House of Commons Hansard Debates for 27 Jan 1993

Mr. Maclennan : It is international as between the member countries of the European Comunity. If 12 countries, or however many countries there may be in the Community, decide that they want to agree to a convention, there is everything to be said for having a common interpretation of what has been decided. To rely on the normal method of resolving disputes about conventional agreements in the European Community is to rely on the European Court of Justice to give an authoritative judgment in the matter. I acknowledge that there is no such comparable international court of justice outside the Hague framework. The international Court of Justice in the Hague is relied on to interpret, for example, the 1951 European convention on refugees.

Title VI is definitely a step forwad and a means of minimising disputes among member countries, rather than maximising them. The matter of greatest uncertainty in my mind is the adequacy of article K to deal with some of the pressing problems which member countries of the Community face. I question whether the Governments which drafted the Maastricht treaty were too timorous in facing up to the need to reach legislative agreement or agreement on a mode of legislating which could tackle some of the problems. It is desirable not only to co-ordinate the responses of Governments by intergovernmental agreement but to have common standards across the Community.

One example is combating drug addiction. There are different views within the European Community about how to deal with the problem of drugs. Some countries are regarded as more permissive than others. As a result, some countries may think that other countries offer a loophole or channel for the importation of drugs into the Community--the weak underbelly, if you like. I do not see how that type of problem can be dealt with by intergovernmental co-operation. It must be tackled by the adoption of a common Community response, for without boundaries such matters will become pressing and practical problems.

By denying themselves the ability to legislate quickly and adopt common provisions on home affairs matters, the 12 member Governments will limit their capacity to respond to problems which affect every member country. Article K.9 appears to adumbrate the possibility of some

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form of legislation on such matters under the provisions of article 100c. It is so tentative a step that it is scarcely adequate to the circumstances.

Mrs. Dunwoody : What the hon. Gentleman is talking about is important. Will he make it clear--I am not a lawyer--whether he is suggesting that the Community should have the right to impose legislation on member states, including those to which he refers as the soft underbelly? Presumably it would be policed and could be imposed by a central authority.

If that is not what the hon. Gentleman is saying, I find it difficult to follow his line of argument. If we are asking for the agreement of the soft underbelly states, whomsoever they may be, how can we proceed to legislate if those countries are not prepared to accept stronger policing and stronger methods?

Mr. Maclennan : The hon. Lady has not misunderstood me. I suggest that it may prove difficult to make effective co-operation between Governments and the police in matters such as drug addiction if there is no legislative competence to back up that co-operation. If we had different laws about drugs in Scotland and England, our capacity as a united kingdom to tackle the problem of drug trafficking would be seriously damaged.

We must recognise that, in moving towards a Community without frontiers, we are moving towards the United Kingdom position. There is no policing of the frontier between Scotland and England. That has certain practical consequences. It makes it sensible to have common law on some matters. It does not mean that common law is necessary on everything : it means that it is necessary to have the competence to decide where it makes practical sense to have common law.

Mr. Bill Walker (Tayside, North) : I am carefully following what the hon. Gentleman is saying. Of course, if a common law is introduced, all countries will have to accept that law as it is. If it is the common view that Europe should have much less severe restrictions than we enjoy in the United Kingdom at present, the effect could be the opposite of what the hon. Gentleman says. We could find ourselves having law imposed on us which is far more relaxed than we would want.

8.15 pm

Mr. Maclennan : That is true. That is a consequence of living in a democracy. It is always possible to move one way or the other. The balance of opinion on drugs within the European Community is not on the side of the Dutch. It is fairly clear where the balance of opinion would fall.

I chose the example of drugs as a matter on which it struck me as clear that not to have legislative competence in home affairs could defeat the purposes of co-operation. Article K.9 provides a mechanism, if I read that rather obscure article aright, whereby

"The council, acting unanimously on the initiative of the Commission decide to apply Article 100c of the Treaty to action in areas referred to in Article K.1(1) to (6)".

That is a peculiar reference, because article 100c deals with the one specific matter of the issuance of visas to third countries. As a matter of interpretation, I find it hard to understand.

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Perhaps the Secretary of State will be kind enough in his reply or in an intervention to explain what he understands by the tie-in to article 100c. Does it say that all that is required when a step is taken unanimously by the Council is that the Council will, in an area covered by K1(1) to (6), act unanimously on a proposal from the Commission after consulting the European Parliament? That does not seem to provide a legislative mechanism. I find it difficult to understand.

I suspect that something is intended which is far-reaching and may have the ratchet effect other hon. Members have suggested. If that is so, we should be clear about it. Certainly, when the hon. Member for Sedgefield (Mr. Blair) was asked whether the ratchet effect was in place, he did not deny it. I believe that he was right not to do so. My party is content that this part of the treaty marks a valuable step forward in improving co-operation in Home Office matters between European countries, but we remain somewhat dubious about whether it goes far enough in giving the Commission and the Community the role that we believe that they should have in legislating on such matters.

Mr. Kenneth Clarke : I regard as the most positive achievement of the Maastricht negotiations and treaty the agreement to extend the areas of policy in which member states of the European Community would co-operate by the so-called pillared approach. That was the most significant decision taken by the 12 member states of the Community when they gathered at Maastricht. It was a position for which my right hon. Friend the Prime Minister argued strongly on behalf of the Government. It marks a significant and desirable turning point in the way in which we shall develop what is described as the European union.

Today we are talking about the so-called third pillar of justice and home affairs. It covers a range of policies on which the British Government and all parties in the House wish to co-operate with other member states. We regard it as desirable to do so. We have been moving ever closer towards our partners on the key matters listed in article K. Certainly we have had the Trevi meetings to discuss peace and security matters and the ad hoc meetings of Immigration Ministers for many years, and I do not recall anybody ever challenging the position of the British Government who wished to discuss these matters and move, by a process of co-operation, ever closer to common policies in some of those areas, as we have been doing.

Several hon. Members rose --

Mr. Clarke : If I may just continue for the present, I am resigned to the fact that I shall no doubt give way as often as the hon. Member for Sedgefield (Mr. Blair) has done.

In developing that co-operation, the Maastricht treaty provides a framework which will put the whole thing on a more coherent basis. Insofar as it affects the relationship between Ministers and the House on discussions about European co-operation in these areas, it will almost certainly enhance the role of the House, increase the amount of information that comes back to the House and, no doubt, expose Ministers, quite properly, to more debate and discussion about the kind of things that we discuss in Trevi and in the ad hoc group.

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Mr. Madden : Will the Home Secretary confirm that there has been constant criticism by hon. Members of the failure of the Government and successive Home Secretaries to make statements to the House following meetings of Trevi and other groups? There has been no parliamentary accountability and no opportunity for hon. Members to challenge the Executive about decisions taken or discussions conducted. It has been a disgraceful abuse of our parliamentary procedures and it gives us no confidence that things will improve if and when the treaty is ratified.

Mr. Clarke : I congratulate the hon. Member for Bradford, West (Mr. Madden) on, as usual in his interventions, sailing into a wild extravagance of language and grotesquely overstating his case, as he does on each and every feature of asylum and immigration policy. My practice, which I think has been the practice of my predecessors, has been to report back to the House by way of parliamentary question on proceedings at Trevi and immigration councils. I do not recall that the pressure for oral statements about those proceedings has been altogether overwhelming. There have been no deafening demands on the Floor of the House. There have been demands that more of the papers should be available beforehand, however, and I anticipate that the Government will respond to that. I put in the Library a document that we were considering--the draft European external frontiers convention which, I was originally surprised to discover, it was Whitehall practice not to put in the Library. In due course we must come forward with proposals for reforming parliamentary procedures in this area. I quite accept and would argue strongly myself that we cannot have the House less well informed about the proceedings in the third pillar of the European union than it expects to be in the other two pillars.

Insofar as in the meetings that we have had in Trevi or in the ad hoc group of Immigration Ministers we might have reached the stage where we were agreeing to policy proposals that would require a change in British law for us to implement them, however, then as Ministers I and my successors would remain subject to our own parliamentary constitution and would have to come back here to get the legislative authority to make the changes in legislation on which we had committed ourselves to other Governments. That broadly remains the position here. A more coherent framework is proposed

Several hon. Members rose --

Mr. Clarke : I will give way in a second.

The reason why we have had these ad hoc groups before is that there has always been difficulty in moving the existing institutions of the European Community, the existing fabric of the treaty of Rome, into the areas of justice and home affairs. As an enthusiastic supporter of European union and of the European Community, I have always had reservations about extending Community competence under the treaty of Rome into areas of this kind. I am always described as a Euro-enthusiast, a description that I never resist, but I have found over the years that the method of determining policy in the European Community is frequently far from perfect.

Proceeding on what is described as intergovernmental co-operation, rather than bringing things within Community competence, seems to me to offer considerable advantage. The first is that the Commission does not have

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the sole right of initiating policy. The Commission is involved in the proceedings. It has in certain areas a right to propose initiatives. It is excluded from making initiatives in certain limited areas under article K, but it does not have the sole right. Member states may initiate proposals as well, and nothing would proceed except by unanimity so far as the member states are concerned.

This area of the third pillar is not subject to the jurisdiction of the European Court of Justice except in one tiny respect where, by unanimity, the member states may refer things to the European Court of Justice. The European Parliament has the right to be consulted and to give opinions, but the third pillar is not subject to the jurisdiction of the European Court.

This third pillar, therefore, is about European intergovernmental co- operation in the areas of justice and home affairs, which means that it requires the consent of the British Government and, insofar as the consent of the British Government might change either immigration rules, matters of criminal justice or anything of that kind, this Parliament would remain sovereign. We would have to come back here and seek Parliament's consent to any changes in legislation to which our European policy might commit us.

The hon. Member for Caithness and Sutherland (Mr. Maclennan), with whose speech I agreed in large part, the hon. Member for Sedgefield and I are in almost total agreement on this subject--no doubt to the rage and wrath of members of our respective parties who are refusing to attend these debates- -but when the hon. Member for Caithness and Sutherland says that co- operation is not enough and that we should have common policies, of course in some areas it makes sense in the 12 member states to move towards the area of common policy. In recent discussions I have talked about harmonising our immigration policies, which plainly makes sense, given our geography and the pressures upon us. I would like to move much closer to common policies on drug abuse, and so on. There is no reason why intergovernmental discussions should not lead to common policies, if all 12 member states consent by unanimous resolution and then if all 12 Ministers, including the British Home Secretary, can come back to their Parliaments and seek their consent to such policies. It is a way of proceeding which merely carries forward what we have been doing so far but in a more coherent way and one which is more likely to deliver results--results for which we are accountable to this Parliament.

Mr. Maclennan : I am very grateful to the Home Secretary for giving way and also for his recognition of the extent of agreement, but I was trying to suggest going a little further than common policy to a situation in which we would have common law, decided on a European basis. That does not seem to be something that the right hon. and learned Gentleman is advocating.

Mr. Clarke : No, we are all having difficulty in advocating the step that we are taking in the treaty. It is true that it does not go as far as the hon. Gentleman suggested, which should be some small consolation to some of my hon. Friends.

Sir Ivan Lawrence (Burton) : May I just back-track on what my right hon. and learned Friend is saying, to the point at which he said that there was an area here for improved parliamentary scrutiny? We clearly do not have

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powers, or have not been using whatever powers of scrutiny have existed in this Parliament hitherto, but the third pillar presents the possibility that the Select Committee on Home Affairs might be the body of continuing scrutiny of those matters. Will my right hon. and learned Friend tell us the Government's thinking about a process of continuing parliamentary scrutiny through the Home Affairs Select Committee examining these matters as they arise, so that Parliament may be better advised of what is intended by Government before they take their decisions rather than afterwards as has been the case hitherto?

Mr. Clarke : Discussions are going on about that within the Government at the moment. I will undertake very shortly to write to my hon. and learned Friend with our proposals for parliamentary scrutiny under the third pillar. He has raised one or two issues on which it is possible to come to more than one conclusion--for instance, whether it should be the Select Committee on Home Affairs or the European Scrutiny Committee which looks at matters under the third pillar--but I undertake to write to him, giving details of the Government's proposals by way of parliamentary accountability, and such proposals will of course be made more widely available to the House as well.

I wholly accept that the House will want some clarity about the way in which it is informed of proceedings under the third pillar, and has the chance to consider them before matters are determined and how, in effect, it gives or withholds approval to what is decided. I do not remotely expect that the House would consent to more restrictive procedures for matters dealt with under the treaty of Rome than those it has been accustomed to in that area. We simply have to ensure that the procedures of the House are well attuned to intergovernmental co-operation under the third pillar.

Several hon. Members rose--

8.30 pm

Mr. Clarke : I shall give way once more and then move on to article 100c.

Mrs. Dunwoody : Nothing should put the fear of God into the House of Commons more than the sight of three Front Bench spokesmen--all of whom are lawyers--in total agreement on a policy. May I draw the attention of the Secretary of State to the wording of article K.9? When giving his interpretation of that article, he made tremendously reassuring remarks, but its wording is very revealing. It states : "The Council, acting unanimously on the initiative of the Commission or a Member State, may decide to apply Article 100c of the Treaty."

If he will forgive my saying so, that is not quite on all fours with what he has told the House.

Mr. Clarke : I believe that it is, unless I made a slip of the tongue. I said that the third pillar does not contemplate the Commission having the sole right of initiative. As someone who has attended countless Councils of Ministers, I have frequently been irked by the fact that, under the treaty of Rome, the exclusive right of initiative

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lies with the Commission, which is frequently persuaded by one, or a group of, member states to bring things forward, but legally has the sole right of initiative.

Under the third pillar, the Commission can make proposals to the Council, but it has no monopoly of that right. Member states can also do so, and any initiative requires the unanimous consent of all member states before it has any effect--with the exception of article 100c, which brings an extremely narrow area within Community competence and therefore makes it subject to treaty of Rome type procedures.

The article contemplates bringing within Community competence the list of countries for whose nationals visas are required for visits and also establishes a common format for the visa. We accepted those proposals in the Maastricht negotiations for reasons of efficiency. The amount brought within Community competence under article 100c is very limited. It contemplates that eventually all member states will have a common list of countries whose nationals require a visa. After 1996, if people wished, the question of a common list could be decided by majority voting. The article also requires a common format. It does not extend beyond that, nor does it in any way reduce this country's right to determine for itself to whom we give visas and the criteria upon which we award them. That will remain a matter for our immigration rules, subject to continual debate and controversy in this House.

Several of my hon. Friends have asked what will happen if another country gives a visa to someone who then wishes to come here. That is a serious question. Someone who is granted a visa, say by the Federal Republic of Germany, would not require a further document to come to this country and would present a visa in a format of a kind to be established. However, that would not automatically mean that they would be able to enter this country as they would still be subject to the immigration controls over third country nationals upon which we are insisting under article 8a of the existing treaty, which will become article 7a.

Persons presenting themselves with visas would still be interviewed by our immigration officers and would have to satisfy the entry clearance officer that they were entitled within our immigration rules to enter this country for the purpose that they had stated. The mere production of an EC visa would not enable someone to get past our immigration controls, although it would have considerable evidentiary value.

re progress that we make in harmonising immigration policy, the more likely it will be that someone presenting an Italian, French orGerman visa will be likely to satisfy our immigration requirements. However, a British entry clearance officer will still be able to saythat although someone has a visa, from his interview it was plain that it was obtained by deception and on grounds that do not satisfyour immigration rules. He could then refuse entry and turn the persoaway. Sir Teddy Taylor : Outrageous

Mr. Clarke : It is not outrageous. I shall allow my hon. Friend to try to explain why he believes that it is. I am trying to explain that this does not affect the right of a third country national to enter this country. They remain subject to our immigration rules.

Sir Teddy Taylor : Does the Minister accept that, instead of expecting every immigration officer to look at

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everyone coming into this country with a visa from Italy and the rest, the only powers reserved will be for the officer to ask, "Are you a drug addict or a terrorist?" If one has reasonable grounds for believing that they are, one can stop them. Is he saying that we would be able to decide that only 50 per cent. of such people could come in? Surely, under article 100c, we will not have that legal right, as it allows us to refuse entry only if we have reasonable grounds for suspecting that someone is something like a drug addict or a terrorist. Is that true?

Mr. Clarke : It is not true. Article 100c does not take away our right to apply our immigration rules. It only governs the list of countries from which member states require visas and the format--the colour, size, shape and content--of the visa. The British Government's interpretation of article 8a of the Single European Act, which is not before us today, is that we remain entitled to apply our immigration controls and that article 100c does not extend any further. My hon. Friend the Member for Bedfordshire, North (Sir T. Skeet) asked how far that extremely restrictive area of Community competence would be extended to other areas under article K.9.

Sir Trevor Skeet : Yes.

Mr. Clarke : My hon. Friend has anticipated my question.

Sir Trevor Skeet : Before the Home Secretary gets there, does he suggest that existing United Kingdom immigration controls can be safeguarded in their entirety by article 100c(5) which states that it will not prejudice member states' responsibilities

"with regard to the maintenance of law and order and the safeguarding of internal security"?

Mr. Clarke : We do not need that. There is nothing to safeguard. Under article 100c we are giving away two things to Community competence-- if that is the language that my hon. Friend likes to use--first, the list of countries from which we require visas and, secondly, what the visa will look like. Article 100c concedes nothing else and unless we move the procedures under K.9 nothing else will be conceded to competence.

There is a great deal of excitement about whether article K.9 will bring into Community competence all the questions of asylum, and immigration law and rules. As I shall seek to demonstrate, it most certainly does not.

Mr. Calum Macdonald (Western Isles) : On fabrication, if someone from outside the European Community, holding an EC visa, but not one issued by the United Kingdom, were turned away from the United Kingdom, would he be able to turn to the European Court to seek to show that the United Kingdom authorities had not turned them away legitimately?

Mr. Clarke : In my opinion, no. Someone coming to this country from France and refused entry could not, in my opinion, go to the European Court and complain that that refusal was contrary to his Community rights. If someone presents himself with a European visa in the common format, in my opinion, no directly applicable law would enable him to go to the European Court. Whether we go in that direction entirely depends on where we go on article 8a--7a as it will be--which is outside this debate. So far as this treaty is concerned, anyone with a European visa who

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was turned away might have certain rights of appeal here but would have no redress through the European Court. It is feared that article K.9 will extend this very restrictive application of article 100c into other areas. Article K.9 opens up the possibility that eventually everything in article K might, as everyone wants, affect European competence.

One of the things in the Maastricht agreement on which we insisted--largely because of the sensitivities of members of my party and of those who were observing the Maastricht negotiations closely--was that there should be a double lock before any such extension of competence could take place. Going beyond the list and appearance of visas would require unanimous voting in the Council by the 12 member states, and each member state would have to ratify the agreement which, in effect, would be a new treaty. This country has a long-standing process for the ratification of every kind of treaty-- something that was criticised by the hon. Member for Upper Bann (Mr. Trimble). The sovereignty of Parliament is what concerns a large number of hon. Members. It remains our position that in this country treaties are ratified by changing the law if changes in domestic legislation are required and, otherwise, in accordance with the Ponsonby rules. That has always been the case, and is currently the position.

This Bill does not go along with the entire Maastricht treaty, and it was never likely to do so. It changes those parts of domestic law which have to be changed before we can ratify the treaty and comply with our treaty obligations. This is all extremely fanciful. The current Government oppose any extension of competence in this field, and we shall not make possible the necessary unanimity. I am not clear about the Opposition's position, but I believe that they, too, oppose any extension of European competence in this field. For the foreseeable future, therefore, the risk of achieving a unanimous vote is slight. It may be of further consolation to my hon. Friend the Member for Stafford (Mr. Cash) that the Danes are even more insistent than we that there should be no extension of European competence in this area. It is one of the matters that they expressly raised at Edinburgh.

Mr. Michael Alison (Selby) : I entirely support my right hon. and learned Friend's approach, and I am very glad that he has been emphasising the big "C"s of co-operation, convention and consultation. In that regard, I am fully in sympathy with what he is trying to do. However, I have a limited tactical question about article 100c. If my right hon. and learned Friend is not able to answer it now, I shall be happy to have a response at a later stage--if necessary, in writing. Article 100c(1) refers to a unanimous decision to adopt the visa list. Paragraph (3) says :

"the Council shall adopt the decisions referred to in paragraph (1)".

Does that mean that the Council, by the majority voting system referred to in paragraph (3), would adopt only that visa list which had been predetermined by unanimous voting? It seems to me that there need no longer be unscrambling by majority voting if there has already been unanimity. One is left with a curious paradox. Apparently, in paragraph (2), there is a remaining unanimity requirement for extending the special emergency list adopted by majority voting. Will this unanimous extension procedure remain in place even after paragraph (3) has come into operation?

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8.45 pm

Mr. Clarke : I shall state my opinion now and, if I should prove to be wrongly informed, I shall write to my right hon. Friend or seek to intervene later.

I think that the list of member states whose nationals will require visas will be determined unanimously before 1 January 1996 but, thereafter, by qualified majority voting. It seems to me that that overtakes paragraph (2). Straight away, there can be qualified majority voting in the case of an emergency. If there were a huge exodus of people from another country, there could be a qualified majority to determine whether it was necessary to add that country straight away to the visa list. Six months thereafter, extension could be only by unanimity. However, I contemplate that when we get to 1 January 1996 that will be pretty well unnecessary as a country can be put on the list permanently by the ordinary qualified majority. As I look in a certain direction, I get the impression that I have that broadly correct.

Mr. Spearing : On the Ponsonby rules, the right hon. and learned Gentleman and I are absolutely at one, as we are on the question of the purpose of the Bill, whose limited objective is to give us a link and thus enable legislative obligations to be put into British law. This is a matter about which there has been a good deal of discussion. In this respect, article K of title VI is a little ambiguous. This is a very important matter, so I want to deal with it very carefully. Article 100c(6) says :

"This Article shall apply to other areas if so decided pursuant to Article K.9."

Thus, it is out of the area of visas, which until now we have been associating with paragraph (6). I see that the Home Secretary agrees.

Article K.9 says :

"The Council, acting unanimously"--

there is a lock there, up to a point--

"on the initiative of the Commission or a Member State, may decide to apply Article 100c of the Treaty establishing the European Community to action in areas referred to in Article K.1(1) to (6)". Article K.1(1) to (6) contains a whole range of matters : asylum, immigration, judicial co-operation--the lot. Does not the Home Secretary agree that, by that mechanism--initially, I admit, by unanimity--it will be possible to deal with all the matters in article K.1? Very important to article 100c are the words

"subject to voting conditions determined at the same time". Although there may be an initial lock, article K.1(1) to (6) is brought into the purview of article K.9. Does the Home Secretary agree that that is correct?

Mr. Clarke : It is what I have just said. Paragraph (6) is the mirror reflection of K.9. They repeat each other. Article 100c has the very restricted application that I have described exhaustively. It can be extended only by the process referred to in article K.9, which requires a unanimous vote in the Council of Ministers, followed by ratification by each of the 12 member states under their own constitutional procedures. The current political reality is that there is not a snowball's chance in Hades that either the British Parliament or the Danish Parliament will agree to any such extension--assuming, for the moment, that the British and Danish Governments stand on their heads and suddenly decide that they wish competence to be enlarged.

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The provision is even more restrictive than the hon. Gentleman has indicated. Even by the process provided for in article K.9, one could not bring in everything that is set out in article K.1. One can go down only to paragraph (6). So far as I can see, there is absolutely no procedure for bringing into competence, by any process whatsoever, judicial co-operation in criminal matters, customs co-operation or police co-operation.

Mr. Spearing : Why not?

Mr. Clarke : Because it would require another treaty--if we ever finish debating the Maastricht treaty and anybody contemplates another one. The next treaty revision is due in 1996.

We co-operate on a totally intergovernmental basis over the issue of policing, and have done for a long time. The Trevi meetings have been conducted for a long time. The most important part of the Trevi process is the operational level and the co-operation that must develop between 12 police services in a community such as the European Community.

I was asked about the process of developing Europol. There have been some active politics on the issue. The British Government are in favour of establishing Europol. We were in favour of establishing a drugs information unit to have effect from 1 January 1993. During our presidency, when I presided over the Council meetings, I did my best to achieve its establishment on 1 January 1993.

I assure the hon. Member for Sedgefield that there is no question of Europol cutting across Interpol. That is the plain view of the vast majority of European Community members. However, we see a case for a criminal intelligence gathering operation between the 12 member states, aimed at international organised crime, primarily drug trafficking.

Progress on Europol is still proving irritably slow for all 12 member states. The delay illustrates the dangers of proceeding by unanimity. All 12 member states want Europol, all want to begin with a drug information unit and all want Europol to start on 1 January 1993. We managed to reach agreement on the nationality of the director-general, but we failed to reach a unanimous conclusion about where the headquarters should be located. So scrupulous are the protections built into the procedure to satisfy sensitive Members of Parliament here and in other Parliaments who are concerned that sovereignty might be given away that until all 12 member states agree on where the extremely important organisation should be located and until all 12 Ministers have given their consent, returned to their Parliaments and received approval, the organisation cannot be set up. If that process does not underline the extent of the security to protect our sovereignty and reassure those concerned about Community competence, few other factors will.

My position, adopted on behalf of Britain, was that I could not care less where the headquarters were located. I made it clear that the British would vote for whatever location might command unanimity among the other member states. Unfortunately, there were other sensitivities involved, and the matter remains to be resolved. I hope that the problem will be resolved during the Danish presidency.

Mr. Maclennan : The Home Secretary is giving us a most fascinating account, and I am grateful to him for underlining some of the points that I was trying to make

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about the difficulty of progressing by unanimity. However, I am still unclear about the last part of article K.9. Is it envisaged that Community competence--which he said could be extended under that article--will extend to matters of Community legislation such as binding directives that have passed through the normal Community processes? Article 100c does not appear to provide for that. It appears to provide for common decisions on policy such as setting up the headquarters for Europol. That seems to be a restrictive provision--even more restrictive than that suggested by the Home Secretary.

Mr. Clarke : I think that we are talking about the difference between having Community competence and not having it. When a list of countries requiring visas, such as that under article 100c, is drawn up, it will be a matter of Community legislation. It will be dealt with as Community legislation when it is subjected to the scrutiny of the House. There is no provision for Community legislation on intergovernmental co- operation--the third pillar activities--so we would proceed with such measures by politically binding agreements, by resolutions. If their Parliaments approved them, the 12 member states would then make the necessary changes to their immigration laws and rules in order to comply with the Community policy. The effect of bringing a policy into Community competence would be to move from the sphere of intergovernmental co- operation into the treaty of Rome as amended, opening up the way for such matters to proceed by way of European legislation. For the reasons that I have given, I do not think that that is likely at present.

I hope that I have satisfied the Committee, with the co-operation of the official spokesmen of the two other parties, that the amount that we are ceding under the third pillar is slight. I should like to believe that I have persuaded the Committee that a positive advantage of the Maastricht treaty is that it opens up a far more sensible procedure than we have hitherto had for the co-operation that we desire on justice and interior matters. I think that we have dealt with most of the fears expressed. I understand why people have fears over such important matters, but there is no question of Community competence over the issues that I have described.

I shall not enter into the other arguments of policy. They have been a feature of discussions on the Maastricht treaty throughout most of western Europe. Some people believe that a flood of immigrants will be let in by Community activity outside Government control ; on the other side of the argument, others believe that we are setting up a fortress Europe and that many people will be kept out who should be let in. The key issues of immigration rules and asylum will remain a matter for the Government, the House and British immigration rules, subject to our continuing commitment to the Geneva convention and the European convention on human rights.

Sir Teddy Taylor : What are the implications of the continuing disagreement with the Commission--according to the Home Secretary's letter- -on the interpretation of article 8a?

Mr. Clarke : That is a small footnote matter to raise at this stage in the debate. It remains the Government view--repeatedly asserted to the Commission--that we have committed ourselves, under article 8a of the Single

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European Act, to the free movement of European Community nationals within the Community. We believe that we are entitled to retain our immigration controls on third country nationals. That remains our position. The Single European Act was entered into by a Government of which I was a member under my right hon. and noble Friend Baroness Thatcher. That issue will be discussed in one quarter or another, but is not a matter for the Maastricht treaty or for today.

Mr. Cohen : I very much oppose article 100c, and I have not been convinced by the speeches of either Front-Bench spokesman. Therefore, I support amendment No. 8, which would exclude article 100c. That is why I asked my hon. Friend the Member for Sedgefield (Mr. Blair), who moved the amendment, whether he was for or against it. I am for it, but it appears that he is against it, in principle. However, I know that my hon. Friend, who has a good record on those matters, would not touch with a bargepole any similar measure, outside the context of the European treaty, that would transfer asylum or immigration policy to faceless bureaucrats.

The Government will allow no amendment of the Maastricht treaty. It has to be passed as it is. The role of the House of Commons is to scrutinise Bills and get rid of bad aspects, but that goes to the wall if no amendments are allowed. The logic is that, however appalling an article in a treaty, it has to be driven through the House. We know that that is the view of the Government, but I am sad to note that it is also the view of my hon. Friend the Member for Sedgefield.

I do not agree with my hon. Friend that we shall not get to the lowest common denominator. I believe that the whole process has been set up so that we can go to the lowest common denominator in immigration and asylum policy among European countries. Where are there any commitments to racial equality or to family reunification as a right?

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