§ Dr. John Cunningham (Copeland)
I beg to move amendment No. 2, in page 1, line 18, after 'Community', insert—'with the exception of the Protocol on Social Policy on page 117 of Cm 1934'.
§ Madam Speaker
With this it will be convenient also to discuss amendment No. 26, in page 1, line 18, after 'Community', insert—', with the exception of the Protocol on Social Policy'.
§ Dr. Cunningham
The amendment stands in the name of my right hon. and learned Friend the Leader of the Opposition; the right hon. Member for Yeovil (Mr. Ashdown), the leader of the Liberal Democrats; the hon. Member for Banff and Buchan (Mr. Salmond), the parliamentary leader of the SNP; the right hon. Member for Foyle (Mr. Hume), the leader of the SDLP; the hon. Member for Antrim, North (Rev. I. Paisley), the leader of the DUP; and myself. It is supported by a large number of hon. Members on both sides of the House.
I begin by saying that, already, one important victory has been achieved for the House of Commons—after a long struggle to have a vote on the issue at all. In pursuing that objective, we have had very much in mind the need to uphold the rights of the House of Commons itself and the rights of Opposition parties represented here.
As it stands, the Bill keeps the United Kingdom outside the scope of the protocol on social policy, so excluding the United Kingdom from the social chapter. It prevents the people of the United Kingdom from being part of the full social dimension of the EC.
The Bill excludes Britain from provisions, which our 11 partners have agreed, to facilitate greater protection for employed people in their working conditions, better rights of consultation and information, equality of treatment and opportunity for men and women and the integration into the labour force of people who have been long-term unemployed, including people with disabilities.
Those benefits will flow to the citizens of the 11 other members of the Community, but will be denied to the people of our country by the actions of Her Majesty's Government. We deplore that denial of the legitimate rights of the people of our country. Those rights will be readily available to other citizens of the Community, and we have always held that they should be available to the people of Britain too.
The opt-out that the Government negotiated was to do not so much with the rights or wrongs of the provisions of the social chapter as with the Prime Minister and the Foreign Secretary trying to buy off opposition in their own party by throwing some kind of sop to their opponents over the Maastricht treaty ratification process—a trick which has signally failed to deliver the goods.
196 The Government have been consistent in their inconsistency on the matter. First, they said that the provisions of the social chapter would be damaging to the interests of Britain and the British economy, but they failed to produce a single shred of evidence to substantiate that.
Then we had a long series of statements over many months by the Minister of State, Foreign and Commonwealth Office, the right hon. Member for Watford (Mr. Garel-Jones), who I note is not in his place today. I think that we can assume that the field marshal is here to try to organise an orderly retreat from everything that the Government have said hitherto about the consequences of amendment No. 2, formerly Committee stage amendment No. 27.
But it is worth reminding the House what the right hon. Member for Watford has said. For example, on 20 January he said that, if the Labour party pressed amendment No. 27 to a Division, we should be aware that,under the terms of the amendment, United Kingdom law would not conform to the treaty's provisions, so it would be impossible for the United Kingdom to ratify the treaty".On the same day, he went on to ask whether I could explain the Opposition's objectives if the United Kingdom was not in a position to ratify the treaty as a result of the amendment. Our objectives have always been clear and consistent—to secure the real benefits of the provisions of the social chapter in the interests of the people of our country.
The right hon. Member for Watford was nothing if not persistent on that occasion. He went on:the question remains, and the hon. Gentleman must answer it"—that was me—does the amendment place the British Government in the position of being a non-ratificant?"—[Official Report, 20 January 1993; Vol. 217, c. 403–4.]"Non-ratificant" is an odd word, but it is an odd argument—one that we have never believed.
At least there was some consistency between our side of the argument and the position adopted by the Foreign Secretary, who said in a statement:The House will recall that the protocol on social policy authorises the other 11 member states of the Community to have recourse to the institutions, procedures and mechanisms of the treaty of Rome for the purposes of implementing their agreement on co-operation in the social area—the so-called social chapter. Most significantly, it specifies that acts adopted by the Council under the terms of the protocol shall not be applicable to the United Kingdom."—[Official Report, 15 February 1993; Vol. 219, c. 27.]For us, that is what the argument has always been about.
On that occasion, the Foreign Secretary said that all the previous advice from the Foreign and Commonwealth Office—based on the consistent legal opinion of his advisers during many months and enunciated on many occasions in this House and elsewhere by his right hon. Friend the Minister of State, the right hon. Member for Watford—had suddenly been found to be completely wrong.
He said that, for many months, during the Maastricht treaty negotiations and subsequent discussions about the significance of the social chapter and the Government's opt-out, he and his colleagues had been misled by their legal advisers. That was, and remains, a singularly unconvincing argument.
In their various manoeuvrings and meanderings during this long labyrinth of debate about the significance of our 197 amendment, the Government have shown a unique facility to be able to stick their heads in the sand but still come up with egg on their faces.
§ Mr. Hugh Dykes (Harrow, East)
Although I concede that it is not precisely within the same framework, does the right hon. Gentleman agree that the argument for pressing the amendment is displaced by the existence of clause 5 of the Bill, which was voted on as new clauses 74 and 75?
§ Dr. Cunningham
No, I do not agree. Throughout arguments over the statements and decisions of the Chairman of Ways and Means about the admissibility of a vote on the issue, I have always maintained that amendment No. 2—amendment No. 27 in Committee—and new clauses 74 and 75 had specific, discrete and different purposes, and different implications for the legislation. That was my position, and it remains so. Whatever else the hon. Gentleman may say, we have been completely consistent about that throughout the debate and I maintain that position today.
The Foreign Secretary went on to advise the Committee that it did not really matter whether amendment No. 2 was carried. Speaking on the advice of his right hon. and learned Friend the Attorney-General, he said that it would have no consequence. We did not accept that belated, eleventh-hour and extremely partial analysis of the consequences of amendment No. 27 on 15 February, and nor do we accept those arguments today.
The Government—in the form of the Foreign Secretary—then went on to say that, even though the amendment was of no significance, it did not matter, as it should be defeated anyway. His phrase was that it should be defeated for the sake of "completeness and clarity."
Whatever the right hon. Gentleman can claim for the Government's position during this long drawn-out argument, it is not clarity. Even now, as the debate on amendment No. 2 commences, there is no clarity about the Government's intentions. Perhaps the Foreign Secretary would like to rise to tell the House the exact significance of his presence.
One way or the other, the Government are bound to lose. If—in the words of the Daily Mail, which is not generally known as a supporter of the Labour party—the Government do not know whether to run or to stand and fight, that tells us something about the confusion that continues to reign.
If the Foreign Secretary proposes that the House should accept the amendment now, after all the weeks of deliberation, obfuscation, prevarication and delay, the obvious question for us to ask—and, surely, for those outside to ask—is "What has it all been about?" Why did not the Government agree to accept the amendment in the first place? Not only would that have saved the House and the Chair a good deal of unnecessary anguish and difficulty; it would have saved perhaps thousands of metres of column inches in the national newspapers and other publications which have been picking over the entrails in an attempt to establish the Government's objectives.
Our objectives, in contrast, are consistent, and benefit from the clarity to which the Foreign Secretary referred.
§ Mr. Stephen Milligan (Eastleigh)
The right hon. Gentleman asked the Government for clarity. Will he 198 clarify what he seeks to achieve? It is clear that amendment No. 2 will not reinstate the social chapter in the treaty; what, then, is its object?
§ Dr. Cunningham
I do not accept the hon. Gentleman's premise. He made an almost identical intervention when I spoke in a similar debate on 20 January. He clearly has not changed his view; I have not changed mine either. As I said on 20 January, and have said several times today, the object of the amendment is to secure the benefits of the social chapter in the interests of the people of Britain.
§ The Secretary of State for Foreign and Commonwealth Affairs (Mr. Douglas Hurd)
How will the amendment do that? Its wording does not even purport to do that.
§ Dr. Cunningham
On 20 January, I said—ah, I see that the Minister of State, Foreign and Commonwealth Office has entered the Chamber. The debate is no longer "Hamlet" without the prince.
On 20 January, I said that the amendment would confront the Government with a dilemma. Either they would have to renegotiate with our 11 Community partners to fold into the treaty the benefits of the social chapter for Britain, or they would have to resolve the problem in some other way. Now, friends of the Foreign Secretary are saying that, if the amendment is carried, they will use the opportunity to take action in the courts—perhaps to seek judicial review. I do not know—that is a matter for them.
We also believe that the amendment will give employees and trade unions, singularly or in groups, an opportunity to take their cases to the European Court to ensure that the benefits of the social chapter apply to them in exactly the same way as they will undoubtedly apply to employees of their own companies operating in other Community member states. I know what the Foreign Secretary will say: he will say that none of that will result from the amendment.
§ Dr. Cunningham
I am talking about the amendment's consequences. Here is another attempt at obfuscation: already, the right hon. Gentleman is starting to dissemble yet again. I have no doubt that he will repeat what he said on 15 February, on the advice of the Attorney-General. Let me reiterate that that interpretation is not widely shared—not only in the House, but among legal experts elsewhere in the Community, let alone elsewhere in the United Kingdom.
As I have made clear, we will pursue our amendment. We shall ask the House to support it, unless, as I suspect—the Foreign Secretary has already refused the opportunity to make the Government's intentions clear to the House at the outset—the right hon. Gentleman now tells us that the Government are going to accept it after all.
§ Mr. Tony Marlow (Northampton, North)
I am a genuine seeker after truth. On four occasions the right hon. Gentleman has talked about the benefits of the social protocol. Can he tell the House what the social protocol will provide that is not in articles 118A and 118B of the Single European Act, articles which he will know well?
§ 4. 15 pm
§ Dr. Cunningham
At the beginning of the debate, I took, the precaution of reading out what we thought the general benefits of the social chapter provisions would be, but I guess either that the hon. Gentleman was not here at the time or that he was not listening very carefully. I have another observation to make on his intervention. If he is a genuine seeker after truth, I put it to him that he joined the wrong political party to attain that objective.
The reasons that the Attorney-General and the Foreign Secretary have in mind have nothing to do with neatness and tidiness. They involve something more substantial, I would argue, as my hon. Friend the Member for Hamilton (Mr. Robertson) has argued in the past.
The Attorney-General and the Foreign Secretary still appear to be terrified of the consequences of amendment No. 27, and seek to play down its implications by saying that it will have no effect at all. The reality, however, is that they have manoeuvred over a long period to try to prevent the House from coming to a decision on the matter.
The Attorney-General and the Foreign Secretary were relieved each time that the amendment temporarily seemed to disappear from the agenda of the business of the House but, thanks to our persistence and the correct ruling in the interests of the House of Commons that you eventually gave, Madam Speaker, we have that opportunity today.
The Attorney-General's view—produced, as I said, quite unexpectedly—had all the hallmarks of a desperate attempt to get the Government off the hook on the issue. It is astonishing—many people share this view—that the Government, having gone through the negotiations on the Maastricht treaty and having seen the amendment on the Amendment Paper for many months—from the spring of last year—should have consistently advanced one view and then, when it became apparent that they faced defeat, should have got the Attorney-General to pop up, like a rabbit out of a hat, and say something else. The Government did not even have the grace to say that the Foreign Secretary had been wrong. They just said that they had come to a different conclusion.
I put it to Ministers and to those who sit on the Conservative Benches that that kind of procedure and action has no credibility at all, not only in this House but with people outside. Little is more calculated to bring the workings of Government into disrepute than that kind of behaviour over discussions and decisions in the House of Commons. It is our belief—that is why we have persisted with amendment No. 27, and we are confident about it—that the consequences of its inclusion in the Bill will be to the eventual benefit of the people of Britain.
The Foreign Secretary asks why we persist with it. If he believes—I am not sure what in his heart of hearts he really believes in any longer—that the amendment is likely to end in the possibility of long, complicated and expensive litigation, there is a simple answer: accept the provisions of the social chapter now and stop this reactionary isolation, thus preventing our citizens from having the advantages that everyone—except the Conservative party and, as I said on 20 January, the neo-fascist party of France—believes will flow from it.
§ Mrs. Edwina Currie (Derbyshire, South)
Does the right hon. Gentleman accept that many Conservative Members feel that the social chapter is a mistake not just for this country but for much of the rest of Europe, given the 200 fading competitiveness of Europe vis-a-vis the United States, Japan and the far east? Does he not agree that, if we are to protect our citizens and work forces and ensure that they have jobs in future, we need to be extremely careful about introducing high-cost employment laws?
§ Dr. Cunningham
I do not believe that, and neither does any other democratic party of any political persuasion in any member country of the European Community. The German Christian Democrats do not believe it; the Free Democrats do not believe it; and nor does any political party in any of the countries that are applicants for membership of the European Community.
As I said, the only other political party that shares that view is that led by Mr. Jean-Marie Le Pen. I doubt whether even the hon. Member for Derbyshire, South (Mrs. Currie) is comfortable in his company. I might add that, if she is successful in her quest for a seat in the European Parliament—a subject on which there is also some doubt in my mind—she will not find that any of the parties represented there share her view.
The view taken by the hon. Member for Derbyshire, South is reminiscent of the isolation of the Conservative party over another issue—the poll tax. We all remember how, in the face of all the evidence, of all rational argument and of all sensible debate, the Conservative party alone ploughed on into the quagmire of the poll tax, with all that that meant and with all the damage it caused, not only to individuals but to the formidable and worthwhile institution of democratic local government. I do not know how Conservative Members can take comfort in their isolation—their unique position of obstinacy. Their views are completely their own and are not supported anywhere else.
§ Mr. Phil Gallie (Ayr)
Given that the Labour party has changed its mind so many times in recent years, is it not possible that parties in other parts of Europe will eventually see the light and join the Conservative party in taking a realistic approach?
§ Dr. Cunningham
The light coming from the Conservative party to which the hon. Gentleman refers is little more than one-candle power. In reality, the concentrated beams of searchlights across the rest of Europe are all focused on one issue—the need for a developing European Community to be more than just a market economy and to have a social dimension.
That is what the argument has always been about. That remains our argument. That is why we have persisted. I believe that we have done parliamentary democracy a service by making sure that we all had an opportunity to vote on the issue and that we are right, too, on the merits of the argument.
I suspect that the Foreign Secretary will say that the Government propose to accept the amendment. In that case, he will have little credibility, but it seems that this Government will do anything rather than have to face a defeat in the Division Lobbies on this issue.
§ Mr. Hurd
It is not very long since we discussed the substance of this matter; it seems to be a situation comedy that runs and runs, episode by episode. I noted today that it still has its addicts among the press, but I am not sure that its popular ratings are as great as all that. Only about 201 a fortnight ago, I debated with the hon. Member for Hamilton (Mr. Robertson) the substance of the question, and I shall not do so again, except in the briefest summary.
Most of my right hon. and hon. Friends believe that one of the biggest challenges facing the European economy is declining competitiveness. Unemployment is the biggest source of poverty in this country today. If we are uncompetitive, we create unemployment. From the figures that were given in the debate on 22 April, there can be no doubt that European competitiveness is declining. My hon. Friend the Member for Derbyshire, South (Mrs. Currie) was right in saying that that is one of the main problems.
If that is so, the true question for those interested in the social dimension of the single market is not how to ensure, through a social chapter, precisely the same levels of social provision in each member state, but how Europe can effectively compete in the world. Competitiveness is the key to generating the necessary wealth to provide the social safety net. The social provisions of any treaty cannot by themselves generate that. That is a brief summary of the substantive argument against the social chapter which led my right hon. Friend the Prime Minister to insist on the opt-out.
The debate is not a new one in the House. We have debated the issue time and again over almost a year and a half. In that time, the House has rejected on three separate occasions Opposition motions or amendments calling for the incorporation of the social agreement into the treaty. So the House of Commons is repeatedly on record on that point. In the pre-Maastricht debate on 20 and 21 November 1991, a Labour amendment, which called for, among other things, the inclusion of the social agreement in the treaty of Rome, was defeated by 191 votes. [HON. MEMBERS: "That was in the previous Parliament."] I shall come to this Parliament in a moment.
In the debate on 18 and 19 December 1991, immediately after Maastricht, the Liberals tabled an amendment deploring the social opt-out. It was defeated by a majority of 364. On Second Reading of the Bill, on 20 and 21 May 1992—in this Parliament—Labour moved that the Bill not be read a Second time, partly because of the opt-out on the social chapter. That amendment was defeated by 99 votes. There is no doubt about the judgment of the previous Parliament and of this Parliament on the question whether the treaty should or should not include the social chapter.
Nevertheless, we recognised that the House wanted yet another chance to vote on the principle. The right hon. Member for Copeland (Dr. Cunningham) pressed that, as did other hon. Members, and we accepted new clause 74, now clause 5 of the amended Bill. That will allow a further debate and a vote after the Bill has received Royal Assent, when the opt-out can be considered on its merits. The point made by my hon. Friend the Member for Harrow, East (Mr. Dykes) is just.
What is clearly not possible, despite the arguments of the right hon. Member for Copeland, is to discuss the substance on the basis of the amendment that we are debating. It does not provide for consideration of the opt-out on its merits. What we see as a result of the manoeuvring—this is the heart of the matter—not by the Government but by the Opposition, as has been spotted by the more perceptive commentators, is two different groups in the House engaged in procedural manoeuvres which are incompatible.
202 The two camps who favour the amendment do so for entirely different and contradictory reasons. First, there are those who are opposed to the social chapter but even more opposed to the treaty of Maastricht itself; they sit on the Conservative Benches. We know that they are opposed to the social chapter. I have here the record of the Divisions in which they expressed that opposition. My hon. Friend the Member for Northampton, North (Mr. Marlow), who intervened just now, has a stalwart record of voting against the social chapter. My hon. Friends the Members for Wolverhampton, South-West (Mr. Budgen) and for Macclesfield (Mr. Winterton)—I simply draw attention to two hon. Members who are immediately prominent in the debate—have a stalwart record, such as one would expect from Conservative Members, of opposing the social chapter. They are clear about that. The only thing that is clearer is that they dislike the treaty of Maastricht even more, and they will lose no opportunity to prevent it from being ratified.
§ Mr. Marlow
The right hon. Member for Copeland (Dr. Cunningham) talked about the benefits of the social chapter—my right hon. Friend is talking about the dangers of the social chapter. Before my right hon. Friend goes much further, will he go into the details of the protocol and tell us precisely what the Government are frightened of that is not contained in articles 118a and 118b of the Single European Act?
§ Mr. Hurd
My hon. Friend the Member for Southend, East (Sir T. Taylor) pressed me on that point during the debate on new clause 74. I do not have the list of examples that I gave him. If my hon. Friend the Member for Northampton, North wishes to refresh his memory, he will find the answer to his question in Hansard.
My hon. Friend the Member for Northampton, North voted five times in debates, in one way or another rejecting the social chapter. Obviously, after his research into the matter he concluded that the social chapter was deeply undesirable. A group of hon. Members, including my hon. Friend, dislike the social chapter. They dislike the treaty even more and will swallow their scruples about the social chapter because they believe that they can prevent the treaty from being ratified by voting for this amendment. That is completely in contradiction to the larger group of Labour Members who favour the social chapter and claim to support the Maastricht treaty.
We have one group of hon. Members who want the treaty—[Interruption.] I cannot be entirely exhaustive in my catalogue of the eccentricities of opinion in the House. But, broadly speaking, one group wants the treaty and the social chapter and another group wants neither the treaty nor the social chapter. Extraordinarily, both groups—this is the curious feature of amendment No. 2—seem to think that the amendment serves their contrary purposes. Both groups cannot be right. In fact, both are wrong, and I shall explain why we believe that to be so.
Some Conservative Members want, above all, to prevent ratification, despite their Conservative analysis and rejection of the social chapter. I explained to the House in some detail in a statement on 15 February, to which the right hon. Member for Copeland genially referred, why the present amendment—amendment No. 2 is virtually the same as amendment No. 27—would not prevent ratification—[Interruption.] I was in sackcloth 203 and ashes on that occasion and I do not intend to put them on again. I can recap the argument and the advice I received from my right hon. and learned Friend the Attorney-General which I gave to the House on that occasion, and which he repeated in the House a week later. Clearly, I must do so.
Amendment No. 27 is the same as amendment No. 2 in that it would exclude from the scope of clause 1(1) of the Bill—that is, from incorporation in domestic law under the European Communities Act—the protocol on social policy. That is all that it would do. The amendment would not have any effect on the treaty or its protocols. Therefore, the legal question must be: can Britain ratify the treaty even if the protocol on social policy were not incorporated in domestic law? Earlier this year, the Law Officers advised—as the House was told on 15 February—that if the amendment were carried, Acts adopted under the protocol would still not apply to the United Kingdom. It follows that no rights and obligations arise from those Acts which need to be given effect in our domestic law.
While incorporation of the protocol in domestic law is desirable, it is not necessary for ratification or for implementation of the Maastricht treaty. That is what I explained to the House on 15 February. There is no change of position. That is what my right hon. and learned Friend the Attorney-General explained to the House on 22 February. That is the view and the analysis to which we hold today.
§ Mr. Robert Maclennan (Caithness and Sutherland)
Will the Foreign Secretary explain why he takes the view that the provision on the social chapter does not require to be ratified in accordance with the procedures of Parliament set out in the European Assembly Elections Act 1978, sections 6(1) and 6(2) of which require any measures flowing from an agreement of European Community countries which affect the powers of the European Parliament to be approved by Parliament? It seems to me that that makes it a necessity for the House to approve the social chapter. If the amendment is not passed, that cannot happen.
§ Mr. Hurd
That point has been raised by Liberal Democrat Members previously and there has been correspondence about it. But I am advised that clause 1(2) of the Bill specifically deals with and covers that point. Therefore, the hon. Gentleman's point does not contradict the analysis that I have been given. The point has been covered previously and the hon. Gentleman has returned to it.
§ Sir Peter Tapsell (East Lindsey)
Will my right hon. Friend explain something which puzzles a great many laymen such as myself and has done so for many months? If the social protocol is apparently so unimportant, why was the opt-out described as the main achievement of the Maastricht negotiation when my right hon. Friend returned from Maastricht?
§ Mr. Hurd
My hon. Friend is, indeed—I do not blame him for this, because I have wandered through these tracks myself—showing himself to be a layman. The opt-out is in the treaty. The protocol is attached to the treaty. The protocol is part of the treaty. Its status in the treaty is not affected by the amendment. I am seeking to show, 204 following the advice from my right hon. and learned Friend the Attorney-General, that the effect of the amendment is simply on the question whether the opt-out protocol should be embodied in domestic law. Its status in the treaty and its value as an opt-out are not affected by the amendment, because the opt-out remains in the treaty.
§ Mr. Hurd
I shall come to the right hon. Gentleman's point in a moment.
The effect of the amendment—here I repeat the answer that I have just given to my hon. Friend the Member for East Lindsey (Sir P. Tapsell)—would be to remove the social protocol from those parts of the treaty to be incorporated into domestic law. However, as no obligations on the United Kingdom which require incorporation under the 1972 Act arise from the social protocol, the amendment would not prevent ratification.
The question of administrative costs has been raised by several of my hon. Friends. My right hon. and learned Friend the Attorney-General has already advised how that obligation, if it ever arose, could be discharged. So those of my right hon. and hon. Friends who believe that passing the amendment would prevent ratification of the treaty are, in our judgment and according to our legal advice, incorrect.
Then there is the other, completely opposite, contrary and contradictory group who support the amendment. It is a larger group and is on the Opposition Benches. It accepts that the amendment will not prevent ratification of the treaty, but argues that it will force Britain to accept the agreement annexed to the protocol on social policy. We tried in a gentle way to press the right hon. Member for Copeland on that point during his speech. He moved sharply from the supposition that the amendment would have the effect that he described to some other vague talk about the consequences that would flow from it.
We are all experts on consequences that might flow from this or that, but that is not the same as saying that a vote for the amendment is a vote to bring Britain into the social chapter. The amendment does not have that effect either. It cannot do so because it is the treaty—I repeat the reply that I gave to my hon. Friend the Member for East Lindsey—which contains Britain's opt-out from the social agreement. The treaty cannot be amended by our debates on the Bill.
It will be for the House, at the end of all these exhaustive discussions, to decide on Third Reading whether to pass the Bill and thus enable the Government to ratify the treaty when the Bill comes into force. That is a decision for this Parliament. It will relate to the whole Maastricht package—that is to say, to the treaty including the protocols. The treaty is not a package—there are other matters that the House has debated and on which it has voted against the Government, which relate not to the treaty but to peripheral matters—but the treaty is not a package from which one can pick and choose. The House must and will soon decide whether it wishes to proceed with the legislation that makes ratification possible.
§ Mr. Michael Lord (Suffolk, Central)
My right hon. Friend has said that some Conservative Members do not want the Maastricht treaty or the social chapter. He has explained how a vote for this amendment will not necessarily damage the treaty. Will he confirm the 205 statement that he made in one of our earlier debates, that a vote for this amendment will not in any way be a vote for bringing the social chapter to this country?
§ Mr. Robertson
The Secretary of State has said on a number of occasions, and again today, that amendment No. 27 and now amendment No. 2 are undesirable, but he will not tell the House why they are undesirable. Previously, he said that he wanted to defeat amendment No. 27 for the sake of completeness and clarity. If the passing of amendment No. 27 is undesirable and will leave the Bill unclear and imprecise, will the Secretary of State tell the House the consequences of that? He consistently refuses to do so.
§ Mr. Hurd
Because I have not reached that part of my speech. I am trying to show how the whole basis on which the Labour party, and the hon. Member for Hamilton (Mr. Robertson) in particular, has manoeuvred, with unrivalled perseverance and occasional skill, is misguided. It does not work. My hon. Friend the Member for Suffolk, Central (Mr. Lord) is entirely right. It is a false supposition that has brought the Labour party, through all this ingenuity and this maze of amendments, to this particular position.
§ Mr. Hurd
This amendment does not, and cannot be argued to, incorporate the social chapter in the treaty and therefore bind it on this country. What the House has achieved is an undertaking, soon to be embodied in law. that there will be a debate on the substance, but that debate does not flow from this amendment or from this discussion.
§ Mr. Budgen
In view of my right hon. Friend's answer to our hon. Friend the Member for Suffolk, Central (Mr. Lord), does he agree that when the Home Secretary and the chairman of the Conservative party addressed the conference at Harrogate, knowing the advice that the Attorney-General had given to my right hon. Friend, it was rather unfortunate that it was said that any 206 Conservative Member who voted for amendment No. 27 was voting for the imposition of the social chapter on this country?
§ Mr. Hurd
I cannot recall the phrases or the dates on which they were used, but we shall see when we come to the debate which follows from clause 5. That will be the test because there will be no doubt then that we are voting on the substance of the social chapter. That is its purpose. So we will perhaps remember these exchanges on that occasion.
I should like to finish the point that I had started on. The right hon. Member for Copeland drew attention to our alleged isolation on the substance of this matter, but all those states that have already ratified the treaty have ratified the social protocol—that is to say, the British opt-out—along with the rest of the treaty. Despite their supposed preference that Britain should join them in the social chapter, they have not made a point of it or held up ratification on this issue. It is only the Labour party, to the constant puzzlement of its friends abroad, which persists in giving this matter priority.
The amendment, therefore, would not achieve either of the contradictory purposes of its backers. It could not possibly achieve both. It does not, in our view, achieve either.
§ Dr. John Cunningham
I am just wondering about the right hon. Gentleman as his speech unfolds. He has already repudiated his right hon. Friend the Minister of State in his own Department and now he has repudiated the view of his right hon. and learned Friend the Home Secretary. How many other colleagues' views will he repudiate in the ramshackle argument that he is advancing to the House?
§ Mr. Hurd
I am not sure why I gave way to the right hon. Gentleman, because I stand absolutely on the statement, the analysis and the advice which we gave on 15 February on the essence of the matter and which my right hon. and learned Friend the Attorney-General repeated on 22 February. That is our position and our advice. The two groups advocating this amendment cannot achieve their purpose by its passage.
What would the effect of the amendment be? It would depart—and here I come to why the Bill was drafted as it was—from our consistent legislative practice, which has been to list all amendments to the treaty of Rome in the 1972 Act. That has been the practice over the years. It has not been essential, but it has been desirable, for obvious reasons, to avoid possible confusion in British law. That is why we argued against amendment No. 27 and that is why, other things being equal, it will be desirable for the Bill to proceed as originally drafted. It comes under the heading of "desirable", and we have made that position clear ever since 15 February.
§ Mr. Hurd
May I just complete this point?
That is why we have argued that this amendment, like amendment No. 27 before it, is undesirable. Although it neither forces Britain to adopt the social agreement nor prevents ratification of the Maastricht treaty, that is why we have argued that it is none the less undesirable and that it would be preferable to incorporate the protocol in our 207 domestic law in the usual way. That is the reason for the original drafting of the Bill and for the way in which we have phrased the arguments ever since.
§ Mr. Wilkinson
In what way would it be desirable for the British people to be called upon to pay for the imposition of the social chapter to which they are not a signatory? We are already the second highest net contributor to the Community. How would it benefit the British people? Would the elimination of this protocol not at least make payment by the British people more difficult?
§ Mr. Hurd
If the protocol were eliminated from the treaty, that would be so, but the amendment does not and cannot have that effect. I do not know whether there will be additional administrative expenses. It is a question of dividing electric light bills and salaries. But if there were, it would be entirely legal and reasonable that, through the procedures that I have already listed, those expenses should be met.
We are faced with an alliance of opposites and we must counter that. Their purpose is not to consider the opt-out on its merits—there will be an opportunity to do that in the debate on clause 5 of the Bill. I do not doubt, relying on the good sense of my hon. Friends on the Government Benches, that when we come to the debate on substance under clause 5, the House will confirm again its support for the opt-out. The only common purpose of those favouring the amendment is to inflict a defeat on the Government, which is reasonable and understandable from the point of view of the Opposition. I do not see why, in the circumstances that I have described, we should give them that satisfaction. [Interruption.] As I have tried to show—and I think that the argument has been listened to with patience—this amendment is tiresome, undesirable, but, in practice, irrelevant.
The Government are prepared to acquiesce on the amendment—[Interruption.]—on the basis that I have explained, rather than give our push-me pull-you opponents the entirely synthetic victory, revealed by their cackles, that they crave.
§ Sir Russell Johnston (Inverness, Nairn and Lochaber)
Well, well, there we are. The Foreign Secretary, in another context a few moments ago, said that the attitude to the social chapter adopted by the Opposition parties was a constant puzzlement to our friends abroad. I would have said that the Foreign Secretary's various speeches about the social chapter certainly well merit that particular description.
We are now told, in the presence of the Attorney-General, that legislation is cast in a manner in which things are put in that are preferable and desirable—not necessary, but preferable and desirable. I am no lawyer, but all my lawyer friends—of whom I have, sadly, quite a number—always tell me that the essence of legislation is the words that it contains, all of which are necessary. I presume that that is why all legislation is so spare and lean.
In any event, the Liberal Democrats contend that, far from being simply preferable and desirable, the words contained in the amendment which the Government have now accepted are necessary and have certain definite effects. That is a view which the Foreign Secretary contests, but he will have to admit that it is held by a considerable number of persons of very considerable legal 208 reputation. There is no doubt that, by accepting this amendment, in due course of time a legal challenge will be made and it will then be determined whether we and others are right or the Government are right. Our contention, in essence, is that the Maastricht treaty and the social protocol to it are separate legal entities. That is also made clear in clause 1(2) of the Bill. We would therefore argue—as did my hon. Friend the Member for Caithness and Sutherland (Mr. Maclennan) when he intervened on the Foreign Secretary—that if amendment No. 2 is accepted, as it now is, while it will not affect ratification of the treaty about which the Foreign Secretary agrees, it will compel the Government to renegotiate the social protocol with the other 11 member states. Even if the Government deny this, it is our contention that in time a challenge to the European Court will reveal them to be wrong. That will not force the Government to accept the social chapter—in the end we cannot force them to accept it despite our various efforts.
The Foreign Secretary talked about an alliance of opposites. I agree with him; I have said in other speeches that there was a putative alliance of opposites.
§ Sir Russell Johnston
The knowledge of the hon. Member for Staffordshire, South (Mr. Cormack) on ecclesiastical matters is greater than my own.
§ Sir Russell Johnston
I was talking about the putative alliance between the Euro-sceptics on the Conservative Benches, the Labour party and the Liberal Democrats, who would have united to support an amendment to the social chapter—in the alliance one group favours Maastricht, the other group sees it as a means of defeating Maastricht.
There is another group in the House, however, consisting of a number of Conservative Members who do not fear the social chapter. I am sure that the right hon. Member for Old Bexley and Sidcup (Sir E. Heath), the former Prime Minister, does not fear the social chapter; nor that it will have all the horrific consequences that have been spelt out at various times by various Ministers, by and large in a fairly unclear way. Those hon. Members in the Conservative party—the one-nation Tories—are not afraid, in their political attitudes, to accept that the state has a responsibility to ensure that certain minimum social standards are sustained and, if necessary, legislated upon. A considerable number of people in the Conservative party hold that view, but given the nature of the voting structure of the House they would be compelled to vote against what they want. So the Foreign Secretary, in talking about this alliance of opposites—and I agree that he has a fair point—omits the other group that is equally important.
§ Mr. Nicholas Winterton (Macclesfield)
It is always a great pleasure to listen to the hon. Gentleman; I think that he adds a great deal to these debates. As a constitutionalist, would he not agree that it would he very odd for a Government of this country to ratify a treaty—whether or not that was legal—part of which Parliament had voted to exclude in a democratic debate on the Floor of the House?
Would the hon. Gentleman respond to that question and expand on the relevant point raised by his hon. Friend the Member for Caithness and Sutherland (Mr. Maclennan) about the European Assembly Elections Act 1978 relating to the authority of the House in respect of the particular matter to which the hon. Gentleman drew our attention?
§ Sir Russell Johnston
1 am grateful for the kind remarks with which the hon. Gentleman commenced his intervention. I take note of them and will, of course, immediately give way to him the next time he tries to intervene.
As to the first point that the hon. Gentleman made, I do not think that if this House voted to exclude the social protocol—and indeed the contention I was making at the very beginning of my remarks was that, although we have not voted about it, because amendment No. 2 has been accepted, it has had the same consequences—I do not take the view that that necessarily means that the Government is prevented in any way from ratifying the main treaty. That is what I said at the beginning, and perhaps I am repeating myself because I did not make myself clear. So, as to the first point the hon. Gentleman made, the answer is no.
As to the second point, I confess that I was not entirely clear about what difference he was making, but the point made by my hon. Friend the Member for Caithness and Sutherland (Mr. Maclennan) stands on its own; we think that the European Assembly Elections Act 1978 has the legal consequence to which my hon. Friend referred.
I will not delay the House; we know what the situation is. We have already spent twenty one and three quarter hours debating the social chapter in Committee—I had that checked earlier—and that does not include the three and a half hours we spent querying your decision, Mr. Morris. That is a very long time.
So while any complaint about our not having spent sufficient time debating the social chapter cannot be substantiated—because we have had ample opportunity to debate it. I deeply regret the way in which the Government were unwilling to make it possible for the House to express a decision on the subject.
While much has been said about an alliance of opposites, it must be accepted that such alliances are not new in the House of Commons. Hon. Members vote on various occasions for all sorts of reasons, and in some cases because they are dragooned to do what they really do not want to do. There is nothing startling or different about what has happened. Even so, I regret that we were not given an opportunity to express a decision on the matter.
At the end of the day, amendment No. 2 is accepted. I regard that as a step towards Britain being in a position to take advantage of the safeguards that the social chapter represents. That is why I greatly welcome the Government's decision to accept the amendment.
§ 5 pm
§ Sir Teddy Taylor (Southend, East)
In the agreeable and gentlemanly way in which we expect my right hon. Friend to address the House, the Foreign Secretary revealed how amendment No. 2 is the joke of the week. Perhaps we should have a quiet chuckle, go home and say, "It was all a misunderstanding." Joke or not, a few issues arise from what has happened and they will not go away.
I begin with one such issue on a personal basis. We must try to do something to improve communications between Ministers. The Foreign Secretary will recall that he had the pleasure of attending the Harrogate conference. While I am fortunate in having a pleasant and easy-going constituency, many of my hon. Friends have been through the most appalling experience of receiving threatening letters and of being accused of selling out the Conservative party because they proposed to vote for the mad communist policy of the social chapter in the form of amendment No. 27.
While the Foreign Secretary may regard that as a joke, I assure him that it was not a joke for decent, honourable Conservative Members who, unwillingly, were voting against their party in an effort to put right what they believed to be wrong and contrary to the interests of their country. We had Cabinet Ministers standing up at Harrogate speaking what they knew was basically a load of rubbish, and later they admitted it was rubbish.
§ Mr. Ian Taylor (Esher)
I appreciate that my hon. Friend is extremely agitated on that point. So that he and the rest of us may be more at rest, will he assure us that when it comes to the vote on new clause 74—which will be a vote of principle on the question whether Britain should sign up to the social protocol—he will vote with the Government?
§ Sir Teddy Taylor
My hon. Friend knows that I have always taken that view and I will answer his question directly. The whole issue of the social chapter represents the most bogus nonsense I have ever heard in my life. 1 t is the culmination of party virility symbols, with the Conservative party saying, "This is terrible communist conspiratorial nonsense" and the Labour party saying, "Poor British workers will not have the same rights as foreigners."
When replying to comments of mine recently, the Foreign Secretary was kind enough to explain some of what was in the social chapter which was not in the rest of the document. He gave me a list of small items—for example, redundancy payments—which previously required unanimity but which would require a majority vote. But we would like to know—perhaps it can be discovered from the Commission—what on earth can be done under the social chapter which cannot already be done under the health and safety legislation. An examination of an issue such as the 48-hour week directive shows that there is nothing much in it, apart from social security, subject of course to unanimity.
§ Mr. Marlow
My hon. Friend was misinformed if he was told that the Foreign Secretary said what he said he said, because how a contract is terminated—in other words, redundancy pay—is a matter for unanimity.
§ Sir Teddy Taylor
My hon. Friend is absolutely right. I am simply making the point that it has become a party virility symbol, with people waving their arms about. But, 211 sadly, the ordinary people have been left out because, for reasons of which we are well aware, the issue has become all-important.
My hon. Friend the Member for Esher (Mr. Taylor) asks if I can be trusted to vote the right way. While I can be so trusted, it would not make a great deal of difference whichever way I voted. But I assure him that he can count on my straightforward loyalty, the sort of loyalty that he always gives the Government, irrespective of the issue.
It is genuinely worrying that there should have been such a huge difference in the assessment of legal opinion by the Government. It may be regarded as a joke, but for a senior Government Minister—on the advice of officials of our splendid Foreign Office, who can always be relied on to tell the truth about everything—to say that under the terms of amendment No. 27 it would be impossible for the United Kingdom to ratify the treaty, represents a carefully thought out and clear statement of principle. Now we are told that that is a load of nonsense and that it will have no such effect.
The Foreign Secretary is one of the more gentlemanly members of the Government and a decent chap, too. He should worry about the possibility that those sorts of statement are being made, not in an effort to set the facts before people but simply to gather cheap votes in the House of Commons.
I am in no way suggesting that the Liberal Democrats, for whom I have high regard, are cheap people, but they will be well aware of what happened in the debate. One might gather from what was being put to the Liberal Democrats that they are about the only people in the House who believe all the European nonsense, for they were being told, in effect, "If you vote for the amendment, you might put your Europe at risk." We should worry about that.
§ Mr. Nicholas Winterton
I invite my hon. Friend to answer the question that I put in an intervention to the hon. Member for Inverness, Nairn and Lochaber (Sir R. Johnston). Does he consider it constitutionally appropriate that the British Government should ratify a treaty to which the social protocol has been attached when the House has agreed that the social protocol should not be part of the treaty? What is the point of having protracted debates if the Government then do precisely what the House has said they should not do?
§ Sir Teddy Taylor
My hon. Friend makes an important point that should concern hon. Members, but we need not worry too much about it in terms of European legislation because the Government have said, "We can chuck out the protocol from British law. But do not worry because we shall still stick it in the treaty and that will be that." In other words, the Government will support amendment No. 2, by which they will remove the protocol from British law, although, according to what was said in the previous debate, it will be included in the treaty which will be ratified. If I am wrong about that, perhaps the Foreign Secretary will correct me.
§ Sir Teddy Taylor
My right hon. Friend is correct. He is saying that even though we have voted to chuck out and tear up that part of the treaty—because we are not prepared to have the protocol in the treaty—nevertheless, it will be in the treaty that Britain signs.
I hope that my right hon. Friend will ask his colleagues in the Foreign Office, who always tell the truth about everything, to say how many times in the history of the United Kingdom a Government have ratified a treaty from which the House of Commons has said that a part should be excluded. There must be hundreds of such examples and we await all the papers flowing to us showing the House voting to remove a clause from a treaty and then the Government of the day ratifying it. Being a simple person, I am not aware of such a case. There must be something significant about that.
§ Mr. Ian Taylor
My hon. Friend is developing a completely bogus argument. If the amendment is accepted tonight, the impact of the social protocol will be excluded from clause I. But given, under the social protocol in the treaty, that we opted out in any event, the terms of the social protocol would not have applied in the first place. That is why the Attorney-General said that it was a double negative. There is absolutely no restriction on the Government, subject to Third Reading and the Bill passing through both Houses, seeking Royal Assent and ratifying the treaty.
§ Sir Teddy Taylor
My hon. Friend has a strange idea of what we are meant to do in the House of Commons. If the Chancellor of the Exchequer were to say that the Finance Bill would contain a new tax on red ties, the House voted against that tax, and the Chancellor went ahead with the Finance Bill all the same, some of us might be angry.
§ Mr. Milligan
The fault in my hon. Friend's logic is that if the House of Commons were to vote for us to sign the social chapter and we did not, it would be in defiance of the wishes of the House, but the amendment is unclear on that issue.
§ Sir Teddy Taylor
My hon. Friend, who has recently become a Member of Parliament, is a guardian of democracy and a regular attender of our debates. Unlike most of those who voted for the treaty, he has often been in the Chamber. When hon. Members vote to have something chucked out of the treaty—which is what we are doing with amendment No. 2 because we do not want the protocol—that action should be significant. However, it is being said that such action has nothing to do with it and the protocol is not an opt-out.
§ Mr. Marlow
It is a simple matter. The Government came before the House with a treaty. The House has torn out some of its pages and thrown them away. Given the sovereignty of the House, how can the Government proceed to ratify the treaty when it has pages missing?
§ Sir Teddy Taylor
Yes, my hon. Friend the Member for Northampton, North (Mr. Marlow) has put it in a nutshell. My lengthy speech has given the Foreign Office boys plenty of time to compile a list of the previous occasions when the House of Commons has voted to take something out of a treaty, then proceeded to ratify the treaty. I am sure that many examples have now been gathered and the Minister of State will list them.
213 Despite the fact that honest, decent and respectable Members of Parliament have fought hard on their constituents' behalf, those Members have been accused by Ministers and leaders of the Tory party of being conspirators and of wanting to impose communist and socialist policies on this country. We now know—indeed, we always did—that the protocol merely achieves two little things.
§ Mr. Richard Shepherd (Aldridge-Brownhills)
The oldest fight for the House of Commons is the fight against legislative authority and prerogative power. Are not we having a rerun of Charles I versus Parliament? [Laughter.]
§ Sir Teddy Taylor
My hon. Friend is right. Some hon. Members may laugh, but I hope that my hon. Friend the Member for Harrow, East (Mr. Dykes) knows that many people in Harrow share my views, not his—although they all love him.
I hope that it is appreciated that the Maastricht treaty is destroying our democracy. It means that people who vote——
§ Mr. Terry Dicks (Hayes and Harlington)
I had the impression—perhaps wrongly—that the Single European Act took away much of our power. Who steered it through the House? Baroness Thatcher, Lord Tebbit and many others who are now called rebels, like the hon. Member for Stafford (Mr. Cash). Their voting record on Europe was better than that of the hon. Member for Harrow, East (Mr. Dykes). How can my hon. Friend the Member for Southend, East (Sir T. Taylor) say that the Maastricht treaty threatens us and the Single European Act did not?
§ Sir Teddy Taylor
I have a high regard for my hon. Friend, but he knows that I fought against the Single European Act and voted against every clause of the Bill. However, that is not at issue. It does not help the genuine argument to state that the previous Prime Minister was worse than the present one. I am talking not about that, but of the rights of my hon. Friend's constituents and the rights of the British people. It does not matter to me who voted for what—all I know is that something had has happened.
What does the protocol include? It does not include many of the issues that some people said it did. It says that the 11 members can use the institutions to implement their social chapter and that British taxpayers—my constituents and others—will have to pay a 12th share. The Foreign Secretary, who is always helpful with legal advice, said that even if we chucked the social chapter out of the Bill it would not matter becausethe likelihood is that they"—the costs—will be a charge upon the Consolidated Fund, as authorised under the 1972 legislation."—[official Report, 15 February 1993; Vol. 219, c. 33.]5.15 pm
My understanding of the 1972 legislation was that it authorised us to pay for Community obligations—obligations of the 12 members, not obligations of six, seven, eight or nine members. We are talking about an agreement of the 11. There is a serious problem—goodness knows how we can resolve it. The problem can probably be solved only in the courts of law. We know that if the Government want to ratify the treaty, including the protocol, many British citizens will consider it wrong. They will say, "If our Parliament has voted against paying 214 for a twelfth share of the administrative costs and the Government say that they can do so under the 1972 legislation, we think that the issue should be clarified in a court of law." I think that it is inevitable that a British citizen will want the matter to be clarified in that way.
Unfortunately, despite the attempts to call the matter a big joke, it could result in a long delay for the treaty's ratification. I do not know anything about the law—the Minister of State knows it all. I am told that when a European issue is taken to court, one is sometimes told that the matter will have to go to the European Court, which could involve even more delay.
The House should appreciate that something nasty has happened over amendments Nos. 27 and 2. A lot of rubbish has been spoken and people have been wrongly abused and misled. We have created a bit of legal nonsense. I prophesy that the amendment could result in a long delay in the ratification of the Maastricht treaty. We could end up with people having rows and disputes and the lawyers earning more money through discussions in court.
It would have been easier and simpler if our pleasant Foreign Secretary and our clever Government had avoided the trouble and prevented the embarrassment caused to the Labour party by simply saying that we should let the people decide such a big issue with a referendum. If the Labour party had wanted it, the referendum could have included a second question: "If you approve of the treaty, do you want it to include the social chapter?" If we had had a referendum and let the people decide what should happen to their powers, freedom and liberty, the lengthy debates, nastiness, disagreements and unfortunate incidents that we have witnessed would have been unnecessary.
What has happened today has not been a joke, but a sad reflection on the way in which we have managed the dreadful treaty. The freedom and liberty of the British people belong to the people, not the politicians. We have no right to hand over those powers without asking the people first.
§ Mr. Bryan Gould (Dagenham)
I am not one of those who believe that a great deal turns on the protocol or the social agreement. Anyone who reads the protocol and the social agreement will have to concede that the terms are astonishingly vague and general. It is hard to see that they achieve anything that is not equally well achieved elsewhere in the treaty of Rome and other provisions. The lie to the contrary argument was conclusively given by my hon. Friend the Member for Newham, North-East (Mr. Leighton) in his contribution to the substantive debate that we held some months ago.
It is easy to see why the respective Front Bench teams want to pretend that the issue is one of great substance. The Labour Front Bench team finds it convenient to use its support for the social agreement as a stick with which to beat the Government, so giving the illusion of firm opposition while ensuring that the substantive measure—the Bill—is passed, effectively unamended.
It is equally easy to see why the Prime Minister is a willing participant in that charade. He has to explain to Conservative Members, the House and the country why he has accepted a treaty that runs so contrary to our interests. Therefore, he hopes to bamboozle the ideologues among his hon. Friends by saying that he has secured a signal victory on a matter of great importance. The truth is that 215 it is not a matter of great importance, so it is perhaps a little peculiar that we have debated at length a protocol that has such a limited effect.
I am one of those who would rather not have the treaty, but if we are to have it I would, on balance, rather have the protocol and the social agreement—modest and marginally helpful little pieces of verbiage. So if a vote is called this evening, I will be happy to vote for the Labour amendment.
What is much more important—I do not believe that any of the supporters or opponents of the social protocol would dispute this—for the purposes of our debate today is not the effect of carrying or failing to carry the amendment; it is the effect—the procedural, legal and constitutional effect—on the future of the Bill and the treaty. That is what preoccupies us this evening, and rightly so.
The real question is: if we carry this amendment, what will be the impact on the Government's ability to ratify the treaty? At first glance, some Ministers will argue that the decision taken by the House of Commons does not count. They will try to say that by running away from a Division they have disarmed those who have forced the amendment through. Let us be under no illusion about what has happened, however. It does not matter whether this decision is imposed on the Government by a majority vote or whether the Government simply yield to the will of Parliament. At the end of the evening Parliament will decide, and it will decide to accept the amendment and hence to exclude from the Bill the social protocol.
Then there will be those who mutter, perhaps from the Conservative Back Benches, that we can disregard this decision because the motivations of those who support it are so at variance and, indeed, contradictory. That may well be true, but it is also true of many decisions that we take in this House. If anyone ever inquired into some of our decisions, the results would doubtless be somewhat unedifying. In almost every case we would discover that the primary reason why most of our colleagues vote on a given issue is the fact that they are told to do so by the Whips—and had there been a Division this evening, that would have been true of this occasion as well.
The truth is that it does not matter a toss what our motivations are. They will always vary; they will always be inconsistent; it is never profitable or necessary to inquire into what they may be. What matters is the decision of the House. So the amendment is to be carried and the Bill will carry on its face a statement of the House's hostility to the opt-out protocol.
What are the legal consequences of this decision? The first question to be asked is: what is the consequence for domestic law? After all, the purpose of the Bill is not to ratify the treaty: it is to incorporate those parts of the treaty that need incorporation into domestic law. The House will say that it does not wish to incorporate the protocol in domestic law. On that question it might be assumed that there is a great deal of circumstantial evidence to suggest that this matters a great deal; otherwise, why would the Government have insisted when they drafted the Bill that this provision should be included in it and thus incorporated into domestic law? Incidentally, the Foreign Secretary was rather disingenuous when he tried to explain, quite wrongly, that it 216 was a matter of convention that all amendments to the treaty of Rome were listed and therefore incorporated. The very Bill with which we are dealing distinguishes between the parts of the amending treaty which are to be incorporated and the parts which are not.
The Government must explain why they incorporated the protocol in the parts of the treaty which they believed had to be incorporated in domestic law, and why they have since changed their mind, saying now that it does not matter.
For a long period the legal advice, as one would suppose in this context, was that a refusal to incorporate the provision in domestic law would create a real problem for the Government. It is surely common ground that if a disparity arises between our commitments as incorporated in domestic law and the commitments that we undertake under treaty law, it becomes impossible for the Government to ratify the treaty. This could hardly, therefore, be of more central importance.
So we have the mystery not only of the original drafting but of the sustained legal advice to the effect that, in accordance with the drafting, a failure to incorporate would make for real problems. Then there was the further mystery, even once the legal advice had been magically changed, that it was still the Government's position that they would resist this amendment to the utmost. The fact that they have now faced the inevitable does not alter the fact that, until an hour ago, as far as we knew, the Government attached considerable importance to voting down the amendment.
So all the presumptions must be that a failure to incorporate the protocol makes a great deal of difference. Nevertheless, speaking as a lawyer—sometimes it is not wise to admit that—I am inclined to take the view that the Attorney-General's opinion is likely to be proved right: that the Government, having had second and better thoughts, have, on the balance of probabilities, come up with the right answer. Incidentally, we are told in interviews and statements conducted outside the House that the Attorney-General has ruled on the matter. We should remember that he is not a court of law; he is simply offering an opinion which may or may not be correct. We wait to see, if it is tested in the courts, whether it proves correct.
§ Mr. Skinner
We are often told that we debate legislation in this place in a way that is different from how other nations in the Common Market debate theirs—we discuss it line by line and clause by clause. As the Speaker has selected this amendment, it must be a valid amendment or it could not have been selected. Would not a court of law, therefore, say that the amendment must, prima facie, be in order and fit for incorporation in our law? Would not that argument carry more weight than the Attorney-General's statement to the House?
§ Mr. Gould
My hon. Friend makes a further persuasive point on the side of the argument that there must have been a purpose in incorporating the provision—or attempting to—in the first place, so failing to incorporate it must have some legal consequence.
Let us return to my personal view—it is the best that I can arrive at—which is that the Attorney-General, on balance, would be the favourite to win if the issue were litigated in a court of law. That is not to say that he would win. There is a powerful argument to be made along the 217 lines of what my hon. Friends the Members for Bolsover (Mr. Skinner) and for Ashfield (Mr. Hoon) have said, to the effect that the absence of the exclusion of the social agreement, as achieved by the protocol, might matter to domestic law. I confess that I find it a little difficult to think of a case in point, but one would not be beyond the bounds of possibility.
§ Mr. Nigel Spearing (Newham, South)
Perhaps my hon. Friend has discovered a sliver of a case that the Foreign Secretary might have had for completeness and clarity's sake. There is a major flaw in the argument, however. Clearly, the legal advisers in the Foreign Office who advised the Minister of State and the adviser-in-chief to the Attorney-General hold views that are widely differing. The former say that adoption would preclude ratification, the latter that the issue is more or less neutral and does not matter either way. My hon. Friend may have some knowledge of the legal department in the Foreign Office; it appears that the Government did not even get their legal arguments straight before the right hon. Member for Watford (Mr. Garel-Jones) delivered his initial opinion.
§ Mr. Gould
The fact that the Foreign Office legal advisers and the Attorney-General's legal advisers reached diametrically opposite conclusions makes the point, which is surely apparent to everybody and which perhaps I am somewhat labouring, that no one can be certain. As my hon. Friend suggested, I happen to know the Foreign Office chief legal adviser, Mr. Frank Berman, who is an excellent lawyer. I would be astonished if he had not based his conclusion on powerful and convincing legal argument. As we have not been privileged to see the detail of the argument, either for or against, my best estimate is that the Attorney-General might prevail.
However, the point that I wish to emphasise is that it would be worth while if an appropriate case could be found to test the matter in the courts. If the Attorney-General turned out to be wrong, that would be—I am sure my hon. Friend would agree—a bar to the Government's being able to ratify the treaty. All that I can say to those who are contemplating litigating on the issue is that it should be done soon, as the possibility of getting a judicial review of a statute is pretty slight.
§ Mr. Wilkinson
Could the hon. Gentleman give us his learned opinion on a matter that I referred to my right hon. Friend the Foreign Secretary, but on which he gave no reply because by then, in naval parlance, he was already making smoke prior to withdrawal? As the protocol will be eliminated by acceptance of the amendment by Her Majesty's Government, will there be no obligation in British law to accept its provisions? Does that mean that the United Kingdom could get away with not paying its contribution to the costs of the administration of the social charter on behalf of the others who have signed it, or will the European Court oblige us to pay our contribution to that to which we are not a signatory?
§ Mr. Gould
The hon. Gentleman raises what I can best describe as a "colourable" argument. If a citizen could overcome the problems of locus standi, which in my view are never as great as they are said to be, that argument might lead to a justiciable issue on which a court might 218 have to decide. In those circumstances, there is at least a chance that the court will decide against the Attorney-General and in favour of the Foreign Office legal advice.
§ Mr. Marlow
The hon. Gentleman has said that he knows all about the Foreign Office legal department. If that case were to come before the court, does the hon. Gentleman think that it would be beneficial, indeed essential, that those in the Foreign Office who gave their legal advice came before the court and explained the legal advice?
§ Mr. Gould
I am sure that means might be found to produce that sort of expression of opinion if the matter were ever litigated.
I want to pass on to a second possible aspect of tonight's decision. It is not the obstacle to ratification that would be imposed by some disparity between the treaty and domestic law. Rather, it is the effect of the statement by the House on the propriety of the Government exercising their prerogative power to ratify a treaty in defiance of what the House has said. Everybody concedes—it is a well-established part of our constitution—that the power to ratify a treaty is a prerogative power that is not to be affected, at least not easily or directly, by the deliberations of the House. Some would argue that it is not even justiciable in the courts.
However, as often happens in such cases, a convention has grown up. It was established nearly 70 years ago and given the title the Ponsonby rule. It is the convention that certain treaties of major importance should not be ratified in the exercise of prerogative power without being laid before Parliament for 21 days. That practice has varied and has sometimes been abandoned, but nevertheless it has been a pretty constant feature of our practice over that 70-year period. One can only assume that the whole purpose of laying the treaty for 21 days so that Parliament can consider it is to enable Parliament to express an opinion.
What we do not know, as far as I am aware, is what would happen if Parliament expressed a view that was contrary to the treaty—if Parliament said, "We don't want you to ratify the treaty." We certainly do not know that in the European context because in the case of the great Acts of Parliament that preceded the Bill—in 1972, 1986 and so on—no such attempt to change the treaty or express a different view from that in the treaty succeeded. This is novel. We are in uncharted territory. We simply do not know what would be the court's view--or even whether it would accept that there was a justiciable case—if it was asked in such circumstances whether it would be right for the Government to ratify the treaty in defiance of a solemn expression of opinion by the House of Commons.
§ Mr. Peter Shore (Bethnal Green and Stepney)
My hon. Friend said that there was no precedent for that happening. Has he dismissed from his memory, or thought not appropriate, the case of the Laval pact of 1934? The rejection of that pact by the House led to the abandonment of it and the resignation of the Foreign Secretary.
§ Mr. Gould
That is an interesting precedent. Perhaps I should refine the point that I am making. What would be the consequence of the House saying that it was prepared to endorse the treaty as a whole, but that it objected to part of it? That creates a problem. Everybody concedes that one cannot ratify in part. One either ratifies a treaty or one 219 does not. Let us imagine that we were arguing the case before a court, although nobody can be sure that we could get it before a court. No doubt the Government would say that Parliament has endorsed the treaty by a majority on Second Reading and on the paving debate. Those on the other side would say that, in a subsequent vote, Parliament made it clear—that has nothing to do with legislation because we are doing two separate things at the same time—that, quite apart from what happens in legislation, its solemn view is that it does not want the protocol.
Unfortunately for us, it is not open for us to say that we do not want the protocol in the treaty because that is not a judgment for us to take. We can do only two things—decide what goes into domestic law and, in accordance with the conventions, express a view on whether this is a treaty that we can support and which the Government are therefore authorised to ratify. I argue that, in accepting the amendment, we would not only change the Bill but we would make it as clear as it could conceivably be made clear that the House of Commons, unanimously—for whatever reasons—does not want the protocol. That is the judgment of the House.
We therefore need to know the consequence of that. All that I suggest is that, quite apart from the obstacles that might arise from the interpretation of domestic law, there may be, in accordance with constitutional convention, some inhibition on the Government's ratifying the treaty in those circumstances, particularly when, as is inevitable, we come to vote on Third Reading. A vote for the Bill on Third Reading will not be a vote for the treaty, but will be a vote, as far as we can engineer it, for part of the treaty but shorn of the protocol. We shall have done it twice and we can hardly do it in more solemn, considered or deliberate fashion.
After all those hours of debate and all the attention. importance and significance invested in the decision, it would be inconceivable that, the House having reached such a view and expressed it in the most solemn form open to it and, through the agency of people such as myself, pointed to the consequences in terms of the Ponsonby rule and the constitutional conventions, the Government could then blithely go on and ratify the treaty.
§ Mr. Maclennan
Will the hon. Gentleman accept that his argument carries less force if one views the protocol as a separate international agreement not affected by the ratification of the treaty as a whole? Does he further accept that the internal language of the protocol makes it clear that the signatories of the protocol regarded it not as an integral agreement but as a separate agreement, although one related to the treaty, and that the failure to approve the protocol would not damage the ratification process of the treaty itself? It certainly calls into question whether it is appropriate to declare, as appears to be the Foreign Secretary's intention, that Britain will ratify the social protocol regardless of what Parliament says.
§ Mr. Gould
That point has been argued on a number of occasions by the hon. Gentleman and others in his party, but in all honesty I do not think that it has any merit. I speak only from memory, but I believe that the 1978 Act declared that a treaty includes the protocols and all the other bits and pieces that go with the treaty. There is no question but that the protocol is part of the treaty for the 220 purposes of the 1978 Act and, therefore, for the purposes of clause 1(2) of the Bill. Therefore, the hon. Gentleman's argument fails.
In addition, clause 1(2) is absolutely conclusive on the fact that, for the purposes of the 1978 Act, the treaty is approved—but that is only for the purposes of that Act and does not, in my view, touch the wider constitutional question with which I am dealing.
§ Mr. Spearing
Does my hon. Friend agree that, as the agreement on social policy is attached to the protocol—it could be argued that it is part of the protocol—it is annexed to the treaty? Is not it also clear that, under article 2 of the agreement, it is only through the unanimous action of the Council, on a Commission proposal to consult in the European Parliament, that the progeny of the protocol can be achieved? Therefore, it must be integral to the institutions of the Community and the treaties that establish them.
§ Mr. Gould
My hon. Friend must be right. In any ordinary interpretation of these matters, a protocol is part of the treaty. That was made clear in the 1978 Act. Although I sympathise with the purpose behind what the hon. Member for Caithness and Sutherland (Mr. Maclennan) said, his point has no validity.
In the light of the arguments, uncertainties and confusions, it would be wrong of the Government blithely to assume that they can proceed in defiance of Parliament's will. Because of that, I want to make a particular point to my Front Bench spokesmen. We have the opportunity, if we wish, to stand up for Parliament on this issue. We can say that it is an outrage for a Government to say both in advance and in retrospect that they will pay no attention to the view of Parliament. If we are parliamentarians—and surely we are that, if nothing else—we must stand up for the authority of Parliament. The Opposition Front Bench, above all, has that obligation. The Executive will always try to get away with the issue, but the Opposition Front and Back Benchers must always be vigilant and protect Parliament.
We have it in our power to deliver a very harsh lesson to the Government if they refuse to listen to the voice of Parliament. The official Opposition can vote against Third Reading. There is no doubt that, by doing so, we can defeat the Government. Any Government posturing and blustering to the effect that they would take no notice of Parliament would be brought to a rapid conclusion. The Government would then have to sue for terms not just with us, but with their European partners. Surely that is exactly what we want, in our various ways. We want a renegotiation of the Maastricht treaty and we want to force the Government to negotiate a social agreement. So why do not we do that? I urge the Opposition Front Bench to act in the interests of Parliament and of the country and to do the job of an Opposition, which is to bring the Government to heel if they refuse to heed the voice of Parliament and persist in acting in defiance of it.
§ Mr. Dykes
The hon. Member for Dagenham (Mr. Gould) spoke with his customary clarity and lucidity. We always listen carefully to his speeches. I agreed with much of what he said and, from the Opposition's general vantage point, I could understand his main points. However, I strongly disagree with his statement that the social 221 protocol and the opt-out provisions that the Government negotiated are an integral part of the treaty. I strongly agree with what the hon. Member for Caithness and Sutherland (Mr. Maclennan) said on that point.
Far from it being right for the hon. Member for Dagenham to suggest that the Government are riding roughshod over the opinion of the House in respect of amendment No. 2, the reverse is true. I shall stand corrected if anyone wishes to intervene and say differently, but it is my understanding that the Government are accepting the will of the House by accepting an amendment that will change the text of clause 1.
As the hon. Gentleman rightly said, it is not the Government's fault that constitutionally, legally, juridically and in actual fact, the Bill and its text are different from the treaty. The hon. Gentleman conceded that reality. Indeed, it is the way that we deal with these matters in our international relations.
There is a difference between the Crown prerogative of the treaty and its provisions and the legislation that is needed to change some aspects of domestic law in the successive treaties that began with the treaty of Rome—when Britain was not yet a member—and then with the treaty of accession, when we decided to join. I cannot understand why hon. Members become so worked up about that point and think that the Government are being devious.
I feel no resentment towards the Opposition in general. I remind the hon. Member for Dagenham that, even if his colleagues followed his advice and voted against Third Reading, I assume that a substantial, respectable and admirable number of Opposition and other Members would support the Bill, or abstain at the very least. If that were not to be the case, it would be depressing, in view of the strong pro-European line that those hon. Members have displayed throughout our debates. We all know who I mean, and it is a considerable number of hon. Members. Perhaps they will be active in Labour party discussions between now and Third Reading to ensure that that point is conveyed.
I reserve my principal bitterness for my hon. Friends who have dealt the Government a very bad card in making unnecessary threats about amendment No. 2 and its predecessor, amendment No. 27.
§ Mr. Milligan
Does my hon. Friend agree that it is pretty rich for the hon. Member for Dagenham (Mr. Gould) and our hon. Friend the Member for Southend, East (Sir T. Taylor), who say that they stand up for the voice of Parliament, to be supporting an amendment that will, in effect, transfer the decision on such a vital issue to unelected judges, rather than leaving it with elected Members of Parliament?
§ Mr. Dykes
That is a valid point. I hope that the homespun reality that those hon. Members probably could not afford to go to the courts might be a more practical restraint on them. The cavalier references by some of my hon. Friends to taking prolonged High Court action against our own Government and party are scandalous.
I use that word with some restraint. I feel bitter about such antics. I am one Conservative Member who might be tempted to accept some aspects of the social provisions. After all, many of the leading clauses appear in the Single European Act, and the remainder follow in the Maastricht 222 treaty. The initial aspirations of the social provisions that will be adopted by the other II member states are written down, in the same language, in the Single European Act. We all know that.
I am probably one of those Conservative Members who would not get as worked up as others about the iniquities of the social provisions. But, bearing in mind that the Government achieved a remarkable and successful negotiation of their position vis-a-vis the Maastricht treaty and intend to ratify the overwhelming proportion of that treaty, with the exception, perhaps, of this and another segment, it is wrong and reprehensible to say the least—that is too mild a word—for my hon. Friends to threaten the Government who have a reduced majority after the election for one reason or another and a Government who were entitled to ask all their supporters to go ahead on their manifesto programme with the ratification of this important and mild treaty. The idea that there is any transfer or loss of sovereign intrinsic power from this House or any elected Government as a result of the treaty is pure garbage, and I am amazed that some hon. Members continue to repeat it.
The hon. Member for Bolsover (Mr. Skinner) is not in his place, but I shall mention the point that I am about to raise to him afterwards. I disagree with his interpretation of the principle and meaning of the selection of an amendment by the Chair. I in no way wish to question the selection of amendments—I know that it is a delicate and sensitive subject nowadays, so for various reasons I shall refrain from doing so—but the fact that Madam Speaker at this stage of the Bill or the Chairman of Ways and Means at earlier stages selects an amendment does not mean that it is perfectly respectable in constitutional and juridical terms. I would be surprised if that were so. The hon. Member for Dagenham agreed with that assertion by the hon. Member for Bolsover, and I think that it is literally incorrect.
A selection represents an important subject for debate and an important potential amendment or change to an important part of the Bill, but that is all. I cannot imagine that it has the purist definition of textual purity, constitutional correctness, and juridical approbation, and that therefore learned judges or legal experts outside court systems would say that the amendment was correct in all those terms. I should be surprised if that were so.
My hon. Friend the Member for Southend, East is still in the Chamber. He has been one of the best attenders of these prolongued debates, and I pay tribute to him for that. I think that he was confused about the intentions and aspirations of the public outside. I have not noticed that there are millions of people in Britain worrying about any loss of power as a result of the treaty, or that there is any great interest in it even. That is no criticism of them. I think that they regard it as a fairly routine matter. What appals them and many people in the House is the amount of time that has been spent on unnecessary debate.
I say that deliberately, and I do not mean to be anti-democratic or to say that the House does not have the right to have such prolonged debate. I do not mean that at all. I am talking about the misinterpretation of the substance of the treaty and the mischievous and mis-explanation of it for purposes to do with our original entry into the Community as a member state rather than the further development of the gradual integration of some decision making—not all—in the Community, which I find completely acceptable.
§ Sir Teddy Taylor
I am sorry to interrupt my hon. Friend when he has said exceptionally kind things about me, but I make him a public offer. I should be happy to donate £100 to the European Movement if he can find a majority of people in any street in his constituency who are not in favour of a referendum. I find that the vast majority of people say that they do not know about Maastricht and they want to know about it and to have a say in it. I shall go with my hon. Friend to any place in Harrow, and if the majority there do not want a referendum I shall give him £100.
§ Mr. Dykes
When Baroness Thatcher was Prime Minister, she stopped the grant to the European Movement in 1985, but I should be happy to accept my hon. Friend's offer for reasons unconnected with this debate. Again, my hon. Friend misunderstands what I am saying. If anyone in the street is told that he is being deprived of a say in something and asked whether he would like a say in it, the answer will be overwhelmingly yes.
Some Opposition Members say that referendums are wonderful, sacred, very important and so on and should not be limited to this subject. What about capital punishment? Others say no, there are other key subjects. If we had a referendum, we know that the result would be totally uncongenial to all members of the official Opposition. Therefore, that argument does not arise.
More important and relevant is the reality of those matters. I think that I am right in saying that, in the Newbury by-election campaign—we shall see the conclusion and result of that tomorrow and, axiomatically, I hope for a Government win and I think that there will be one—the opinion polls revealed that, despite the hysterical antics of the Euro-sceptics, the anti-Europeans and Alan Sked screaming around the town to a bemused public about the dangers and evils of federalism, the subjects of concern to people were mainly economic problems, unemployment and so on. Only 6 per cent. were concerned with the European Community.
Alan Sked, heroically and bravely, stood in Bath at the election as the anti-federal candidate against Chris Patten, now Governor of Hong Kong, and won 117 votes. An anti-federal candidate in Harrow, East won 49 votes. There is more than one such candidate standing in the Newbury by-election, and I think that we shall see a similar result tomorrow. It is nonsense to say that the public are worked up about this. What they have been worked up about are the prolonged debates, which appear to mean that even pro-Europeans in the House have voluntarily and enthusiastically chosen to spend hours on repeat debates on unnecessary amendments.
I say that in no anti-democratic spirit at all. That is the literal reality. That is what has concerned the House of Commons—this so-called sovereign and primordially important Parliament, the one that we all love—rather than the crucial economic problems that most preoccupy members of the public. In the end, that is the disturbing thing for the anti-Europeans, as well as the way in which some Conservative Members have let down the Government.
I have read again and again the legal judgment of the Attorney-General in order to convince myself that I understand it—the advice given not only to the Government but to the House on the matter—and I am satisfied with it. I think that I was also able to follow what 224 the Foreign Secretary was saying, and there may be further explanation and elucidation from the Government on the matter.
I do not see that any of this would impede the ratification of the treaty, which pleases me, because I am impatient for it. It will be of great, good value and good store for Britain's future welfare. That is why I am glad that, after much muddle and delay, which I regret, some of which could have been avoided, we now face that position.
I enjoin the House now to proceed on the basis of what appears to be being agreed in the debate in all parts of the House, depending on the later outcome of any votes or questions that may be put. That will then be the way to deal with the matter in the most acceptable way, without in any way reducing the basic democratic decision-making of the House of Commons in respect of an important treaty.
§ Mr. Tam Dalyell (Linlithgow)
In the demonology of the hon. Member for Southend, East (Sir T. Taylor), I could be termed a true believer in the Community, but I do him the credit of being a true believer in what he says on the other side of the argument. It is from the position of a true believer that I want to ask a question of the Foreign Secretary which concerns my hon. Friend the Member for Hamilton (Mr. Robertson) and others of us. I have, for the sake of convenience, given the officials the background against which I put the question.
The matter started with a letter on 3 April addressed to me by someone writing from Switzerland. He said:I am sending you a copy of an advertisment which has appeared now for five consecutive weeks in the Basle Zeitung. Although obviously as a British subject working in Switzerland I have nothing against the investment of Swiss capital in the UK, I feel that the negative image of Britain as a country with low wages and poor social conditions is something which should be improved and rapidly rather than extolled as a virtue.It will be recollected that in France, during what I must encapsulate as the Cambuslang-Dijon problem—when Enoch Powell was a Member of the House, he had the habit of expressing a view succinctly by giving it a heading—there was considerable ill-feeling when the workers of the Hoover plant in Dijon apparently lost their jobs because of the lower wages paid in Cambuslang. It was rather more complicated than that, but that was basically the situation.
I do not go along with the argument—which is not true—that the Cambuslang workers were in any way underpaid by British standards, nor will I indulge in any criticism of the Hoover factory. It was said, however, that the Hoover workers in Cambuslang were able to keep their jobs because France had accepted the social chapter and we had not.
I do not wish to quote the advertisement in full; that would not be possible anyway, because it is in German. However, it begins:Niedriger Landkosten in Grossbritannien.It suggests that there is every opportunity to invest in Great Britain, because of the lower wages and lesser obligations involved. I have given a copy of the advertisement to the Foreign Office.
§ 6 pm
§ Mr. George Robertson (Hamilton)
My hon. Friend is absolutely right. There is something mean-minded and demeaning, in the eyes of the British people, about their Foreign Office spending public money on an advertisement 225 campaign in Switzerland—and, as we knov, from Monday's Guardian, another in the Federal Republic of Germany—telling people that this country is a haven for low standards and low pay.
My hon. Friend was present when, in his speech the week before last, the Foreign Secretary dismissed with a flick of the wrist the argument that jobs moved around on the basis of wages and conditions. Why, then, is public money being spent to lower our country's standards and its reputation abroad? My hon. Friend has raised a valid point, which I strongly endorse.
§ Mr. Dalyell
I rather hoped that the Foreign Secretary would comment at this stage, so that we could get the point about the advertisement out of the way now. However, I will give way to my hon. Friend.
§ Mr. Mallon
Let me reinforce the hon. Gentleman's point by alluding to the removal of the Digital plant from Galway to Ayr. The same argument was used in that instance—that, because the Republic of Ireland had ratified the Maastricht treaty, cheap labour was available in Ayr. That, surely, must be bad for the whole concept of competition on a level playing field within the European Community.
§ Mr. Dalyell
I am very glad that I gave way to my hon. Friend. It so happens that I know a good deal about Digital, which has a huge and modern plant at South Queensferry. I have visited the Ayr plant, and have talked at length to the management there and at South Queensferry; I have also talked to the trade unions involved. I must admit that there is some embarrassment in Scotland about what happened in relation to Galway. Of course we were pleased to have the plant, but genuine sorrow was felt about those who suffered in Galway.
§ Mr. Dalyell
Perhaps I should enable the point to be cleared up by giving way to the Foreign Secretary.
§ Mr. Hurd
I have not yet seen the advertisement to which the hon. Gentleman referred; when I have done so, and have been able to examine the background, I shall write to him.
This argument—based, as it is, purely on statistics inside the European Community—is becoming increasingly unreal. The whole Community is becoming uncompetitive; the whole Community is allowing burdens on employers to increase, to such an extent that, if the process continues, it will soon be a question not of whether firms locate themselves in the Republic of Ireland or in Scotland, but of whether they locate themselves in Europe at all.
§ Mr. Dalyell
That raises real problems. When I invited the Foreign Secretary to intervene, I did not want to trick him into some long argument. I think that we should leave it at that for the moment, as was my undertaking.
As my hon. Friend the Member for Hamilton pointed out, other advertisements have appeared in other newspapers. People who place such advertisements do so at considerable expense to themselves: they must think that they are gaining some advantage, even if the Foreign 226 Secretary and others do not. Those who advertise normally have their motives. I hope that the Foreign Office will reflect on the issue, and possibly write to my hon. Friend the Member for Hamilton, the hon. Member for Newry and Armagh (Mr. Mallon) and others who are interested, including myself.
§ Mr. Marlow
I have here a copy of the Maastricht treaty. Through the decision that it has made today, the House is mutilating that treaty. Given the overriding sovereignty of the House and the significance of the issue, how can the Government—having seen the treaty mutilated—then ratify that mutilated treaty? That is the question that will be before the House and the country; that is the question that my constituents will ask. They will see that we have wrought great changes in the treaty today. It is not the treaty that the Government negotiated: it has been changed.
I have heard all the smart legal points about this being a Bill and a potential Act of Parliament—about Ponsonby rules, and the Government's entitlement to ratify treaties. My constituents, however, will say, "Here is a mutilated treaty." Parliament has decided to reject part of the treaty; how, then, can my right hon. Friend the Foreign Secretary and the Government, in all conscience, proceed to ratify this rotten relic of a rotten treaty?
§ Mr. Marlow
If the Bill is to have its Third Reading—I understand that that is dependent on the result of the Danish referendum, unless the Government change their mind about that as well—it will be Third Reading of a mutilated Bill, in connection with a mutilated treaty. Will the Government then be able to ratify the original treaty, given that the Third Reading given by the House will relate to a changed perception of a mutilated treaty? I am assuming that the House proceeds with Third Reading. In an eloquent speech, the hon. Member for Dagenham (Mr. Gould) suggested that the House should reject the treaty at that stage. Even if the Bill secures its Third Reading, however, it will not be the original Bill, and the House will specifically exclude the social protocol in its assessment of the treaty. It will be saying no to the social protocol. How, after that, the Government can then ratify a wounded, mutilated treaty beggars belief.
In response to an intervention, my right hon. Friend the Foreign Secretary pointed out that—along with hon. Friends who share my point of view—I had apparently supported the social protocol in earlier votes. I think my right hon. Friend will agree that my right hon. Friend the Prime Minister never wanted the Maastricht treaty. It was not his idea; it was suggested by other countries on the continent. We felt that they were going too far too fast, and tried to slow them down. Eventually, my right hon. Friend was ambushed: he was put in a position where he had to go along with something. Along with my right hon. Friends the Foreign Secretary and the Minister of State, my right hon. Friend the Prime Minister was involved in a devastating, excellent, brilliant holding operation—a damage-limitation exercise. The treaty that we have here is not the treaty that other European Governments would have wanted: I congratulate my right hon. Friends on that.
Before my right hon. Friend the Prime Minister went to Maastricht, I gave him overall support, although I did not 227 support every jot and tittle of the argument that he was taking to Maastricht. I realised that he had been ambushed, and that he wanted to do his best for the United Kingdom. Certainly, no one could have done better than he did 18 months ago—and no one could have done better than my right hon. Friend the Foreign Secretary. We are all full of praise for his effectiveness in difficult circumstances. When my right hon. Friends the Foreign Secretary and the Prime Minister came back and it was put before the House—not far removed from the date of a potential election—yet again we supported my right hon. Friend and the Prime Minister for the excellent work they had carried forward.
My right hon. Friend said that I supported the Government on Second Reading. That is not correct. I did not support the Government on Second Reading of the Bill. Many of my colleagues opposed the Government on Second Reading. My right hon. Friend has also made the point that if we vote for a package—for a lengthy amendment with a whole series of details in it—we support every single detail in it. Is my right hon. Friend saying that if in future we disagree with some small aspect of a composite amendment or composite motion we should therefore vote against it?
If that is the point that my right hon. Friend is trying to make, I suggest that he has a word with the Patronage Secretary. The Government are not in a particularly happy position with this legislation. If we have to believe that we are committed to every single thing in every amendment that we vote for in the future, I put it to my right hon. Friend that the job of the Patronage Secretary will be much more difficult than it has been in the past.
What is it all about? What is this social protocol? As my hon. Friend the Member for Southend, East (Sir T. Taylor) has said, it is a totem. The Government say that they have achieved a great success which will benefit the United Kingdom; we shall not be chained and shackled by the social protocol, as other Europeans will be. The Labour party looks at the social protocol and says that it is jammed full of benefits, that it is what we all want and that the people of Britain will be devastated if we cannot have it. But what is the reality? The social protocol is an agreement between 11 countries in Europe, from which we have an exemption. The agreement is that they can go ahead and work out these policies between them but that they should not apply to the United Kingdom. But what is the social protocol all about?
Article 1 concerns the objectives of the social protocol. It states:The Community and the Member States shall have as their objectives the promotion of employment, improved living and working conditions".Who can disagree with that? We are all in favour of promoting employment and, in so far as they do not destroy employment, improved living and working conditions. The article also states:To this end the Community and the Member States shall implement measures which take account of the diverse forms of national practices".We do things differently here. So do Greece, Belgium, and Luxembourg. We shall be able to continue to do things differently in different parts of the Community. Would 228 anybody disagree with that? According to the objectives, which set the tone of the whole of the social protocol, we also have to take account ofthe need to maintain the competitiveness of the Community economy.All the burdens that my hon. Friends are concerned about have to be weighed against the effect that they will have on the competitiveness of United Kingdom and European industry and commerce. Is that something that we ought to be concerned about? What can be done which is of benefit to the working people of Europe and to the social cohesion of Europe if at the same time it undermines the competitiveness of the European Community and the countries within it? The objectives of the social protocol are something that Members of Parliament, if they look at them carefully, cannot object to. They represent pure motherhood; they are good. If we can get them, why worry about them?
Article 2 is the meat of the treaty. I shall return to it in a few moments. Articles 3 and 4 are permissive. In other words, if we do not like them we can say that they are nonsense. They deal with trade unions and management getting together, being permitted to do this, that and the other and the Commission becoming involved, if it can give a helping hand. They take a bit longer to say that, but is the substance any different from article 118B of the Single European Act, which says:The Commission shall endeavour to develop the dialogue between management and labour at European level which could, if the two sides consider it desirable, lead to relations based on agreement."?That is an economical way of saying what is set out in articles 3 and 4. That is all; there is no great difference. There is just a little more flesh put upon articles 3 and 4.
§ Mr. Marlow
My hon. Friend is a great linguist, and we all surrender to him on that point. Simple fellow that I am, I have to restrict myself to the text that is written in the English language. I hope that my hon. Friend will therefore bear with me.
Article 5 has no great significance. It relates to the Commission being able to put its views forward regarding co-operation. Article 6 is a politically correct article. It says:Each Member State shall ensure that the principle of equal pay for male and female workers for equal work is applied.That applies anyhow. It is part of the laws of Europe; it is part of the laws of the land. Article 7 has no great additional significance.
So what is the meat of the protocol? It is article 2, which says:the Community shall support and complement the activities of the Member States in the following fields:—improvement … of the working environment".That exists already in article 118A. We all know well that that exists. We are constantly getting legislation—some good, some bad—from the European Community regarding the working environment and also the health and safety of workers.
229 Secondly, article 2 refers to working conditions. It does not refer to the bettering of working conditions, or to the improvement of working conditions. I presume that it means that if Europe became desperately uncompetitive with the Pacific rim, the participants in the social protocol could sit down together and extend the working week, if they wanted to. That is what working conditions means. The article does not say that we should move in any particular direction. So who is concerned about that?
Article 2 also refers tothe information and consultation of workersand toequality between men and women".We already have that in article 6. The article refers also tothe integration of persons excluded from the labour market".Everybody, I believe, is in favour of the integration of persons excluded from the labour market. It may be that some enthusiasts in the European Community, with the Commission at the back of it—we are all a bit worried about the Commission—will come forward with ideas that are burdensome.
The article states that the Council may adopt directives. It does not say that it has to adopt directives. However, when the Council adopts those directives, it has to take account of the following sentence:Such directives shall avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings.Anything that can be brought forward on this basis, even though it can be brought forward in certain restricted fields, most of which are already covered by article 118A, has to take account of the satisfactory development and the wealth and prosperity of medium-sized and small undertakings. Is that not something that is satisfactory from my right hon. Friend's point of view, from the Conservative Government's point of view, from the Cabinet's point of view? What are they concerned about?
If we look further down, we see that social security, termination of contracts, representation and collective defence of the interests of workers and employers—that is, trades union legislation—the conditions of employment of third country nationals and financial contributions for the promotion of employment and job creation is all to be done by unanimity. If my right hon. Friend and his colleagues in the Conservative Government do not like them, they can stop them. They have got a veto.
Anything that might be contentious on a party political basis, any of the things that we do not want but that the Labour party might want, the United Kingdom Government, if it were participating in the social protocol, would have the ability to control and prevent from going ahead.
§ Mr. Marlow
Indeed. As the hon. Gentleman says, it would be possible not only for us but for anybody else to do that. If an individual country in Europe wished to do so—if it regarded it as socially beneficial and not burdensome—it could pass its own legislation. But if we were participating in the social protocol, we could veto proposals that we thought would be burdensome for the United Kingdom and for Europe and prevent them from being implemented.
The final part of article 2 of the agreement on social policy states: 230The provisions of this Article shall not apply to pay, right of association, the right to strike or the right to impose lock-outs.A great deal of trade union legislation has been introduced since the Conservative Government came into power in 1979. I voted for it. I agree with it and am of the opinion that it has been of great benefit to this country; I know that Labour Members will disagree with that view. But that legislation, too, is safeguarded, so what are the problems?
I put it to my right hon. Friend the Foreign Secretary that Europe is changing. It is becoming less competitive. Massive cracks are opening up in the German economy and the Germans' ethos and their attitude to those problems is changing. They know that they have the highest priced work force, the highest on costs and some of the worst absenteeism in Europe—that the great German economic miracle stands balanced between further progress and potential disaster. Attitudes towards working conditions and social legislation in Germany may well be on the threshold of a major change.
Suppose that we do not participate in the social protocol. Ideas come forward. Germany may have second thoughts—from a Conservative point of view—about some of those ideas. The idea may be anathema to Labour Members—it may fill them with horror—but the Germans may not like what is proposed. If we are not there, they will be alone and the proposals will go through. The Germans will feel that they must show solidarity with the others; no one will be there to join them, to agree with them, to share their misgivings. Legislation will be implemented and will affect—in theory—11 member states.
Do we really believe that the other member states will allow it to stop at 11? We know what has happened with other legislation. We had safeguards in the Single European Act. Originally, all these great and important matters were to be decided by unanimity. They were not. A lot of things—including the length of the working week—have been decided by majority voting. If Britain is not involved and if Britain's ideas are not in evidence, we shall have legislation under the social protocol—first for the other 11 member states and then for the United Kingdom—which we shall not have been able to influence. If we participated alongside the Germans—other people with more realistic views about the potentially damaging effects of social legislation on this scale at this stage, with the European economy going down and other economies in the world coming up—we might be able to mould and modify the legislation, not just for the benefit of the United Kingdom but for the benefit of the rest of Europe.
§ Mr. Austin Mitchell (Great Grimsby)
This is a fascinating new spectacle. For the first time ever, the hon. Gentleman appears to be brimming with enthusiasm for the Maastricht treaty. It is wonderful to watch, but I am not clear that I follow his argument. Is the essence of his position that we should scrap the rest of the treaty and just pass the social chapter?
§ Mr. Marlow
The essence of my position is the same as the essence of the hon. Gentleman's position: it is that vie should scrap the treaty. What I am saying is that we have had a totally bogus debate about the social chapter so far, as my hon. Friend the Member for Southend, East said. The opt-out has been used as a virility symbol—good jungle stuff. We heard from my right hon. Friends what a great victory they had won for Britain in securing an opt-out from the social chapter and we heard from the 231 Opposition how it would be the end of the world if we did not have the social chapter—our people would be victimised; their working conditions would be appalling; it would be back to Dickens if we did not sign. That is nonsense. If I have one plea to put to hon. Members it is that, before we return to the debate at a later stage, they should read the social protocol, take advice on it and understand it. Let us stop talking slogans and talk reality.
Today, through a combination of views and pressures and attitudes, we have changed the Bill before the House in such a way that I believe that it would be improper for the Government to go ahead with ratification. They know that there is no feeling of warmth, affection or commitment towards the Maastricht treaty in the country at large. They know that people are uneasy about it. As my hon. Friend the Member for Southend, East said, let us have some fresh thoughts. Let us put this mangled issue before the people of this country in straightforward terms in a referendum. Let us put the social protocol in front of the people of the country.
We do not have referendums on capital punishment. Who would pass the legislation if we did? But we can have a referendum on the Maastricht treaty. The questions can be simple: "Do you want Maastricht or do you not?"; "Are you prepared to make a decision on Maastricht?"; "Do you want the social protocol or do you not?" Those are simple questions with simple answers.
In this place, we use the powers of the people and if, from time to time in using those powers, we abuse those powers, we will get kicked out. If that happens, Labour will get in and put right what, in its view, we have done wrong. But if, by ratifying the treaty, we dispense with the powers of the people and pass them to institutions over which we have no control, we do something that we do not have the right to do. Those powers are not our powers to dispose of: they are the people's powers. Why not let the people choose?
§ Mr. David Trimble (Upper Bann)
I think it was the hon. Member for Southend, East (Sir T. Taylor) who said that this was, in many ways, a sad occasion and a sad reflection on our procedures and debates. Other hon. Members have commented on the length of time that has been spent discussing the social protocol and the agreement on social policy and discussing amendments Nos. 27 and 2. We have spent an awful lot of time discussing those issues. Until yesterday, the amendment was billed as or expected to be the crunch event in our discussion of the Bill—the one issue on which the Government would suffer a really important defeat. Today was to be the day on which everything happened. Yet now, at half-past six, the Benches are empty, people have gone away and nothing is happening. The whole thing has become a damp squib. That is indeed a sad reflection on our proceedings.
What has happened has been largely the result of the cumbersome way in which we proceed in ratifying treaties such as this. It would be much better if we had ratification processes similar to those adopted in other member states, where the legislature has to legislate in respect of all the terms of the treaty and where there can be proper debate on it. We do not have that opportunity. Instead, amendments have to be tabled to a Bill that refers to only part of the treaty. Then there is the difficulty of trying to 232 frame them so that they will have a serious effect. The interest, time and trouble that we have taken over this issue would not have been taken had it not been for the view expressed by the Government and by other hon. Members that amendment No. 27 was important. That is why it became a headline issue. Later, different opinions were expressed about the effect of amendment No. 27 and subsequently the present amendment.
There has been speculation about the differences of opinion and the differences of legal opinion offered within the Government. We have had regrettably brief explanations by the Attorney-General and the Foreign Secretary of the revised opinions. We have not had—this is a serious omission—a full statement of the original opinion on which the Government acted and of the reasons for it.
People outside the House must look on our proceedings with amazement. It would be of benefit to them if they could see the full range of opinion that lay before us or if, even at this late hour, the Government could explain those opinions. That would help people outside to understand how the confusion arose, how conflicting opinions were given and how an amendment that was originally regarded as a killer, both in the House and in comments and briefings outside the House, has ended up a damp squib. It is not the first time that that has happened. Other amendments which were thought to involve major issues ended up as damp squibs. That has given rise to accusations by some hon. Members of a conspiracy between the two Front Benches so that one Front Bench could appear to oppose without frustrating the passage of the Bill. I do not know the truth. I always take the view that if there is a choice between a conspiracy theory and the alternative—I am not sure whether it is parliamentary to refer to a cock-up theory—one should prefer the latter unless there is real evidence to the contrary.
As to the effect of amendment No. 27 and now amendment No. 2, we had an excellent speech by the hon. Member for Dagenham (Mr. Gould) explaining in detail his views. I found much of what he said persuasive. I shall not go over the same ground in detail, but with the indulgence of the House I want to make some observations on my view of the position.
Two different matters are involved and it is easy for the language to slip between one and the other. There is the protocol on social policy and the agreement on social policy. The agreement is an agreement made by the other 11 members of the Community. It will not extend to the United Kingdom, nor will amendment No. 2 extend it. The protocol is separate from the agreement. The important point about the protocol is that it authorises the other 11 members, who entered into the agreement on social policy, to use the institutions of the Community for the purpose of carrying out the agreement. They need that permission. They cannot operate the agreement on social policy unless permission is granted by the United Kingdom. If the United Kingdom does not grant permission, the agreement on social policy will be frustrated.
The protocol also contains a provision about administrative costs, a point of considerable concern to some Conservative Members. An issue of principle is involved, but the amount is minor and there may be other 233 ways in which the expenditure can he justified legally and politically. I will leave the question of administrative costs to one side.
As I said, the important point about the protocol is that it authorises the other 11 member states to proceed. I understand why Liberal Members have said that, in substance, the agreement on social policy and the protocol are separate. There is merit in the argument that their subject matter marks them out from the rest of the treaty. If, for the sake of argument, there was a separate treaty, the question would arise whether the Government could give effect to that separate agreement and ratify it without legislation.
That brings in the argument of the Liberal party about section 6 of the European Parliamentary Elections Act 1978. That section is ambiguous and I should not like to give a strong opinion about its effect. The argument of Liberal Members about the effect of section 6 is interesting. I suspect that the hon. Member for Dagenham is right, but it is for the courts to decide. I am prepared to assume that the Government could ratify an agreement on social policy and a protocol on social policy if they were in a separate document. To some extent, that supports the revised legal opinion given to the House by the Attorney-General and would appear to support the view that the adoption of amendment No. 2, which will occur later, would have no effect and that the Government could proceed to ratify.
However, we do not have a separate agreement. The agreement on social policy and the protocol are in the treaty on European union. If Parliament decides that the protocol should not be endorsed, and by doing so clearly expresses the view that the Government should not authorise the other 11 member states to use the institutions of the Community, can or should the Government proceed? That is the kernel of the issue.
Perhaps—I emphasise "perhaps"—on a narrow legal view the Government can proceed to ratify the treaty after the adoption of amendment No. 2, but is it constitutional for them to do so? There is a difference between what is legal and what is constitutional. It stems from the nature of our not clearly defined and evolving constitution. It would be against the spirit of the modern British constitution for the Executive to ignore the formally stated view of Parliament. The arguments of the hon. Member for Dagenham on that point are extremely persuasive.
It would be unconstitutional for the Government to ratify the treaty after Parliament has expressed, as it probably will later, the view that the protocol on social policy should not be endorsed. If the Government proceed on that basis they will be changing constitutional practice. I appeal to them to think carefully before creating an important precedent and departing not only from practice but from what arguably would be constitutionally proper. What has arisen as a result of the Government's decision throws up a serious issue.
One cannot be certain, largely for the reasons given by the hon. Member for Dagenham, but I suspect that there is potential for disparity between United Kingdom law, as it will be if the Bill, as amended, is passed, and the position as stated in the treaty. If there were not potential for disparity, the Bill would never have been drafted as it was. Without being able to identify where the disparity would be between United Kingdom law and the law of the Community, I suspect that there will be disparity.
234 If there is disparity, the best way to proceed is as the Government originally intended—by including a reference to the protocol in the Bill. By accepting amendment No. 2 and removing the protocol on social policy, the Government are taking the second-best way. They will be all right until the disparity between the United Kingdom law and Community law is apparent, when they will be in serious trouble because they will be out of step with Community law and they will have to come back to Parliament to pass new legislation.
It is not a good way of proceeding, but it is interesting to note that there is a precedent for the Government to behave in precisely that way. I shall mention it briefly because it involves Northern Ireland legislation, in particular the Education Act (Northern Ireland) 1947, passed by the Stormont Parliament. Before it was passed, the Law Officers of the Crown in Northern Ireland, including Lord MacDermott and the father of the former Lord Chief Justice of Northern Ireland, William Lowry, advised the Northern Ireland Government and Her Majesty's Government in London that the legislation was ultra vires the powers of the Northern Ireland Parliament. Their advice was not published at the time; it became available only 30 years later. We now know that they had good and solid reasons for believing the legislation to be unconstitutional. The attitude of Her Majesty's Government was, "Go ahead, legislate, and if you get into trouble later we will repair the damage by passing legislation at Westminster to rescue you."
The Government have adopted a cavalier attitude to the ratification of the treaty. By accepting amendment No. 2, they have been forced into the position in which there is potentially a conflict between United Kingdom law and Community law. However, they accept that danger to get through today's crisis—to avoid the issue today. They will wait until the crisis comes back tomorrow, next month, next year or whenever and then come back. It may not be them: it may be someone else because people may have been reshuffled or moved on since then. That is a bad way to proceed. As the hon. Member for Southend, East said, what is happening today is a sad reflection on the House.
I said at the outset that I hope the Government will have the opportunity to put into the public domain the original legal advice that they received from the lawyers in the Foreign Office and a detailed statement, not the short, almost contemptuous statements that we have had from the Foreign Secretary and the Attorney-General. It occurs to me that that material, advice and information will probably be in the public domain soon, despite the Government.
The hon. Member for Dagenham wondered whether it would be possible to go to the United Kingdom court to seek a judicial review of an Act of Parliament. He is right to wonder because such action would create other precedents. It would be an interesting way to proceed. Of course, it is not necessary to do that. I agree with the hon. Gentleman that the question of locus standi is not a serious problem. It will be easy for people to seek a declaration that, in the light of the European Communities (Amendment) Bill as amended today, it will be unlawful or improper for the Government to proceed to ratify the treaty on European union. If people proceed to seek a declaration on that basis, one will move for discovery. On discovery, I am sure that a whole range of interesting material will come out of the Foreign Office and elsewhere. 235 Perhaps it is appropriate to get the shredders going before too much more time has elapsed on this issue—they may already be at work. An interesting issue will arise.
The serious point underlying all this is that the Government will proceed in the way in which they said they want to—they will accept amendment No. 2 and thus have all of Parliament, in a deliberate and formal Act, say that it does not approve of the protocol on social policy and, consequently, does not think that Her Majesty's Government should authorise the other 11 member states to proceed to use the institutions of the Community for the purposes of the protocol. If they say that they will ignore the formal and unanimous statement of the House and rely on the strict letter of the law as they see it, it will be a bad day for the House and the British constitution. There are those who say that the whole operation of enacting the Bill will be a bad day for the British constitution.
§ Mr. Maclennan
Earlier, the hon. Members for Southend, East (Sir T. Taylor) and for Northampton, North (Mr. Marlow) spoke with feeling and great conviction about the significance of the Bill and amendment No. 2. They are right to recognise, in a way that the Government have never allowed, that we are engaged in a significant matter. It is not about elegance in parliamentary drafting or tidiness: it is about what will appear on the face of an Act of Parliament and the consequences of that. Neither the Foreign Secretary nor the Attorney-General has been candid about that matter at any stage of the proceedings on this Bill.
It is a matter of great regret that, in consideration of amendment No. 27 and in today's debate, responsible Ministers have paid such cursory attention to the legal effects of what we are seeking to do and what, apparently, as a result of the volte face by the Government, we shall do without dissension as a result of their acceptance of amendment No. 2. The hon. Member for Southend, East, whom I have known for a long time in the House, must not exaggerate the pressures that were put on him and other Conservative Members to kowtow to the Government's interpretation. That pressure does not stem from a matter of elegance of drafting because some course of action is preferable but not necessary—the Government took the view that what we are doing today is not simply preferable but necessary to achieve their purpose of the proper ratification of not only the Maastricht treaty but the social protocol.
Why did the Government take that view, which they appear to be prepared to jettison today? Why is there that great inconsistency? Throughout the Maastricht process, the Government have talked with two voices. On the one hand, they have tried to convey the impression to the other member countries of the European Community that we were going along step by step with the development of the European union. On the other hand, they preferred not to emphasise that step-by-step approach to the British public but to trumpet a nationalistic rejection of the development of the European union. As evidence of that, they have produced the elements of the agreement, especially the provisions relating to the social chapter, that could be held up as evidence of Britain going it alone.
The operation was always a two-faced one. It backfired badly on the Government not only today when the Foreign Secretary was faced with an intervention from the 236 hon. Member for East Lindsey (Sir P. Tapsell) that put him on the spot and that he was unable to answer. If the matter was so massively important, as it had been declared earlier, why did the Foreign Secretary shrug it off today? The Foreign Secretary shrugged off not only that difficulty but a much more serious difficulty for the Government that flowed from the reaction of other member countries of the Community to what had been done in Maastricht. If the Government had been straightforward about the matter instead of covering up what was going on, it is probable that the Danes, in their referendum, would have come to a different decision. They would have felt not that Britain had pulled a fast one on them and got some sort of separate advantage but that it was proper and appropriate to move in step with the other 11 member countries of the Community.
That has not been done without cost to the United Kingdom—it has certainly not been done without cost to the European Community. It has led to this Parliament having to debate the matter for months in ways that have forced other items off the agenda and that have led to the bafflement of the wider public because the Government have been so lacking in candour about what they are doing.
§ Mr. Spearing
Does the hon. Gentleman accept that there is another possible explanation for the lack of candour? I am not sure whether it also applies to his party. I do not believe so, but it certainly applies to the Government. Is it not possible that if the Government had been candid about the nature of the treaty and of the European union for which the hon. Gentleman is an enthusiast and for which he speaks, there would have been such a strong reaction inside the Conservative party and an even stronger reaction in the country that people would have said, "No. Up with this we will not put."?
The same may well have happened in Denmark. It may happen again. It is an open secret that the Government of Denmark are trying to get something through, just as the British Government are trying to do. They knew that if they were candid, they probably would not do it.
§ Madam Deputy Speaker (Dame Janet Fookes)
Order. Before the hon. Gentleman continues, may I point out that this is not a Second or Third Reading debate. We are debating amendments. I hope that the hon. Gentleman will recall that.
§ Mr. Maclennan
If you are referring to my remarks, Madam Deputy Speaker, of course I will endeavour to recall that. I thought that I was closely following the impact of the amendment. The intervention may have widened the issue way beyond what I had in mind. For that reason, perhaps I shall not follow what the hon. Member for Newham, South (Mr. Spearing) said. [Laughter.] If the hon. Gentleman provokes me, I will answer.
I do not believe that the British community would have rejected the treaty simply because the hon. Gentleman's view of what had been done had been trumpeted. When the Bill was first voted upon, the House accepted it overwhelmingly. I believe that the country would have accepted it overwhelmingly if the Government had been much more straightforward about what they were doing.
We must consider the effect of what the Government have accepted in amendment No. 2. It appears to me that at best they have thrown considerable doubt on the effectiveness of our ratification of the social protocol. I 237 doubt whether the amendment will result in the defeat of the ratification process of the treaty, for, as I read it, the treaty and the protocol are related but distinct legal instruments.
Furthermore, it is right to recall that the Maastricht treaty provides that it must be ratified by the high contracting partiesin accordance with their respective constitutional requirements.I put it to the House that the respective constitutional requirements for both the treaty and the social protocol are that they be approved by the House. That is because of the provisions of section 6 of the European Assembly Elections Act 1978.
When I put that point to the Foreign Secretary, he—apparently relying on something that had been quickly whispered in his left ear by the Attorney-General—said that it was taken care of by clause 1(2) of the Bill. I am bound to say that it is not clear from any fair-minded and objective reading of clause 1(2) that that is so. The clause refers to the treaty. It certainly does not refer to the protocol. It may be argued that the treaty includes the protocol. But that argument will not be so easy to sustain following the passing of amendment No. 2 this afternoon.
Clause 1(1) will now explicitly exclude the protocol and make it clear that within the four corners of the legislation a distinction is drawn between the treaty and the protocol. Of course, that argument only goes to reinforce the view that may fairly be arrived at from the language of the protocol, which provides that it and the agreement on social policy arewithout prejudice to the provisions of this Treaty".It appears to me that the protocol regards the treaty as separate and that the treaty and the protocol are two international instruments separately signed, separately debated and separately agreed. They are related in subject matter, but they are distinct international agreements. They are both subject to our constitutional requirements.
I put it no stronger than this. The Government have created great uncertainty about whether we are in a position to ratify the social protocol. It is well known that my right hon. and hon. Friends and I do not wish to see the social protocol ratified. We do not wish to be out of step with the legislative measures in force in the European Community for the protection of the interest of our people, however that may be defined.
I wholly accept the view expressed by the hon. Member for Northampton, North in his impassioned speech that, when such matters are discussed in Europe, it is exceedingly important that the British Government are represented. The matter affects our vital national interests. The exclusion of our voice from the debate can, by no stretch of the imagination, be regarded as in the interests of Britain.
How will the matter be resolved? The hon. Member for Dagenham (Mr. Gould) and several others have speculated that perhaps the matter will come before our domestic courts fairly soon and said that it should. I do not know precisely what they have in mind. I heard what the hon. Member for Upper Bann (Mr. Trimble) said about seeking a declaration. It may be a little more difficult than has been anticipated to have the matter considered by our domestic courts.
Although I know that, proceeding by originating summonses, the courts may feel that it is appropriate not to test too carefully the question of locus standi and to take 238 a broad view, I should have thought that it would be necessary to show that one had some interest in the courts' finding before such a test could be made. I do not doubt that the matter could come before the European Court if any step were taken by the other 11 members of the Community on the basis of the social agreement which was seen by any citizen of Britain to be adverse to our country's interest and to our citizens' individual interests.
At the European Court we would have an undoubted right to challenge the effectiveness of what was being done and to test whether we had properly ratified. Indeed, we could test whether the other 11 members of the Community could enact anything under the provisions of an agreement which had not been properly ratified by one of the member states.
It may be called into question whether the social protocol falls as a result of the decision taken by the House of Commons today. It is a matter of speculation whether such doubt can exist in the minds of senior legal counsel in this country. It undoubtedly was in the mind of the Foreign Office legal adviser, Mr. Frank Berman, when he gave the advice on which the Government originally relied before the Attorney-General came up with his convenient alternative when he discovered that the Government did not have a majority on the matter.
The way in which the Government have proceeded is unsatisfactory. It is not only politically damaging to Britain's interests but creates continuing legal uncertainty within the European Community. In our view, the only proper way to resolve the matter is to take it back to an intergovernmental meeting as soon as possible and for the Government to say that they are prepared to withdraw from the position which they have taken hitherto of opposition to the social agreement, which has commended itself to all the other 11 member countries of the Community. I hope that that is the action that they will take, but it remains to be seen, because we have heard very little from the Government today on what they intend to do as a result of this. They tried to pretend that it was simply a matter of drafting elegance, but this is a threadbare argument that carries no conviction at all.
§ Mr. George Stevenson (Stoke-on-Trent, South)
The statement of surrender that we heard from the Foreign Secretary regarding the Government's intention on amendment No. 2 poses fundamental issues for the House, many of which have been elaborated by other right hon. and hon. Members, and it is not my intention to repeat them. Suffice it to say that the contribution of my hon. Friend the Member for Dagenham (Mr. Gould) about the Government's attitude was absolutely right and unanswerable.
The dramatic change that has come about as a result of the Government's acceptance of amendment No. 2, from the position where the social chapter opt-out was absolutely crucial to the position where it had no importance, cannot by any stretch of the imagination warrant the term "credible". Why have we seen this humiliating climb-down? I suspect that the Government decided that a climb-down would be marginally less humiliating for them than an outright defeat. In other words, out of a sense of panic they were looking for a bolthole in which they could ensure their survival.
239 7 pm
I want to make a point to those who argue that there are really no legal problems to worry about as a result of acceptance of amendment No. 2. The Attorney-General has advised us that there are no legal problems, but removing the opt-out leaves many questions. If we are to remove the opt-out to the social chapter, as is the case, who will decide what is the position with regard to that social chapter and to social policy within the United Kingdom? Someone will have to decide. The Government seem unable or unwilling to take a positive or definitive view on this, so who will decide? It will be the courts, either in this country, or, more likely, the European Court.
So because the Government are apparently prepared to ignore what we are sure will be the clear wish of the House and of Parliament, in relation to the social protocol opt-out and in an attempt to save some shred of their tattered credibility, they seem content to take the view that they can hide behind the skirts of the courts, which will sort things out if the Government are not prepared to—hardly an example of decisive government or of being at the heart of Europe. However, this appears to be the attitude that the Government are prepared to take and it is a direct result of the inept handling of the whole situation by the Government, together with their apparent willingness to deny what we are sure will be the clear authority and decision of the House.
The Government could take a positive attitude. They could say that since the House of Commons has made its intentions known, they will reverse their attitude and their policy and accept the full-blown social chapter and social policy of the European Community. There is no indication whatever from the Government Front Bench that they intend to do that. What we face here is another historic miscalculation by the Government.
There is a second important miscalculation that I wish to highlight. The Prime Minister, no less, has argued consistently in the House and elsewhere that the social chapter opt-out is vital—not important, vital—for United Kingdom interests and economic competitiveness. But I believe that as a result of what has happened the European Community will scrutinise the Government's position carefully. The other members of the European Community may be prepared grudgingly to acquiesce in a short-term opt-out so that they can have a political deal on Maastricht and so that they can stitch up an agreement. I suggest, however, that what the European Community will not tolerate is the House removing the opt-out of the social chapter and the United Kingdom continuing to act as if the opt-out was still there. Member countries will not accept that the United Kingdom can have it both ways.
There may be challenges in the courts of this country and perhaps in the European Court, but I am pretty sure that the other member states will not tolerate a situation where the United Kingdom Government, for the sake of sheer expediency, see fit to take these measures in an attempt to have their cake and eat it, and try to operate as though the social policies in the other member states will go ahead but the social policy in this country will not, even though the House of Commons has removed the opt-out to the social chapter.
The Government may continue to seek this because they believe that it gives us a competitive advantage if what we have so often heard described as the burdens of the social protocol are not imposed on British business and industry. Many of us simply do not accept that, but it has 240 been the basis of the Government's argument. The opt-out will have no support in Parliament and it will simply not be accepted as a credible position in the Community. I can safely predict that it will not be tolerated.
I argue strongly that those who seek to support the Maastricht Bill on Third Reading, given the situation that we are now facing and given the fundamental issues raised in the debate this afternoon, will do European progress and integration no service whatever. If the Maastricht Bill is accepted on Third Reading, there will, because of actions taken as a result of the present position, be severe delay and it could even result in the ultimate destruction of the process begun at Maastricht.
§ Amendment agreed to.