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The Minister confirmed that the adoption of the European directive would affect the UK’s ability to conclude agreements with third-party countries—the question asked in this debate today—for example, with the United States. It is clear that giving competence to the Commission means ceding competence from one’s own Government to make agreements without the permission of the Commission. We have always thought that that was an unnecessary downside to any agreement to give power on issues on which we should retain it. Unless the Minister is telling us that that is a clear red line and he will not sign up to the directive unless there is clear agreement that the UK can conclude agreements with non-EU countries on a bilateral basis, we would be taking a grave risk.
The Minister has told the Committee that “it is not considered” that the directive would affect the UK’s ability to make agreements with third-party countries on the exchange of information and techniques for protecting infrastructure, but he did not provide the authority for that conclusion in any correspondence. A matter that would fall to be determined by the ECJ is one of the imponderables. We do not know whether the ECJ would rule that we still had that power or did not have that power. The question for my Committee was: why put the present freedom and power of the UK to make agreements with third parties at risk by adopting the directive?
After eight years as a member of the Committee, and five years as a member of a Standing Committee before that, I know that entering into such legal obligations may have unpredictable results in the future. Why should Britain risk our present freedom to make bilateral security arrangements and decide what sensitive information we choose to share? I have not heard any argument as to why we should give up either of those two vital powers. I cannot see what the UK can possibly gain by accepting the directive, and that was the unanimous view of the Committee across all parties.
Mr. William Cash (Stone) (Con): I am a member of the Committee and I endorse everything that the hon. Gentleman says. However, does he accept that sometimes the Government have a tendency, when they know that something has a European character to it, to be too relaxed about allowing things that they would do better to resist?
Michael Connarty:
On this occasion, I fundamentally agree with the hon. Gentleman. The Government do not need to do this. It would strengthen the European Union as a body if it resisted it and renegotiated a different arrangement under which countries that had problems with their infrastructure, and questionable security and capacity, entered into agreements guided, aided and controlled by the Commission. Those countries that have the competence, as the UK and many others already have, to look after their own security, could agree a set of guidelines, standards and aspirations that they could try to match, but it would not need to be binding. That would be a much stronger EU agreement. It would focus on where assistance is required and stop the Commission interfering where it is not needed. I can assure the Minister that the Commission will use its
power whenever it can, just to show that it is in charge. It wants to be in charge of, not assisting on, many issues on which it would be better not to be involved.
Why do we need legally binding rules designating what infrastructure is critical to a member state? It was an expressed concern of the Minister in the explanatory memorandum, but I have heard no indication that their imposition will be resisted to the point at which we will not sign the directive. The Minister asks us to support him signing the directive, but we are not sure what negotiating points could stall that signature. I hope that he will tell us that much more clearly and leave the House, and those who read the report of this debate, with some security. Why could the objective of creating a common procedure for designating critical infrastructure not have been achieved by voluntary co-operation between the member states? I have heard no answer to that question.
My conclusion is that the legislation might lead to an extension of European community competence into the field of national security. That should not be agreed until the House has had a chance to debate it and is convinced that vital safeguards for the UK’s sovereign national security would not be ceded to the Commission. I would like the Minister to assure us that when he goes to the negotiations, he will not sign up to the directive until he can convince the House that he did not cede too much on the issue of our national security.
1.48 pm
Simon Hughes (North Southwark and Bermondsey) (LD): The House certainly has highs and lows. We have had the high drama, intensity and complete transparency of Prime Minister’s questions, and then we come to this debate, which is—unless one has engaged with the subject matter—probably miles from the immediate thoughts of most people. I came to the subject fresh, because it would normally fall to my hon. Friend the Member for Sheffield, Hallam (Mr. Clegg) to participate in this debate, but he cannot be here today. I looked at the issue from first principles and have ended up with a huge amount of reading over the last week. Thanks to my keen and enthusiastic assistant, I understand the issues at least to some degree.
I am glad that we are having this debate. I agree with the hon. Member for Linlithgow and East Falkirk (Michael Connarty) that it is right that we should have a European Scrutiny Committee and that it is able to say, as it did on this issue, when something is legally and politically important and should be debated on the Floor of the House. The numbers present may be small, but that is related more to other factors in the British political firmament than to the importance of the issue.
This is an important issue because we are talking about what used to be called emergency planning. Everyone realises now that local government needs to undertake emergency planning, for all the sad but familiar reasons. When the Greater London authority was set up, there was a long debate about the arrangements in London. Similar debates about how to
keep the capital and the country safe took place after 9/11, and such questions are back on the agenda after the events of July a couple of years ago.
Emergency planning is the Government’s rightful responsibility, and the Home Office has traditionally taken the lead in its work with other Departments. I understand the Minister when he says that he is not at liberty to share some information to do with planning in respect of terrorist threats to our infrastructure.
Some threats have been evident for years. For example, the IRA attacked Canary Wharf as it was being built, and we have heard about the plans to attack the Ministry of Sound night club in my constituency. However, I am talking about something different—that is, threats to the sewerage system, or to the water or gas supply. Those are important matters, and I am glad that the House has an opportunity to express its views.
Mr. Cash: In our report, we state:
“We have considerable misgivings over the adoption of an EC directive in this area”.
Our function is to judge whether something is of legal or political importance. We go on to say that we believe the directive to be
“of doubtful legality and questionable in principle. We note that the proposal is made under Article 308 EC, but it does not appear to us that a measure which is concerned essentially with the national security of Member States is a matter falling within the EC treaty at all, and still less under article 308”.
I hope to make a few remarks later on about article 308. However, even though he has come to the job rather late in the day, does the hon. Gentleman accept that the matter is very serious? There is no need for hysteria, but does he agree that it has implications for national security?
Simon Hughes: I do agree about that, and I want to deal next with article 308. It states:
“If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community, and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures.”
In June 2004, the Council of Ministers asked the Commission to come up with a proposal in respect of EU infrastructure. In other words, the bureaucrats did not initiate this, the politicians did. The Council of Ministers is free to say that it is not going to agree the Commission proposal, with the result that the whole thing has come round full circle and the matter is up for negotiation. The Government will “take note” of this debate, in the way that our procedures allow, but they also have the right under article 8 to veto the outcome. If the UK decides that the proposal should be taken no further, it can act alone to prevent that from happening.
Does article 308 justify the motion before us? The House of Lords Committee that looked at this matter said that we should not get fixated by article 308 and that we should look at the substance of the motion. The advice that I have been given is that Parliament has
accepted similar measures proposed under article 308, and I look forward to the forthcoming report from the European Scrutiny Committee.
These are serious matters. Article 308 is the EU’s instrument to cover “anything else extra”, and we must be careful to ensure that what it is used to introduce is justified. I am not going to argue that the proposals before us cannot work under article 308, although I notice that the European Scrutiny Committee believes that the Government have not made their case about that.
I come now to the substance of the motion. The Minister was helpful in his responses to interventions, and I want to pick up on a couple of matters that he mentioned. He made it clear that the proposal is justified only if we are talking about matters that are European, critical and to do with infrastructure. That may be a tautology, but it is true. However, I want to put it on record that I share what I believe is the common view of the House about last December’s draft directive definition of EU “critical infrastructures”. It states:
“‘European Critical Infrastructure’ means critical infrastructures the disruption or destruction of which would significantly affect two or more Member States, or a single Member State if the critical infrastructure is located in another Member State.”
We believe that that provision is too generous, as it is not sufficient that only two member states are affected. Earlier, I gave the example of the UK and Ireland. We have a common interest in some matters, especially in respect of Northern Ireland, and other bilateral agreements cover energy, transport and so on.
The hon. Member for Linlithgow and East Falkirk mentioned the much more interesting debate to be had about whether the Eurotunnel involves two member states or more than two. I believe that disruption to the Eurotunnel would significantly affect more than two member states. For instance, the tunnel goes to Belgium as well as to France, but disruption would have onward consequences for the transport of goods throughout the EU. That would mean that more than three countries would have an interest, and that is why we need a higher threshold than just two member states.
I also agree that the UK occupies a position that is entirely different from the one occupied by many other countries. For instance, the Benelux countries share many aspects of infrastructure, and a new member state such as Poland may well get some power from the Czech Republic, or vice versa. Countries that are adjacent territorially, with no water between them, are much more likely to share elements of infrastructure, transport and so on. Indeed, that is likely to be common, and the situation between the UK and Ireland, or Cyprus and Malta, is likely to be much less common. I therefore hope that Ministers will negotiate a higher threshold.
“the Government’s intention to secure adoption of these documents in Council, subject to a satisfactory resolution of outstanding concerns.”
That is rather a catch-all wording—and I am being generous to the Minister by saying so. It more or less says that the Government have made a request, the Commission has made a proposal, and this is how far we have got. The motion then asks the House to give
the nod to further negotiations to secure a satisfactory outcome. To be blunt, a lot of work remains to be done, and the Minister is right to suggest that it is unlikely to be completed in June, especially as we are already in May.
I want to make a couple of final points. Earlier, we had an interesting discussion about the fact that the motion deals with something theoretical, but it was clear that the House was also interested in the specifics. It is important to realise that much work has been done in some sectors, as listed in the supporting papers provided by the European Commission. For instance, work has been done in the IT sector on public electronic communications networks, and in the health sector on epidemiological surveillance and control of communicable diseases.
Work has also been done in the financial sector on euro retail payment systems. Such matters can be seen as part of the infrastructure, as the sudden collapse of the ability to perform bank transactions across Europe would have implications for the financial sector, in which London has a huge interest. Work has been done in the transport sector on ship and port facility security, maritime security and civil aviation security. It is not as though nothing has been done.
There are many bilateral aspects already, and clearly the Government have thought about them. The Home Office is in the lead, but the issues are cross-governmental; the critical infrastructure sectors listed in the annexe show how broad they are—energy, nuclear industry, ICT, water, food, health, financial matters, transport, chemical industry, space and research facilities. That substantive list shows that the matter is at a slightly higher macro-level than the provision of public toilets across the EU—although I realise that the Minister was joking. Like him, I have been involved in London politics for many years. We have not yet got the provision of public facilities in London sorted, so we can hardly teach anybody else how to do it. There is work to be done much nearer home.
The proposal is that if there were a directive it would include non-binding and binding measures. That mix is probably right if we can reach agreement about the binding measures—by definition, it would then be up to us to opt into the others rather than being committed to them. Colleagues in the Lords who have studied the proposal from their perspective as Members of the European Parliament warn us that we must not get into an over-bureaucratic system. The current proposal seems far too extensive, complex and bureaucratic. To take one example, there may be a need for participation in
“critical information protection expert groups at EU level”—
but that simply means that it would be good to have somebody from each country who knows what they are talking about and can work out what we need to do. That is sensible and civil servants should be working on that aspect. Information-sharing is good, but we must do it in the least bureaucratic and most practical way possible.
I end with the conclusion we have already reached. Most of the specific proposals appear perfectly feasible through co-operation, information exchange and best practice. That seems to cover most of the needs and
expectations. Subsidiarity and proportionality mean that we should not try to give the EU more functions and responsibility than it needs. We must do what we can in this country. The UK, as a group of islands, is more likely to resolve these matters nationally than on a cross-EU basis, but if there is a need for legislation—after all, a directive is EU legislation, with which we have to comply—people have to make a case for it.
If the measure is on the agenda, it is because Governments have asked for it to be there because they were worried about terrorism or the risk to European energy supplies. As the Minister said in his intervention, this is not only about our people in this country; Britons are working, living and studying all over the EU, as are people from all the other EU countries. We have a collective responsibility to look after the European Union countries properly, but only inasmuch as it needs to be done on a more than national or more than bilateral level should it be a matter for the EU. I hope that Ministers will proceed accordingly and negotiate only a measure that is simple, straightforward and the minimum required to deliver the perfectly reasonable objectives that they asked the Commission to consider a few years ago.
2.3 pm
Kelvin Hopkins (Luton, North) (Lab): First, I make a small apology. I have only recently been appointed to the European Scrutiny Committee and was not party to its discussions. However, I have read the paper prepared for the debate and I have listened carefully to the speeches of other Members. They very much reflect my own feelings; there seems to be consensus that we must take a much firmer line with the Commission and the Council of Ministers, so I hope that my hon. Friend the Minister, in his typically robust way, will do so. I hope that he will take particular note of what my hon. Friend the Member for Linlithgow and East Falkirk (Michael Connarty) said, because he went to the nub of the issue.
The Minister’s first response to the communication was robust. He stated that
“responsibility for national critical infrastructure is a national responsibility and, secondly, that protection of European Critical Infrastructure is the responsibility of the Member State within which the infrastructure is located”.
That strong statement seemed to have the Committee’s support, but when a series of questions was put to the Minister in writing, his response was less robust. I thought that perhaps someone had toned down his replies, because they did not want them to be too non-communautaire.
I have had some experience of European committees in Brussels—although not at the elevated level of the Council of Ministers—so I know about the style; one does not raise issues strongly. One listens to the reports and then goes away—possibly for a splendid Brussels lunch. However, in my time I was one of the awkward squad, who always asked the difficult questions in what seemed to be regarded as the British way; we say, “Excuse me, Mr. Chairman, but isn’t there a problem?” and other people look round in surprise that anybody should have raised an issue.
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