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Mr. Dalyell: When are the current discussions, which are very important, likely to reach a conclusion? There is considerable interest in the matter.

Mr. Raynsford: I cannot give my hon. Friend a date, because it is not known generally when the discussions will reach a conclusion. They are continuing and I suspect that they will continue for the rest of the year. I undertake

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to write to him to give him further news of when progress is likely to be made on some of these rather important issues.

I urge the House to support new clause 5 and its attendant amendments.

Mr. Duncan Smith: The Minister, who dealt with these matters in Committee, may wonder why I am standing at the Dispatch Box. It is not because I favour him and therefore want to give him some light relief from my hon. Friend the Member for North Essex (Mr. Jenkin)--I know that he will have withdrawal symptoms as a result of my hon. Friend's absence--but because, having read what took place in Committee, I took the view that the matter was serious enough to merit the attendance of a spokesman on defence matters. I consider national security to be of overarching importance and I think that serious questions relating to defence remain following the exchanges in Committee, which is why I am here, with due deference to my hon. Friend.

In addressing the amendment and other similar amendments that apply to other parts of the Bill, I wish to establish whether clauses 38 and 81, and particularly new clause 5, will address the concerns about the control of our airspace, and thus important issues of national security. I shall return to some of the issues directly arising from the clauses, but I shall begin by trying to establish why the matter is peculiarly important given the nature of the Bill.

It is important to state from the outset that my main concern is not particularly the critical time of war or even the run to war which may be well established, with the security environment setting the tone of the Government's behaviour. It has more to do with the security issues that arise as a result of military training and operation in and around our existing airspace. In an earlier debate, the Secretary of State referred to a document that has just been published. I have not seen it because it is not in the Library. As the right hon. Gentleman referred to it, I should be grateful if he let us see its contents.

On 10 February, in Standing Committee, the Secretary of State referred to schedule 8 in respect of the unique relationship between our defence air traffic controllers and the civil controllers at NATS. That relationship is quite different from that in any other country. We run our airspace in a way that is very efficient compared with America or France which have corridors dedicated to their military airspace and separate their military controllers from the civil controllers, with all the difficulties that that entails. As the RAF do not have corridors and their controllers work cheek by jowl with their civil counterparts, they make efficient use of the airspace. Their unique relationship is both efficient and ensures greater safety within the running of the service, so it has a peculiar extra dimension.

That close relationship relies on a significant amount of trust--an awful lot is not written down, but has always operated in a certain way and works well. For example, if the RAF says that it needs certain airspace, or if for reasons of national security it wishes to block out sections of airspace for a particular time, it is agreed very quickly with NATS, with hardly any interrogation and the RAF gets the airspace that it requires without much quibbling.

My concern is that any private company that takes over the running of NATS will have a different relationship with the RAF. The relationship will, by necessity, change.

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The new company may be under foreign ownership. It is clear from what my hon. Friend the Member for North Essex said earlier that that is certainly a possibility. In any case it will be affected by who owns it, regardless of whether it is a foreign company or a British one. The private company will come under increasing pressure to use the available airspace for commercial purposes. It follows, therefore, that it is unlikely that the relationship with the RAF will remain the same as at times, the RAF requirements will conflict with the commercial usage of that airspace.

Our amendments to clauses 38 and 81 and new clause 5 arise from the fact that the Government will be under increasing pressure to invoke the powers granted to them under those provisions more often than they anticipate. No doubt that is why the Government drafted them. Our amendment goes to the heart of the issue: how effective such clauses are likely to be and whether they address the relevant circumstances.

The first aspect that needs to be investigated is whether the clauses really do run foul of the interpretation of existing European law and whether the Government will find it difficult to invoke them successfully over the next few years.

Unless an amendment such as that tabled by my hon. Friends is accepted by the Government--or even addressed--they will open themselves to a progressive series of challenges in the commercial domain from companies that disagree with the application of the clauses. I do not believe that the term "national security" will hold any particular power over the controlling company--it will still challenge where it believes it to be necessary.

The Minister referred to the detailed rebuttal that he gave in Committee. Therefore, it is necessary to ask why he believes that he successfully rebutted the arguments of my hon. Friend the Member for North Essex. These concerns in particular were raised in Committee. The Government rested their position, and their objection to our concerns about the functioning of the Bill under European law on their belief that, as the Minister said, national security is protected under European law. The Minister referred to a judgment made on 26 October 1999 by the European Court of Justice in the case of Angela Maria Sirdar and the Army Board, Secretary of State for Defence. I do not want to go into details; I know that the hon. Gentleman has been round this fence a few times. However, when he partially referred to paragraph 17 of that judgment, he did himself a disservice. He said that the concept of public security covers both a member state's internal security and its external security. On that, he rested the view that that judgment had made it clear that national security was enough to block off any further challenges through the European Court of Justice. I believe that he was fundamentally wrong.

It was in that particular case that the European Court of Justice made a clear statement, for the first time, that it had a right to rule on issues of national security. It prepared itself the position to say that simply saying national security is no longer good enough.

The Minister failed to show in Committee that the court no longer considers that any member nation has a general treaty exception for reasons of public security. In paragraph 16 of the judgment, the court said:

To recognise the existence of such an exception, regardless of the specific requirements laid down by the Treaty, might impair the binding nature of Community law and its uniform application . . .

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Furthermore, exceptions on the nature of public security are based in this case on derogations of four particular articles. The court has taken a progressively narrow view, over the years, on the way in which derogations should apply, especially if they run counter to the ethos of the market place or the single market.

It is interesting that the Minister should use that case to show that the court did not take a decision against the British Government because of the derogation. In fact, the court made it clear that it considered that it had a full right to revisit these exemptions as and when it saw fit. That is borne out by a judgment on 11 January 2000 in the case of Tanja Kreil and the Bundesrepublik Deutschland. There, the court ruled against the German Government, who had defended a position that they were taking in front of the court for reasons of national security. On this, the court was quite clear. It said:

the question is therefore whether, in the circumstances of the present case, the measures taken by the national authorities, in the exercise of the discretion which they are recognised to enjoy, do in fact have the purpose of guaranteeing public security and whether they are appropriate and necessary to achieve that aim.

Furthermore, the court moved on the issue of derogations by showing that it would allow the use of derogation in this field only if that provision was interpreted strictly.

Thus, in a matter of weeks, the European Court of Justice first established the right to rule on concepts of national security and then went on to use the same basis subsequently to reject the German Government's position. The British Government, in the form of the Minister, used the Sirdar case, so I think it fair to continue down that road and use the next case up.

I deliberately referred to these two cases, because the Minister, in his justification for the Government's position that the new clause, and the clauses already in the Bill, will succeed, prayed in aid the Sirdar case.

Mr. Cash: My hon. Friend makes an honourable case. Given the uncertainties, the vagueness, conflicts and contradictions that are contained under the case law to which he has referred and the enormous number of variations that can occur, could anyone imagine any consistent policy emerging under new clause 5? That provision would apply

in any time of actual or imminent hostilities or of severe international tension or of great national emergency.

One would have to go through a quagmire of legalised contradiction. Would not British national interests and national security be severely prejudiced as a result?

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