James Clappison fails in his attempt to make Parliament - not ministers - decide when a transfer of power to the EU requires a referendum

By Jonathan Isaby

The European Union Bill returned to the floor of the Commons yesterday for the first of three days this week. (Europe Minister David Lidington wrote about its benefits here on ConHome yesterday)

The Bill sets out that if there is deemed to be a transfer of power to the EU and the government of the day supports it, that there should be a referendum on the matter - although it is the government which decides if a transfer of power has taken place.

Hertsmere Tory MP and member of the European Scrutiny Committee, James Clappison, tabled an amendment (number 11) to the BIll to give that power to Parliament.

He explained that overall he felt the Bill was "a great improvement on the existing position", but explained his amendment thus:

"It will be very disillusioning for all those whom we have promised and have led to expect that there will be a referendum on great transfers of power or great decisions in the European Union if that referendum does not take place. We want to do all that we can to avoid that sense of disillusionment. It is against that background that I seek to deal with the problem of the significance condition, to which hon. Members have referred.

"Simply, amendment 11 would give Parliament a vote on the question of whether certain transfers of power to the European Union are significant enough to warrant a referendum. As the Bill stands, the decision on whether matters are significant enough is in the hands of the Minister alone, subject to a challenge in the courts. Parliament does not get a say, however, at least on the question of whether there should be referendum."

"Broadly, the question is this: does Parliament decide, or does a single Minister decide? The Government propose that a single Minister should decide, but, as my hon. Friend knows, there is a fall-back position, namely that the Minister should be challenged not in the House but by means of judicial review. I find that somewhat strange, as did some of the distinguished academic witnesses who gave evidence to the European Scrutiny Committee.

"Under the Bill, if one of our constituents is aggrieved by what the Government propose, his recourse will be not to his Member of Parliament but to the courts, through judicial review. I think that that in itself sends a very odd signal. What should I tell a constituent who comes to my surgery and complains about the European Union, as some of my constituents do when it introduces a regulation that has an adverse effect on their jobs or companies, or when they disagree with some transfer of power? Should I say, “I am sorry. You may want a referendum, but you have come to the wrong place: you need to visit the solicitor’s office down the road”? I do not think that that is a very satisfactory state of affairs."

"I see no reason of policy or substance that is an obstacle to my proposal. Perhaps the Minister will tell us why. He has been very reasonable and persuasive on many other points in the Bill... He has been a model of charm and ministerial competence, but he has not yet produced any credible reason why we cannot have a vote in Parliament to decide whether something is significant enough to trigger a referendum, as opposed to leaving it simply to a Minister. What is wrong with trusting Parliament?"

Summing up later on, Europe Minister David Lidington set out his reasons for opposing it:

"I have a great deal of sympathy for where my hon. Friend is coming from and I do not for one moment challenge his passionate commitment to the duty of Parliament to hold Ministers to account or his wish to see the powers of Parliament over European Union business and ministerial decisions on Europe strengthened and improved. If I felt that his amendment would secure that objective better than the provisions in the Bill, I would be with him on the detail. However, I want to explain why I do not believe that it does that.

"First, when a Minister makes the statement required by clause 5 on whether a proposed amendment requires a referendum, they must give reasons why the proposed change does or does not meet the significance test. Those reasons will need to refer to the criteria set out in clause 4, so their reasoning will need to be clearly set out. There is a first measure of protection already in the Bill.

"Secondly, the Bill ensures that every proposed treaty change, regardless of whether the significance test applies, would require the approval of Parliament through primary legislation. That would allow sufficient time for Parliament to scrutinise the use of the test to legislate for a referendum if it deemed such a provision necessary.

"Thirdly, there is the risk that having a separate debate on significance in the way that amendment 11 proposes could weaken Parliament’s scrutiny of the primary legislation that the Bill requires. That point was made by my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) in an earlier intervention. In view of the dynamic of the House of Commons, it would be tempting for a Government who wanted to rush through a particular treaty change to schedule an early debate on the motion not to require a referendum and then, when the ratification Bill came forward and Members of Parliament had had the opportunity to look at the detail, perhaps consider the evidence of a Select Committee, and listen to what outside experts had to say on the matter, they would find their Whips coming up and saying, “We’ve already voted on this. You personally went through our Lobby to support the proposition that a referendum was not required. How can you change your mind and try to insert the requirement for a referendum at this stage?”

"The unintended consequence of amendment 11 could be to strengthen the hand of the business managers and to weaken the independence of judgment that Members would be able to exercise under the requirement for primary legislation laid out in the Bill. Amendment 11 would also weaken any prospect of a successful judicial review. Judicial review is not a panacea, but the House should see it as a significant step to give the citizen the right to challenge a Minister’s decision, where that decision is irrational or unreasonable."

The amendment was defeated by 310 votes to 239, with a total of 18 Conservative MPs backing the rebel amendment:

1. John Baron
2. Bob Blackman
3. Peter Bone
4. Douglas Carswell
5. Bill Cash
6. James Clappison
7. Philip Davies
8. Richard Drax
9. Zac Goldsmith
10. Philip Hollobone
11. Bernard Jenkin
12. Anne Main
13. David Nuttall
14. Mark Reckless
15. John Redwood
16. Richard Shepherd
17. Andrew Turner
18. John Whittingdale