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Mr. Michael Howard (Folkestone and Hythe): Does the hon. Gentleman recall my right hon. and learned Friend the Member for Rushcliffe (Mr. Clarke) saying that there was no guarantee that the provisions would be interpreted in that way? Their interpretation is to be entirely at the behest of the other member states. Would it not be better if a power were taken in the treaty to expel any member state that was in serious and fundamental breach of human rights rather than attempting to hold that state to its obligations while depriving it of rights?
Mr. Henderson: The right hon. and learned Gentleman is not aware of the debate that has taken place with our partners. We are talking about how to deal with a critical situation, not an everyday situation. It is a political decision which would have to be taken by a 15 minus one majority. Every country other than the country involved would have to agree. The power would not be used in a trifling way, to take revenge on an existing member because one country or a group of countries disagreed with it. If that happened, the future of the European Union would be in great jeopardy. [Hon. Members: "It is."] No, it is not. The member states of the European Union have a deep commitment to making changes when necessary, agreeing common positions when it is sensible and retaining our distinctiveness when that is better.
7.45 pm
I am sorry to be taking so long, but I want to reply thoroughly to the debate. We should have a full interchange of views so that hon. Members know all the arguments when we come to vote. I shall have to take some time to reply because there have been so many contributions.
The right hon. and learned Member for Rushcliffe said that there were two differences between his position and mine on the treaty. He disagrees with the social chapter. We have already had an exchange on those arguments. I do not believe that the social chapter threatens the economic integrity of the European Union or that the business community here or elsewhere believes that. The social partners recognise that it is an essential part of the development of the Union, and one with which they can cope. It is not the case that every idea put up for inclusion in the social chapter will be included. There is a firm understanding of that among the majority of the partners I have talked to. I understand the right hon. and learned Gentleman's concerns, but he will find, as business will find, that it will not damage his other objectives.
The right hon. and learned Gentleman also talked about enlargement. He wanted further progress on that in the treaty. So did I. My right hon. Friends the Prime Minister and the Foreign Secretary pushed hard on the final evening of negotiations for progress on institutional reform. Our inability to reach an agreement was not due to a lack of motivation or an unwillingness on our part to consider other views. The problem was the intransigence of other partners. We shall continue to press for progress. I agree that reform of the institutional arrangements is essential before enlargement. The treaty says that that will be the case. I hope that when he has more time to reflect, the right hon. and learned Gentleman will follow his original instinct to be a little bit in favour of a modest treaty. I hope that he will give that further consideration before Third Reading.
I want to link the comments of the right hon. and learned Member for Rushcliffe with the opening comments of the right hon. and learned Member for Folkestone and Hythe about article F.1 on basic rights. The right hon. and learned Member for Rushcliffe said that he had no worries about establishing the basic right that if a country joins the European Union, it must meet certain conditions, which must be broadly reflective of what is only wise and consistent with a democracy. That is different from the position adopted by the right hon. and learned Member for Folkestone and Hythe.
On the first day of the debate, the right hon. and learned Member for Folkestone and Hythe said that he had some concerns about the flexibility of articles K.12 and K.15 and that he had sympathy for the objective. I understand that; I have read his speeches. We both agree that there is a need for flexibility, but that when that flexibility is applied, it should be applied by unanimity. I think that there is a misunderstanding on the matter.
In effect, there is an unanimity provision in the treaty: it is called the emergency brake. If nine or 10 countries decide that they want to act together to do something that the rest of the Union does not want to do, they should have flexibility to do so. However, if one or more than one country outside those nine or 10 countries says that it is in their national interest that such a thing does not
happen for a particular reason, they can invoke the emergency brake, and the decision would then need to be made by unanimity in the Council. What the right hon. and learned Gentleman is looking for is in the treaty. I hope that he will recognise that. That might make it slightly easier for him to vote with the Government.
Mr. Howard:
I do not want to raise false expectations on the Minister's behalf. If that is indeed the explanation--it may be the explanation on a proper reading of the relevant portions of the treaty--why on earth does the treaty not make it clear that the article is based on unanimity? Why on earth does it use such circuitous language? Why does it use the language of qualified majority voting instead of saying straight out that such matters will be decided on the basis of unanimity?
Mr. Henderson:
I am very glad that I gave way to the right hon. and learned Gentleman. I like to give those who wish to confess an opportunity to do so. That is not the first confession of a change of position in Committee. I genuinely welcome the fact that there has been a debate in Committee and that the Opposition have recognised that the Government have achieved what the Opposition said that they would have wanted to achieve had they taken part in the negotiations.
Mr. Henderson:
I shall not incessantly give way to the hon. Gentleman, but I am tempted on this occasion.
Mr. Cash:
Does the Minister accept that this new-fangled concept of flexibility has serious dangers not least because, as he suggested, it creates a legal framework in which there is a momentum towards the creation of functions for certain member states? There is a continuous momentum towards the kind of integration that, apparently, the Government on the whole do not want. Is not there a contradiction in their position in allowing, through the adoption of flexibility, a momentum towards integration, which they say they would rather not have?
Mr. Henderson:
The hon. Gentleman is not aware that there was a discussion at the intergovernmental conference about whether flexibility is necessary in principle. The answer to that question was, by and large, yes, there may be circumstances in which different groups of countries want to do things at a different speed. The point was made that we could not have continual flexibility or it would destroy the single market, and everybody would want to do what they thought was in their interest and not combine over a common cause when it was not in their interest. There had to be some way of meeting the two objectives.
One of the ways, of which the hon. Member for Stone (Mr. Cash) may be aware, was to exclude all sorts of circumstances in which flexibility would not be possible. On reflection, and in the debate at the IGC--it was essentially agreed before the Prime Minister and the Foreign Secretary endorsed it on the final day--it was agreed that there should be a facility for an emergency
brake. None of the EU partners thought that it would be applied on a regular basis. It was included because it was thought that it might be necessary in some circumstances and the possibility should not be excluded.
Mr. Bernard Jenkin (North Essex):
On that point--
Mr. Henderson:
I think that I have exhausted that point. The Opposition have put a fair argument and the Government have given a fair response.
The right hon. and learned Member for Folkestone and Hythe mentioned policing and said that article K.2 empowers Europol to join national policing operations in a support capacity. Yes, it does, but it does only that. There are very strict limits on how that should take place.
British police forces are, and will remain, responsible for British policing in Britain. That is not in any doubt. Any Europol personnel would be involved on the invitation of the British police and have no powers of arrest. The operational rules for Europol, which would have to be agreed in future, would be agreed only by unanimity. That is in the treaty. Therefore, if there were any suggestion that any operational rule would put Europol officers in a position--in Britain or anywhere else in the EU--that we felt was not proper or right, we would be able to block it because unanimous agreement would be required. I hope that I have been able to reassure the right hon. and learned Gentleman on that point.
I apologise to hon. Members who have just joined the Committee. There has been a very long two-day debate and there are many issues to cover.
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