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Why was it impossible for us in 2003, but the Government are now contemplating it? Is this not another example of the Government talking tough before proposals are made and then altering their position when the proposals come forward?

Joan Ryan: The fact that the right hon. Gentleman says that we are contemplating it does not mean that we are. I was clear on this point when we last discussed it—that is included in the report—that we will not say that we simply will not discuss certain things. First, it is important to discuss how we achieve speedier and effective decision making in justice and home affairs. That was the nature of the discussion. As I said, the Commission’s view was that the passerelle was the solution. That is not necessarily our view, but it does not mean that we will not have the debate. Of course we will have the debate. Moreover, I will not look ahead through a crystal ball at any subsequent discussions or debates. Suffice it to say we have made it absolutely clear—

Mr. Cash: On a point of order, Madam Deputy Speaker. Will you consider the fact that we are having a debate that has been recommended under the appropriate Standing Orders for the proposals to be scrutinised on the Floor of the House as a result of the European Scrutiny Committee’s recommendations? Surely it is not appropriate for the Minister to say that she is not prepared to say whether or not she would use the veto?

Madam Deputy Speaker: The hon. Gentleman’s point is entirely a matter for debate.

Joan Ryan: As I will not rule out debate at the Justice and Home Affairs Council of the European Union, I certainly would not rule out debate here in our own national Parliament; that is why we are here to have this debate. However, I will not debate hypothetical situations or look into a crystal ball as to what might or might not be proposed in future. We need to debate what is before us. We have made our position on the passerelle absolutely clear. We have expressed serious concerns, and unless those are satisfied we cannot see how any further debate can be had. I think that that answers the point raised by the hon. Member for Stone (Mr. Cash).

Mr. Wayne David (Caerphilly) (Lab): If the Government believe that the debate about the passerelle is over, surely every debate has a conclusion. What is the conclusion in this case?

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Joan Ryan: The Justice and Home Affairs Council will meet next Monday and Tuesday, and this is on the agenda. As hon. Members will realise, my view, and that of many others, is that this debate is concluded. I do not expect any further concrete actions to arise from the passerelle proposal.

Mr. David Heath (Somerton and Frome) (LD): Has the Minister just restated what it says in the motion—that the Government’s position is

If so, will they not accept the European Commission’s proposal at the next meeting of the Council? If that is their position, perhaps we can short-circuit a lot of hyperbolic debate this afternoon.

Joan Ryan: I think that I have been clear. We do not expect the debate on the use of the passerelle to go any further than it already has or that any further concrete proposals will come forward at the Justice and Home Affairs Council. Obviously, I cannot guarantee that until it has actually happened.

Mr. Heathcoat-Amory: In answer to my previous question about switching justice and home affairs to majority voting, the Minister said that she was unwilling to rule it out because the debate was unfolding and hypothetical situations might arise. Now she says that the debate is over. Which is it? Is she saying that she is not going to accept it, as the right hon. Member for Neath (Mr. Hain) did three years ago, because the debate is over, or is she saying that it may still be appropriate as the debate unfolds? We want clarity. Are the Government going to accept the passerelle clause, or are they going to use their veto, as did the Government representative on the European Convention?

Joan Ryan: I have dealt with those points, so I shall carry on with my remarks.

The debate at EU level has been general. It did not get much beyond the question of whether, in broad terms, member states were in favour of transferring police and judicial co-operation to the first pillar. The majority, including the UK, expressed doubts about the Commission’s reasoning and concerns about the potential impact. Given the overall tone of the debate, there was little discussion of what such a transfer might look like or what safeguards or restrictions might be put in place. That is why we have tried not to speculate about what safeguards might or might not be appropriate.

We are not convinced that now is the right time to consider change. We consider that the debate at Tampere clearly indicated that there was little appetite for using the passerelle, and on that basis we think that the current debate is effectively over. We should instead focus our energy on delivering practical measures that make a real difference to the safety and security of our citizens. The Home Secretary will make that point clearly at next week’s Justice and Home Affairs Council meeting.

In conclusion, I return to my starting point. The Hague programme review is a welcome opportunity to take stock of what has been achieved and to review priorities. EU member states face similar threats from
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terrorists and organised crime and are affected by each other’s vulnerabilities. Terrorist cells, crime and illegal immigration networks operate across borders and are invariably international. Working together in the EU, at 25-state level and bilaterally, is essential if we are to reduce the common threat and our vulnerability to it. The Hague programme and its associated strategies and action plans provide an effective framework for co-operation.

1.55 pm

Mr. Edward Garnier (Harborough) (Con): Anyone reading the motion on the Order Paper could be forgiven for thinking that it says it all. Unfortunately, the context in which this debate has arisen demonstrates that what we see on the Order Paper is no more than some fairly woolly words that do not describe with any accuracy what has gone before. The hon. Member for Linlithgow and East Falkirk (Michael Connarty) and his European Scrutiny Committee have, in their disappointment at the Government’s response to their questions, required that the report should be debated on the Floor of the House. I accept that the Chamber is not particularly crowded this afternoon, but some Members present were not on that Committee.

It is essential that the Minister and, through her, the rest of the Government, should be left in no doubt that so far the Government’s performance in such matters has been wholly unsatisfactory. One does not have to read the question and answer session before the hon. Gentleman’s Committee on 18 October to feel a terrible sense of foreboding that we are being represented inadequately in negotiations in Europe about these very important home affairs and justice issues.

When the hon. Member for Slough (Fiona Mactaggart) held the Minister’s current role, I debated with her in Committee a similar set of proposals in relation to the penal regime that flowed from breaches of environmental law. On 13 September 2005, the European Court of Justice ruled on the powers that allow the European establishment to impose criminal sanctions for breaches of legislation in policy areas where the European Union has primacy in matters of law. That disappointed many of us. When I asked the hon. Member for Slough what would be the effect of a vote negativing the take-note motion that she was moving, she candidly said that it would have no effect at all and that the Government would not be influenced by it one way or the other. It strikes me as strange that a Committee of the House set up to discuss a particular European activity was being told by a Minister of the Crown that we could do and say as we wished, but it would make no difference to the Government’s implementation of policy.

Mr. Cash: Does my hon. and learned Friend accept that the root of the problem is that the Government are, in a sense, right in that it is theoretically impossible for a proposal that has been put before a European Standing Committee to be negatived in contravention of the European Communities Act 1972? Does he also accept that we are able to apply the doctrine of the supremacy of Parliament and override the 1972 Act, provided that in such an amendment we add the rider
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that the judiciary would be bound to apply that latest express, if inconsistent, provision?

Mr. Garnier: I am sure that my hon. Friend is right, but I would encapsulate the problem thus: we simply cannot afford as a country and as a Parliament to be governed by invertebrates and to allow invertebrates to negotiate on our behalf. It is the duty of this House to put some steel in the backbone of this Government. Whatever the procedural niceties, we now have a perfect opportunity to do that, thanks to the hon. Member for Linlithgow and East Falkirk and his Committee.

Mr. Heath: I admire the hon. and learned Gentleman’s reference to the molluscan tendencies of the Government in respect of negotiation. Having said that, having read the motion and having heard the Minister’s somewhat elliptical—but, I think, straightforward—response, we have a useful opportunity to debate the issue, but surely it is not the hon. and learned Gentleman’s intention to vote against a motion that says what many of us believe.

Mr. Garnier rose—

Madam Deputy Speaker: Order. Before the hon. and learned Member replies to that intervention, I should say that the term “invertebrates” is not one that I would expect to hear in the House.

Mr. Garnier: I had thought, Madam Deputy Speaker, that it was a perfectly ordinary English word in common usage, but—

Joan Ryan: Are you contradicting her?

Mr. Garnier: I think that the Minister wishes to intervene.

Joan Ryan: I was simply wondering whether the hon. and learned Gentleman was going to pay attention to what Madam Deputy Speaker said to him.

Mr. Garnier: I am making a speech, so I tend to prepare for, and to listen, to what I am about to say. I am paying attention.

Let me move on to— [Interruption.] I am not normally a fan of debates on European affairs, as it tends to bring in the usual suspects and people who mutter under their breath. If the hon. Member for Somerton and Frome (Mr. Heath) would like to ask me another question, I would be happy to answer it.

Mr. Heath: I am grateful. I will ask him not another question, but the same question: does he agree with the words in the motion to the effect that the Government will not agree to the Commission’s proposal?

Mr. Garnier: I was about to answer the hon. Gentleman’s question when Madam Deputy Speaker quite properly brought it to my attention that the word “invertebrates” is apparently not in parliamentary usage. Having overcome that problem, I was interrupted by the Minister, who wanted to talk about something completely different. I will now return to the
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issue that the hon. Gentleman raised. We are dissatisfied—I thought that I had already made it quite clear—with the wording because it does not accurately reflect the true state of affairs. For that reason, we will hold the Government to account for what they are doing.

Mr. Heathcoat-Amory: Will my hon. and learned Friend give way on that point?

Mr. Garnier: As long as my right hon. Friend promises not to refer to any form of spineless behaviour.

Mr. Heathcoat-Amory: But I am a usual suspect.

Madam Deputy Speaker: Order. I have already made a ruling that would cover both those words.

Mr. Heathcoat-Amory: My intentions have nothing to do with zoology, Madam Deputy Speaker. I simply wish to support my hon. and learned Friend in his criticism of the motion because—I refer to a point that he made earlier—the European Court of Justice case that will permit criminal justice measures to be imposed on member states by majority voting, against the wishes of the Parliament and Government concerned, circumvents the need for the passerelle. Criminal justice matters are switching to majority voting by act of the European Court of Justice, even in advance of what is on the Order Paper.

Mr. Garnier: I agree with my right hon. Friend. We can either abdicate our responsibilities as Members of Parliament, let the Government have their way and be rolled on by others in the course of our negotiations, or we can stand up as MPs for our own national Parliament, our own constituents and our own country. It is a matter of decision and judgment. All hon. Members must make up their own minds about how they wish to vote this afternoon, but I shall certainly not support the Minister on the motion that she has put to the House this afternoon.

Keith Vaz (Leicester, East) (Lab): Will the hon. and learned Gentleman give way?

Mr. Garnier: My parliamentary neighbour has only just arrived for the debate, which lasts only an hour and a half, so would he mind awfully if I made some progress? Otherwise, the hon. Member for Linlithgow and East Falkirk will not have an opportunity to speak. I have absolutely no doubt that whatever the right hon. Gentleman wants to say will appear in tomorrow’s Leicester Mercury in any event.

On 19 September, the shadow Home Secretary wrote to the Home Secretary asking for an assurance that, on behalf of the British Government, he would retain the national veto over policing, our courts and our criminal laws because it is vital to the UK’s national interest and the rights of British citizens. My right hon. Friend the Member for Haltemprice and Howden (David Davis) said in his letter:

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My right hon. Friend is yet to receive a reply from the Home Secretary. The Minister gave evidence to the European Scrutiny Committee on 18 October and made some further remarks this afternoon, but I am still not clear about where the Government’s true position lies. As I say, today we have an opportunity to ensure that the Government explain themselves and, if they will not, to show that they have not done so.

We are talking about a form of competence creep from the third pillar of European structures to the first. It has always been our understanding—and, as my right hon. Friend the Member for Wells (Mr. Heathcoat-Amory) suggested a moment ago, we had thought that it was the Government’s understanding—that there should be no competence creep from one pillar to another. There should be no eliding of the pillars on matters of home affairs and justice. As my right hon. Friend said, that was the view not only of the Secretary of State for Northern Ireland, the right hon. Member for Neath (Mr. Hain), but of the Prime Minister.

On 18 June 1997, one of the first occasions that he appeared before the House as Prime Minister, our current Prime Minister said:

There, at the outset of the Government’s coming to power, the Prime Minister made it quite clear that he was not prepared to see any elision between the pillar structure or any use of a passarelle or gangplank to allow constitutional travel between one part and the next.

On 6 June 2005, the then Foreign Secretary, the right hon. Member for Blackburn (Mr. Straw) said in response to questions on a statement:

He subsequently said that

He said that precisely in the context of a form of constitutional competence creep, which has concerned not just Conservative Members but those of all parties on the European Scrutiny Committee. If the Committee had no concerns, it would presumably have let the whole thing go through on 18 October without requiring the matter to be reported to the House. I look forward to hearing from the Chairman, the hon. Member for Linlithgow and East Falkirk, whether he is in any part satisfied by the answers that he was given on that day and in the Minister’s speech this afternoon.

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