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The simple answer is that the powers already exist in the current treaty base to allow that market to operate. If the hon. Gentleman bears with me, I shall go on to illustrate that.
The Government's original amendment goes on to note that the text working is problematic in other ways. It is "exhaustive" rather than "illustrative", failing to make it clear that
"some of these policies...encompass both shared competence and supporting action".
The amendment also raised concerns about the article's failure to refer the listed competence to the details of the treaty later in the text. That was an important point—and the lawyers who were advising the Government when they were negotiating in the original convention on the EU constitution were awake and doing their job.
We agree with all the criticisms of the article that the Government made when they were arguing against the power. We also agree with another amendment tabled by the Government representative that was even more trenchant in its criticism, stating that
"shared competences should be a residual category. They should therefore not be listed explicitly."
Our amendment would, therefore, simply enact what was Government policy several years ago—a policy that was dropped without explanation and for no good reason. It would ensure that the status quo—whereby energy market liberalisation is proceeding, albeit not as fast as we would like—is maintained. It would ensure that the EU did not extend its powers to cover broader questions of energy policy that, in our view, should remain a matter for the member states.