Diplomatic and Consular Protection

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Mr. Francois: I asked the Minister under which treaty the Commission envisaged going further, and I would like him to answer that.
Mr. Murphy: The document that has been proposed by the Commission does not create the legal ability to go further. We shall make it clear, as I did in my opening remarks, that we would not support any measure that was intended to extend the competence of the European Commission beyond what it already enjoys with respect to sharing best practice and information. Therefore we do not believe that there is a treaty basis for going further. That is identified in article 20 of the treaty establishing the European Community, which is very clear.
John Hemming (Birmingham, Yardley) (LD): Does the Minister agree that this is a matter in which no political party wants the European Union’s competence to be extended, and that the general position is, “If it’s not broken, don’t fix it”? In this instance it is not broken and no one intends to fix it.
Mr. Murphy: I agree with the hon. Gentleman.
Mr. David Heathcoat-Amory (Wells) (Con): The Minister said that the legal entitlement in the treaty was not a right. Does he believe that that is proof against the European Court of Justice, and does he know of any cases that have been taken to that court by nationals of member states to try to assert a right?
Mr. Murphy: I am not immediately aware of any individual cases, but as I think I mentioned in my opening remarks, in the UK there is not a legal right; it is a matter of Government policy, and the policy of all political parties, that consular protection and support of the kind outlined is not a guaranteed statutory right, but is a matter of public policy prioritisation by Governments of all political persuasions. There is no legal basis on which to seek legal redress in the European Court.
Mr. Heathcoat-Amory: With respect, that is not the answer to my question. I know that in this country there is not a right, and it is a matter of policy; but in the eyes of the European Union, and in particular the European Court of Justice, that could easily develop into the assertion of a right against us in a future court case. The wording that mentions an entitlement seems to me dangerous for that reason.
Mr. Murphy: The relevant half-sentence of article 20— the 10 words that I read out earlier and with your permission and patience, Mr. Bercow, will read again—specifies that citizens shall have the entitlement in question
“on the same conditions as the nationals of that State.”
As UK nationals are provided with support as a matter of public policy, not as a legal right, article 20 affords protection to unrepresented citizens of EU third countries on the same basis. A legal protection is not afforded to our citizens, so it cannot be afforded other nationals.
Mr. Greg Hands (Hammersmith and Fulham) (Con): I want to ask a question about the Minister’s letter to the European Scrutiny Committee on 17 March because I want to make sure that I am absolutely clear about the impact of the Lisbon treaty. Halfway down page 152 of our pack, the Minister notes that the Committee asked
“specifically about the Commission’s assertion that the entry into force of the Lisbon treaty ‘will provide a clear legal basis for EU law in this area’”.
His answer, which is in the next paragraph, is not absolutely clear. Can he say quite categorically that the Lisbon treaty does not extend the Commission’s powers regarding consular protection?
Mr. Murphy: I can be absolutely clear about that fact, but the hon. Gentleman would perhaps wish me to say a little more than that. The Lisbon treaty does not create new rights or obligations regarding consular protection. We disagree with the Commission’s assertion —I recall it from my reading over the weekend, although I do not have the paperwork with me—that the Lisbon treaty puts things in a more sound legal position and introduces greater legal clarity. There is no lack of legal clarity; we are talking about a member state competence. The Commission does not have competence over consular protection, and its competence should not be extended.
Mr. Hands: May I quickly follow up on that? Why, therefore, does the Minister believe that the Commission has that belief?
Mr. Murphy: I imagine that it asks its own legal advisers about its own assertions and comes to its own view. However, the unanimous view of member states is that the Commission does not enjoy that competence, and it should not be invited to enjoy it today or at any time in the future.
John Hemming: Does the Minister agree that the phraseology regarding what is a legal right and what is policy is perhaps not serendipitous? Under the doctrine of a legitimate expectation, policy creates a right that can be enforced in the UK’s administrative courts. The mere fact that a right is non-statutory—that it is not in primary or secondary legislation—does not mean that it cannot be enforced through due process as a result of people bringing an action to seek judicial review in the administrative courts. The phraseology would perhaps have been better had it said that people did not have a legal right, as opposed to a statutory right.
Mr. Murphy: I do not want to get into a general conversation about the legitimate expectations of UK nationals travelling abroad, because that could take us down all sorts of routes. What is important is the Commission’s proposal to publicise existing protections—for example, in UK passports, although as I said, we are not currently attracted to the idea of putting stickers in existing passports. If we are to include article 20 in UK passports, we would have to choose our words carefully and use them in a way that was transparent to UK citizens. Simply repeating article 20, which I read out for the Committee’s enjoyment and information, would not inform all our constituents and citizens of the rights that they enjoy. It is important that we are clear legally and in the language called English. Of necessity, article 20 and other EU articles are often difficult because of their legal wording. We need to ensure that the language is transparent, accessible and easy to read—certainly for a traveller leaving a British airport on their holidays.
Sandra Osborne (Ayr, Carrick and Cumnock) (Lab): Given that only four countries, including the UK, and 50 representatives of civil society responded to the consultation, is the proposal not a complete waste of resources? There is little enthusiasm for it.
Mr. Murphy: My hon. Friend highlights the fact that a minority of member states responded—the UK, France, Slovenia and one other, although I cannot remember which one it was. We and the French were the most considered and offered the most detailed criticisms and objections to the proposals. As I said, the document is a contribution to a debate, not least because it has caused us to have this debate today. However, that is all that it is: it does not create a legally enforceable right, and nor should it.
The Chairman: Order. May I say to the Minister for Europe that he will want to take care not to be led astray, however inadvertently it might happen? We cannot and should not get into a general debate about provisions of the Lisbon treaty. It is a matter for the Minister’s judgment, but he must be careful not to dilate on that point. I feel sure that he will not.
Mr. Murphy: Thank you, Mr. Bercow, for that guidance in advance. Our legal position on article 46 of the charter of fundamental rights is clear that the charter creates no new rights in that area.
The hon. Member for Rayleigh said that I was suggesting that the Lisbon treaty adds legal clarity. I know that he pays great and detailed attention to aspects of the treaty—he knows that I think that; it is not a false compliment—but if he checks the record, he will see that I was quoting, in plain English, the Commission’s assertion that the Lisbon treaty would put the situation in a clearer legal position. That is not our view. There is no lack of clarity about where the competence lies for consular service. It lies and will remain with member states.
Sandra Osborne: Further to my previous question, the Commission’s action plan proposes a comparative study of consular legislation and practices in member states at some financial cost. Exactly what added value would that bring to existing co-operation between member states?
Mr. Murphy: Very little, if any, is what I am tempted to say, but that would be impolite, so I will add that we can learn from one another in sharing information. However, I do not think that a central inquiry of detailed analysis of the minutiae of different consular provisions is necessary. A much better approach would be the one suggested by the French presidency, which involves exchanging best practice. That is the way to progress on the matter.
Mr. Heathcoat-Amory: May I ask the Minister a bit more about the costs? He must have done an estimate of what it is costing us to give consular assistance to citizens of other countries that are not represented, minus the assistance given to us in the few areas where we are not represented. There must be a figure. Can he give it and estimate how it might change if the projection takes place and assistance from the big countries is extended?
That is on the cost side. Equally, we do not keep a central record of how many UK nationals are supported in countries where we are not represented. The costs are not substantial. If the Committee wishes, I will happily share any further information that we have, but on the basis that we have helped 98 individuals across the planet, the costs are not substantial.
Mr. Hands: From the Committee’s point of view, our main concern was what we call Commission creep: the Commission gradually swallowing more and more powers. We had several linked concerns. First, there is the possibility of competitive bidding in respect of a person in need of consular assistance. Speaking as somebody who has been in need of such assistance in a couple of countries before, I can envisage a situation in which an EU national goes to his own embassy or consulate or that of another country, does not like the answer and decides to try his luck with a third party. Can the Minister see that that could add quite a lot to the work load of many consulates throughout the world?
Mr. Murphy: It is always difficult to pre-judge human behaviour and instinct, but on the hon. Gentleman’s specific point about someone not getting the advice that they wished for from their own consular services and therefore coming to us, it is important to recall that the measure relates only to countries where the person’s own member state is not represented, so they could not come to us and say, “I’ve been to my own consulate, my own embassy, and I have not received the advice and support that I required, so I am now coming to you.”
We keep such policies under review, of course. I hope this comment is taken in the context of a Minister thinking out loud, but as the situation evolves, it may make sense to offer UK support to nationals of one other country and French support to nationals of another, so that we might develop expertise in legal proceedings in that third country and all frame good and effective advice. That might be part of the evolution of the policy—I hope that the hon. Gentleman accepts that I am looking to the future—but it is not a decision that we have yet taken.
Mr. Hands: But what about the case involving a national of a country that is not represented? For the sake of argument, let us take an Estonian national. Their natural first port of call might be the Finnish embassy, but if they do not like what they heard there, they might decide to try the Brits.
Mr. Murphy: I thought that the hon. Gentleman’s first question was about when a person’s country was represented. That is why I answered as I did; I did not realise that he was referring to when the country was not. Our very clear view is that people could not shop around all the embassies, because we are trying to establish a system in which there will be an exchange of information, so such trends will be picked up. If a citizen of country X, an EU member state, was in another country in which their country was not represented and they needed financial help to return their country, we would have to ask the permission of country X to give its citizen the money, because of course, we would seek to reclaim that money by virtue of our having given it to the citizen. We would have to ask that country for permission to provide such support. On that basis, it would not be very long before the equivalent of the Home Office in a particular country—I do not want to name a country, but we can all envisage what we are talking about—said, “That citizen has already been to another embassy. We have already granted the payment of €100 or £100 to return them home. Please prevent them from shopping around different diplomatic posts.” That is the way in which such activity can be prevented.
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Prepared 24 June 2008