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Early drafts of the proposed directive included references to member states providing their consent to
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infrastructures on their territory being designated as European critical infrastructure, but the consent clause does not appear in the present draft. The Government would prefer to see the inclusion of such a clause, to prevent the identification of European critical infrastructure in the United Kingdom that we do not believe is appropriate. This relates to the point raised by my hon. Friend. Such a move could allay some of our concerns arising from the proposed definition of European critical infrastructure and ensure that only truly critical infrastructure is covered, and that it would be truly European in the sense that its disruption would impact on three or more countries, which we think is the appropriate number.

Simon Hughes (North Southwark and Bermondsey) (LD): The Minister highlights the area of greatest concern. Could the Government give us a list of the bilateral or multilateral arrangements relating to these matters—for example, a French-UK energy interconnector, or certain Irish-UK links? Obviously, where existing national agreements between European Union countries are sufficient, we will not need a new European structure to cover them. Do Ministers have some sort of base list of these arrangements?

Mr. McNulty: I suspect that we do not. Such bilateral or multilateral arrangements might exist across government in a range of Departments, but I have not seen any, save for those that are of concern to the Home Office regarding national security and critical infrastructure protection. I am not going to pass on those lists, because I would argue strongly that they do not belong in this domain. I will certainly pursue the hon. Gentleman’s inquiry, however. There might be lists of such arrangements relating to the gas, electricity and other energy sectors, which might be dealt with by the Department of Trade and Industry, of which I am unaware. If there are, and if I can have them produced for the House, I will do so.

John Bercow (Buckingham) (Con): In seeking to ensure that only projects that are critical and that can genuinely be classified as transnational in character are subject to this provision, is the Minister relying on the subsidiarity and proportionality provisions in existing European treaties the better to aid and abet his case? I hope that he will correct me if I am wrong , but is the corollary that, if he is unsuccessful, the danger exists that a new item will be lumped into the acquis communautaire against our wishes and in violation of our interests?

Mr. McNulty: As with most of these matters, this goes in part towards the whole debate about subsidiarity. I am sure that this will be part of our deliberations this afternoon. The root of the binding elements of these documents is article 308—which is of itself a matter for debate—which requires unanimity. So this is not just about subsidiarity and all that that entails; it is about the fact that this provision has to be agreed unanimously, given its legal root in the compulsory and binding element.

Michael Connarty (Linlithgow and East Falkirk) (Lab) rose—

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Mr. David Heathcoat-Amory (Wells) (Con) rose—

Mr. McNulty: I will give way first to my hon. Friend, just in the interest of the to and fro.

Michael Connarty: The Minister mentioned article 308, and I am sure that other people will do so. Under paragraph 2 of article 3, the Commission wishes to identify the sectors to which the provision will apply. The Government want the matter to go through commitology, which would then pass it through the Council under qualified majority voting. If there was a dispute, the European Court of Justice, rather than the democratic or political process, would then decide on the matter. So we would be passing the decision on the sectors in which the provision will apply out of our hands and to the European Court of Justice.

Mr. McNulty: Yes, but only at the point at which there was a dispute about what sectors and specific sites should be included. That naturally follows from securing in the early stages the definition we want about the binding and non-binding elements of the directive. I do not think that I am mistaken in saying that going down the route that leads ultimately to the European Court would be a natural follow-through from the binding elements, if they are secured. We say clearly in the motion that we will not support those elements unless our outstanding concerns are addressed. That sounds terribly complicated, but I am sure that my hon. Friend fully understands, given his expertise in these matters.

Mr. Heathcoat-Amory: The Minister mentioned article 308, which, as he will know, is used to introduce exceptional measures when no other treaty provision is available. He will also know that it contains a requirement that the measures be undertaken

What possible connection can there be between national security measures and the common market? Is not this another example of the Commission trying to expand its powers and of the Government yet again giving way and going along with them? As the Minister has already conceded, the Government have a veto.

Mr. McNulty: I agree with the right hon. Gentleman, save for his rather churlish points at the end, which I entirely expect from him but do not accept. As I said to the European Scrutiny Committee, and as will emerge from our deliberations, we are perfectly comfortable with the use of article 308. In the first instance, the matter is not one of national security, although it has national security dimensions, but the functioning and protection of critical elements of the infrastructure throughout the European Union to sustain markets must be a valid part of the pursuance of the integrity and cohesion of the common market, which is why the article 308 route is appropriate. I take his point, which is not just made by those who detract from all that is great and glorious in the European Union, that article 308 is used constantly as the thin end of a rather fat wedge to get more and more into either competence generally or the acquis communautaire, as the hon. Member for Buckingham (John Bercow) suggested. The argument is perfectly valid, but not one that we accept in these circumstances.

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In relation to the point of my hon. Friend the Member for Luton, North about the definition, and the hope that a directive and binding agreement on European critical infrastructure was concerned mostly with, first, infrastructure, secondly, infrastructure that was critical and, thirdly, infrastructure that was European—however that is defined, and we defined it as impacting on three or more countries—the consent clause that was in the earlier draft is not in the current one. With regard to the crucial point about the meeting of national security and wider infrastructure concerns and the security of information passed on in that regard, while article 296 of the treaty enables us to withhold information that could be detrimental to national security, the security of information that we do provide must be guaranteed. Various methods are already used for the provision of operator security plans and the appointment of security liaison officers, and the Government believe that the directive should reflect the existing situation, to minimise the burden of the measures on industry, regulators and government.

As the motion states, we support the principle of raising protection standards of critical infrastructure in Europe. It is in our interests to see such protection increased and, through the EPCIP framework, to support member states in establishing and improving their critical national infrastructure protection programmes. None the less, it is recognised by all that the provision of protective security for critical infrastructure is a national responsibility and must remain so. That is our starting point. As my hon. Friend the Member for Luton, North said, that is why the definition is so important, as are the other concerns that I have outlined.

John Bercow: In so far as it is possible, it would greatly assist our deliberations to move from the realm of metaphysical abstraction to that of concrete example. That is not entirely straightforward, but if the Minister, in pursuance of his argument, gave the House examples of what the Commission might envisage as falling within its remit, with which the Government disagree, our deliberations would be invested with a much greater sense of realism and practicality. In short, will he give some examples of what the Commission wants and we do not?

Mr. McNulty: In relation to matters European, I have learned that woe betide the Minister who seeks to mind-read the Commission. If we believe the right hon. Member for Wells (Mr. Heathcoat-Amory), anything that could remotely be described as infrastructure would be included. In some circumstances, the interconnectivity of the energy network on continental Europe is by definition much more pronounced than that of ours. The oft-quoted example of the accident that led to the German power system failing, and the implications for a huge element of the European power network, is a good one. But whether that should lead to an enthusiasm for telling each member state to get its act together in order better to protect its national infrastructure, or to elements being defined as critical and European, is exactly the point that the debate has reached. I will not even begin to pretend that I have a list of examples that I think that the Commission is considering. That is why the definition is so important.

Mr. Heathcoat-Amory: The Minister mentioned national responsibilities. Does the directive extend to
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international negotiations? He will know that once a directive is implemented domestically, it gives the Commission and the EU sole—or, in Euro-speak, exclusive—competence in negotiations between member states and countries outside the European Union. Can he specifically assure us that, after the directive is implemented, our ability to negotiate and conclude agreements about security and infrastructure assets with third parties will not be inhibited?

Mr. McNulty: As I understand the matter, the hon. Gentleman’s description of a directive is valid in relation to the binding elements. Much of the directive and the documents behind it, however, are entirely voluntary. That is why—I was going to say “unusually”, but I will not say that—the hon. Member for North Southwark and Bermondsey (Simon Hughes) made a clear point in relation to what my hon. Friend the Member for Luton, North said about the definition. Where the protection of such infrastructure can be achieved bilaterally, multilaterally or on a sectoral basis, in areas that are not, as we would define them, either European, critical or infrastructure, that is where the competence is and should remain. That is why the definition is so important. I think that the right hon. Member for Wells made a good point about the binding elements—people will tell me if it is otherwise—and that is why we have concerns, which remain concerns and which we hope will be resolved. In relation to the timetable, there was enthusiasm to deal with the matter at the June Council. Given all the to-ing and fro-ing of negotiations, however, that is unlikely to be the case. I also take the right hon. Gentleman’s wider point that there are ways in which a nation state can make multilateral and bilateral agreements, below the European level, to protect its national infrastructure.

Simon Hughes: To follow up my earlier intervention and that of the hon. Member for Buckingham (John Bercow), given that the documents that we have seen include a section that, it says, sets out the EU justification for the programme, including the growing number of member states preparing their own approaches to critical infrastructure, the need to eliminate weak links, and the additional costs implied, I hope that the Minister will go back to the Commission and say, “You think this is justified. Now give us the examples that show that we need this now.” Without examples, the argument is theoretical, and the case is not strongly made.

Mr. McNulty: In part, I make no apology for being theoretical, as, with the best will in the world, I cannot and will not debate or show entirely the UK’s negotiating hand on the Floor of the House. I have tried to articulate as much as possible our concerns, which remain. That is why, although we welcome the document, we do not want it adopted unless or until those concerns are recognised. I take the hon. Gentleman’s general point, however.

Kelvin Hopkins: May I be helpful in following what the hon. Member for Buckingham (John Bercow) said about examples? Can we have something between the
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hard examples, in our practical, pragmatic British way, and the Euro-speak metaphysics at the other extreme, and consider a hierarchy of risks? Nuclear power stations pose a serious risk to life, and disruption of energy supply might pose a serious risk to an economy, at least for a period. When the toilets do not work in a locality, however, that is not a serious risk. Even in Euro-speak, there is what might be recognised as a hierarchy of risks.

Mr. McNulty: I hope that I can safely assure the House that toilets—or lavatories, as we are supposed to call them, if we do not want to be at the wrong end of a class war, or inverse class war—will not figure in critical European structure. The lavatories would have to be quite important to be critical, European—as we would define it—and, more widely, infrastructure.

While we are in the land of the abstract and the metaphysical, that is not just because of the binding elements, but at least partly because, while I do not agree with my hon. Friend the Member for Linlithgow and East Falkirk (Michael Connarty) that all this is about national security rather than markets—I think my point about infrastructure was well made—the supporting documents, partly covered by what was said by the hon. Member for North Southwark and Bermondsey, contain exhortations about what nation states need to do to develop their own infrastructure, on their own terms, to the level of public protection that we would all desire.

Michael Connarty: Will my hon. Friend give way?

Mr. McNulty: I was just deprecating my hon. Friend’s extrapolation from article 308 in connection with national security. There are elements of national security relating to our infrastructure—although I hasten to add that they would not necessarily cover toilets—that are a matter for the United Kingdom, and have a heavy red line around them.

Michael Connarty: As I think will be clear to anyone who has read the original Commission proposal, the Green Paper and indeed the directive, although the Commission’s list of elements on which it wants a common European position includes postal services—which are not obviously critical to security—it also includes armed forces. I know that the proposal by the Commission was rebuffed by the Government, and I hope that it will not appear again, because it was over-ambitious; but what about the channel tunnel? It is a critical piece of infrastructure linking two countries, and only two countries. Would the Government draw a red line around that, and say that they would not allow it to be ruled on by the Commission or the European Court of Justice?

Mr. McNulty: As I have said, our starting definition of the European element of European critical infrastructure is a critical piece of infrastructure that would have an immediate impact on three or more European countries. Let me return to what was said by the hon. Member for North Southwark and Bermondsey. There is plenty that the United Kingdom and France can do, should do and are doing bilaterally to protect the channel tunnel that, in my view at least, falls outside a directive of this kind and the definition of European critical infrastructure within it.

With that, I commend the motion to the House.

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1.12 pm

Mr. Edward Garnier (Harborough) (Con): The Minister has commended the motion to the House, but with a degree of scepticism and lack of enthusiasm that I find refreshing. I hope that he will be as sceptical and as questioning when he comes to negotiate with his European counterparts over the further deliberations on this set of instruments.

I am grateful to the Chairman of the European Scrutiny Committee, the hon. Member for Linlithgow and East Falkirk (Michael Connarty), for initiating the debate. Although not many of his Committee colleagues are here, I think it important for the Government to experience head-on the feeling of the House as a whole about this issue.

Something that has already emerged in the debate—partly from the remarks of the hon. Member for Luton, North (Kelvin Hopkins) and those of the hon. Member for North Southwark and Bermondsey (Simon Hughes), but also from those of my right hon. Friend the Member for Wells (Mr. Heathcoat-Amory) and my hon. Friend the Member for Buckingham (John Bercow)—is the cultural difference between the Westminster and the European systems for creating legislation. What we see in this great volume before us is a set of fairly vague proposals which, although no doubt benignly motivated, lack the detail that we commonly expect in a piece of British parliamentary legislation. It is important for the Government to remember that when they negotiate with the Commission.

The timing of today’s debate may be fortuitous or it may be deliberate, but it coincides with the conclusion of what has become known as the Crevice trial at the Old Bailey, at which a number of dangerous conspirators were convicted of involvement in acts relating to and preparatory for terrorism. It is possible that had those men succeeded in their endeavours, hundreds or even more people would have been killed and the institutions and infrastructures of our country placed under huge strain. Let us hope, although I fear it will be a forlorn hope, that the long sentences given to the defendants will deter others of similar mind and intention, and that the measures we are discussing will—in one form or another, but not necessarily as set out in the documents—be implemented and placed in a state of readiness, but never activated in response to a threat to the critical infrastructure of a number of European Union member states.

The Crevice trial provides us with some useful lessons about threats to our national security and our national infrastructure. The definition of critical infrastructure in the documents before us is:

It is surely the duty of the Government in every member state to identify all facilities and services which come within that wide definition, and I trust that our Government—irrespective of the events made public through the recent trial, and regardless of the outrages
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of 7 July 2005 and what might have happened on 21 July—have done exactly that.

It is clear that the House does not need a list comprising the infrastructure. However, given what we now know about the information relating to the Crevice defendants which was known in advance of 7 July 2005 by our security services and the police, we need to be assured that the Home Office and its Ministers—especially the Home Secretary—will ensure that the fullest possible inquiry is undertaken by an independent figure of some standing into the events, failures and mishaps that have now been revealed.

We know, for example, that there were six good-quality photos of Sidique Khan, although the Intelligence and Security Committee was told that there was just one poor-quality photograph. First we were told by the ISC that identities were unknown—

Mr. Speaker: Order. The hon. and learned Gentleman knows better than to talk about the Crevice trial in the context of these documents. He must not stray too far.

Mr. Garnier: You may have been temporarily distracted, Mr. Speaker. What I am suggesting is that the Crevice trial dealt with infrastructure. It dealt with an attack, or a threatened attack, on our infrastructure.

Mr. Speaker: Order. The hon. and learned Gentleman is really pushing the boat out now. We know that the trial related to infrastructure, but his speech must relate to what we are discussing, which is more specific than that. According to the case that he has made, we could discuss practically anything, but we cannot do that today.

Mr. Garnier: Well, there we are. I am sure that you are entirely right, Mr. Speaker. I shall endeavour to resist the urge to talk about parts of the infrastructure of this country, although we are a European member state and are affected by what is in the documents.

The European Scrutiny Committee found the Minister’s written official response to the documents “less than wholly reassuring”. It stated:

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