TNAG-2201-FCO40-3156-Hong-Kong-nationality-1990 — Page 79

1115 European Community (Right of Residence) 8 FEBRUARY 1990

Government and the influence of the House-because that is w these debates are supposed to be about—is much the greater.

The articles that have been quoted in respect of these regulations are 7, 8A, 49, and 54. As the Minister said in his opening speech, they require qualified majority voting. Articles 100 and 235 require unanimity.

The difference of opinion that the Government have with the Commission, probably rightly, is whether freedom of movement and residence of economically non-active persons can properly come under the first four articles that I read out. There has been some discussion and, as we heard from the Minister and as we shall hear later, there is probably an expectation-I put it no higher than that that ultimately these regulations will be retabled or withdrawn or the Council could agree unanimously to translate them into articles 100 and 235, but on condition that we agree to the matters in hand. That was part of the deal.

Let me deal now with our scrutiny procedure. For the record, because it is relatively unknown I want to read out the resolution of the House of 30 October 1980. It says:

“Resolved,

That, in the opinion of this House, no Minister of the Crown should give agreement in the Council of Ministers to any proposal for European Legislation which has been recommended by the Select Committee on European Legislation, &c., for consideration by the House before the House has given it that consideration unless—

(a) that Committee has indicated that agreement

need not be withheld, or

(b) the Minister concerned decides that for special reasons agreement should not be withheld; and in the latter case the Minister should, at the first opportunity thereafter, explain the reasons for his decision to the House."-[Official Report, 30 October 1980; Vol. 991, c. 843-4.] That matter was recommended by the Williams committee, which sat between 1976 and 1978, and was put through the House under the leadership of the noble Lord St. John of Fawsley, now a well known Member of the other place.

The proposals before us have a long history. They were first promulgated in 1974 in a different form and subsequently withdrawn. They were retabled by the Commission as recently as 29 June 1989. On 20 October, the Government then published, as is their wont, the memorandum, from which the hon. Member for Thanet, South quoted, and on 25 October the Select Committee, in its thirty-fifth report, HC15, XXXV, said:

"The explanatory memorandum recalls that the United Kingdom has reserved its position on these proposals but, if they were agreed, this wider definition of family members would also apply in the case of persons covered by the draft Directive on pensioners and other non-economically active people. This would have the effect of further increasing the number of third-country nationals with the right of entry to the United Kingdom under Community law."

All that is well known to the House. It has been rehearsed in debates already. But I want to put on record the exchanges between ourselves, the Minister and the House in that respect.

The next thing that happened was that the Select Committee received a letter from the Minister on 19 December 1989. It is fairly long, but it is right that I should quote it in full. It says:

"At its meeting on 25 October the Scrutiny Committee understandably concluded that in view of their legal and political importance these documents should be debated. We have recently been seeking to arrange a debate, but it has not proved possible to re-arrange business in the short time

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available before the House rises and I thought you ought to know that there is a possibility of agreement being reached in the Community before a debate can be held.

This is because progress in the discussions (after, as you know, a very long period of deadlock) has recently quickened markedly. At a meeting of the Internal Market Council on 23 November, a settlement was reached which adequately deals with the concerns which we and a number of other Member States had to ensure that non-economically active EC nationals who take up residence in another country would not become a burden on that country's public funds. In the light of this settlement the French Presidency has been pressing hard for the adoption of the Directives, and the European Council on 8-9 December referred to them as 'an important measure which is scheduled for adoption by the end of the year'. At the same time, the Government has looked again at the question of Community competence and has concluded that our longstanding reserve can now be lifted, provided our earlier concerns about the legal base can be resolved.

The matter will come up again at the meeting of the Internal Market Council on 21-22 December, at which the Presidency will be pressing for a final decision on all three Directives. As the drafts currently stand, we will have a difference with the Commission and with some other Member States over the proposed legal bases. Given the Presidency's eagerness for a decision there is, however, now a chance that we can secure the legal bases we want provided that we and other Member States can agree to accept the Directives at this meeting."

That was the meeting of 21-22 December.

"In these circumstances, in order to secure negotiating advantage, we would like to hold open the possibility of agreeing to the Directives, without putting on a scrutiny reserve, notwithstanding that it has not yet proved possible to arrange a debate on the legal bases which we consider more satisfactory.

It is of course conceivable that matters will not go quite this way and that it will after all be possible to have a debate before final conclusions are reached. Needless to say, that would normally be our strong preference. We shall in any event be submitting a further Explanatory Memorandum and seeking to arrange debate as soon as possible in the New Year. After anxious consideration, however, we are satisfied that, given the extra momentum which the proposals have gathered since the end of November, it would be wrong to pass up the chance of a satisfactory outcome on the grounds that it has not so far been possible to arrange a debate."

Happily there was no final agreement on the date. I ought to say here and now that the members of the Committee and I are obliged to the Minister for that letter: it was full and frank and it told us the exact position. To be fair, any of us in the position of the Minister sitting in that chair might well have done the same thing.

I ought to add that the matters that I am now rehearsing represent the unanimous view of the Committee which understands the Minister's position; but it means that by the end of the year the following position has emerged. After nearly 10 years we have a proposal, albeit a modified one. We recommended a debate many years ago on this topic, but we have a debate recommended on the proposals but there is a possibility that the Government will agree to them in substance prior to debate and here I quote from our memorandum of 20 December-

"agree to adoption of these proposals prior to a debate being held. In essence, the Minister anticipates that it may be possible to trade willingness to agree at the Internal Market Council on 21-22 December for the Government's preferred choice of Treaty base."

That was a new element that the Committee espied in these matters: in our view, there was a very big jump between package bargaining over a fairly wide area, which we well understand must take place, and the fact that, in order to change the treaty base, one must agree to the substance of the proposal.