Bill Cash: I trust that the House, the Minister and the Prime Minister will listen, and that we will take the steps necessary to deal with the vexed issue of immigration in a manner that overrides the treaties and the charter, as and when it is in our vital national interest to do so

The House of Commons debated, yesterday, the Commission Work Programme 2015. During the debate Bill Cash made the following speech and interventions:

Madam Deputy Speaker (Mrs Eleanor Laing): I inform the House that Mr Speaker has selected the amendment in the name of Sir William Cash.

The Minister for Europe (Mr David Lidington): I beg to move,
That this House takes note of European Union Document No. 5080/15 and Addenda 1 to 4, a Commission Communication: Commission Work Programme 2015–A New Start; and supports the Government’s view that the most significant initiatives are those that focus on the strategic priorities set out by the European Council in June 2014 to promote jobs, growth and investment in the EU.

This is the fourth such debate in which I have taken part as Minister for Europe, but I think it is the first time I can say that the European Commission has sent a strong message that it intends to do things in a different fashion from how its work has been carried out in the past. The clear message from President Juncker and his team is that they want to focus on a smaller number of key priorities and that they wish to set limits on the degree to which the Commission, and the EU collectively, can interfere in matters that are often better handled at national or local level.

Of course, the test of that message will be what happens in practice; it is actions that will count, not words. However, I am encouraged by the creation of the powerful post of First Vice-President of the Commission, which gives Frans Timmermans, the former Dutch Foreign Minister, an overarching power to veto any proposals that do not meet the requirements of subsidiarity and proportionality. He is already making it clear that a key element of his responsibility is to say a firm no to fellow commissioners, to the European Parliament and to outside lobbyists and to focus only on those matters where the Commission judges that European action would genuinely give Europe added value that could not be achieved by other means.

Sir William Cash (Stone) (Con): I have spoken with Mr Timmermans a number of times in COSAC meetings with the chairmen of the 28 member states. On the question of national Parliaments, which is the key question in relation to subsidiarity—it is the question of what should be done best at the appropriate level—is not it the case that, for all the words about involving national Parliaments, we will not get much change out of Mr Timmermans, any of the Commissioners or the European institutions if we insist on national Parliaments at the expense of the European Parliament?

Mr Lidington: I do not want to pre-empt tomorrow’s debate on the European Union’s relations with national Parliaments and the principles of subsidiarity and proportionality. My hon. Friend is right to identify this as a challenging agenda and to indicate that the European Parliament, in particular, is likely to be resistant to the idea of a stronger voice for national Parliaments, but I think that he is too pessimistic in his assessment of Frans Timmermans. After all, it was during Mr Timmermans’s tenure as Foreign Minister of the Netherlands that the Dutch came forward with a number of specific proposals for strengthening the role of national Parliaments in holding EU decisions to account. I take heart from the fact that we have in this powerful role within the Commission somebody who has previously gone on the record to say that the guiding principle should be, “Europe where necessary, but national where possible”, and who has been very sympathetic to ideas for strengthening the role of national Parliaments.

The Commission has set out a clear intention to be more strategic and to act in a smaller number of areas where there is real added value for the EU. It has also said that it wants to demonstrate a particularly strong focus on jobs, growth and European competitiveness, which are objectives that the Government strongly support. The Commission has pledged to create a closer partnership with member state Governments and national Parliaments. We can see some evidence of the Commission’s approach by looking at some of the numbers in the work programme.

The work programme includes just 23 legislative and non-legislative policy initiatives and—importantly— 80 measures proposed for either withdrawal or modification.
(…)

Sir William Cash: I suspect that that is an invitation so say that the amendment that I and many other members of my Committee have tabled, which I hope the Minister will accept, deals with free movement—a massive issue that affects immigration. The fact that it has been not merely delayed, but stalled for more than a year must have been a coalition decision, but we have not been told who was behind it, so who was it?

Mr Lidington: As I told my hon. Friend when I last gave evidence to his Committee, the Government take decisions collectively and it would not be right for me to go into detail about internal Government communications. I will come to the issues raised by the amendment shortly, but first I want to say more about the importance of the proposed work on economic affairs and competitiveness.

The United Kingdom has long argued for ambitious trade deals. The ongoing Transatlantic Trade and Investment Partnership and EU-Japan negotiations could benefit this country annually by more than £15 billion, so the comprehensive stocktake of trade policy proposed by the Commission is welcome.

The EU’s greatest achievement—the single market—is still very far from complete, so we are pleased that the Commission plans to push liberalisation in sectors that could boost GDP the most, such as construction and professional services. We want EU legislation to enable the dynamic development of the future economy by supporting and not hindering a continent-wide digital single market. If that is done right, in a way that encourages the growth of online trade—both retail and business to business—it could generate €250 billion over the lifetime of this Commission.

We also support the Commission’s vision of a well-regulated and integrated capital markets union of all 28 member states that maximises the benefits of capital markets and non-bank financing for the real economy. Lord Hill’s recent Green Paper on the subject spelled out the approach he plans to take, and the Government will, of course, engage with his team as the policy is developed further.

We welcome the fact that the Commission intends to consider a range of approaches, and not just legislation, to develop Europe’s capital markets, and that much of that will be delivered through member state and industry action, rather than through EU-level law or regulation.
(…)

Sir William Cash: Of course, if we were no longer members of the European Union by that time, we would not need to give consent because we would not be in the position to do so.

Mr Lidington: We can argue about all sorts of improbable hypotheticals, but the key point is that, while President Juncker was expressing a view that he has made no secret of holding in the past, this is not a live issue for debate around the table in Brussels at the moment. In fact, both President Juncker and others who have spoken in support of a European army or defence force have said that they see it as being a very long-term objective.

Turning to the amendment tabled by my hon. Friend and a number of other members of the European Scrutiny Committee, the Government recognise public concerns about immigration from other member states and the need for the Commission to do much more to address the abuse of free movement rights and the problems to which it gives rise. That is why this Government have gone further than any previous Administration to try to tackle the problems associated with free movement both domestically and at the European level.

We have acted domestically to tackle abuse and ensure that the rules governing access to our welfare system and public services are as robust as possible. Only today, my right hon. Friend the Secretary of State for Work and Pensions has laid regulations in Parliament to ensure that EU jobseekers have no access whatsoever to universal credit.

At European level, we secured language in last June’s European Council conclusions on the need for the Commission to support member states in combating the misuse of free movement. We continue to work both with member states and the Commission to reform EU social security co-ordination rules so that they better reflect current migration patterns and the divergent, diverse nature of member states’ welfare systems, while ensuring that member states can maintain effective control of their own welfare systems. Welfare provision is of course set down in the treaty as belonging to the competence of member states, rather than that of European institutions.

We welcome the proposal in the work programme on the labour mobility package—it covers several such items—which will assist us in carrying forward our ideas. However, we are very clear that there is much more to do, as my right honourable Friend the Prime Minister made clear in his speech on 28 November. I therefore have no problem in welcoming the amendment tabled by my hon. Friend the Member for Stone (Sir William Cash), which will be agreed to at the end of the debate.
(…)

Sir William Cash (Stone) (Con): I beg to move amendment (a), at end add
‘; and urges the Government to encourage the Commission to develop policies during 2015 relating to the free movement of EU citizens.’

It is truly shocking that it took more than a year for the Government to bring forward a debate on the free movement of EU citizens, given that the document in question was recommended as long ago as January 2014 regarding a matter of enormous significance that was discussed on 5 December 2013 in the Justice and Home Affairs Council. This issue goes right to the heart of the immigration question, which in turn lies at the heart of the European question as it applies to the United Kingdom, and it is a matter of intense political and controversial debate. It is inconceivable that this matter should have been so shockingly delayed, and that led the European Scrutiny Committee to ask the Leader of the House to give evidence and be cross-examined on why these important matters, including free movement as well as things such as the EU budget and the charter of fundamental rights, are outstanding. We were told by the Minister and the Leader of the House that they could not disclose how that decision had been arrived at because it was a matter of collective Government responsibility. The Committee is glad that by tabling the amendment it has forced the Minister to welcome it.

Jacob Rees-Mogg: I wonder if I might add to what my hon. Friend is saying. Although the Minister and the Leader of the House said that they could not possibly tell us who was blocking the provision, the Home Secretary, the Foreign Secretary, the First Secretary of State and the Minister for Europe all intimated that they were very much in favour of having the debate, and wished that it could be brought forward as a matter of urgency although forces beyond their control prevented it.

Sir William Cash: My hon. Friend is right in every respect and we have all the transcripts to prove it, including from various Secretaries of State. It is effectively an example of decisions being taken behind closed doors in smoke-free rooms. Those are the new modernising methods of government. I disapprove of them and so does my Committee, as shown by the fact that we tabled this amendment.

Let us move on and accept that we are now able to debate free movement; I particularly want to concentrate on EU migration and benefits in that context. I wrote a letter to the Prime Minister on 18 November, which was 10 days before he made his speech at JCB in Staffordshire on the question of free movement, and I drew attention to the fact that I believed we were faced with a real problem. However much we might want to make certain changes, unless we were prepared to dig in and make this Parliament supreme on matters of such vital national interest, we would not get the necessary changes because some of them required treaty change and others required overriding the charter of fundamental rights. Although the Prime Minister accepted in questions after his speech that some of those matters would require treaty change, in reality that is not on offer in any substantial way from the other member states.

The principle of free movement is embedded in the ideology and principles of the other member states, and particularly the European institutions and European Commission, despite how that may affect us as a small island with a greatly increasing population and pressures on social housing and education—the list is endless. Unlike other member states such as France, Germany and Spain that have large land masses and can absorb many more people, we simply cannot do so. It is therefore a matter of vital national interest—quite apart from questions that I will mention in a moment about abuse of the system—that has led us to a position where we have desperately wanted to put our foot down. Some of us believe that we should override European legislation and the charter of fundamental rights by using the “notwithstanding” formula—that is notwithstanding the European Communities Act 1972, which is past legislation as I have said many times before—so that we can ensure that our Supreme Court obeys the laws of this Parliament which is elected by our voters in general elections.

When the election comes—it is only a matter of 60 days or so—this issue will be at the centre of gravity in that election, and we will be asked whether we will take the necessary steps in line with what voters insist on. I am afraid the answer to that question is that there will be no treaty change or overriding of the charter, and when I have asked Ministers and the Prime Minister whether they will use the “notwithstanding” formula, I have been told no.

Mr Redwood: On the narrower point of benefits, the Minister gave us encouraging news that we have control of our benefits system, as that is a reserved matter under the treaties. Does my hon. Friend recollect that on several occasions Ministers have been unable to change our benefits system in the way the British public want because of European legal blockages?

Sir William Cash: That is completely right. People think—in elements of the BBC and elsewhere, I suspect—that this is somehow a matter of policy, and that by using the right words one can change the effect of European law. No, we cannot. We have to pass legislation. There has to be a majority in this House to override European laws and regulations. It is, ultimately and tragically, a legal framework rather than just simply a question of policy based on the wishes of voters, as expressed by their representatives in Parliament. This has only fairly recently begun to gain traction with some people in the public arena, but not sufficiently, I am afraid, to achieve the kind of impartial analysis I believe is needed, for example in the BBC. Without going into this now, I have invited—in fact, I have effectively forced—the director-general and the editor-in-chief of the BBC to appear before my Committee to explain this problem in the kind of language that ordinary people can understand. That will take place on Wednesday afternoon at 2.30 pm, for those who want to take note.

The Prime Minister’s speech had a lot in it, which demonstrated the extent to which he wants to try to resolve many of these questions. That is undeniable, but the question we have to address, and to which I now turn, is the extent to which it would require treaty change or otherwise—that is the acid test.

My first general remark is that the package includes only one proposal that directly limits or imposes a quota on the number of EU migrants. This would relate to future accessions and so could be part of normal negotiations. However, to impose a direct limit on migration from existing member states would certainly require treaty change.

My second general comment is that many of the relevant treaty obligations have already been interpreted in this context by the European Court of Justice. The Court plays a huge, vital and exceptional role, and cannot be appealed against. It has already interpreted these matters as providing limitation on the action that member states can take in this area. Indeed, the recent case of Dano, which is frequently referred to—the Foreign Secretary referred to it on “The Andrew Marr Show” only this weekend—demonstrates that the Court can change its approach.

However, some of the judgments mentioned are long-standing, well-entrenched and engage charter rights. Any change along the lines suggested by the Prime Minister would therefore not be sufficiently strong, to the extent that they rely on the Court of Justice changing its established jurisprudence. That is why we want the Commission to take account of these points—these are the issues. The European Commission is the legal guardian of the treaties. The point I am making in this speech is that, in order to change the law to ensure that we can actually deal properly with the problems that come from free movement, we have to persuade the Commission, in its work programme, to take account of such relevant questions. It could be inferred from what the Prime Minister had to say that he accepted that some treaty change would be required—and in fact, when he was asked questions, he accepted that towards the end—but there are a number of real problems, and I will now turn to them.

The first problem that the European Commission will have to consider in its work programme is a stronger power to refuse entry and to deport criminals. The free movement directive, which the European Commission has to enforce, requires decisions to be taken on a case-by-case basis on the grounds permissible by the treaty.

That provision reflects Court of Justice jurisprudence extending across a wide range of treaty rights, including the freedom to travel to other member states to receive services, which is highly relevant to the work programme. It is likely that any significant stronger action will require treaty change, particularly if it detracts from the requirement derived from the principle of proportionality to look at each individual case.

Secondly, I believe a ban on re-entry for those who have abused EU rights may be possible, as this falls within the public policy exception to the treaty right of free movement. However, there are again questions of proportionality.

Mr Chope: Is this not all pie in the sky? There is no way in which the Commission or other member states will agree to these fundamental changes. Is that not why we need to go back to basics and have a free trade organisation without the free movement of people, just as we have free trade agreements with other countries without having to take in all their people as a right, without any control over them? Would it not be better to work towards, for example, visa waiver systems?

Sir William Cash: I very much agree with what my hon. Friend says. In fact, if I may say so, I have said it many times in the past myself. However, we have to be able to identify the problems that have been presented by making assertions that we want this and we want that, in order to demonstrate the fact that it cannot be done before we move to the next step, which is of the kind that he and I would want: to address this on a realistic footing and to say to the European Commission, the European institutions and the Government that these proposals are simply not going to stack up because they are not going to happen. There is no chance of a treaty change as far as I can see—my hon. Friend and other hon. Members in the Chamber obviously agree—that will result in getting rid of the dangers presented to the United Kingdom as a result of imagining we will be able to do things, when in practice we know perfectly well it is not going to happen because we will not get the treaty change.

There is also the problem of access to tax credits, housing benefits and social housing for four years. The law of the Court of Justice indicates that an attempt to do this would be contrary to the treaty rights of free movement insofar as the limits on benefit extend to benefits for jobseekers linked to labour market participation and benefits to those who are classified as workers. Such persons are entitled to equal treatment as a treaty right. There is another problem. These things are not going to go away. My hon. Friend is completely right, as I have said so often, not to allow ourselves to be induced to believe that because we say something it will happen, particularly when we are dealing with the acquis communautaire and the rules and regulations that are imposed, which we voluntarily accepted in this House under the 1972 Act. We are the only country of the 28 member states that has the right, because of our constitutional arrangements—we do not have a written constitution—to make changes and override that legislation if we so wish to do. We can do it. The question is: have we got the political will in relation to matters of vital national interest?

Any restriction on access to social housing would likely be regarded as discrimination on the grounds of nationality. Thus, that too would be contrary to the treaty. There is then the question of removal if jobseekers do not find a job in six months. The law of the European Court of Justice overrides even this Parliament, by our voluntary agreement, but we can unwind it if we wish to do so by using the notwithstanding formula to override it and pass a law in this place. If jobseekers do not find a job in six months and are faced with removal, we could legislate. Under sections 2 and 3 of the European Communities Act, however, Court of Justice law prevents it, on the grounds that it interferes with the treaty right of free movement—insofar as a jobseeker can demonstrate that he or she is continuing to seek work and has a genuine chance of being engaged. Thus—again—treaty change is likely to be necessary.

Then there is the requirement for a job offer before entry—the same case law points to the requirement for treaty change on that account, too. Then there is the further restriction on the entry of non-EU family members. The rights of family members to enter with someone who has rights as an EU worker are set out explicitly in the free movement directive and could in principle be adjusted by amendment to the directive, but limits to wholesale change are set by the requirements not to undermine the essence of the treaty right of free movement and to respect human rights.

As I mentioned in my lead letter in yesterday’s The Sunday Telegraph, there is also the problem of human rights issues in respect of the deportation of terrorists, who can also insist on the right to family life under the present arrangements. We have to get real about this. We have to change it. So far, the Court has taken a consistently firm approach in favour of ensuring family life where these matters arise in the context of free movement, and it is likely to continue to do so—with huge implications for the number of people who can enter.

Finally, there is the question of whether there should be no child benefit for non-resident children. The requirement to pay child benefit for children in another member state is currently in the social security co-ordination regulations. It is theoretically possible to amend the regulations to end these payments, but it would raise the serious question of indirect discrimination on nationality grounds—again contrary to treaty free movement rights— and the same would apply to the proposal to limit child benefit paid abroad to that paid in the child’s country of residence.

I do not mean to criticise for the sake of it. I have tried to present the House with a proper examination and legal analysis of the problems, which would not have been the case had we not been able to debate the amendment, and it is now on the record that these are serious problems that cannot simply be washed away with fine words and which in most cases will require treaty change. When I wrote to the Prime Minister 10 days before his speech, I asked if he would be good enough to seek the advice of the Attorney-General and Government lawyers on the questions I raised. I trust that the House, the Minister and the Prime Minister will listen, and that we will take the steps necessary to deal with the vexed issue of immigration in a manner that overrides the treaties and the charter, as and when it is in our vital national interest to do so.

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