Diplomatic and Consular Protection

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John Hemming: I thank the right hon. Member for Streatham for his introduction, and other Members for their very interesting arguments. Obviously, this week, we await the very interesting judgment from the judicial review of whether the Government are in error in working towards ratifying the Lisbon treaty. We do not know what that judgment will be or what will happen with the Lisbon treaty, although it looks as if it is dead, but we agree here that the EU Commission should not muscle in on the territory of consular services. I think that all parties agree on that.
Consular services are a critical part of our emergency services to residents abroad. The difficulty is that we have information on how many non-UK citizens have been provided with services by UK missions, but we do not have the alternative information on how many UK citizens have been assisted where there is no UK mission. The example of Chad could well have given us more than 98 people. One of the useful proposals is for compensation for staff time. If half of the UK’s consulate support in a particular country is for non-UK citizens, we should be looking for compensation. Putting aside the issue of the Lisbon treaty, around which remain many uncertainties—although it appears to be dead—it is agreed that consular services are an important part of member states’ competences and that the EU Commission should take its tanks off our lawn.
5.24 pm
Mr. Heathcoat-Amory: I was pleased by some of the Minister’s assurances—he does not hear me say that very often. Nevertheless, I caution him not to fail to appreciate the sheer political momentum behind this additional policy area being taken over by the Commission and not to fall victim to an activist European Court of Justice. In answer to my earlier questions, the Minister said he was satisfied that existing article 20 did not and would not give citizens of other EU states a right to consular assistance from the UK. I hope that he is right. On studying article 20 carefully, it does establish an entitlement. Although that is qualified by the words
“on the same conditions as the nationals of that State”—
in this case, the UK—there is a comma before that subsidiary qualification. I can therefore imagine it being argued before a court that the entitlement is established in the first part of the article and that the qualification does not undermine the entitlement. It could be argued that the entitlement it qualified only to the extent that the conditions—a fairly ambiguous word—should be on the same level as that accorded to our own citizens. I can see it being argued before a court that there is an entitlement, which could very easily become a right.
My experience of these legal matters is that the Foreign Office can be rather innocent. On many occasions, bold assurances given by Ministers of the British Government early on in negotiations have been undermined by a succession of retreats and eventually a court judgment. That is a sad and familiar story, which I have some familiarity with because I am a former Minister in that Department. I hope that the Minister has taken careful legal advice and that he considers the article to be judge-proof.
The Commission will certainly try to undermine the article. The communication asserts that one of its aims is to ensure that all EU citizens have access to consular assistance. We therefore know which side it would be on, but then it does not cost them anything. It would cost us something. That is another matter: who is guarding the money? Smaller states have every interest in having their nationals looked after by bigger states. Again, which side would they be on in any court case?
To continue with the legal argument, although this country has not given a right to its citizens, we frequently give consular assistance in practice. We are all familiar with cases from our constituencies. I can imagine the citizen of another country—a small state such as Malta—alleging in court that he was not given practical assistance on the same terms and it being decided that he should have been. He would therefore obtain a right in practice. In other words, his case would have the effect of legally codifying our existing practice. I can imagine a number of routes whereby this measure could be subjected to European Court of Justice cases. Such cases would have the effect of drawing us down the route of having to give assistance in all cases.
I hope that the Minister will resist any suggestion that the solution is to hand this matter over to the European Commission to organise. If the big EU projects such as the common agricultural policy are anything to go by, it is fabulously bad at organising anything on the ground. It has little experience in doing so. We all know that the European budget is a legend of mismanagement. It would be a great mistake to try to solve these problems by taking the matter out of the hands of member states altogether and giving it to the Commission. Again, that underlies a lot of what the Commission is after in its communication.
Secondly, I want to say a little more about costs. When the Minister replies, perhaps he could supply some figures. I am not surprised that he does not have some costs relating to our existing help to citizens of other member states. He said that very few such citizens are being given this form of assistance, but such cases will increase. International air travel and overseas holidays will continue to increase, global warming or not. The age of mass travel has only started.
Also, there are now more demands in foreign countries after disasters, whether natural or political. Perhaps at one time people used to look instinctively to themselves to get out of trouble, but now, with additional publicity and a more assertive public, they look to the Government. To pick up on a point made ably by my hon. Friend the Member for Rayleigh, that could be given a big impetus if, by whatever means, the Lisbon treaty passes either as a whole or in part. If the external action service is set up, it will encourage small member states to shut their embassies. They will say, “It’s all being done for us. We’re paying through the European Union budget, so we’ll withdraw even from our existing embassies.” The trend towards the closure of overseas embassies by small member states will be accentuated, and the cost to big member states of looking after citizens of other countries could rise considerably.
I am a bit surprised that no work was done on the matter. I say that as a member of the Foreign Affairs Committee, which considers the Foreign Office budget and is often alarmed by Treasury cuts or Treasury failures fully to underwrite additional costs incurred by the Foreign Office all over the world. It would be an odd allocation of resources if the money of a British Foreign Office under great financial pressure—a pressure that will increase in future years as the national debt increases—was taken up in looking after not our own citizens but those of other member states.
Frankly, I think that it will create resentment. Presumably, the Government’s job is to try to make us all love the European Union. One way not to do it is to create more free riders and a feeling of resentment that if we get into trouble abroad after a natural disaster, the other people in the queue will be paid for not from their taxes but from those of every other country in the European Union and their relations from non-EU states, to quote the Commission document. On those grounds, great caution is needed, and I do not think that the Minister measured up to it fully. I am certainly inclined towards the Committee’s expression of its disapproval of the proposals.
5.32 pm
Mr. Hands: This has been an extremely useful debate. We in the European Scrutiny Committee have been struggling with the issue for more than six months now. I am grateful to the right hon. Member for Streatham for his introduction to the debate and to my fellow Committee member, the right hon. Member for Wells.
To return to the point about Commission creep, I think that we are all in favour of a good voluntary arrangement. I do not think that anybody would want British embassies, high commissions and consulates abroad to turn away other EU nationals who are in distress or difficulty or have any kind of problem but who do not have their own representation. However, we are considering a move to a codified agreement that may be contrary to UK interests and could lead, through Commission creep, to the effective takeover of consular services by the Commission. The difference between an entitlement and a right, which was ably stated by my right hon. Friend, goes to the centre of the argument. As soon as we create a right to such services, we open ourselves up to trouble.
I have two specific points to make. The first concerns the Minister’s answer about the legal basis. I asked him about his most recent letter to the European Scrutiny Committee in March, and I was concerned by his answer. He seemed to say that the 27 countries were all quite clear on the one hand, but that the Commission was equally clear on the other. He put it down to the legal advice given to the Commission. It worries me greatly that we seem to have two polar opposite views of the implications. Before we sign up to the proposals, we should at least try to sort out what the situation is. The Minister did not seem to be totally in a position to tell us why the Commission believed that article 20 created rights for it, and that needs to be sorted out.
The second issue relates to how consular missions will evolve over the next 10 to 20 years, and I am seriously worried about that. I mentioned that I had had experience of seeking consular help in difficult times. I also happen to be a dual national, so I can seek consular assistance from another country, although I have not done so for 16 years. If we are not careful, however, the Commission will take over consular representation.
The first thing that various countries, including ours, will do is close their consular representation on the basis that other countries could provide the same services—we might, for example, close our consulate in, say, Côte d’Ivoire because the French could provide those services. Eventually, only one EU country might be providing consular assistance and it would become the de facto European mission in the relevant country. That process would not take too long.
In Westminster Hall, we recently looked at the real-terms cuts to the Foreign and Commonwealth Office budget, and other countries will face similar pressures. I see a situation evolving—those involved might called this rationalisation—in which the number of EU countries represented eventually declines to one. That country’s mission would de facto, if not de jure, become the one responsible for European representation. That would effectively create what we know the European Commission wants to create and what its legal advisers say article 20 would create.
We have not got too many answers today. I remain deeply concerned about the direction set out in this document and I think that the Committee does, too.
5.37 pm
Mr. Murphy: I am delighted to respond to the specific points raised by Opposition Members. I start by thanking the hon. Member for Rayleigh for his kind comments about my award from The House Magazine. I was genuinely surprised to receive it, although I was also pretty delighted. My award shows that at least something concrete has come from the whole ratification process. As I said in our debate last week, however, I do not intend to wander down the road marked “Lisbon treaty debate.” We have had 25 days of that, and it has been just about enough.
On the specific points that have been raised, the hon. Member for Hammersmith and Fulham quoted my letter about the Commission, which is on page 152 of the small bundle of documents supporting our informed debate. However, it is the Commission that is saying that the Lisbon treaty would provide a clear legal basis for EU law on this issue. As I said, there is real clarity already; from member states’ perspective, there is no question but that there is legal uncertainty.
The hon. Gentleman also said—I scribbled this down, so I hope that I am quoting him accurately—that we need to be clearer before we sign up to this measure. Yes, we need to be clear, but we are not going to sign up even though we are clear. We have no intention of signing whatsoever and we are clear about the legal situation. We are clear about our position, which is shared by every other member state. We are not signing up. This is a Commission communication that creates no new legal powers.
The hon. Gentleman mentioned the reductions in consular services by the Foreign Office, or by any other member state, by virtue of the trends that he and the right hon. Member for Wells spoke about. However, that is not, as he suggests, the position of Her Majesty’s Government. To make such a point underestimates, unfairly, what is provided for. I know that the hon. Gentleman accepts that our embassies and posts provide myriad support services, not just consular services. It is important in this context that, regardless of which party is in power, Her Majesty’s Government continue to play a leading diplomatic role across the world, in addition to providing consular support. We will make decisions on the degree of investment in European and international capitals based on a variety of facts and priorities. The hon. Gentleman should not read too much into his own comments on this matter.
The hon. Member for Birmingham, Yardley spoke clearly about the fact that there is a balance to be struck. Some 98 EU citizens have been supported across the world and the balance means UK nationals being supported in other countries. It is important to get that into perspective. It is also important that a version of article 20 is printed in future passports.
The right hon. Member for Wells mentioned the dangers of article 20 and how it could be misinterpreted, misunderstood and everything else. Her Majesty’s Government signed up to article 20 in 1993. Was that before or after the right hon. Gentleman was Europe Minister? I can never recall when he held that office. Certainly, article 20 was signed up to under a different Government. I think that he was Europe Minister after that time, so I am sure that he will have done his best to prevent the type of thing that he is worried about from happening. If he wishes to share his experience of doing that, I am always happy to learn from him.
Mr. Heathcoat-Amory: Will the Minister be slightly more imaginative and look ahead a little bit? The Foreign Office finds it terribly difficult ever to imagine that the future will be any different from the past, but the legal position changes all the time, with new member states coming in and with different attitudes in the court, and things are never static. Can he not just look ahead a little bit and see what might happen, if this measure were implemented, in respect of future trends involving more member states in other parts of the world? Rather than simply talking about the past, will he just jump ahead for once and try to map out the future, because we are legislating, almost by definition, for what will happen, not for what happened in the past?
Mr. Murphy: We are not legislating. We are discussing legislation that was agreed by the right hon. Gentleman’s Government in 1993. I am doing my best to support legislation that his Government signed up to. Perhaps that is the context in which this conversation should take place.
To set aside that slightly discordant party political note for a moment and simply reflect the tone in which the right hon. Gentleman offered his criticism, I think the Foreign Office is exceptional at looking ahead. I am sure that it was very good when he was the Minister for Europe. It is a remarkable institution that is able effectively to scenario plan for the future, foremost perhaps of all diplomatic services in the world.
On the points about costs—I said this in my opening remarks—of course we continue to keep such things under review, but Ministers and Governments should advocate solutions to identified problems. It is not our view that the support of 98 UK nationals around the planet is an identified problem, particularly when we reflect, as the hon. Member for Birmingham, Yardley said so well, that a balance is required.
Similarly, we do not know how many UK nationals are supported. Diplomatic posts from other EU member states would not thank us for asking them to go through a complicated resource accounting process every time a British national in a country in which we are not represented sought that type of advice.
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