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Baroness Williams of Crosby: My Lords, I wish to make only one point.

Lord McIntosh of Haringey: My Lords, we are at the Report stage. Only the mover of the amendment can speak after the Minister.

Lord Moynihan: My Lords, I am grateful to noble Lords who have contributed to the debate. I am particularly grateful to the noble Baroness, Lady Ludford, for her initial remarks. I have never been paid so great a compliment by a colleague from another party. I am concerned that my example was not as apposite as she might have liked. She went on to develop it in some detail, picking up six threads of the argument that I developed during my speech and making interesting observations on them. Clearly, she felt it important to consider those points and I am grateful to the Minister for responding to them.

My noble friend Lord Howell, was right in airing and echoing the reservations that I made in my opening remarks, particularly the point that it was fine to adopt common positions but that there was real concern about the move from common positions to common strategies and, ultimately, the more important move from common strategies to common policies. That point and the contribution which was made by my noble friend at this stage was extremely important.

I note and appreciate, although I am somewhat surprised, that the Minister came back on the example that I used of Sierra Leone. I simply state to the House that the fundamental point that I was making in the context of this amendment is that if the Government do not know their own policy, how can they possibly influence foreign policy in Europe? There is no better contemporary example of the importance of that point than Sierra Leone and thus my detailed analysis this evening.

I agree totally that case studies require facts. It appears that government Ministers do not have them. I was putting a number of important points to this House in the context of what we have been informed by Ministers in order to develop the point that it is clear that the fast-moving, fast-shifting sands of explanation which we are having on an almost daily basis on a foreign policy issue would cause very real difficulties for Ministers going to Europe and trying to establish a common policy position on what might be an extremely important issue. Certainly Sierra Leone is an important issue and there are implications within Europe which may well lead it to become an important issue for Europe, not least in relation to European Union arms embargoes with regard to Nigeria.

That is the reason that I raise the issue. I am pleased that I gave that example. I am grateful to the Minister for placing on record yet more reflections from the Foreign Office on the important questions that I raised.

Finally, in no way was my amendment intended to be a wrecking amendment, and I would happily debate that issue. However, we have had a useful debate on this matter and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Lord Moynihan moved Amendment No. 4:

After Clause 1, insert the following new clause--

Border controls: implications for Gibraltar

(". Her Majesty's Government shall not exercise the opt-in to border controls set out in Protocol 4 to the Treaty signed at Amsterdam on 2nd October 1997 amending the Treaty on European Union, the Treaties establishing the European Communities and certain related Acts until each House of Parliament has come to a Resolution on a motion tabled by a Minister of the Crown relating to the implications for the people of Gibraltar of the voting arrangements for such an opt-in.").

The noble Lord said: My Lords, this amendment relates to the position in Gibraltar at present. I say straightaway that I particularly regret the fact that it is necessary to return to the issue of Gibraltar and Britain's opt-in to the Schengen acquis. In Committee, I went into some detail on my amendment as to the implications for the people of Gibraltar of the voting arrangements for the opt-in to border controls. I did not do that because I sought to analyse policy differences between the Opposition and the Government. Indeed, as I have made clear repeatedly, this is an area of the treaty as regards which we wholeheartedly support the Government for maintaining the previous government's policy in retaining sovereignty over Britain's border controls. It was not because I sought to explore the nature of the provisions. No, indeed. In Committee, I went into detail because I sought an explanation and perhaps even an apology to the people of Gibraltar for the Government's apparent utter ineptitude and negligence in handling those negotiations. Nowhere in the treaty is ministerial incompetence more obvious than in respect of the issue of our opt-in to border controls.

As noble Lords will recall, I set out the catalogue of incompetence, conflicting views and contradictory statements from the Government regarding Gibraltar. I had hoped that in Committee, the facts would be presented to us frankly and openly so that once we were in possession of all the facts, we should be able to determine whether it was most appropriate to accept the Government's explanation or to demand an apology. But my hopes were severely disappointed. I am now in a position of having to press the Minister on this matter.

First, I sought clarification on the precise areas of the treaty to which the Prime Minister referred in his Statement of 18th June 1997. He told another place that

    "what we have secured, which is important and is a better way of going about things, is what I call an opt-in. We have the power within the treaty to go into any of these areas if we want to. If we do not want to, we need not, but if we do, no other country can block us going in".--[Official Report, Commons, 18/6/97; col. 319.]

I should be grateful if the Minister would clarify whether that statement referred only to the new Title IIIa on asylum, immigration and visas or whether it referred also to the Schengen acquis. If it referred only to the new Title IIIa, why did the Prime Minister use the Schengen acquis to illustrate his point? Clearly, if the Prime Minister's statement did refer to the Schengen acquis, then it has subsequently been shown to be incorrect and the Foreign Secretary misled those in another place.

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Secondly, I sought clarification from the Minister on the issue of Article 4, the protocol, integrating the Schengen acquis into the framework of the European Union. I sought to understand how the Foreign Secretary allowed a late amendment from the Spanish Prime Minister to be accepted into the treaty by default in the early hours of the morning on 18th June, meaning that any member state, including Spain, will have a veto over future opt-ins to the Schengen acquis which will be decided by unanimity rather than by QMV.

That blunder by the Foreign Secretary potentially hands the Spanish a powerful bargaining chip with which to exact concessions over Gibraltar. I welcomed the assurance of the noble Lord, Lord McIntosh, in Committee that the Government would:

    "continue to defend vigorously the position of Gibraltar in the European Union and the Community law rights of Gibraltarians".--[Official Report, 27/4/98; col. 105.]

That answered one half of the question to the Foreign Secretary from the noble Lord's colleague in another place, the honourable Member for Wrexham, which I repeated in Committee. Like me, he wanted to know whether that had happened simply because,

    "Her Majesty's Government do not care about Gibraltar and give it a low priority, or was it just a Government cock-up?"

I had hoped that the noble Lord would take the opportunity to answer the other half of the question and would cut cleanly through the morass of negligence and blunder and the catalogue of confused and contradictory explanations which followed to produce a clear, consistent and coherent explanation of what happened.

However, an embarrassing multitude of questions remain unanswered. All we know for sure is that the Foreign Secretary thought he had agreed to one arrangement--opt-in by QMV--only to discover that he had agreed to something completely different; that is, opt-in by unanimity. After that, the version of events twists, turns and spins out of control, depending on who is doing the explaining.

I shall ask those specific questions to which I did not receive a reply and perhaps this evening we shall be given some conclusive answers. Did the Foreign Secretary actually challenge the Spanish Prime Minister's late amendment, causing it to be withdrawn as he says he did? If so, why was the Dutch presidency unaware of such a challenge?

The Government have called this a "difference of historic interpretation". What is a difference of "historic interpretation" in plain English? Is it not the case that one party is telling the truth and the other party is not? In that case, who is telling the truth--the Foreign Secretary or the Dutch presidency? Either answer would have very serious consequences. It is not even clear whether the Foreign Secretary challenged the proposal for an amendment itself. The Foreign Secretary has told us that the amendment was withdrawn when he challenged it, while the noble Lord, Lord McIntosh, told us in Committee that no amendment was submitted. He told us that:

    "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 Schengen

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    acquis ... At the insistence of the Foreign Secretary, there was agreement that any such amendment should be submitted in writing by Spain".--[Official Report, 27/4/98; col. 105.]

He went on to say that no such amendment was submitted.

Never mind that relatively minor disparity. So far, so good in the Government's negotiations. The Foreign Secretary challenged either a Spanish amendment or a Spanish proposal. The Spanish backed down and either withdrew the amendment or decided not to submit it formally. But if, thanks to the Foreign Secretary's insistence, the amendment was not formally submitted or if it was withdrawn, why did it mysteriously reappear in the text of the treaty when the Foreign Secretary received it after the summit? Again, in Committee, we received no answer. Was it really the result of a deal done between the Spanish Government and the Dutch presidency which was kept secret from the other member states and incorporated into the treaty after the negotiations had finished, as the Foreign Secretary has claimed? Will the Minister today give the House consistent details of the secret deal? We do not even know for sure when it was concluded. Was it during the summit on the nights of 16th and 17th June, before the negotiations had finished, as the Minister of State thinks? Surely that cannot be correct since the Foreign Secretary has told us that at that very same time, the Spanish amendment was in its death throes thanks to his bold, on-the-ball challenge?

The Foreign Secretary said that this hole-in-the-corner deal between Spain and the Netherlands was concluded after the conclusion of the summit and that he found out about it a week later when he received the text of the treaty. But it seems that his Minister of State knew the day after the summit was concluded when he received a copy of the revised treaty on 19th June and not like the Foreign Secretary, after a whole week.

How come the Minister of State failed to inform the Foreign Secretary of what has happened? Perhaps that lapse is not surprising, as we have come to appreciate more recently that communication among Ministers, the Foreign Office and its officials is clearly at a low. At one point the Minister of State tried to combine both explanations when he said that the deal was done between the Dutch presidency and the Spanish Government in the margins of the summit and then discussed afterwards.

I had hoped that the noble Lord, Lord McIntosh, would throw some light on the matter; but, sadly, he failed to shed any light on the point when he told us in Committee:

    "When the revised text was circulated after the Summit, we subsequently learnt that the unanimity requirement had been introduced into the text".--[Official Report, 27/4/98; col. 105.]

Can the Minister clarify this evening once and for all when the Government first learned that the unanimity requirement had been introduced into the text of the treaty?

In alleging that the text of the treaty was changed to the detriment of the UK, are the Government in fact saying that they were effectively cuckolded by the Dutch presidency and the Spanish Government as a

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result of a private deal between the two member states, which was not communicated to the rest of the Council? The Government's explanations for the whole of this affair have ranged from a genuine misunderstanding between member states--largely caused by the Dutch presidency's inefficient note-keeping which meant that the Foreign Secretary's successful challenge could not be proved--through to conspiracy theories of two member states--one of which held the presidency at the time--knowingly conniving to dupe a third member state against its clearly declared wishes.

If the Foreign Secretary was so forceful in making his views known, as he says he was, it follows that Spain and the Netherlands must have deliberately fiddled the text of the treaty without the full consultation of all member states. Both explanations put the Government's negotiating ability in an incompetent bungling light. But the latter allegation of hole-in-the-corner deals between member states, following the conclusion of an intergovernmental summit, is most serious and has ramifications for the transparency of the European decision-making process, and I emphasise that point. This case is important in its own right, but it is vital in the context of its ramifications for the transparency of the overall European decision-making process.

Yet while these serious allegations were being bandied about, the Government made no representations at all to the presidency of the EU about the bilateral agreement between Spain and the Dutch presidency. I see that the Minister, from a sedentary position, is saying, "Yes, we did". That is extremely helpful. I hope that the noble Lord will clarify when he did that--if he indeed did--and why the matter was not raised as a priority at the Luxembourg summit last September. I am grateful to him for his clarification. Perhaps he can answer my question about the Luxembourg summit. If it was a misunderstanding because the note-keeping of the Dutch presidency was at fault, as the Foreign Secretary first told us, and as the noble Lord, Lord McIntosh, confirmed when he said in Committee on 27th April (Hansard, col. 105) that,

    "It emerged that there was a misunderstanding about what had been agreed at Amsterdam",

can the Minister now tell us how that misunderstanding came about? Was it because there were absolutely no provisions for minutes or a record of the meeting in question to be taken, as the Minister of State has claimed?

The Foreign Secretary has made very strong criticisms of the Dutch presidency. He has effectively accused the Dutch Government of inefficiency by criticising their note-keeping. He has effectively accused the same member state of not telling the truth about whether a challenge to the amendment was made. Moreover, he has effectively accused them of cheating by colluding in a secret deal. Not surprisingly, the Dutch Government have clearly been concerned by these extraordinary allegations and they subsequently wrote to the British Government as long ago as 16th July last year.

Despite the Government's commitment to open government and transparency, they have refused to publish that letter on the grounds that it is not normal

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practice for intergovernmental correspondence of that kind to be published. Similarly, it is not normal practice for one member state to accuse two others of cheating at intergovernmental summits; nor should it be normal practice for that member state to prove unable to provide a coherent and consistent explanation for a provision contained in a treaty to which it has agreed, which could have serious implications for the citizens of a dependent territory. The only consistency that the Government have demonstrated in this sorry saga is their repeated failure to provide a clear explanation for what happened.

The noble Lord, Lord McIntosh, said in Committee that,

    "the important thing is not the process of what happened on a particular night, however late, in June, but the result".--[Official Report, 27/4/98; col. 106.]

I do not agree that in this case what happened on a particular night has no importance, given the Government's prevarication. However, I do agree that the result of this confusion and its implications for the people of Gibraltar are of paramount importance. It seems that the result referred to by the noble Lord, which is supposed to rectify the whole situation, is the fact that the Government secured Declaration 45 which is attached to the final Act of the treaty. It sets out that the UK's admission to existing provisions of the Schengen acquis will be on the same basis as an Opinion of the Commission, which calls upon other member states to use their best efforts to enable the UK to participate.

However, the Minister omitted to mention that, had the Government done their job properly in the first place, Declaration 45 would never have been necessary. Similarly, the Minister did not answer the question of whether the declaration is legally binding in the same way as an amendment to the treaty. I invite him to do so now, especially in the light of the opinion of Mr. Peter Caruana, the Chief Minister of Gibraltar:

    "we in Gibraltar have no doubt whatsoever that Spain will deploy her veto unless the UK agreed to exclude Gibraltar from the application of the Schengen arrangements".

Our fears and concerns about the use of the Spanish veto on a future British entry into the Schengen arrangements are not imaginary. Spain will exercise the veto, just as it did in relation to the application for air liberalisation to Gibraltar, from which we are still excluded; just as it threatened to veto the external frontiers convention unless Gibraltar was excluded from it. As far as concerns Spain, the very same issues arise in respect of Schengen.

Finally, the noble Lord, Lord McIntosh, reiterated that, in practice, the Government have no intention of signing up to the Schengen acquis in full on the grounds that that would be inconsistent with our determination to maintain frontier controls. From these Benches, it will come as no surprise to the Minister that we welcome that assurance and support this seamless transition of policy.

In Committee I sincerely hoped that we would not receive yet another unsatisfactory explanation from the Government and that the questions that I put would be answered at that time. But an unsatisfactory explanation from the Government is precisely what, regrettably, we

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were given. The latest interpretation of events, apparently compiled from a mishmash of the different strands of the conflicting statements of the Foreign Secretary and his Minister of State, did nothing to refute in a satisfactory way the accusation that the Foreign Secretary's negotiation was negligent. It cleared up none of the lingering doubts about the Foreign Office's competence or its ability to protect and enhance British interests in all future negotiations, and it failed to sweep away the suspicion of gross dereliction of its duty. In this context when I refer to the Foreign Office, I refer to Foreign Office Ministers; I do not refer to the officials.

This has simply added to the confusion of an already messy situation which has made a mockery of the Government's claim to be respected as a constructive partner with which the other countries of Europe can do business. It has made a mockery of the Government's claim to have got a better deal for Britain as a result of their new, co-operative approach. This is an example which totally undermines the claims that their approach to negotiation in Europe is successful and brings benefits to both the people of this country and to the people of Gibraltar. I beg to move.

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