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.
Mr.
Francois: The Minister argued that the treaty of Lisbon,
which my party now believes is dead, would have tightened protection on
these issues— [Interruption.] Well, he said
that it made the situation clearer. However,
as he knows, the treaty of Lisbon brings with it the charter of
fundamental rights. He also knows that the former Prime Minister told
us that we had an opt-out. The Minister had to correct that in a letter
to the European Scrutiny Committee, saying that we did not actually
have an opt-out; we had a clarification. Article 46 of the
charter would arguably affect the matter that we are debating, and
could be justiciable in the European Court of Justice. What is his
legal advice with regard to the validity of article 46 as it relates to
the
document?
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?
Mr.
Murphy: That question lends itself to a whole debate of
its own, but I am sure that you will not allow me to begin one,
Mr. Bercow. Perhaps the right hon.
Gentleman will catch your eye later to make a contribution on the
matter. As I said, 98 citizens were supported by UK posts in the most
recent year for which figures are available. I do not have the
financial costs, because to record 98 cases from around the world
through the complicated system of resource accounting and everything
else that goes with it would be disproportionate. However, we keep the
matter under review, and if the number were to become substantial, we
would have to learn some
lessons. 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.
Secondly,
does the Minister share my concern that eventually, the situation will
evolve and one member state will probably become the expert in a
particular
country? For example, for quite natural reasons, those needing consular
assistance in El Salvador will probably find the Spanish embassy best
equipped to provide it; in Upper Volta, it will be the French embassy,
in Zambia the British, and so on. Eventually, encouraged by the
Commission, there will be a lead EU country in that country, which will
inevitably start to attract large amounts of third-party consular
business and, before we know it, they will become the
Commission’s preferred provider in that
country. 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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