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Mr. MacShane: The language is taken directly from the Maastricht treaty. Members sitting on the Opposition Front Bench with the hon. Gentleman voted for that, although he did not. [Interruption.] Oh, he did. I am sorry.

I think that my right hon. Friend the Secretary of State will deal with the second point. The constitutional treaty—whose final text we do not yet have; we are referring here to a draft—will be justiciable to the extent that it refers to what the European Union does, but I think the hon. Gentleman is making a lot of fuss about nothing when it comes to a solid commitment to NATO in this text, repeating Maastricht language that the House has endorsed.

Mr. Jenkin: I am afraid that the Minister has not answered my question. The fact is that in the Maastricht treaty none of the defence and foreign and security provisions is justiciable by the European Court, whereas this article is. That creates a gaping hole in all the assurances that the Government have given us over a long period, and in all the red lines that they have drawn.

Mr. Keetch: The hon. Gentleman has yet to explain the Prime Minister's motive for embarking on this clandestine attempt to take us away from NATO. May I, however, make a specific point about the draft constitutional treaty? Article III-214, paragraph 4, in section 1, "The Common Security and Defence Policy", states

"This Article shall not affect the rights and obligations resulting, for the Member States concerned, from the North Atlantic Treaty."

It is stated clearly, in black and white, that the North Atlantic treaty remains paramount as part of the constitution.

Mr. Jenkin: Interestingly, the hon. Gentleman added his own interpretation at the end of his intervention. The article does not say "NATO remains paramount". It says that we shall respect the obligations of member states under NATO. First, the obligations under NATO are extremely limited compared with the obligations of membership of the European Union. Secondly, the obligations under NATO are only treaty obligations, while the obligations under the European Union have the force of statute. They will therefore tend to override our obligations under NATO, however limited they are.

Mr. Heathcoat-Amory: My hon. Friend is absolutely right. He may not have had time to look up the reference. The hon. Member for Hereford (Mr. Keetch) is wrong. What he quoted relates only to article III-214, which concerns closer co-operation on mutual defence. It does not apply to the—in my view—more dangerous article on structure co-operation, which is about planning cells and separate headquarters in Europe that will be set up under the provisions of the constitution.

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References to the primacy of NATO do not apply to the structure co-operation article to which my hon. Friend referred earlier. I hope he appreciates this support from the Back Benches.

Mr. Jenkin: I am grateful to my right hon. Friend. In fact, I am very pleased with the interventions that I have taken, because I was encouraged to leave out large parts of my speech that referred in detail to the European constitution.

Mr. Hoon: Will the hon. Gentleman give way?

Mr. Jenkin: I should be delighted.

Mr. Hoon: May I refer the hon. Gentleman to page 128 of the document that he is examining? Article II-282 states

"The Court of Justice shall not have jurisdiction with respect to Articles . . . concerning the common foreign and security policy."

Mr. Jenkin: I am delighted that the right hon. Gentleman intervened on that point, because article III-282 says:

"The Court of Justice shall not have jurisdiction with respect to Articles I-39 and I-40 and the provisions of Chapter II of Title V of Part III".

It does not refer to or exclude article I-15, which I read out verbatim earlier. Therefore, there is a loophole in the drafting—[Interruption.] If the right hon. Gentleman checks the record, he will see that I read out article I-15 and asked the Minister for Europe whether it was justiciable under the European Court of Justice. He declined to answer. Article I-15 is justiciable. I hear what the right hon. Gentleman is saying. Everything is justiciable unless it is specifically excluded.

This debate underlines one thing—why the Government have an obligation to provide a proper legal analysis of the draft constitution, so that we can have a proper debate about what the import of the draft constitution is. It is not satisfactory that we should finish up just bandying these points across the Dispatch Box, interesting and amusing though it is. The Government should publish a proper White Paper with a detailed legal analysis, using some of the top legal brains in the country, to explain to the British people why the European constitution is absolutely fundamental to the liberties of the British citizen.

Mr. Heathcoat-Amory: I thought that my hon. Friend would like to know that, in the Convention on the Future of Europe, that precise point was brought up. It was pointed out that the European Court of Justice will have authority over the earlier articles, including the obligation to

"actively and unreservedly support the Union's common foreign and security policy in a spirit of loyalty and mutual solidarity".

That will be fully judiciable.

When that was pointed out, I and a number of other Members in the Convention tabled an amendment to reverse that. We were not supported by the British Government representative. The Government know full well that they are walking into a trap and that British

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freedom of action and powers of self-government will be undermined. We will all be under the authority of the European Court of Justice, which will interpret these overriding articles in part 1 of the constitution.

Mr. Jenkin: I am grateful to my right hon. Friend for telling us what went on in the Convention but, even so, I say to him and to the Secretary of State that in the end it does not matter what either of them thinks. The only institution that will in the end decide who is right is the European Court of Justice, and unless we get the best legal opinion to apply their minds to these questions, we cannot have a full and proper debate on how fundamental the terms of the constitution are. For the Government to protest that it is just a bit of tidying-up is a very unsatisfactory way of proceeding.

I return to the hon. Member for Hereford (Mr. Keetch), who speaks for the Liberal Democrats, who agrees with the European constitution and does not mind what it means. He asked about the Prime Minister's motivation. I would love to know what it is. There is one thing that we can deduce from his statements. From St. Malo onwards, we have seen the growing tendency of the European Union to duplicate and to compete with NATO. That is being reinforced in the European constitution.

The inclusion of common foreign and security defence policy in the draft constitution does not make the world a safer place, because it undermines NATO, on which our security depends. The Euro army is a policy in search of a mission, as my hon. Friend the Member for Buckingham (Mr. Bercow) said. Its development has no positive influence on the United States; in fact, it sends an adverse signal to the United States, which is why it was so bitterly criticised by the American NATO ambassador recently. Of course, we cannot influence US policy by separating ourselves from it. It is about the political ambition of those who would use defence as an instrument of European integration for its own sake, whether it is good for our security or not.

Of course, European nations want a stronger voice in world affairs. Of course, European nations should increase their military capabilities and be able to operate more effectively in Europe and around the world. Of course, European nations must take more responsibility for European and global security. But the Government's policy is clearly not about those great tasks. European security and defence policy and the EU constitution will not add a single bullet to Europe's military capability.

So what is the Government's policy about? Is it about the "little Europe" that believes that it can shut the door on our north American allies and the wider world? It is about a Prime Minister who says one thing to the President and another to his colleagues in Europe. It is about a Prime Minister who has lost control of the agenda and is now just playing for time; a Prime Minister who does not lead in Europe but follows; a Prime Minister who is failing in his most important task; a Prime Minister who is undermining the security of the British people.

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4.40 pm

The Secretary of State for Defence (Mr. Geoffrey Hoon): I beg to move, To leave out from "House" to the end of the Question and to add instead thereof:

'believes that NATO is, and should remain, the cornerstone of Europe's collective defence; believes in the importance of European nations building up their military capabilities to contribute more to their defence and security through NATO and the EU; welcomes the development of the European Security and Defence Policy as a part of the Common Foreign and Security Policy, including its role in undertaking operations where NATO as a whole is not engaged; welcomes the "Berlin Plus" agreement which provides the EU with assured access to NATO planning and presumed access to NATO assets and capabilities for military operations; and welcomes the success of the ESDP operation undertaken in the Democratic Republic of Congo and the continuing military operation in Macedonia and police operation in Bosnia.'.

Before responding to the speech of the hon. Member for North Essex (Mr. Jenkin), I should like to say a few words about this weekend's events in Iraq. I know that the House will join me in condemning the recent attacks in Baghdad, not least that on the International Committee of the Red Cross. Terrorists have targeted an organisation that is recognised the world over as utterly impartial and driven solely by its concern for the alleviation of human suffering. They have demonstrated, in doing so, that they have absolutely no concern for the welfare of the Iraqi people. We will not be deterred by these attacks. I should like to express my sympathy to the families of all those who were killed in recent attacks, and to send my best wishes for a speedy recovery to those who were injured, particularly Jacob Nell, who was working in Baghdad on secondment from the Treasury.

I return to the theme of today's debate. During a debate that took place a week or so ago, I observed that the hon. Member for North Essex became interested in it only when I used the phrase "European Union". He has now transformed such interventions into an entire debate, and anyone listening to his speech could reasonably conclude that his interest in defence is outweighed by his obsession with the European Union and its prospective constitution.

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