HL Deb 17 November 1977 vol 387 cc722-40

4.56 p.m.

Lord DIPLOCK rose to move, That this House takes note of the Report of the European Communities Committee on Draft Treaties concerning the protection under criminal law of the financial interests of the Communities, and the application of criminal law in respect of Community servants (R/2043/76) (Forty-Second Report of last session (HL 228)). The noble and learned Lord said: My Lords, the two draft Treaties and Protocols which are the subject of the Forty-second Report of the Select Committee on the European Communities are the first significant intrusions of Community law into the criminal law of the Member-States. The existing Treaties are practically silent upon the subject. I can only recall one insignificant exception about perjury before the European Court. Of course, a Community criminal law which is distinct from the criminal law of Member-States is quite impossible without erecting the whole paraphernalia of the administration of justice, the courts, the prison service indeed, to carry out the sentences.

But Article 5 of the Treaty of Rome places upon all Member-States the duty to take appropriate measures to see that obligations under the Treaty, regulations and Directives are fulfilled. Whether their attempts to enforce the provisions of the Treaty, regulations and the like are accompanied by criminal sanctions is a matter for the discretion of the individual Member-States. But they do that either, in the case of regulations, by supplementary domestic legislation imposing criminal sanctions or, in the case of Directives, by putting the criminal sanctions in their own law. This we have clone already in a number of cases mostly dealing with comparatively minor transgressions of the Community law—for example, failing to comply with the requirements of egg packing, driving too many hours, and such things.

The first draft Treaty amends Article 5 of the Treaty of Rome by placing on Member-States the additional duty to protect by criminal law the financial interests of the Community and to prosecute infringements of Treaty legislation. It is to the Protocol that one has to look to see how this is to be done. The second draft Treaty and Protocol deal with offences by and against servants and officials of the Community, and that involves a somewhat similar amendment to the Merger Treaty. But it is the Protocols which are the important part of this new provision of Community law which is suggested by the Treaties. Both of the Treaties require the Member-States to incorporate in their own criminal law some substantive offences if they are not already included in it. As in the case of this country, nearly all of them are.

Under the first Treaty the Protocol deals with substantive offences relating to defrauding the Community or Community funds and requires each Member-State to treat them in its criminal law as it would with its own Government powers. This would require little, if any, alteration in the existing criminal law of this country, though it might involve some amendments of the law in other Member-States. Under the Protocol to the second Treaty it deals with offences of bribery, forgery and misappropriation of funds by Community officials and the disclosure of official information, and it requires Member-States to penalise those offences by Community officials in the same way as if they had been committed by Government officials in this country. That part of it would require very little alteration in the existing criminal law here because they are dealt with in that way, but it would require some amendment of the Official Secrets Act to apply to Community officials—extension from Government officials to Community officials as well. It also requires these matters to be dealt with in the same way regarding offences of persons who are not officials but who obstruct them in the performance of their duties, or bribe or attempt to corrupt them. Again, it is required that those offences should be treated in the same way as similar offences committed in relation to Government service; and again little or no alteration would be required in the criminal law of the United Kingdom.

The proposals regarding the substantive criminal law which are contained in the Protocols to the Treaties are uncontroversial. They can be accepted and welcomed and, as I say, will make little, if any, difference to the existing law here. The difficulties presented by these Protocols are the procedural requirements which they contain, and those procedural require-merits deal with what is called transferring criminal proceedings from one State to another. If one looks at the matter in the terms of United Kingdom law it means transferring jurisdiction to try criminal offences from where it would lie before the Protocol to an additional venue, and would require this country to accept jurisdiction in respect of criminal offences which up to now is not accepted by our law.

In the Protocol to the first Treaty the scope of the procedural requirements is very much wider than the substantive offences with which the Protocol deals. It covers all infringements of any regulation or of any Directive of the Treaty which is punishable under the criminal law of the Member-State concerned. That includes comparatively trivial offences punishable by a small fine under our law. I have already given examples—eggs, driving, and minor infringements of regulations, which may properly be dealt with—or at least so it was thought by the Parliament of the United Kingdom—by a relatively minor penalty. This Protocol provides for the transfer of prosecution for those offences from one State to another.

In the ordinary way the fundamental principle of criminal jurisdiction—which I can almost say is recognised throughout the world—is that the jurisdiction to try offences lies with the State where the offence is committed. This Protocol provides that if the State where the offence is committed is unable to try the case, because the offender at the time is not within the country, and is unable to obtain extradition from the country where the offender is to be found, it may request the State where he is to be found, or where he habitually resides, to prosecute him. In that case the State must treat the offence as if it had been committed under its own law and within its own territory.

There are three criticisms to be made of those proposals. First, the transfer to another State where the offence was not committed is available only if extradition is impossible. That would either be because the offence was not an extradictable offence or, as in the case of Italy and Germany, where there are provisions in the Constitution which prevent the extradition of a national of that country. There are constitutional difficulties in the way of overcoming that. The Select Committee suggests that extradition or transfer should be available wherever it is more convenient that the case should be tried in one of the States where the offender is present, or in the State where the offence was committed. Generally speaking, one imagines that witnesses will be in the State where the offence was committed and it will be most convenient to try the case there. There might be circumstances in which witnesses are available in the place where the offender is to be found. The Committee really see no reason why that should not be dealt with on balance of convenience rather than under rigid rules.

The second criticism—and it is an important one—is this: whether you adopt the system of extradition or of transfer, this will be, as all experience shows, an expensive and time-consuming process—justified, I venture to suggest, only in cases where the offence is a relatively serious one. To adopt it in the case of trivial offences appears to the Select Committee to be quite unjustified on rational grounds. What we would propose is that these provisions as to transfer should be restricted to the offences dealt with in the Protocol itself—and they are serious offences, such as defrauding the funds of the Community, and the like—and, possibly, to take power to add to those to which the procedural provisions will apply additional serious offences by Directive from the Council, or the like. The third, a minor one, is that transfer to the State of the habitual residence of the offender seems to us to be unnecessary and to be quite contrary to principle. So far as this country was the State of habitual residence of the offender, unless he was here as well, we simply could not do that one.

Let me deal shortly with the second Protocol. Here the procedures for transfer apply only to the substantive offences offences by and against Community officials, which are dealt with in the Protocol. The procedural provisions, however, for reasons which are far from apparent, are wholly different from those in the first Protocol. They are very complicated and, as I say, there is no discernible reason why this should be different from the others. They appear to us to be contrary to the general principles upon which criminal jurisdiction is exercised. What they provide is that the primary jurisdition to try the offence, wherever it is committee and wherever the offender may be, shall be vested in the State of his nationality. I would venture to suggest there can be no possible justification for that.

That State, however, may request the State where the offence occurred or the State of habitual residence—we are coming back to habitual residence again—to start proceedings against him: that is, the State which on ordinary principles of jurisdictional criminal law would be the natural State to do it. But it would appear, though it is not quite clear about this, that unless so requested by the State of nationality, there is no jurisdiction under the Protocol to try him here, unless he is also found in the State where the offence was committeed, in which case that State may demand transfer.

Lord DOUGLAS of BARLOCH

My Lords, what happens if he is not a national of any of the Community countries?

Lord DIPLOCK

My Lords, he is then tried in Luxembourg. I did not read that out because it did not seem to be of great importance to us here, but he is in fact tried in Luxembourg. One other provision is important; that is, regarding the substantive offences created by the Protocol, each of the Member States must make them extraditable. That would appear to make it necessary for Italy and Germany to overcome their constitutional objections to doing that in the case of their own nationals.

May I state briefly the criticisms of the proposals in this Protocol. It is indeed a jurisdictional "dog's dinner". There is no sound reason why the primary jurisdiction should be in the State of the nationality of the offender. There is no sound reason that we can see why the jurisdictional provisions in this Protocol should be different from those in the other. Finally—and this is a particular difficulty in the United Kingdom—we cannot prosecute unless the defendant is present in this country. This is a question not of jurisdiction but of how we conduct criminal trials. The defendant has to be present and the evidence has to be given in front of him. Therefore extradition will be necessary if we are ever requested under the second one to try someone not present.

Lord DAVIES of LEEK

My Lords, I apologise for interrupting, but I find this interesting. It may be absolutely elementary, but I should like some help. Obviously, as the Community grows, the movement of transport on the inter-national juggernauts will increase. Assuming that a juggernaut is involved in an accident in, say, South Wales, there might he several people who are injured or killed, and the driver takes his load and gets back to his place of origin. How do we> deal with such a case?

Lord DIPLOCK

My Lords, you cannot do it at the moment unless it is an extraditable offence. If it were thought appropriate to make that kind of offence an extraditable offence or even to be one of those listed, as I suggested, added to the offences in the original first Protocol, that could be done. It would then become extraditable and one would be able to deal with it: I do not think there are going to be any difficulties about that. Let me emphasise this: in inviting the House to take note of these two proposed draft Treaties and in criticising them as I have, the criticism which we have brought forward is intended to be constructive, because it seems to us that we can turn this from a "dog's dinner" into a rational scheme for dealing with these kind of offences which occur in various parts of the Common Market.

What we would propose can be put very simply. First, the provisions for transfer should be limited to serious offences, whether by extradition or by the transfer provisions—certainly those created under the substantive provisions of the Protocol and, I would venture to suggest, power to add to them by Directive subsequently when the need was shown to arise. Secondly, all crimes which are serious ones which would fall within it, and not merely those in the second Protocol, should be made extraditable by each of the Member States so as to give the possibility of extradition to the country where the offence occurred. Finally, the jurisdiction to try the offences to which the Protocols relate should be limited to the State where the offence is committed, or by transfer, to the State where the offender is to be found. These are simple provisions; they are rational provisions; they are close to the generally accepted principles of jurisdiction in criminal law, and I hope that our representative on the Council of Ministers will suggest these amendments to what, if they were made, would make a valuable and sensible addition to Community law. My Lords, I beg to move.

Moved, That this House takes note of the Report of the European Communities Committee on Draft Treaties concerning the protection under criminal law of the financial interests of the Communities, and the application of criminal law in respect of Community servants (R/2043/76) (Forty-second Report of last session (HL 228)).—(Lord Diplock.)

5.20 p.m.

Baroness ELLES

My Lords, the House owes a debt of gratitude not only to the Members of the Select Committee, who considered the important and complex problems relating to criminal law and the European Community Treaties, but more particularly, as I am sure noble Lords will agree, to the noble and learned Lord, Lord Diplock, for his most clear and comprehensive introduction to the subject. In fact, in some remarkable way, he manages to make it seem very simple and easy to understand, and it is only when one comes to read the documents oneself that one realises how extremely complex and difficult it all is. But we are most grateful to the noble and learned Lord for his remarkably clear exposition, and of course for the very helpful and constructive comments which he has made on the problems that have been created by the Protocols.

Speaking personally, I would certainly humbly endorse the three major recommendations that he has made, which I think will contribute to making the whole situation very much easier and more acceptable for all Member States, not only the United Kingdom. It is, of course, axiomatic that where a set of rules—in this case, economic rules—are introduced, non-observance becomes subject to some form of sanctions, and for these sanctions to be effective there must be some equitable and practicable method of enforcement. If the rules regulating economic relations between Member States of the European Community are to be respected, not only must the methods of control of Community finances be more efficient, but also the methods to ensure more effectively their observance.

I should like to say here that I believe that the establishing of the Court of Auditors—due in no small measure to the work of the European Conservative Group within the European Parliament—will undoubtedly contribute to better control of the Community finances. But the draft Treaties now being considered are a first step towards enforcement of the Treaties, and the beginnings of a system of European criminal law.

Expressing, again, a personal view, it would have been more logical, and I believe ultimately more equitable, to grant jurisdiction to the European Court of Justice, rather than leave it to Member States to impose penalties for non-observance of Community rules in accordance with their own national laws. There will surely be great difficulty in similar offences being treated in a similar way. Directives give States latitude in the way they legislate to achieve a particular objective of Community policy, so that the sanctions to be imposed will vary from State to State.

The application of regulations will also vary, according to the traditional views of the Judiciary in any one Member State. Procedures vary enormously, so that for identical offences an accused may, for instance, be kept on remand for months in one Member State before coming to a court, or let out on bail in another Member State. Legal aid may or may not be available to the accused. If the proposed system is adopted, however, it is essential that closer cooperation between the judicial bodies of the Member States should be encouraged, and indeed made mandatory, so as to remove wherever possible too great a divergence in the application of the sanctions. Indeed, such comparisons in Member States' criminal law procedures may lead to the creation of new law within the Community system.

There is one point which I should like to raise in relation to the question asked by the noble Lord, Lord Davies of Leek. There is the question of the person who is not a national of a Member State who may choose—no doubt wisely—to remain outside the Community. In that case, unlike his fellow workers who are in the Community, there will be little likelihood of his being brought before a Luxembourg court at all, however great the offence he has committed. I suppose that in that case it will depend, to some extent, on how many bilateral extradition agreements Luxembourg has entered into with other States. But this remains an open question.

In this connection, the report draws attention in paragraph 11 to the differences in extradition law and this is a very important element in the elaboration of these protocols. As the noble and learned Lord has pointed out, in the Federal Republic of Germany it is contrary to the basic law for a German national to be extradited. The view of the Committee, that an accused should be tried either in the country where the crime was committed or where he happens to be, is very strongly argued and is, I believe, convincing. But the studies of the experts and the Forty-second Report point to the need to strengthen the European Extradition Convention and have greater convergence—I hesitate to use the rather unpopular word "harmonisation"—as to the principles and application of the law of extradition, certainly within the geographical region of Western Europe.

There is another question which I should like to put, and I am not sure whether it should be put to the noble Lord the Minister or to the noble and learned Lord. I tried to get into communication with both noble Lords before the debate, so I apologise for springing the question. It is in relation to paragraph 13, which has to do with where the control of a company lies. I wonder where an individual who commits an offence in France, and is, for example, an employee of a company registered in England, which in financial terms is controlled by a Swiss or American multinational, would be tried. I was not sure whether the word "control" in this sense was synonymous with the registration of a company. I should be grateful if at some stage, perhaps not tonight, I could have some reply.

Lord DIPLOCK

My Lords, I think that I can answer that question now. Paragraph 13 is concerned only with cases where the company itself has committed the offence. The reference to the place of control is made, because it is an expression which is the basis and is well-known in the Continental States. It is also something which is quite well-known in this country, because, in deciding in wartime whether or not a company is an enemy, one sees where its central management is. This does not concern cases where an offence is committed by a servant or employee of a company; it is only when the company itself is charged with the offence.

Baroness ELLES

My Lords, I am most grateful to the noble and learned Lord for that explanation. I should like to comment on the principle of territoriality, which the noble and learned Lord raised. I am sure he will agree that the statement made in the Lotus case is entirely relevant. In that case, the court stated that, though it is true that in all systems of law the territorial character of criminal law is fundamental, it is equally true that all, or nearly all, these systems extend their jurisdiction to offences committed outside the territory of the State which adopts them, and they do so in ways which vary from State to State. So that although there may be a principle, there are various occasions when territoriality is not the overriding consideration.

Turning now to the second draft Treaty, regarding the liability and protection of officials of the Community, there have been obvious lacunae in these aspects and the draft Treaty is certainly to be welcomed. Although there are staff regulations, and a code of conduct which is imposed on the officials with the ultimate sanction of dismissal, so far there has been no way of imposing penal sanctions on an individual for fraud, forgery or similar offences, or breach of the oath of secrecy when in the service of the Community as such. Since the provisions of the draft Treaty leave it to Member States to enforce their own measures, again there will be great divergence not only as to procedure but surely, in the case of official secrets, as to substance as well. There will be considerable differences between Member States as to their concept of what constitutes an offence within their own legal system and their own interpretation.

Since Community officials, including the Commissioners themselves, serve the Community as a whole and are international civil servants not specifically serving Member States, it seems anomalous that they should be subject to national laws. In real terms, it is unrealistic to expect a Member State to be prepared to prosecute a European Community official who had provided his State of origin with official information, contrary to the Official Secrets Act. Again, if I may give a personal view, I should prefer offences of this nature to come within the jurisdiction of the European Court of Justice at supranational level.

Whatever the minor demerits of the draft Treaties, the overall concept is surely to be welcomed. Having to compare the different methods of application of economic rules and criminal procedures within the Member States may lead to progress in these fields of law and greater co-operation among the judicial bodies of Member States.

There is one point that I should like to add. I believe very strongly that the timing of the introduction of these Protocols is of paramount importance. Attention should be drawn to the need to ratify these Protocols, or amended versions of them, within the near future. The many years it has taken legal experts within the Community to propose these draft Treaties in their present form will be again extended for further years if they are not ratified by the existing Member States—the Nine—before further enlargement of the Community. Therefore, in thanking the noble and learned Lord and his Committee may I say that I hope the Community takes note of the comments of the members of the Committee who produced the Forty-second Report and the introductory speech of the noble and learned Lord, and acts with all possible speed in achieving the ratification of these draft Treaties.

5.33 p.m.

The MINISTER OF STATE, HOME OFFICE (Lord Harris of Greenwich)

My Lords, may I begin by thanking the noble and learned Lord, Lord Diplock, and, indeed, all the members of his Sub-Committee, for their thorough and interesting report. The House is undoubtedly indebted to the noble and learned Lord for the characteristically lucid way in which he introduced the report this afternoon. I shall begin by dealing with two points which have emerged during our brief debate and will then come to the substance of the argument of the noble and learned Lord.

If I may deal first with the point regarding the Official Secrets Act to which the noble Baroness, Lady Elles, has just alluded, Article 4 of the Protocol to the draft Treaty amending the Treaty and establishing a single Council and a single Commission requires us to apply to Community officials the provisions of our criminal law which relate to what is described as "breach of professional secrecy". This concept is not known to our law, and we must seek clarification of it during our further discussions in Brussels, However, the broad idea seems to be that we should apply to Community officials the law against the unauthorised disclosure of official information which applies to our own civil servants, and we hope that when the time comes to do this our own law will be in a great deal better shape than it is at the moment. The House will recall the recent announcement of our intention to publish a White Paper containing detailed proposals to repeal and replace Section 2 of the Official Secrets Act 1911.

The second point with which I should like to deal at this stage was raised by my noble friend Lord Davies of Leek, although it is not covered by the precise terms of the debate we are having this afternoon. It concerned the driving offence in this country committed by somebody who is not necessarily a national of an EEC country; he can be an American or a British citizen, resident, let us say for the sake of argument, in Kenya. I am well aware that there is a great deal of anxiety on this point, and I am constantly receiving letters from Members of another place about it. If an accident takes place in a local community—sometimes it may be a quite serious case involving careless or dangerous driving—injury may be caused. The problem is that if the person concerned is not a resident of this country and is about to leave, often there is nothing that the police can do. This creates a great deal of ill-will, in particular among those of our fellow citizens who are at the receiving end of a badly driven motor-car.

We are looking at this point to see what can be done. I am most anxious to deal with it because it is a matter which causes a great deal of public concern—and in my view absolutely justifiable public concern. Having said that, I must point out quite bluntly that there are a number of formidable problems, some of which have been touched upon during the debate we have had this afternoon, because of the different rules of evidence upon which we insist in our courts, compared with courts outside England and Wales. All I can say to my noble friend Lord Davies of Leek, is that we are well aware of this point and, speaking for both myself and my right honourable friend, we are very anxious to achieve a satisfactory settlement of a problem which is causing mounting concern.

Having dealt with those two points and before dealing with the detailed points which are raised in the report, it may be appropriate to say something generally about the origins of these proposals and the situation which we have now reached. Because they both relate to the criminal law, the Commission join together in the document which we are now discussing two entirely separate subjects. First, it was certainly recognised from the early days of the Community that specific provisions were needed to cover criminal offences which might be committed by or in relation to Community officials in the course of their work. For example, it was thought to be indefensible that certain acts by Commission officials in Brussels might not be caught by the criminal law, although it would be a serious criminal offence for the civil servant of a Member State to do precisely the same thing. Work to fill these gaps was virtually completed in 1972 when the Community was enlarged. The Commission then called together a working group of national officials, representing all of the Nine Member States of the Community, in order to make any appropriate adjustments.

Work on infringements of Community law began in 1971 upon the initiative of a conference of Ministers of Justice. They were concerned to improve the enforcement of the criminal law in the areas of taxation, customs affairs, agriculture and foodstuffs, particularly where co-operation between Member States was thought to be clearly desirable. We were involved in the official working group on that subject virtually from the beginning of its period of work.

Although we participated in working groups on both subjects, Member States, including the United Kingdom, are not naturally committed to supporting the Commission's proposals either in general or in particular. Our view is that a good deal of very careful work is needed on the proposals before we could be in a position to make a judgment about their merits, and I am sure, on the basis of what the noble and learned Lord, Lord Diplock, has said, that that indeed is his view. In due course, we expect that Council working groups will be established to study the Commission's text in some detail. I hope our officials will then be able to make a full contribution. In that context, it is helpful to the Government to have had the opportunity of having the report of the Select Committee and, indeed, the debate which we are having this evening.

Any proposals for greater international co-operation in the field of criminal law enforcement almost inevitably create particular difficulties so far as the United Kingdom is concerned. These derive from fundamental differences between our criminal justice system, with its common law tradition—our emphasis, as the noble and learned Lord, Lord Diplock, said on oral evidence, the opportunity for cross-examination and a territorial basis of jurisdiction—and the system generally to be found on the Continent of Europe. As the Select Committee's report implies, the benefits of greater international collaboration have to be balanced against the problems of fitting in with legal systems markedly different from our own. However, the Government accept that our membership of the Community makes it necessary to find a solution to these difficulties. We clearly have just as great an interest in, and responsibility for, the conduct of Commission officials as any other Member State. Therefore, the Government share the Select Committee's approach in acknowledging the problems that undoubtedly exist but seeking to work out how these can be overcome.

In turning now to detailed points that have been made on the draft Treaties, I must emphasise that my observations are without commitment as to the position that the Government will eventually adopt. However, it may be helpful to the House if I draw attention to some of the factors which we shall have to take into account. I shall deal first with the draft Treaty which is intended to ensure that the financial interests of the Communities are adequately protected by the criminal law and that infringements of Community law are prosecuted successfully. The Select Committee has recommended that its scope should be restricted to specific crimes of major importance to the Community. This is linked to the other proposal that all the offences covered by the draft Protocol to this Treaty should be made extraditable, so that the State where the offence was committed would always be able to choose between applying for extradition or asking another country to initiate proceedings.

The approach of the Ministers of Justice in 1971 was to identify the areas of Community law where action was particularly desirable. The difficulty lies in knowing how best to draw the line between major and minor offences. Indeed, the noble and learned Lord made that point. The Commission's approach is to cover everything and, thus, to leave it to prosecuting authorities to decide when a case is sufficiently serious to be pursued by extradition, or the transfer of proceedings. The potential difficulties for the United Kingdom in being involved in the transfer of proceedings in either direction mean that we could contemplate it only for a serious offence, and we would not want to seek, or grant, extradition for trifling offences. If we are to press for a limitation of scope, we need to consider whether this can best be done by listing specific offences as the Select Committee suggested, or by specifying subject areas as the Ministers of Justice thought six years ago, or by reference to the seriousness of the available penalty as is done in the case of extradition between States party to the Council of Europe Extradition Convention. There is no obvious solution.

We must also bear in mind that the Council of Europe Convention on the Transfer of Proceedings in Criminal Matters is not limited to serious offences. The Commission have understandably drawn on the Council of Europe's work in this field. Some other Member States of the Community have already ratified or signed the Council of Europe Convention, so that for them the Commission's proposals present little or no difficulty. It may be that we shall be faced with strong opposition to any proposal for a limitation on the offences to be covered from Member States with practical experience of the transfer of proceedings who know that discretion is used to avoid covering trivial cases.

We must recognise that, when countries have a similar legal system which is not based on the principle of oral evidence, they might contemplate the transfer of proceedings in a case which we would not think serious enough to justify the procedure. There are some important safeguards in the Protocol attached to the Treaty. For example, we are not required to seek to transfer proceedings under Article 2 or to bring proceedings under Article 5. One reason to be given under Article 5 for not bringing proceedings might well be that insufficient evidence is available, for example because witnesses who live in other countries cannot be compelled to come here to give evidence. It is widely recognised by our fellow Member States that some of the provisions in the Protocol are likely to work a great deal less smoothly in the United Kingdom and the Republic of Ireland than in some other Member States of the Community.

In pressing the case for more offences to be made extraditable and, by implication, for more use to be made of extradition, the Select Committee has drawn attention to an aspect of this problem which we think is particularly relevant. We believe extradition to be the best method of dealing with offenders who move from one country to another. There will always be difficulty in the case of countries which, unlike us, are not willing to extradite their own nationals, and of course, extradition is not available for offences committed by bodies corporate. In the past there have been objections to the use of extradition in the case of fiscal offences. But when the financial interests of both the country requesting extradition and the country being requested are directly damaged by an offence, as they must be in the case of a fraud against Community funds, to take one obvious example, the same principles are not at stake. The Government have worked and will continue to work for a wider use of extradition to combat serious offences against Community law.

I shall now turn to the other Treaty relating to offences committed by or in relation to Community officials. Here the Select Committee made one major point: that jurisdiction should not be founded in the Member State of which an accused person is a national if he is not present there and the offence was not committed there. However, there is a good case for providing for the officials to whom this Protocol will apply to be dealt with in courts and, if necessary, in prisons in their own countries in order that they both can understand the proceedings and also be near family and friends. Perhaps understandably, the Belgian Government also takes the view that it is wrong for primary jurisdiction to rest with the country where the offence was committed, because the location of the main Community offices would place virtually exclusive responsibility on Belgian courts and Belgian prisons. Having some personal knowledge of the problem in our own prison system, I do not find it difficult to comprehend the difficulties so far as the Belgian Government are concerned.

Despite that, we recognise that it makes much more sense in our case for jurisdiction to be based first and foremost in the country where the offence was committed. The evidence will normally be there. But again, there are certain safeguards in the Protocol. Under Article 6 if an offender is found in the Member State where the offence occurred, that State may insist on dealing with it. That seems to us to be vital. Secondly, a Member State is not in all cases bound to institute proceedings against one of its own nationals if he committed the offence elsewhere, even though he is found in its territory.

Under Article 6, the State where the conduct occurred may be asked, and may agree, to institute proceedings if this would be in the interests of justice.

In our case, there would sometimes only be any chance of a successful prosecution if the country where the offence was committed instituted proceedings, if necessary having first applied to us for the extradition of the alleged offender. In raising this matter the Select Committee have undoubtedly drawn attention to a feature of the Protocol which fits poorly with our own approach to criminal jurisdiction.

I turn finally to the provisions in the Protocols to both Treaties relating to the Court of Justice. The Select Committee has made two comments: that it seems unfair for persons in custody in cases caught by the Protocols to have the benefit of a time limit when others do not. And that reference to the European Court of Justice should normally be deferred until the appellate stage. These provisions seem to the Government to be among the more difficult of the Commission's proposals. No doubt when Article 177 of the EEC Treaty was drawn up, thought was not given to the problems that might ensue if there was a reference from a court of first instance in a criminal case particularly if the accused was in custody. No doubt it was thought, and thought indeed correctly, that most references would be made from civil courts. But here we have Protocols which are concerned exclusively with criminal cases. In suggesting a time-limit, the Commission were trying to come to grips with one aspect of the problem. But, apart from the question of equity to which the Select Committee drew attention, there is a question also of practicability. Past experience of references to the court suggests that it will be difficult, if not impossible, to reduce the time that is normally taken. The Committee also make a telling point about the impossibility of reconstituting a jury after an interval of more than perhaps even a few days. This area provides a particularly good illustration of how a great deal more work needs to be done on these draft Treaties before we could be in a position to make a final judgment about them.

In conclusion, I should like to repeat the appreciation of the Government of all the work that the Sub-Committee have done, and of the contributions which noble Lords have made in the course of this short debate. Work on this subject has already gone on for a considerable time, and I think it is clear that it is going to go on for quite a considerable period of time yet. In the months to come the searching analysis of your Lordships is bound to be of great benefit to those who negotiate on behalf of the United Kingdom.

5.53 p.m.

Lord DIPLOCK

My Lords, I should like to thank the noble Baroness and the Minister for the kind reception that they have given to the report of the Select Committee, which was a very interesting report to write and to consider. It raises very serious problems to which it is not easy to see the solution. Of course, if you have cases tried in the various Member States it is inevitable that there will be differences in procedure, differences in punishment and indeed differences in the prisons to which they go. That is something inevitable; it happens now.

May I just—because this is a difficult problem—revert to the point raised by the noble Lord, Lord Davies of Leek, and also by the Minister. That is a problem which is with us. It is not a problem which comes within these Protocols at all, because these only deal with offences against Community law, and the kind of offence with which Lord Davies of Leek was dealing was an offence against the ordinary criminal law of motoring offences. It is a problem which is with us. It is a problem which grows as transport becomes more international, but it is a problem which has really got nothing to do with the Protocols.

On Question, Motion agreed to.