European Union

Part of Bills Presented – in the House of Commons at 7:59 pm on 1 March 1995.

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Photo of Charles Wardle Charles Wardle , Bexhill and Battle 7:59, 1 March 1995

I am grateful for the opportunity in the time available to express my concern about the vulnerability of Britain's frontier controls under European Union law.

At the outset, I should like to make three things clear. First, there has never been any difference between my right hon. Friends and myself about the need to maintain our immigration controls. There is a fundamental difference between us, however, about our ability to keep those controls in place under EU law, as it now stands. Secondly, there is a highly topical element to my concern. The legal action in the European Court taken by the European Parliament against the Commission; the decision of the Schengen countries to begin dismantling their internal frontiers, thus leaving the United Kingdom increasingly isolated; the response of Mr. Santer to the court action; the National Audit Office report underlining the far greater effectiveness of our port of entry controls over the European style in-country enforcement measures; and the Flynn case now before the High Court, have all lent a fresh urgency to the problem. The immediacy of the need to act positively at this juncture is dictated by the Government's own call for an open debate on the agenda to be decided this summer for next year's IGC.

Thirdly, my underlying concern is that of someone who is in favour of a Europe in which the United Kingdom can compete and trade without hindrance, but not a Europe in which our quality of life is jeopardised by a provision in the treaty that we failed to tackle.

The fundamental difference between the Government and myself has been about the legal status of the declaration negotiated at the time of the signing of the Single European Act in 1985. The Government have asserted time and again during the past decade that the 1985 declaration preserves the right of individual member states to retain their own frontier controls. I maintain that it does nothing of the kind; we need something in EU law that does.

The House will be aware that, in 1985, the Luxembourg IGC agreed the Single European Act, which inserted a new article 8a in the treaty of Rome, requiring an area without internal frontiers. At Luxembourg, the then Prime Minister was rightly concerned that that article would create a new Community objective of bringing an area without internal frontiers into effect with which the United Kingdom would, sooner or later, be forced to comply. Article 5 of the treaty—I believe that it has now been changed to article B—imposed a duty on member states to take measures to facilitate Community objectives, or otherwise face infraction proceedings by the Commission.

Advised by the Foreign Office, Margaret Thatcher, therefore, took two forms of evading action. First, she had added to article 8a the eight extra words: in accordance with the provisions of this Treaty in the hope that that would limit its effect to EU citizens. It rapidly became clear that that advice did not limit the primary objective of the article. Her second tactic was, therefore, to negotiate a general declaration, which began: Nothing in these provisions shall affect the right of Member States to take such measures as they consider necessary for the purpose of controlling immigration from third countries. Indeed, the then Prime Minister told the House when we ratified the Single European Act that without that declaration, she would not have been prepared to sign the Act.

That view of the declaration as the British opt-out from article 8a was reasserted by two Home Secretaries—by my right hon. Friend, now the Foreign Secretary, at Madrid in 1989 and by my right hon. Friend, now Lord Waddington, in Naples in 1990. My right hon. Friend the Prime Minister has clearly accepted the same interpretation, because he has stuck consistently to the same line. In the House and elsewhere, he has continued to pray in aid the Luxembourg declaration. He did so again this afternoon. The declaration has therefore been accepted as a copper-bottomed opt-out, but the trouble is that it is nothing of the sort and it was never regarded as such by our European partners.

My right hon. and noble Friend, Baroness Thatcher, has said in her memoirs, in a chapter ironically entitled, "Jeux sans frontières", that neither the Commission, the Council nor the European Court would be prepared in the long run to uphold what she had agreed in the declaration. So at some critical point, she concluded that the advice she had been given had been duff. My right hon. Friend the Member for Mole Valley (Mr. Baker) said in his recent autobiography that he was advised by Home Office officials, before Maastricht, that the declaration was worthless. He asked my right hon. Friends the Prime Minister and the Foreign Secretary to negotiate a proper opt-out. He has recently repeated that claim. Presumably he received the same advice that reportedly was given to my right hon. Friends before Maastricht, making it clear that the declaration did not constitute a derogation from article 8a.

As I have said, it is no secret among other member states that the declaration cannot deprive the now entitled article 7a of its practical effectiveness. That article establishes a clear and simple objective, which allows no margin of discretion, which is that passport controls exercised only on the occasion of crossing an internal frontier would be contrary to EU law. The Commission made that clear in its May 1992 paper addressed to the European Parliament.

It is also pointless to claim that our EU partners will consider that the declaration, which is not legally part of the treaty, will have any bearing on the objective clearly established by article 7a. Declarations are not part of the treaty texts; they are declarations of the conference representatives and are not, as the treaty texts are, the acts of the high contracting parties themselves. Declarations are not, as such, ratified in the same way as treaty texts.

There is no practical advantage either in reminding other member states of some sort of moral commitment to a declaration that has no legal force in a treaty. There can be no comfort either in Jacques Santer's hints that the Commission would somehow accommodate our concerns about our internal frontier controls, when he said in his speech the week before last that he had an unfailing commitment to enforce EU law. In any case, it is open not just to the Commission, but to any private individual to challenge the legality of our internal frontier controls through the British courts, which will then be advised to refer the case to the European Court of Justice under article 177.

As I said, the Flynn case has already reached the High Court this week. When, sooner or later, there is a European Court ruling against us, it will not be something that we can simply ignore, because non-EU passengers arriving at our internal frontier ports would be able to apply for judicial review if they faced an immigration check that the European Court had declared unlawful. A flow of similar cases would follow quickly, paralysing the judicial system and rendering our frontier controls useless. The administrative confusion and the cost to the taxpayer of many of those who then entered unchecked would cause massive public disenchantment. Uncontrolled immigration is not what British people, regardless of their ethnic origin, want. They have never been asked whether they want to leave Britain's back door open; if they were, their answer would be an emphatic no.

By and large we are a civil nation, welcoming millions of visitors here from around the world each year. That is quite different from letting in the world and his wife to settle here indefinitely. An influx of migrants, freely walking into this country without so much as a by your leave, would quickly heighten racial tension. The first to suffer from those tensions would be British ethnic minorities, born and bred here and peacefully and constructively contributing to British life.

For those reasons, I urge my right hon. Friend the Prime Minister to put article 7a openly on the IGC agenda and to insist to our EU partners that the purpose intended by Margaret Thatcher for the 1985 declaration, but not achieved, must now be embodied in a substantive change to the treaty itself.

That is a pro-European argument. It is a Conservative solution, which has already left the Opposition hopelessly divided, as every recent debate on immigration has shown. It is an issue on which my right hon. Friend the Prime Minister can lead the way and which, I can assure the House, will continue to command a great deal of public support.