentary Labour party took place last week. I pay tribute to some Opposition Members: according to press reports of that meeting, the Labour party will not make it its policy to seek to wreck the treaty. I welcome that, but I find it surprising that the Opposition have again sought to delay progress, using the device of a debate on amendment No. 27. We all remember the debate on the paving motion before Christmas, and the cynical contortions performed by some Opposition Members in order to reach the appropriate position.
I agree with my hon. Friend the Member for Southend, East (Sir T. Taylor) who, in a passionate rejoinder to a comment by me, reminded the House that the country faced more important issues than ratification of the Maastricht treaty. I believe that the treaty should be an uncontroversial piece of legislation, and that it should pass quickly on to the statute book, enabling hon. Members to debate the other crucial issues affecting our country. Later, we shall have an opportunity to debate many of those issues: I am thinking particularly of the development co-operation section.

The Second Deputy Chairman
Order. The hon. Gentleman now seems to be making a very general point. Will he either return to the subject or resume his seat?

§ Mr. Luff
Let me turn specifically to the question of amendment No. 27. [HON. MEMBERS: "Filibuster."] I do not think that I need to take lessons in filibustering from some of the hon. Members who surround me tonight.
As I have said, I am not a lawyer, but I believe that the statement made to the House by the Foreign Secretary of 15 February has the great merit of common sense. I thought that what he said was true even before he said it to the House. I was surprised, in a way, to hear my right hon. Friend the Minister of State suggest that the amendment would wreck the treaty; I did not think that it would. My right hon. Friend said: Any amendment that would render United Kingdom law incompatible with the treaty would have the effect of making it impossible for the treaty to be ratified. Thus, from the Government's point of view, it is necessary for such amendments to be defeated. Other amendments, while we 734 may oppose them as undesirable, do not render United Kingdom law incompatible with the terms of the treaty."— [Official Report, 15 February 1993; Vol. 319, c. 20.] I think that many hon. Members on both sides of the House can think of a number of such amendments which would be profoundly undesirable—such as the referendum amendment—but we shall resist them. What the Foreign Secretary said is clear.

§ Mr. Milligan
Does my hon. Friend agree that the reason for the frustration over the incompetence of amendment No. 27 is its support by the wholly bogus alliance of those who wish to destroy the Maastricht treaty with those who wish to insert the social chapter although there is no majority in the House for either proposition? The reason for the anger is not what the Government have done. The Government have behaved honestly and honourably in coming forward with clear legal advice, when it might have been more convenient to wait until the amendment was voted on; the anger and frustration result from the fact that the scheme has not worked.

§ Mr. Luff
My hon. Friend has put his finger on an important point, but there is a third category in the unholy alliance that he has cited: those who seek to undermine the very future of the European Community.
The hon. Member for Hamilton (Mr. Robertson) accused the Government of incompetence. I think that that charge rests far more fairly and squarely on his shoulders, and on those of his hon. Friends who have failed to draft the amendment successfully. I rejoice in that, however, because it means that we do not now face the incorporation of the social charter in British law.
I am anxious for the treaty to make rapid progress, and for the Bill to pass through its stages quickly. [HON. MEMBERS: "Sit down."] I shall sit down shortly. I am eager for the due process of law to be completed, so that we can return to the more pressing matters that confront the House.

§ The Attorney-General
Those who have been present throughout the debate will have observed that the interest generated in the Committee has fluctuated. A great deal of interest was rightly shown when the hon. Member for Hamilton (Mr. Robertson) opened the debate by posing a number of careful and detailed questions of legal relevance, which I hope to be able to answer. Later, interest seemed to wane.
I had looked forward to the speech of my hon. Friend the Member for Stafford (Mr. Cash), on the assumption that, as an experienced lawyer, he would ask a number of detailed questions; unfortunately, however, the piece of paper on which I noted them down is less full than anyone who knew my hon. Friend might expect. Indeed, I am not sure that he asked me any real legal questions in his 50-minute speech. Consequently, observers outside will realise that, although this is an important legal occasion, it is also a political one—and the politics and the tactics of the debate seem to have fluctuated from time to time.
I have some serious questions to answer on the legal aspects. Many hon. Members from both sides of the Committee have asked whether the Government would be willing to publish the Law Officers' legal advice in this matter. In answering no, I owe the Committee a clear explanation and I shall give one. I have been a Law Officer 735 for rising six years and I know that Law Officers advise the Government on a variety of issues every week—the variety is fascinating and remarkable.
Only one standard will do for legal advice—the best and the most careful opinion that the adviser can give, on the information available. Drawing on the six years that I have been a Law Officer and the six years or more that I spent as Parliamentary Private Secretary to Sir Michael Havers when he was Attorney-General, I am not aware of any precedent for the publication of Law Officers' advice to the Government, although I stand to be corrected. Occasionally the Law Officers come before the House or a Committee of the House to give prepared advice on an issue.

§ Mr. Donald Anderson
Were there not exceptional circumstances in this case? Shortly after the Minister of State gave his opinion on advice from Foreign Office legal advisers, the Attorney-General came back with a wholly contradictory view. Does not the House therefore have a right to a view of the opinion?

§ The Attorney-General
That is important, but the hon. Gentleman does not put his finger on the heart of the matter. If the Committee is given an important statement—such as that made by my right hon. Friend the Minister of State on 27 January, on amendment No. 27—which is later scrutinised in greater detail and the Law Officers' advice sought upon it, as happened in this case, and if the advice of myself and the Lord Advocate is different from that given to the Committee by my right hon. Friend, it is our duty to come before the Committee at the earliest opportunity to correct the matter. We must do so to enable important issues, such as those raised by amendment No. 27, to be debated on the correct basis.
It is not the first time that legal advice has turned out to be different. I cannot recall any occasion when the Law Officers' advice has been disclosed and nor can the hon. Member for Swansea, East (Mr. Anderson), and I shall not break precedent.

§ Mr. Maclennan
Does not the Attorney-General recognise that his experience of practice during the past six years has, to some extent, been overtaken by a recent decision of the House of Lords to treat what is said by Ministers at the Dispatch Box as evidence for the interpretation of what a Bill intends? By his performance tonight, the Attorney-General has therefore contributed to subsequent law-making processes in the courts. By denying the Committee the written opinion, which he might have put in the Library before the debate began, he has denied it the opportunity to examine the advice critically, with the benefit of other advice, which could have enabled our debate to be better informed.

§ The Attorney-General
I am well aware of the case that the hon. Gentleman referred to because I argued it in the House of Lords.

§ Mr. Maclennan
And lost.

§ The Attorney-General
I do not think that the hon. Gentleman has paid a great deal of attention to what was argued in that case or to the issues before the House.

§ Mr. Tam Dalyell (Linlithgow)
Although I am not a lawyer, I have been listening to Attorneys-General since the time of Sir Reginald Manningham-Buller. Forgive me for being sceptical, but the Attorney-General used the 736 phrase, "in greater detail". Apparently the matter was considered in greater detail. If it had been a trivial matter, we would of course accept that explanation, but the issue is central. Cannot lay people among us ask why the issue was not considered in the greatest detail in the first place? At best, the situation can be described as casual, but I do not think that that is how the Attorney-General's office or his officers operate. They are extremely careful civil servants. Are we really to believe that the "greater detail" altered the substance of the opinion?

§ The Attorney-General
I am sure that the hon. Gentleman would not wish to suggest that the legal advice was anything other than careful or accurate. It certainly was careful and accurate—it was the best legal advice that I and my noble and learned Friend the Lord Advocate could give and I believe that it is the right advice.
The Foreign Office has excellent legal advisers, who advise carefully on a host of matters and since I have had to give some thought to the matter, I have had the benefit of their views.
The hon. Member for Hamilton asked about the substance of the advice given by the Lord Advocate and myself. When addressing the hon. Member for Caithness and Sutherland (Mr. Maclennan), I referred to Hansard because my right hon. Friend the Foreign Secretary made it absolutely clear that, in expressing the legal view in his statement last Monday, he was expressing the views of the Lord Advocate and myself. The hon. Member for Newham, South (Mr. Spearing) asked me to clarify that advice. It is exactly as stated in columns 27 and 28 of Hansard by my right hon. Friend the Foreign Secretary when he addressed the House at this time last week.
The hon. Member for Hamilton also asked about the timing of the advice. I received the request for my advice on 9 February and I understand that my right hon. Friend the Foreigh Secretary asked his officials to obtain advice on 25 January. I did not receive the request or instructions until Tuesday 9 February. The Lord Advocate and IF advised on Wednesday evening, and the Foreign Secretary received the advice the following morning, Thursday 11 February. That is the chronology of the matter.

§ Mr. George Robertson
In the light of that answer, I have two questions for the Attorney-General. First, was any approach made to his Department—at any level—during the 10 months that amendment No. 27 lay on the Table? Secondly, given that his and the Lord Advocate's advice was given to the Foreign Secretary on Thursday morning, did it go to the Cabinet, and if not, why not?

§ The Attorney-General
I cannot answer the last part of the question—[HON. MEMBERS: "Why not?") Because I am not a member of the Cabinet. [HON. MEMBERS: "Ah!"] That is quite straightforward.
As to the hon. Gentleman's first question—about whether advice was from those who help me in the legal secretariat to the Law Officers in my chambers—to the best of my knowledge, advice was not sought until the dates that I gave. Previously, advice was given by Foreign Office legal advisers.
That takes me on to the way in which I can best assist the Committee with amendment No. 27 and other amendments along the same lines that it will have to consider. I seek to give some guidance about amendments that, if passed, might prevent ratification. I shall make a number of points, and I shall try to make them rather 737 deliberately so that they can be not only listened to but read coherently if anybody should wish to refer to them in future debates on the Bill.
The first point, as the Committee will appreciate, is that the Maastricht treaty must be ratified as a whole. Parliament can prevent its ratification by refusing to enact the Bill—by refusing to give it a Third Reading—but it cannot in any way modify the provisions of the treaty.
7.30 pm
The Committee will also have in mind the fact that the Maastricht treaty contains provisions of at least two different types. It contains some provisions that are intergovernmental in nature—one has in mind titles V and VI—and some that amend Community treaties. Here, those who have studied the Bill will have in mind titles 11 and IV. There is no need to incorporate into our domestic law the intergovernmental aspects of the treaty contained in titles V and VI.
Any amendment to the Bill that, by preventing incorporation of a treaty provision into our domestic law, makes it impossible for the United Kingdom to implement its Community obligations would cause us to regard ourselves as unable to ratify the treaty and would mean that if we did ratify we should be in breach of our treaty obligations as soon as the treaty came into effect. That is the key test. That is the heart of the matter that we are discussing.
More generally, amendments that seek to omit or amend provisions on Community treaties must be strongly resisted. It is important—this is not a matter of the tightest law but it is very important as a matter of legislative practice—to preserve consistency between our domestic law and Community law as it is applicable to the United Kingdom. That is best achieved by following the United Kingdom's consistent legislative practice of incorporating in domestic law not only all amendments to Community treaties but any protocols annexed to those treaties. The Government therefore continue to oppose deletion of the social protocol from the proposed revised list of Community treaties in section 1(2) of the European Communities Act 1972.

§ Mr. Bernard Jenkin (Colchester, North)
My right hon. and learned Friend speaks of the importance of conformity between the Act and the treaty of Rome, as amended by the treaty of Maastricht. If it subsequently emerged that we had implemented the treaty incorrectly in our legislation, it would not matter because the European Court would direct us to rectify any clash between Community law and our own law. Indeed, if we failed so to amend the law we could be fined under article 171 of the Maastricht treaty.

§ The Attorney-General
My hon. Friend is half right. He says that it would not matter, but it would matter, because we would be in breach of our Community obligations. After we had been the subject of infraction proceedings, and if the European Court ruled against us—we do our best not to be in that position—it would be necessary for us to come back to the House and move amending legislation to render our domestic law in conformity with Community law. I think that my hon. Friend the Member for Colchester, North (Mr. Jenkin) understood that point.

§ Mr. Budgen
Let us assume that the Government take a chance and decide that they will go ahead with the treaty without the protocol. If that situation arose and the matter were brought before our domestic courts on judicial review, would not that give rise to the risk of a conflict between Parliament and the judges?

§ The Attorney-General
Not in the way that my hon. Friend may have in mind, no, but I shall deal with that a little later.

§ Mr. Denzil Davies (Llanelli)
Will the Attorney-General give way?

§ The Attorney-General
No.

§ Mr. Davies
I have the answer here.

§ The Attorney-General
I am most grateful, but it is just possible that I have it, too.
The Committee will recall that, since the social protocol expressly states that acts adopted under the agreement of the other 11 member states shall not be applicable to the United Kingdom, the deletion of the social protocol from the Bill and consequently the failure to incorporate it in our domestic law would not render the United Kingdom incapable of fulfilling its obligations under the treaty of union and would not therefore prevent ratification. It is a double negative. We would not be incorporating something which expressly by its terms provides that acts done under it shall not be applicable to us—a double negative.
Amendments that seek to incorporate provisions of the intergovernmental pillars as Community obligations would produce a nonsense in our domestic law. Provisions in the intergovernmental titles are not Community law obligations and it would be quite wrong to incorporate them in our law as if they were. Some amendments may affect only our domestic—

§ Mr. Gould
Will the Attorney-General give way?

§ The Attorney-General
May I finish the point? I should like to get this on the record, and then I shall give way.
Some amendments may affect only our domestic procedures for implementing the treaty obligations. An example might be amendment No. 28 on the Committee of the Regions, which the House was about to reach until the dilatory motion was moved. If these amendments were passed, we should have to examine carefully whether our law would still be consistent with our international obligations. But provided this condition were met, amendments in that category would not be fatal to ratification.
Application of those principles will, I think, make it clear into which category particular amendments fall. The great majority would be likely to prevent ratification. There are, however, some other parts of the treaty such as the Danish protocol on second homes—here I have in mind the point that was put to me by my hon. Frend the Member for Worcester (Mr. Luff), who mentioned that protocol and a number of similar protocols—where it is hard to see that non-incorporation would prevent ratification. As I have said, certain amendments relating to purely domestic procedures may fall into the same category because they are not inconsistent with our Community obligations.
If, however, it is not clear how to apply those principles to particular amendments in the future, I am willing to 739 examine the matter carefully and give the Committee further advice. I hope that that is helpful as a broad way of looking at it.

§ Mr. Maclennan
rose—

§ Mr. Denzil Davies
rose—

§ Mr. Gould
rose—

§ The Attorney-General
I see that three hon. Members are anxious to ask me questions, but, with respect, I see that the hon. Member for Hamilton also wishes to intervene.

§ Mr. George Robertson
I am not certain whether the Attorney-General is clarifying the point. He is reading from a piece of paper that deals with different issues and he moves smartly from the area about which there is controversy to bits about which there is no controversy. He said that the Maastricht treaty must be ratified as a whole, but then he said that exclusion of the social protocol would not affect ratification. If that is the case, he will ratify that part of the Maastricht treaty by a means other than that which was intended when the Committee stage began. Will the Attorney-General confirm whether the Government will ratify the social protocol, which may by a vote of the House have been missed out of the Bill in which it is presently situated, by using the royal prerogative, because there is no other way of doing it?

§ The Attorney-General
The hon. Gentleman confuses the two quite different processes of ratification and incorporation of a particular provision into our domestic law. I see that the hon. Member for Ashfield (Mr. Hoon), who understands these matters, is nodding, and I am surprised that the hon. Gentleman does not understand them himself.

§ Mr. Gould
The Attorney-General's argument rests on the proposition that the omission of the social protocol would make no difference in domestic law, but has he considered the possibility that the explicit disclaimer of any obligations under the social agreement might help a domestic court to decide the extent of our obligations, not necessarily under the social agreement but under the general provisions of the treaty of Rome, requiring us to provide conditions of free competition? If that were the case—and I should be happy to argue that in a domestic court—the absence of that disclaimer would equally make a difference to domestic law and would run contrary to the Government's purposes in putting the disclaimer into domestic law in the first place, which is their intention under the Bill as drafted.

§ The Attorney-General
The hon. Gentleman is a sufficiently good lawyer to be able to recognise the different way in which the argument threads its way through what he said. Whether or not what he said is true, it has nothing to do with whether we can ratify the treaty. I think that the hon. Gentleman, who is kindly nodding, recognises that, so we shall leave his point.

§ Mr. Maclennan
Will the Attorney-General deal with the question of ratification of the treaty and section 6 of the European Assembly Elections Act 1978, which requires the approval of Parliament? The social protocol is a treaty like any other. Will he state whether, in his view, clause 1(2), which refers to the treaty, not to the treaty and the protocol, is referring to the protocol, because the 740 advice that I gave earlier is that it does not? Therefore, the protocol cannot under domestic law be ratified if amendment No. 27 is passed.

§ The Attorney-General
The hon. Gentleman would be taking me slightly off course if I answered that question immediately, but I shall answer it, and clearly. Just to give the hon. Gentleman a quick foretaste, I am absolutely satisfied that clause 1(2) covers that matter comprehensively, but I shall return to it in more detail. I shall give way to the hon. Member for Ashfield, because I mentioned him earlier.

§ Mr. Hoon
Does the Attorney-General believe that it is possible for the Government to ratify the protocol on social policy if Parliament has specifically excluded it from incorporation into domestic law?

§ The Attorney-General
Yes is the answer. The hon. Gentleman will know that that must be my answer. Our obligation is to incorporate into domestic law those portions of the treaty that give rise to obligations on the United Kingdom. As the hon. Gentleman will realise, the social protocol expressly states that it does not affect domestic law.

§ Sir Teddy Taylor
As the Attorney-General has answered fairly, can he help the House by saying when there was a precedent of the Government ratifying part of a treaty which the House of Commons has specifically voted to exclude? It would be helpful if we knew when that last happened.

§ The Attorney-General
My hon. Friend has probably given more thought than anyone else to the Bill, but, with respect, he should think more precisely. He said that the House has voted to exclude the social protocol from the treaty. That is not correct. If the Committee were to pass amendment No. 27 it would have voted merely not to incorporate the social protocol into domestic law. It must be clear to my hon. Friend and to the Committee—I say this with all respect—that nothing we can do in the Committee can amend the treaty. The treaty can only—

§ Sir Teddy Taylor
When did it last happen? Has it ever happened?

Several hon. Members
rose—

§ The Second Deputy Chairman of Ways and Means
Order. If the right hon. and learned Member who has the floor does not give way, other hon. Members know that they must resume their seats.

§ Sir Teddy Taylor
Has it ever happened before?

§ The Attorney-General
I do not know the answer to that question, but I do not believe that it is of constitutional importance.

§ Mr. Cash
Will my right hon. and learned Friend give way?

§ The Attorney-General
No, if my hon. Friend will forgive me, I must make a little progress. I want to deal with three other points, including that raised by the hon. Member for Caithness and Sutherland.
741 7.45 pm
A number of hon. Members asked about the obligation to share administrative costs of action by the other 11 countries, which is referred to in the social protocol. My view is that the obligation to share those administrative costs is covered by the listing of the own resources decision in section 1 (2) of the European Communities Act 1972—I believe that this point is of some interest to the House—assuming that such expenses are included, as seems likely, within the Community budget.
If, however, such expenses were not called forward in the Community budget as a whole, in which case there would be the authority that I have just mentioned, expenditure could be made on the authority of votes and on the authority of the annual Appropriation Act alone. In giving authority for that particular expenditure in relation to a treaty obligation, the House will be following exactly the same practice as we follow, for example, in relation to payments to NATO and similar treaties.
The second point is that there is no constitutional impropriety in continuing with ratification if amendment No. 27 is passed. My answer to my hon. Friend the Member for Southend, East (Sir. T. Taylor) made it clear that Parliament cannot pick and choose which treaty obligations to accept, but it can prevent ratification of the entire treaty by refusing to enact the Bill.
I deal now with the issue raised by the hon. Member for Caithness and Sutherland who mentioned the opinion received by the right hon. Member the Member for Yeovil (Mr. Ashdown). There can be no question of increasing the powers of the European Parliament without prior approval from the United Kingdom in accordance with the European Parliamentary Elections Act 1978. However, I draw to the hon. Gentleman's attention the fact that clause 1(2), if enacted, would approve the entire Maastricht treaty for that purpose. I invite all hon. Members to read the extremely clear and broad terms of clause 1 (2). I am satisfied that they cover that particular point.

§ Mr. Maclennan
This is the heart of the question. The matter is not as clear as the Attorney-General has sought to make out. In the terms of clause 1(2), the reference to the "Treaty on European Union" is to be interpreted as including the protocol. I say that because it is clear from clause 1(1), which includes the protocol, that the language is explicit and refers to all the protocols adopted at Maastricht. That is a key question.
It is also clear from the language of the treaty that the protocol was adopted as a separate instrument and was annexed to the treaty. Passage was to be considered to be without prejudice to the treaty. I find the Attorney-General's rather glib answer on the point wholly unconvincing, as I believe will many lawyers.
It is not satisfactory to suggest that the Committee has abided properly by the requirements of section 6 of the European Assembly Elections Act 1978. All that the Attorney-General is doing is inviting others to table amendments similar to those tabled for clause 1(1) in respect of clause 1(2) to put the matter beyond any doubt. The Attorney-General does not escape from the trap that he has sprung for himself.

§ The Attorney-General
I am not sure that the hon. Gentleman is in a good position to start talking about traps being sprung for people. He will be aware that his 742 right hon. Friend the Member for Yeovil has now sent my right hon. Friend the Prime Minister three letters on this matter. From the first letter, it seemed pretty clear that the right hon. Member for Yeovil had not read the Bill. Neither the letter nor the advice appended to it made any reference to clause 1(2).
I remind the Committee that clause 1(2) says: For the purpose of section 6 of the European Parliamentary Elections Act 1978 (approval of treaties increasing the Parliament's powers) the Treaty on European Union signed at Maastricht on 7th February 1992 is approved. The protocols were signed at Maastricht on 7 February 1992. They were all signed at the same time.

§ Mr. Maclennan
There were separate signatures.

§ The Attorney-General
Yes, it is true that there were separate signatures. The hon. Gentleman should also bear it in mind that the protocols signed at Maastricht are expressly annexed to the treaty of Rome. He should also bear it in mind that article 239 of the treaty of Rome says: The Protocols annexed to this Treaty by common accord of the Member States shall form an integral part thereof. As my right hon. Friend the Prime Minister, who has written to the right hon. Member for Yeovil on more than one occasion, has endeavoured to explain in his letter, the provisions of clause 1(1) and the provisions of clause 1(2) perform entirely different functions.
Clause 1(1) deals with the provisions of the treaty that require to be incorporated into our domestic law. It is clause 1(2) which provides the necessary parliamentary approval, for the purpose of section 6 of the European Assembly Elections Act 1978, for the whole of the treaty on European union. I emphasise that it is for the whole of that treaty.

§ Mr. Maclennan
I am grateful to the Attorney-General for giving way and I shall not weary him or the Committee again on this point. The Attorney-General cites the case of the treaty of Rome and the protocols thereto being integral. By so doing, he underlines the precise difference between the treaty of Rome and its protocols and the treaty of Maastricht and its protocols. There is no statement in the treaty of Maastricht that its protocols are integral. Indeed, the treaty expressly says: this Protocol and the said Agreement are without prejudice to the provisions of this Treaty". That emphasises the independent character as an international agreement for the purposes of section 6 of the 1978 Act. I am afraid to say that the Attorney-General, far from clearing up the matter, has left the position more confused.

§ The Attorney-General
I say with respect to the hon. Gentleman that the situation may be worse confounded in his mind. I believe that the position will be clearer to those who look at the matter carefully and dispassionately. I simply point out that the protocol on social policy says at item 3: This Protocol shall be annexed to the Treaty establishing the European Community. If the hon. Gentleman reads that in conjunction with article 239, which I have just quoted to the Committee, he will see that it becomes an integral part of the treaty of Rome on ratification. I believe that that matter puts the question beyond doubt. There are a number of other arguments that I could deploy, but it would probably be unhelpful for me to go further at this moment.

§ Mr. Calum Macdonald (Western Isles)
Is the Attorney-General saying that, if clause 1(2) were to be amended specifically to exclude the protocol on social policy, it will be impossible for the Government to ratify that protocol?

§ The Attorney-General
The hon. Gentleman asks a hypothetical question. I have said that if amendments are tabled and if the Committee needs assistance in future, I shall be prepared to consider the matter and to give what help I can. The position must be clear from what I have already said. If the hon. Gentleman had been in the Chamber and listening, he would have heard me say that if the great majority of amendments were passed, they would render it possible for the Government to ratify the treaty. It is not altogether surprising that the hon. Gentleman may be able to dream up one or two others which would make it possible to wreck the treaty, if that was his intention and that of his hon. Friends.

§ Mr. Macdonald
The question is not hypothetical because I tabled such an amendment earlier this evening. If the amendment is selected, voted on and agreed to by the Committee, would it be impossible for the Government to ratify the protocol on social policy, if that protocol were specifically to be excluded from clause 1(2)?

§ The Attorney-General
I have sufficient respect for the hon. Gentleman's amendment to say that I should have to look at it before expressing an opinion. He will, of course, have to consider how popular his amendment is with his hon. Friends and whether it is a matter that he wishes to press to a conclusion.
I have covered many points this evening. If I look quickly at my notes, I can see whether any other matters have been raised.

§ Mr. John Fraser (Norwood)
The Attorney-General is arguing that the social protocol does not affect British domestic law. Let us take the example of a United Kingdom national working for a United Kingdom company who acquires rights while working for that company in one of the other 11 states. Let us suppose that that person returns to the United Kingdom and wishes to enforce in the United Kingdom rights that have come as a result of the social chapter. Surely that means that the social chapter would have created rights that were enforceable in British domestic law. Surely what the chapter does is to exclude the United Kingdom Government from implementing matters in the social chapter. What it does not do is to exclude the creation of rights inside the Community which may be enforceable in the United Kingdom domestic courts. It therefore has an effect on British domestic law.

§ The Attorney-General
I recommend the hon. Gentleman to look once again at the social protocol. He will realise that the hypothetical position that he has proposed would have been a result of acts adopted by the Council under the social chapter. The protocol on social policy says absolutely expressly: Acts adopted by the Council and any financial consequences other than administrative costs…shall not be applicable to the United Kingdom of Great Britain and Northern Ireland. I believe that that answers the hon. Gentleman's question perfectly clearly.
I have just a few more points to make before I sit down. My hon. Friend the Member for Worcester asked whether 744 there were other protocols which, if we did not annex them, might not render it impossible for us to ratify the treaty. I have given an indication of a certain number of those. I have given a general indication as to the guidance which the Committee might seek in deciding upon particular amendments, and I hope that that is of assistance.

§ Mr. Donald Anderson
The Attorney-General has given a very learned and weighty opinion. Has that opinion convinced the Foreign Office legal advisers of the error of their original opinion?

§ The Attorney-General
I think that that is unkind, and I can tell the House that I have had an enormous amount of assistance from the Foreign Office legal advisers. They agree with the opinion that the Lord Advocate and I have given to the Committee.

§ Mr. George Robertson
rose in his place and claimed to move, That the Question be now put.

§ Mrs. Jacqui Lait (Hastings and Rye)
(seated and covered): On a point of order, Dame Janet. I should like to protest most strongly, because I wanted to take part in this debate of prime constitutional importance, but the Labour party has denied me that opportunity.

The Second Deputy Chairman
I have accepted the closure, so there is no further discussion.
The Committee proceeded to a Division; but no Member being willing to act as Teller for the Noes, The SECOND DEPUTY CHAIRMAN declared that the Ayes had it.
Question put accordingly and agreed to.
Committee report progress

The Second Deputy Chairman
To sit again what day?—[Interruption.] I repeat, Committee what day? [HON. MEMBERS: "Now"] No, it cannot be now. Thursday?

§ Mr. Don Dixon (Jarrow)
Thursday week.

The Second Deputy Chairman
We must have an answer from an hon. Member who acts on behalf of the Government.

§ Sir Teddy Taylor
Christmas Day.

§ Mr. Andrew Mitchell (Gedling)
Tomorrow.

The Second Deputy Chairman
I hope that we are now clear that the Committee will sit again tomorrow.
Committee to sit again tomorrow.