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Protection of Critical Infrastructure

I hope that we do not get to the point of voting. I hope that the Government will take on board the fact that, when we say we support them, we support them. Hopefully, the House will support them, too, on the basis that the motion includes the phrase"““subject to a satisfactory resolution of outstanding concerns.””" Those concerns are those expressed in February’s explanatory memorandum, and not the weaker position that, sadly, seemed to be indicated by the Government’s strong support for proceeding with the directive, as expressed in the letter of 9 March. As I said, we sensed Government slide, which the explanatory memorandum gave no indication of. I hope that the Government will vigorously defend their position as outlined in the February explanatory memorandum, and that they will not perform an about-turn on any of these issues when they enter into negotiations. The Committee also asked whether the adoption of the directive is necessary or justified. The arguments for a legally binding directive under the terms of article 308 of the European Community treaty are unconvincing. We studied that article extensively and we will publish a report on it shortly. We are clear that in our view, there is no need for legally binding rules in the sensitive area of designating infrastructure; however, and as I pointed out, that is what will happen. The Government said that they want the proposal to be dealt with through commitology, and in such a way that it is passed by qualified majority voting in the Council. If there was a dispute, the matter would then be ruled on by the European Court of Justice. Our Government would be unable to go against that ruling, and they could be forced into positions that they did not originally wish to adopt, and to which they did not originally think that they had ceded. We believe it is wrong for the Commission to be allowed to use infraction procedures in respect of any European country, and particularly this one, which has a highly developed national security policy. However, the Commission would go to the European Court of Justice if there were any dispute. Why could the objective of creating a common procedure for designating critical infrastructure not have been achieved by voluntary co-operation between member states? That is how we have advanced in the past. It is a good idea to have guidelines, benchmarks and some form of sanctions or penalties. It is also a good idea to have incentives throughout the EU. We may have reservations about some of the countries in the EU and their ability to meet the standards, but we should be aiding and abetting them, not giving power to the Commission to rule over our standards in the future. We will always dispute with the Government, the Commission and the Council the legal basis of article 308, because on many issues it has nothing to do with the common market. Our Committee was certainly concerned by the throw-away lines about competitiveness and cost at the end of certain sections, so that it could be argued that it was a competition question: it is not. It is a justification for using an original clause that was entirely about the common market to force through several items so that the Commission gets its way. We questioned the consequences of adopting a legally binding European directive on this issue in our report on 21 March. We were worried that it would lead to unpredictable legal obligations being imposed on the UK. The Minister questioned the definition of European critical infrastructure, the disclosure of information, and the legal obligations imposed to produce operator security plans and appoint security liaison officers. In the explanatory memorandum, the Government appeared to take a firm stand against all of those issues, but each would fall to be determined and interpreted by the European Court of Justice. In other words, every objection that the Government have put up could be overruled by the ECJ. That could happen if the Commission took infraction proceedings against a Government who are resisting the imposition of the Commission’s will, which could lead to very unpredictable results. We question whether the Government should make any concessions that would take risks in that area. In security terms, we need to be firm, to be sure of our ground, to know where our authority lies, to know that we can call on that authority at any time and that it has not been given to another party. That is another reason why we wanted the debate. The Minister confirmed that the adoption of the European directive would affect the UK’s ability to conclude agreements with third-party countries—the question asked in this debate today—for example, with the United States. It is clear that giving competence to the Commission means ceding competence from one’s own Government to make agreements without the permission of the Commission. We have always thought that that was an unnecessary downside to any agreement to give power on issues on which we should retain it. Unless the Minister is telling us that that is a clear red line and he will not sign up to the directive unless there is clear agreement that the UK can conclude agreements with non-EU countries on a bilateral basis, we would be taking a grave risk in doing so. The Minister has told the Committee that ““it is not considered”” that the directive would affect the UK’s ability to make agreements with third-party countries on the exchange of information and techniques for protecting infrastructure, but he did not provide the authority for that conclusion in any correspondence. A matter that would fall to be determined by the ECJ is one of the imponderables. We do not know whether the ECJ would rule that we still had that power or did not have that power. The question for my Committee was: why put the present freedom and power of the UK to make agreements with third parties at risk by adopting the directive? After eight years as a member of the Committee, and five years as a member of a Standing Committee before that, I know that entering into such legal obligations may have unpredictable results in the future. Why should Britain risk our present freedom to make bilateral security arrangements and decide what sensitive information we choose to share? I have not heard any argument as to why we should give up either of those two vital powers. I cannot see what the UK can possibly gain by accepting the directive, and that was the unanimous view of the Committee across all parties.