As Euro-sceptic experts differ on the effect of the Government's European Union Bill, most Tory MPs will vote to let it pass

by Paul Goodman

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The EU Bill returns to the Commons today.  It seeks neither to leave the EU nor to repatriate powers.  For these reasons and others, Conservative MPs will try to amend it.  For example, Peter Bone is to table an amendment seeking a referendum on whether Britain should quit the EU.  Bill Cash has put down amendments seeking to safeguard the sovereignty of Parliament.  Bernard Jenkin set out some of the relevant arguments last weekend.

I hope that the Bone amendment is debated.  An In/Out referendum presents considerable obstacles to sober thought - for reasons to which I'll return in due course - but it's high time that our elected representatives considered the issue so that the arguments can be put and tested.  I'm confident that the Cash amendments will be considered, because the author's a relevant Select Committee Chairman, and will therefore be able to find a way of putting his view.

A key issue for Cash is: should elected or unelected people decide our constitution?  According to the Government, laws emanating from the EU have effect within the UK only for so long as that remains the will of Parliament.  Ministers say that this is the view of the courts to date, and claim that Clause 18 makes it more likely that they'll continue to express it.  Cash believes that the bill makes it less likely, and that it's none of the courts' business in the first place.

However, Euro-sceptic experts differ on the effect of the bill.  Cash takes one view.  Martin Howe takes another - writing on this site that Clause 18 is "sound in principle, long overdue, and should be strongly supported".  Both for this reason, and because the associated constitutional and legal issues are complex, it's uncertain whether Conservative MPs will rally behind the Cash amendments as they're lining up against voting rights for prisoners - a tabloid-ready issue which will be debated this morning in Westminster Hall.

Some will say - like Bone this morning - that if the bill isn't changed to alter an In/Out referendum or repatriate powers, it should simply be voted down. (Melanchthon has no confidence in the bill.)  Others say that it should be supported if other amendments, such as Cash's, are carried.  I believe that there are amendments which could usefully be made: for example, why shouldn't the Commons, rather than Ministers, decide which future transfers of competences should be put to the people in a referendum?

But let's suppose that when the smoke clears from committee, and Third Reading is reached, the Bill is unamended.  What should Conservative MPs then do?  Should they team up with Labour, who'll be manoeuvring to find tactical reasons to vote the bill down?  Many want to see the repatriation of powers, and liked the three proposals to do so in the Conservative manifesto.  They'd therefore prefer a referendum on a repatriation of powers package to a poll on a binary In/Out proposal.

However, the renegotiation proposals were dropped as part of the Coalition Agreement, and my impression is that most Conservative MPs will go along with this, however reluctantly, as part of the price of sustaining the Coalition.  The Agreement also said merely that the Government would "examine the case" for a UK Sovereignty Bill, which was also part of the manifesto.  This usually means that the relevant issue will be kicked into the long grass.

Instead, Ministers have rushed to bring in a bill much like that signalled by William Hague at the last Conservative conference.  They say that something had to be done to satisfy Euro-sceptic Tory backbenchers.  (Howe wrote drily: " A cynic would say that this is the kind of Bill which only a new government fresh to office would ever introduce".) They add that, under the bill's provisions, it would have been impossible for Lisbon - and treaties stretching back to Maastricht - not to have required a referendum.

Finally, they hold out the prospect of a future Labour Government, in the event of the Bill being voted down, signing up to amend Lisbon without a poll.  This was the thrust of William Hague's piece in last weekend's Sunday Telegraph.  I suppose it's possible that in the event of the bill being passed, and a new treaty emerging that either Ministers or the judges or both could conspire to deny voters a referendum.  And, certainly, the Government has already allowed the EU more powers and money.

But under the terms of the Bill, the Prime Minister and Foreign Secretary would have to declare that new transfers of power of "certain kinds", as Howe puts it, have been judged by the Government "not to be 'significant' ".  They would thus open themselves up to being second-guessed by a judge.  In short, the Bill seem to me to curtail the Government's room for manoeuvre rather than extend it.  Which is why most Conservative MPs will vote at Third Reading to let it pass.

2.30pm update:

By Jonathan Isaby

Last night Europe Minister David Lidington addressed Tory MPs at a meeting of the foreign affairs sub-committee of the 1922, in order to discuss the concerns of potential rebels about the European Union Bill.

This morning, he has written to all Conservative MP to clarify several matters in the wake of the meeting.

On the issue of sovereignty contained in clause 18 (being debated today), he insists that the amendments being proposed:

"...are not necessary to achieve the purpose of the clause: to put the sovereignty of Parliament in relation to EU law beyond speculation and constrain judicial discretion in that respect by making it clear that EU law can never supersede the sovereignty of Parliament because EU law only has effect by permission of Parliament."

"Paradoxically, in fact, the inclusion of the word ‘sovereignty’ on the face of the Bill would actually risk being seriously counterproductive. ‘Sovereignty’ is not defined. In other statutes, the word is used in respect of territorial sovereignty. Indeed, defining Parliamentary sovereignty in statute would not only be a difficult and complex undertaking. The unintended consequence of the amendments would be to invite the judiciary to interpret the substance and scope of parliamentary sovereignty, potentially endangering what we want to protect by exposing that principle to new interpretation by the Courts."

But he does go on to commit the Government to changing the Explanatory Notes to the Bill:

"A number of colleagues have expressed concern that the Explanatory Notes could be interpreted as the Government not supporting the principle of parliamentary sovereignty. While I do not share those anxieties, I want to put this matter beyond doubt and the Explanatory Notes will be revised to make it clear that the Government does not endorse the opinion that Parliament’s authority derives from the Common Law."

Sources from the rebel camp have indicated to me that they feel this is an important concession, as long as he admits the Government was wrong to employ the term "common law priciple", since it opened parliamentary sovereignty to judicial interpretation.