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Baroness Williams of Crosby: Perhaps I may ask the noble Lord one brief, technical question. Under the Dublin convention will the last friendly country be assumed to be a nation state or the Schengen agreement countries as a whole?

Lord McIntosh of Haringey: I believe that it is the first country of entry into the European Union rather than the last friendly country which is covered by the Dublin convention. My understanding is that the Dublin convention applies to Schengen and non-Schengen countries alike. So it is where entry takes place into the European Union rather than the last friendly country which is the consideration.

Before I return to the subject of Gibraltar, which is clearly of concern, I say to the noble Lord, Lord Moynihan, that I do not agree with his claim that the move after five years to qualified majority voting will take place if two-thirds of the member states agree. The treaty states quite clearly in Article 73o that the Council has to act unanimously in order to make a decision as to whether to move to qualified majority voting or to stay with unanimity.

I now turn to the issue of Gibraltar. I recognise that this is a highly sensitive and difficult issue. I refer Members of the Committee not only to the text of the treaty itself, but to Protocol IV and Declaration 45.

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We shall continue to defend vigorously the position of Gibraltar in the European Union and the Community law rights of Gibraltarians, in particular existing rights of free movement in the EU. There is nothing in the provisions of the Amsterdam Treaty which erodes these rights, nor which gives Spain any additional rights over its border with Gibraltar.

Where a measure that the UK would like to opt into is potentially relevant to Gibraltar, our approach will give due weight to the interests of the UK and to the interests of Gibraltar, as with any other EU measure. Where the UK opts in it will negotiate robustly and in good faith, taking fully into account the interests of Gibraltar.

Nevertheless, a number of criticisms have been levelled at the Government, both here and in another place, on their negotiation of the provisions for UK participation in existing Schengen measures. I would therefore like to take this opportunity, as I was invited to do by the noble Lord, Lord Moynihan, to set the record straight about what happened at Amsterdam.

During the course of the debate at the European Council, Spain proposed an amendment to the Schengen Protocol to bring in unanimity for UK and Irish participation in the existing Schengen acquis. I am talking about the Schengen acquis, the core text, rather than to any subsequent agreements. At the insistence of the Foreign Secretary, there was agreement that any such amendment should be submitted in writing by Spain. No such amendment was submitted.

When the revised treaty text was circulated after the Summit, we subsequently learnt that the unanimity requirement had been introduced into the text. We took that up with the Dutch presidency and a number of member states. It emerged that there was a misunderstanding about what had been agreed at Amsterdam. As a result of that intervention we obtained Declaration 45 that provides protection for the UK's interests in this area.

The declaration invites the Council to seek the opinion of the Commission before it decides on a request by the United Kingdom to participate in any measure in the existing acquis. Moreover, member states undertake to use their best efforts to enable the UK to participate.

9.30 p.m.

Lord Moynihan: I am most grateful to the Minister for clarifying the position. He said that these matters were taken up with the Dutch Government and I asked whether it would be possible--it would certainly assist the Committee--to see a copy of the letter which the Dutch Government wrote back to our Government. I should be grateful if the Minister could confirm that that letter will be published.

Lord McIntosh of Haringey: No, it is not normal practice for intergovernmental correspondence of that kind to be published. Perhaps I may anticipate the noble Lord's next question. Members of his party in another place have asked several questions about the availability

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of the tapes of the debates in the Council. The answer which has been given consistently, and which I now give, is that the tapes are not available to member states.

The important thing is not the process of what happened on a particular night, however late, in June, but the result. Declaration 45, which has been attached to the final Act of the treaty, makes the provision, to which I have referred, for the Council to seek the opinion of the Commission before it decides on such a request from the UK or Ireland. Other member states undertake to make their best efforts available to allow the UK or Ireland to participate. Moreover, the UK cannot be blocked from opting into proposals and initiatives which build upon the Schengen acquis. That is a declaration of the intergovernmental conference. It is politically binding on all member states and any decision to allow the UK or Ireland to participate in the existing Schengen measures will be a political decision.

Noble Lords have referred to the issue of Gibraltarians taking part in European parliamentary elections. We understand the strong feelings in Gibraltar about the lack of representation in the European Parliament. As has been said, it is true that Gibraltar is bound by a number of directives from the Commission and the Parliament. We have reviewed the situation, but we have had to conclude that the practical and legal difficulties of any change would be formidable. The main obstacle is the requirement to amend the 1976 European Communities Act on direct elections, which has treaty status. An amendment would require the agreement of all member states and subsequent ratification by all member states. The prospect of securing that is uncertain, to say the least. Therefore, we are not attracted to pursuing that possibility now when the chances of such an agreement remain so uncertain. We have other priorities to pursue on Gibraltar's behalf.

I hope that that has set out the position on the negotiations that took place and how they affected Gibraltar in the context of Title IIIa of the protocols, and now of the declaration which has been appended to the treaty.

The free movement title is enormously important and valuable. It is clearly right that those who wish to open their frontiers internally should be able to do so, but at the same time that the position of the UK, which sees, or may well in the future see, advantage in particular aspects of the title but which is determined not to have an open frontier policy, should be protected. Our negotiations at Amsterdam provided both the freedom for the Schengen countries to go ahead as they wish and a clarification and assurance that our opt-out from the Schengen agreement is accepted and included in the treaty, and that we have the ability and the power to adopt those parts of the title that are consistent with our own national interests. That has been our concern throughout, and that has been the result of our negotiations at Amsterdam.

Lord Moynihan: Before the Minister concludes his remarks--I thank him for going into these points in detail--I must press him once more on this matter. For a Government who are totally committed to transparency and openness, I believe that on an issue of

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such critical importance to the people of Gibraltar, and where it is well known that this exchange of correspondence has taken place, it would be of considerable help to make this information available. I do not understand why the Government are not happy to do that. Since the Minister has rightly come clean on every aspect, I do not understand why he cannot give a commitment to publish the letter.

Ironically, he anticipated my second question, which I had not asked. Part of the reason for not asking it was that I took as read the claim by the Minister of State in another place that there were no provisions for minutes to be taken or that there were no tapes. Given that there were Amsterdam tapes, surely it would be helpful if the relevant extracts could be made public along with the letter to clear up these matters. In the interests of open government, surely there is every benefit in making available this information on a matter of critical importance to the people of Gibraltar.

Lord McIntosh of Haringey: I do not believe that the noble Lord need be in any doubt about our adherence to open government. It would be a quite remarkable state of affairs if, in conflict with all of the principles of diplomatic negotiation between nation states, we unilaterally published confidential correspondence between one nation state and another. The noble Lord's government did not do it. I believe that I see the noble Baroness, Lady Park, nodding in agreement. I think I am right in understanding that she also cannot imagine how it would be done. I do not think that on this occasion we can make such a major change.

Lord Molyneaux of Killead: Before the noble Lord sits down, some noble Lords will be greatly encouraged by his words in regard to voting rights for Gibraltarians for the time being. I hope that I do not misquote him. Will Her Majesty's Government give some thought to the helpful suggestion that has been made by the noble Baroness, Lady Williams of Crosby, in regard to the Belfast treaty? That is not as far fetched as it may seem. That treaty now provides a consultative mechanism for overseas British territories such as all three Channel Islands separately plus the Isle of Man. That is not too great a stretch of the imagination.

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