European Communities (Amendment) Bill

HL Deb 28 June 1993 vol 547 cc678-706

9.13 p.m.

House again in Committee on Clause 1.

[Amendments Nos. 48 and 49 not moved.]

[Amendment No. 50 had been withdrawn from the Marshalled List.]

[Amendment No. 51 not moved.]

[Amendment No. 52 had been withdrawn from the Marshalled List.]

[Amendment No. 53 not moved.]

[Amendments Nos. 54 to 63 had been withdrawn from the Marshalled List.]

[Amendment No. 64 not moved.]

[Amendments Nos. 65 to 74 had been withdrawn from the Marshalled List.]

[Amendments Nos. 75 to 78 not moved.]

[Amendments Nos. 79 to 81 had been withdrawn from the Marshalled List.]

[Amendment No. 82 not moved.]

[Amendments Nos. 83 and 84 had been withdrawn from the Marshalled List.]

9.15 p.m.

Lord Tebbit moved Amendment No. 85:

Page 1, line 9, after ("II") insert ("except Article 100c").

The noble Lord said: First, although the noble Lord, Lord Mishcon, is no longer in the Chamber, I extend my thanks to him. He was obviously extremely anxious to continue his remarks on what are matters of very great importance. He was extremely kind in his understanding of the arrangements which have been entered into as regards the business of the House. He moved on very rapidly and we are all grateful to him. We acknowledge, as the noble Lord, Lord Thomson of Monifieth, observed earlier from the Liberal Benches, that the matter with which the noble Lord, Lord Mishcon, was dealing was extremely important. This House must never give up its role as an important revising Chamber. Sloppily drafted legislation should not be allowed through.

That brings me immediately to the Bill and the treaty. There can seldom have been a more sloppily drafted piece of legislation placed before the Chamber than this treaty. The Committee turns for the first time to the question of the relationships between the Community and the Union and to different organisations, although they may seem to be superficially very close together. Amendments Nos. 293 and onwards are in that territory; namely, the relationship between Union and Community.

As I understand it, the Union embraces both inter-governmental co-operation, under Titles V and VI, and the machinery of co-operation within the Treaty of Rome. I shall return at a later stage to that point because it is important.

I shall briefly sum up the amendments. Amendments Nos. 85 and 86 are Treaty of Rome amendments. They relate to a number of important issues. Amendment No. 85 would remove Article 100c, and I regard that as a matter of substantive concern. Amendment No. 86 removes Article 100d. I hope that the Minister will be able to explain to me what is the effect of Article 100d because I am not certain of that at this stage.

Amendments Nos. 293 and 295 to 302 relate to Article 100K in Title VI which is on pages 84 and onwards of the treaty. I deal first with Amendment No. 85 which would remove Article 100c. That is a substantive matter in relation to the treaty. Again, I emphasise that Amendment No. 86 is a probing amendment.

Articles 100c and 100d are new items within the Treaty of Rome. They are matters which were not previously there. They are completely new in relation to it. Above all, they deal with the sensitive issues of immigration, visa control and the rights of nationals of third states to enter the Community and therefore to enter our own country. Those powers were previously held by member states. That will no longer be so. Article 100c transfers visa policy from member states to Brussels. In future, the Council will decide which third country nationals will or will not need visas to cross the external borders of member states. From 1st January 1996 it is proposed that those decisions will be taken by qualified majority voting.

There are some intriguing smaller points within Article 100c, and I shall immediately ask one question of the Minister. What does it mean precisely when it says that the Council may, adopt measures relating to a uniform format for visas"? What is the meaning of those words? Do they mean that the council will decide on a uniform format? If so, why does it not say that? If it does not mean that, what does it mean? Once again, clarity in legislation would be a very great advantage.

More important, do Members of the Committee wish it to be decided by the Council and Brussels that, for example, Australians and New Zealanders should in future need visas to enter the United Kingdom? As Members of the Committee know, there is no such requirement at present. In future, whether that privilege of entry to the United Kingdom without visas continues to be offered to those nationals will not depend on this place or this Parliament; as I read it, it will depend upon a decision taken by qualified majority voting. It is not merely a matter of such questions as to whether Australians and New Zealanders should require visas, but whether we wish the Council to decide that, say, Bosnians or Iraqis should or should not need visas.

Can my noble friend also tell me whether I am right to assume that, had the treaty been in operation during the Falklands war, it would not have rested upon this Parliament or our Government to decide that Argentinians did or did not need visas to enter the country; it would have rested upon a decision taken in a council where we would not have had the final say? I notice that paragraph 5 of Article 100c refers to the article being, without prejudice to the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of intern al security". I doubt whether that could be stretched to a blanket requirement for visas for citizens of Argentina in such circumstances.

Again, we are all aware of the trade, for example, in arranged marriages between British Asians and citizens of the Indian sub-continent. But who in future, under the article, will decide if a visa regime would be appropriate to deal with problems that may arise from that trade? Further, can my noble friend the Minister explain to me what would be the effect of paragraph 4 of Article 100c which states: In the areas referred to in this Article, the Commission shall examine any request made by a Member State that it submit a proposal to the Council".

Does that mean that the Commission could in any way block or alter the proposal of a member state which was destined to go to the Council? If not, what does it mean? What would be the Commission's role in examining requests made by a member state that proposals should be submitted to the Council? It seems quite clear to me that if a member state decided that there was a case for instituting a visa regime —or, indeed, for eliminating such a regime—it would not be able to put that directly to the Council; it would have to go through what I shall call in neutral terms a "process" of the Council. What is the purpose of that Council and why is that particular provision there?

I turn now to Amendments Nos. 293, and 295 to 302 which relate to Article K of Title VI on page 84 of the Treaty. Article K.1 makes a huge extension to areas of "common interest". If Members of the Committee will glance at it, they will see what I mean. In future, among matters regarded as those of common interest will be:

1. "(1) asylum policy;
2. (2) rules governing the crossing by persons of the external borders … and the exercise of controls thereon;
3. (3) immigration policy and policy regarding nationals of third countries;
4. (4) combating drug addiction in so far as this is not covered by [other provisions];
5. (5) combating fraud [in similar circumstances];
6. (6) judicial cooperation in civil matters;
7. (7) judicial cooperation in criminal matters;
8. (8) customs cooperation;
9. (9) police cooperation for the purposes of preventing and combating terrorism, unlawful drug trafficking and other serious forms of international crime".

It is not necessary to be opposed to such co-operation taking place to question whether it is appropriate that all such issues should be regarded as matters of "common interest" in respect of the meaning within the treaty.

What is involved in the decision to make those matters of common interest? Will the hands of the British Government be in any way tied by such a provision, or will we be free to proceed unilaterally without regard to the interests of our partners wherever we think it is in our interests so to do? If that is the case, I do not know what Article K.1 means. If not, what are the limits upon our freedom of action in the future?

Article K.3 provides that member states will inform and consult—and I guess there is not too much wrong with that. But under Article K.3.2 conventions may be entered into and may be subjected to the jurisdiction of the European Court of Justice. That is another new departure. Not only the Council—although not under that name—but the European Court of Justice is introduced into this area of co-operation in the fields of justice and home affairs.

So too under Article K.6 are the presidency and the European Parliament. Of course, the Parliament can discuss anything it wishes, as can this sovereign Parliament. But here we find it is provided in the treaty at the bottom of page 85 that each year the Parliament: shall hold a debate on the progress made in the implementation of the areas referred to in this Title".

In short, in this separate pillar, which according to the Prime Minister is so completely insulated from the Community, we find that every institution of the Community will have its role to play—every one. Here, therefore, we see some more of those pegs being placed into our laws ready for 1996. How soon will it be before Title VI is sucked into the Treaty of Rome? It is precious close to the Treaty of Rome in that all the institutions established under the Treaty of Rome play a role; even the European Court of Justice may play a role. Yet we were told that this was insulated and separate from the Treaty of Rome. I clearly recollect the speech of the Prime Minister in which he made the point, "Immigration? There is nothing about immigration in this treaty". Nothing about immigration?—except that the words occur time and time again.

Finally, I wish to inquire most generally whether there is a provision in British domestic law to cover the provisions of Article K.8.2 on page 86. It provides that: Administrative expenditure which the provisions relating to the areas referred to in this Title entail for the institutions shall be charged to the budget of the European Communities". That is a matter to which I may refer and return at a later stage of our proceedings. In the meantime, I look forward to hearing what the provision is in British domestic law which covers that provision in the treaty. I beg to move.

Lord Monson

I wish to concentrate on Amendment No. 295, which deals with Article K.1, and specifically paragraphs 6 and 7 referring to judicial co-operation in civil matters and judicial co-operation in criminal matters.

Superficially, that sounds reasonable, even beneficial. However, in fact the idea is both imprecise and open ended. As the noble Lord, Lord Tebbit, asked, why cannot such co-operation, to the extent that it exists, remain informal and voluntary?

In particular, what does co-operation in criminal matters imply? It certainly has no relation to a body such as Interpol, which we all know about and can all understand. In this country, or specifically in England and Wales as opposed to Scotland, we have an adversarial system. I am not a lawyer but I believe that that is the right word. In France they have the juge d'instruction, and on the Continent generally there is a totally different system which is designed to establish the facts of the case rather than having a prosecution and defence. How can those two different systems co-operate in any meaningful manner? What are the implications of that phrase, "judicial co-operation in criminal matters"? How will it alter our own law?

Those are the questions I should like to have answered this evening.

9.30 p.m.

Lord Willoughby de Broke

I should like to speak to Amendment No. 411 in my name. However, before doing so I should like to mention one matter in relation to Amendment No. 85 moved by my noble friend Lord Tebbit. Can my noble friend the Minister tell the House what would be the position of the 2.5 million or so residents of Hong Kong who will by 1st July 1997 hold British national overseas passports? I am sure that they would like to know what their position will be vis-a-vis visas within the European Community. Will they be allowed to travel freely within the European Community on a British national overseas passport without the requirement for a visa, and therefore into this country, or will they require a visa even to enter this country? It would be welcomed if their minds could be set at rest.

I should like to raise one other question in relation to Hong Kong. If at any stage the British Government decided to grant further British passports, for example, to ethnic minorities in Hong Kong—which we could do now if we so wished—would we be able to do that after 1st January 1996 if the Maastricht Treaty is ratified?

I turn now to Amendment No. 411, which is intended to ensure that should the Treaty of European Union be ratified the United Kingdom will retain the power to control its own frontiers and that that power will be recognised in the wording of the Bill. The present position of the Government on that subject has been made clear. As recently as December 1992 my right honourable friend the Home Secretary, now the Chancellor of the Exchequer, stated in answer to a Question in another place that the Government expected to be able to maintain the current policy of passport and customs checks at our borders.

The provisions of the new Article 8a of the Treaty of Rome, as amended by the Maastricht Treaty, state that: Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States". Her Majesty's Government's position is that we have another opt-out of that treaty requirement which is based on a declaration which was negotiated at the time of the Single European Act. That declaration states: 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, and to combat terrorism, crime, the traffic in drugs and illicit trading in works of art and antiques". However, the value of that declaration, like other declarations and opt-outs on which we so trustingly rely, could well be open to interpretation and, in particular, legal interpretation by the European Court of Justice. That point has been made painfully clear in a long document sent out by the Euro-Commissioners in May last year, prodding member states into action over new Article 8a which, as the document reminds them, calls for, abolition of all controls, formalities, procedures, checks, examination, inspections, etc. etc.", and so on. The document goes on to state specifically that Article 8a should not be qualified by any of the declarations of the Single European Act on which the Government appear to be relying. It states: A declaration can never deprive an article of the treaty of its practical effectiveness". It continues: If, after 31st December, 1992, Member states are still able to check whether a person wishing to cross a border is a national of a Member state and whether he or she constitutes a danger to public order, public security or public health, nothing will have changed and Article 8a will be a dead letter". That, at least, is clear: the European Commissioners' view is that the declaration on which we rely is subordinate to Article 8a in the Treaty on European Union.

So who is right: the Commission or Her Majesty's Government? While asserting their right to control terrorism, drug traffic and criminal activities at their borders, the Government have been under pressure in the Commission in the person of Herr Bangemann —that well known releaser of cats from bags—who has called on the Government to modify their stance on border control. He has indeed threatened the Government with being hauled in front of that ultimate arbiter, the European Court of Justice. However, I believe that last September a compromise was reached with Herr Bangemann and the Commissioners whereby EEC nationals would give what has been described as a cursory flash, or wave, of their passports as they go through immigration control. That, I understand, has become known as the "Bangemann wave". I have not seen it in action myself yet; we seem still to be very delayed at passport control. Perhaps the Minister will give a brief demonstration of the Bangemann wave.

The adoption of the Bangemann wave procedure appears to accept the curious notion that drug traffickers, terrorists and criminals exist entirely outside the supranational boundaries of the EEC. As is all too often the case, when it comes to Community legislation, we are giving ground reluctantly, but, nonetheless, I fear, irrevocably.

Her Majesty's Government feel that they are right; that they will maintain our existing rights of control on frontiers. However, in order to avoid an eventual adverse interpretation by the European Court of Justice, would it not be wiser to lock into place in the Bill a guarantee in the form suggested by my amendment?

Lord McIntosh of Haringey

I had not expected to rise so early in the debate. I gladly give way to the noble Baroness, Lady Park.

Baroness Park of Monmouth

I had not realised that we had reached the point where the noble Lord would rise to speak.

I have several anxieties about Articles K.1, K.3 and K.9 and about the extension of Article 100c to other matters beside a common visa form and a common list of countries whose nationals will require visas. Even that worries me. What will it do to the present status of some of our long-standing Commonwealth relationships?

I recognise that action is inter-governmental, not supranational and that initially nothing can be decided without unanimous agreement and ratification by national parliament. The treaty states that, This Title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security". But just as there has been in other areas a drift from the Treaty of Rome, to the Single European Act, to Maastricht—a series of moves from unanimity to qualified majority voting in many important areas, as well as an increase in Community competences—so within this treaty and this Title there is such a drift. Thus under Article K.2(b), The Council may", —and the Commission as well as member states is empowered to take the initiative— decide that measures implementing joint action are to be adopted by a qualified majority or in some cases by a two-thirds majority". Under Article K.9 the formula is different. 'The Council, acting unanimously on the initiative of either the Commission or a member state, may decide to apply Article 100c not just to visas, but, among other things, to immigration, asylum and border controls.

Article 100c(3) provides that decisions on visas which must at present be by unanimity, shall, from 1st January 1996, be taken by qualified majority voting. Would that shift extend to decisions under Article K.9?

Article 100c(5) reiterates the safeguard about national internal security, but this move would enlarge Community competence to a significant degree. It all depends on whether we have the political will to maintain our veto by refusing to depart from unanimity and thus retain our control over decisions affecting immigration, border controls, asylum and measures to protect us from terrorism. The Declaration on Asylum proposes bringing that under the provisions of Article K.9.

So far, it is reassuring that the Government have refused to join the Schengen Group and have maintained our existing system of internal control, the Bangemann wave. But the pressure to abandon unanimity may very well grow.

Both the Select Committee of this House in its 10th report and the minutes of the evidence published by the Select Committee on Home Affairs in another place in February last year reached the same conclusion—it is essential that we retain our internal controls. That is, border checks at the point of entry. As the Home Office memorandum to the Select Committee points out, our overall system of immigration control at the point of entry has correspondingly less need for reliance on in-country enforcement, in contrast to the rest of the Community. It adds that any possible future weakening of controls at our internal frontier would mean that a battery of compensating action in terms of in-country controls would then have to be considered. These would not only raise difficult issues (for example, identity cards) and the whole relationship of the police to the public, but would have potentially far higher resource costs.

As for illegal immigrants, the Home Office is in no doubt that it is more efficient and more effective to exclude unwanted persons at the point of entry rather than to attempt to detect and remove them once they are in.

We must resist pressure to move to QMV. We must not be persuaded by the argument that the decisions by unanimity inhibit action. There are some actions which we must inhibit. I also wonder whether we shall have the resources to keep control of what is happening in the co-ordinating committees, both financially and in terms of staff, the Committee on Justice and Home Affairs, and to insist on time for scrutiny of projects at an early enough stage.

I wonder too whether we shall be able to achieve and maintain genuine accountability to parliament, as opposed to the admirable specialist committees, so that legislation, when it is needed, is discussed and enacted with a clear understanding of the consequences and an opportunity to relate it to our national priorities.

Reverting to the issue of resources, one of the strongest arguments for enforcing subsidiarity and limiting unnecessary Commission initiatives, is that it will reduce the load of the detailed staff and paperwork which the relevant Civil Service departments have to do. Our own legislation already imposes heavy burdens. I cannot but feel that one of the worst aspects of the constant extending of Community competences and initiatives is that we ought to be being very vigilant about the knock-on effects on our own legislative processes and the urgent need to get all our civil servants trained in "Brussels-speak" as an essential measure of self-defence—a kind of political karate.

However, all this comes just as we ought to be spending time, energy and skilled professional know-how on the business of economic recovery and when, moreover, we are busily running down and breaking up the trained Civil Service by hiving off agencies hither and thither. If the argument for ratifying this immensely complex treaty, which seems to have some unfortunate elephant traps, is that we need to get inside the Community, both to make it work and to protect our interests, then I urge the Government most strongly to make sure that we are prepared to put in the necessary human resources to do the job and make accountability possible, and that we have the political will to use and not to relinquish such safeguards as our negotiators have built into the text.

9.45 p.m.

Lord Stoddart of Swindon

This is indeed a very important provision of the treaty. It seems to me that once again we are on the "ratchet". What has consistently happened within the EC ever since we joined in 1972 is that there has been a ratchet effect. You take one step and the ratchet goes up. You take another step. All the steps are relatively harmless, or so it seems—but each one is another ratchet towards the ultimate aim of a federal European state.

Why on earth do we need this particular title? It is perfectly possible to co-operate in all these matters without it. Indeed, it would be far better if we did co-operate without this title. We would then know that we were co-operating on the basis that each country would retain for ever and a day its independence of action within the areas which are laid down here.

It is legitimate for the noble Lord, Lord Tebbit, and other noble Lords to query matters within this particular title. Why is it that we need for our own protection—after all, that is what we are talking about; we are talking about this country and this country's borders—Article 100c.1, and in particular Article 100c.3? Why is it necessary to give over visa policy to the institutions of Brussels and the European Union? We need an answer to that question. Is it necessary for the protection of the borders of the United Kingdom to hand over policy relating to visas, who should have them and what form they may take, to what is a supranational organisation? Is it right that that organisation should decide whether citizens of our former Commonwealth countries should have visas or not? Is that not a matter entirely for this country? Why should it in any way be clouded? Why should it in any way be discussed with other countries? —which, I remind the Committee, are still aliens. Countries in the European Community are still aliens. We are told that they are our partners. Some of us think that they are our competitors. Nevertheless, in law they are still aliens. Yet we are proposing under this treaty to hand over to them the power to say who shall enter into this country. That must surely be a real loss of sovereignty. We are entitled to real answers to that particular question.

Noble Lords have been through the "K" section, if I may put it in that way, in great detail. I believe they are right to go through it in great detail. There is "judicial co-operation in civil matters" and "judicial co-operation in criminal matters". Just what does that mean? What sort of co-operation shall we have in these matters? There is co-operation between police forces. Why, we may ask, does that have to be in this treaty? Have we not been co-operating to date, not only with European countries but with other countries in the world as well—the United States and many other countries—on matters of mutual interest? Why does co-operation with EC countries have to be written into this treaty under Title VI? That is the question that we need to ask. What has gone wrong with the co-operation that we have had so far? Why is it necessary to extend it?

The Metropolitan Police Commissioner spoke recently about the introduction of weapons and predicted that the carrying of weapons by the police would happen within the next 10 years. I hope that he did not feel that that was the sort of co-operation that he wanted to see with the EC. Today new arrangements have been announced and there is a White Paper dealing with new arrangements for the police. We are entitled—it is not far-fetched—to ask whether those new arrangements have anything to do with Article K in Title VI of this treaty.

Most people have never read the treaty. They would not know whether to make a connection between today's White Paper and Title VI of the treaty. But I can assure the Committee that if those people read the treaty they would be extremely worried about what might happen in this country in relation not only to immigration but to police powers, court powers and so on. There can be no doubt that they will be part of the whole rigmarole of the European Union because Article K.4.2 says: The Commission shall be fully associated with the work in the areas referred to in this Title". It is not inter-governmental co-operation in the sense that we know it, because the intrusive Commission is there and has its role. It is not simply a matter of inter-governmental co-operation. The noble Lord, Lord Tebbit, mentioned Article K.6. In fact the presidency (no less) and the Commission: shall regularly Inform the European Parliament of discussions in the areas covered by this Title". I do not know that it is normally the policy to inform the European Parliament of what is going on inter-governmentally. It certainly is not necessary. It might be necessary to tell this Parliament, but I do not know about the European Parliament. It seems to me, and I believe to others too, that Title VI, which for the purposes of this treaty is to be left outside the main body of the treaty and arranged on an intergovernmental basis, is the stalking horse for something else in the future. Indeed, this is Community competence by stealth.

I have no doubt that I shall be reassured that it is not so and other Members will be reassured also. They will be told by the Government, "Of course, we have no intention of allowing the Community to agree these matters by qualified majority vote in the future". But the Government have said that before and before very long we find that another treaty comes along which says, "Well, things like Article K etc. will now be decided by qualified majority vote within the treaty". So once again we give away competence, powers and another part of our sovereignty to the institutions of the European Union. That is the way it is done.

I have been speaking on this matter in Parliament since 1972 and outside Parliament since 1963. I know exactly what has been said, what has gone on and how governments of all persuasions have reneged on what they have previously said. I can remember being told by government Ministers in 1972 that there was never any intention to have anything other than a Common Market. That is what was put to the people in 1975, "All we want is a Common Market". We now have the Maastricht Bill. That is far away from the Common Market.

A Common Market does not need Title VI, or any of the K numbers. In fact, we do not need any of the titles in the treaty. I have heard it all before. I have heard the assurances being given that we are not on our way to a federal European state. I do not know about that. What is absolutely certain is that we are already part of a supranational organisation and we are on our way to a centralist supranational state.

Lord Dormand of Easington

A unitary state.

Lord Stoddart of Swindon

My noble friend is quite right. We are on our way to a supranational unitary state. The word "federal" is meaningless; we are not on our way to a federal state but to a unitary state with a central government. The trappings are already present. The people who man the institutions of the European Community know that. When one reads what is said, one realises that they are honest and open about it.

I hope therefore that the Minister will answer the relevant questions raised tonight, which are causing a great deal of worry. We need to know exactly what we are about before we can agree the treaty and the provisions in the Bill which give effect to it.

Lord Harmar-Nicholls

The Government should keep in mind that the title covering immigration, customs co-operation and so forth is a sensitive part of the Bill.

Lord McIntosh of Haringey

Perhaps the noble Lord would permit me to intervene. Title VI is not in the Bill.

Lord Harmar-Nicholls

Perhaps the noble Lord will contain himself for a moment. He too is diffuse at times. I merely wanted to say that there is some confusion about what is voluntary, where we have to arrive at decisions by co-operation arid agreement, and what is laid down in the Bill which must be adhered to, where the decisions as to how we will adhere to it are to be made by some outside body.

All I want to impress upon my noble friend is that, if there is still time to retain the powers that we already possess for dealing with immigration and the other matters, to do so may save a lot of heartache later when, if certain events occur, there may emerge a feeling which could be uncomfortable for the nation as a whole and for the continued co-operation of the Community if it is still in existence.

As one looks at Articles K.1 and K.3 and at K.6, which states that, The Presidency and the Commission shall regularly inform the European Parliament of discussions", one must ask what it is supposed to do once it has been informed.

Lord Campbell of Alloway

Perhaps my noble friend will oblige me by saying to which amendment he is speaking, since we are at Committee stage.

Lord Harmar-Nicholls

I am speaking to the group. but Amendment No. 85, to which my noble friend has spoken, is the basis of all our discussions. I merely wish to help my noble friend and the Government by saying that full attention should be given to the dangers that flow from this provision if it appears that we are losing the power to decide who shall come into this countryand the terms upon which they shall come in if they are not nationals. It is not a slight part of the Bill; it is perhaps in many ways the most intimidating part of it and one that will have many repercussions. Therefore it is important that we get it right.

10 p.m.

Baroness Elks

I should like to make three points, the first in reply to the noble Lord, Lord Stoddart. I believe that the whole Chamber appreciates that he has vast knowledge of this subject. His interest and concern quite understandably go back many years. If he will recall the 1972 Act, our joining of the Common Market allowed for the free movement of people. Surely i t is better to have a joint policy on visas where people are moving about within the Community than to have Greece, Spain, Portugal and Germany with separate policies for people whom we would be obliged under the treaty and the Act of 1972 to let into this country without our having had any say in it whatsoever.

Secondly, with regard to the provisions of Article K, it is better to have them out in the open, when all of us, including the noble Lord, Lord Stoddart, and my noble friend Lord Tebbit, will be aware that these matters have been discussed among Ministers of the Community for years. We have never been able to find out what has been discussed. It has been discussed in secret conclave such as the TREVI meetings. Surely in an enlightened democracy it is our duty as well as our role to put questions to Ministers on the basis of reports coming out from meetings under Article K.

Thirdly, I very much welcome the formation of Europol. I do not believe that any noble Lords in this Chamber need to be told that drugs, terrorism and illegal immigration are not confined to one country; they spread right across the Community. Surely it is better on certain major issues to have close co-operation within one system where different police forces of the Community join together and have a sensible exchange of information in order to catch the people who are destroying member states.

Baroness Park of Monmouth

Perhaps I may add a little to what I have already said. It emerged clearly from the evidence given to the Home Affairs Select Committee that there was already great migration pressure, both east-west and north-south; that long land borders were very difficult to control, very porous and very vulnerable; and that several member states did not have effective controls in place. As examples of what was happening, the Committee was told there was no doubt that the relative weakness of frontier control arrangements on the Continent had helped the terrorist attacks by the IRA that took place in Germany, the Netherlands and Belgium between 1988 and 1990. In addition, we would continue to need our border checks even for EC nationals because of the growing evidence of forged documentation. At one English port alone in 1991, of those refused entry there were 591 who had forged documents. Of those, 524 held forged EC documents. I make this point in support of the fact that we need to maintain our present policy of staying outside Schengen.

Lord Slynn of Hadley

I would have thought that there was absolutely no doubt that in recent years there had been much discussion as part of European political co-operation in the European Council of the matters that fell under Article K. Conceptually and tidily there is much to be said for bringing it all into the Community pillar rather than having a separate pillar, but that has not been done. What is extremely important is that the provision for co-operation on home and justice affairs which has been considered by your Lordships' Select Committee is accepted as the proper course to take because it will bring a greater degree of accountability and transparency into these matters. Therefore, it seems to me that the idea of having these things in a pillar, with the kind of co-operation that is envisaged, is satisfactory.

I do not want to be thought of as always leaping to the defence of the European Court of Justice—I do not have a brief to that effect—but it seems to be thought that under Article K.3 the European Court is being given jurisdiction to implement the provisions of conventions decided upon by the Council. The Minister will tell me if I am wrong, but I do not read it in that way. As I read Article K.3, what is to happen is that the Council will draw up a convention which it will then recommend to the member states for adoption in accordance with their constitutional requirements. It is only then, if the convention is adopted by the member states, that the Council will decide what are the measures to implement the convention. It is only if the convention, as adopted by the member states, has a clause giving the European Court of Justice jurisdiction that the European Court will have jurisdiction.

I hope that I am not misreading Article K.3, but I read it as meaning that the European Court is to have jurisdiction only if the member states all adopt, according to their own constitutional provisions, the recommendation of the Council. If they do not adopt the convention, there is no convention, and therefore there cannot be any jurisdiction in the European Court. Therefore, for my part, I see no vice in this provision of Article K.3.

Lord McIntosh of Haringey

My noble friend Lord Stoddart is strictly legally correct in referring to citizens of other member states as aliens. But I must warn him that according to my rules the xenophobia prize for the day cannot be awarded to the same person who is going to win the conspiracy theory prize for the day. I do not think—

Lord Stoddart of Swindon

I took my noble friend's joke earlier on but I am not going to take this one. I am not a xenophobe. He admitted that I was absolutely correct in legal terms. I am not xenophobic —I tell him that absolutely clearly. I very much believe in co-operation among the countries of the world. That is what is meant by "international". What I do not agree with, because I have seen so many disasters arise from them, is supranational states. I believe in international co-operation among sovereign states. I have seen too many enforced federations collapse. That is why I would prefer to go along the confederal route rather than the federal or unitary state route. I hope 'that I have explained myself.

Lord McIntosh of Haringey

My noble friend has explained himself very well. Of course I accept—and I shall withdraw his name from the competition—that he is not a xenophobe. All I would say is that the word "alien" is normally thought to have a pejorative implication. I would say to him on the broader issue that he believes in co-operation among sovereign states that my fear—and the reason why I take the consistent view in favour of the Maastricht Treaty —is that co-operation among sovereign states is not a sufficient guarantee of world peace and prosperity. I say that with very great seriousness.

I congratulate the noble Lord, Lord Tebbit, on the way in which he introduced this group of amendments. He did what has not always been done in the introduction of previous groups of amendments. He considered each amendment in turn. He explained the provisions of the Bill and the treaty and he attempted to answer the arguments. The one thing that he did not say. which is of prime importance I should have thought, is that Amendments Nos. 293 to 303 all add in Title VI to the Bill where it is not at present seeking to take out particular articles of Title III of the Bill.

Therefore, what the argument assumes, and in some cases it has been explicit—that the provisions of Articles K.1, 2, 3, 4 and so on are part of the Bill—is strictly speaking and factually inaccurate. That is wrong. They are not part of the Bill and should not be considered as such.

However, if we allow the matter to be a legitimate debating device—heaven knows, I have taken part in such debates at Committee stages of Bills before—then let us take the debating device seriously and look at what Title VI says. As the noble Lord, Lord Tebbit, correctly said, it is presaged by Articles 100c and 100d. Article K.1 is predicated on the need for free movement within the Community. We have been moving towards that. I have not heard many Members of the Committee objecting to the idea of free movement within the Community. They have to accept that the extension of that provision within the Community carries with it certain obligations and that is what Article K.1 seeks to provide.

It provides that the following matters shall be matters of common interest—not of direction or of laying down the law from Brussels, as Members of the Committee are disposed to put it, but of common interest. There are the issues of asylum, immigration, combating drug addiction, international fraud, and judicial co-operation in civil and criminal matters. In view of the experiences of the past few weeks I should have thought that few of us, except perhaps the treasurers of the Conservative Party, would not wish for a greater degree of judicial co-operation internationally as regards civil and criminal matters. There are also the issues of customs and police co-operation.

Most significantly, Article K.2 states, in the context of the European Convention for the Protection of Human Rights and that on the status of refugees—and I believe this to be the most important statement of all—that anything in: this Title shall not affect the … responsibilities incumbent upon Member Stales with regard to the maintenance of law and order and the safeguarding of internal security". I put it to the Committee that a considerable part of the debate on this group of amendments has been on the assumption that the K articles in Title VI, even if it were part of the Bill—which it is not—affected the responsibilities incumbent on member states.

It is quite clear from Article K.2.2 that that is not the case. Article K.3 refers almost entirely to issues of co-operation and collaboration. Article K 4, as the noble Baroness, Lady Elks, has reminded us, refers to the role of the co-ordinating committee, which she rightly said was a secret committee in the past and which is now to be given official status and to be subject to interrogation and control. I believe that that is something which we would all wish.

Article K.5 deals with international issues and says that member states should defend their position on these matters. Again, I cannot see any conceivable objection to that. Some Members of the Committee have taken objection to K.6, which refers to the duty of the Council and the Commission to report to the European Parliament. Only those who take the view —which I understand and respect, although I disagree with them—that the European Parliarnent is not a valid body can object to it. Article K.7 says that other forms of co-operation outside the limits of the European Community—in other words co-operation between two or more member states—is perfectly legitimate and acceptable. Article K.8 refers to the division of responsibility for expenditure between the European Community budget and the member states. Article K.9 is perhaps the most important article for those who are concerned with these matters. It requires a unanimous trigger before there is action under Article 100c.

The amendments are not, in the first place, to the Bill itself and, where they are to the Bill, they are to provisions of the Maastricht Treaty which have been well heralded in international co-operation over a number of years. What the Maastricht Treaty would now do would be to legitimise and give increased power to necessary measures of international co-operation. It is my view that the Committee should reject the amendments.

10.15 p.m.

The Minister of State, Home Office (Earl Ferrers)

In discussing this group of amendments, it may be as well to remind ourselves of a fairly elementary fact —that the Maastricht Treaty consists of. in the current jargon, three "pillars". One relates to the Treaty of Rome; one relates to common foreign and security policy; and one relates to interior and justice co-operation. It is only those aspects of the Maastricht Treaty which relate to the Community pillar which need to be in the Bill before the Comrnittee because that pillar is the Treaty of Rome as amended by the Maastricht Treaty and it is the amended Treaty of Rome which requires us to amend our 1972 European Communities Act.

The other two pillars deal with co-operation between governments—co-operation over matters which are outside the Treaty of Rome and which, as the noble Lord, Lord McIntosh, rightly said, have nothing to do with the Bill.

In the interior and justice area, there is already a great deal of' co-operation between member states on a variety of different matters—for example, as the noble Lord, Lord McIntosh, reminded us, in police co-operation, in the fight against drugs and in the fight against terrorism, all of which come under the Trevi group.

The object of the interior and justice pillar is to allow this type of co-operation—over a number of different matters—to take place within a common set of procedures. In other words, the interior and justice pillar, like the common foreign and security pillar, is all about common co-operation, not about legal enforcement.

There are a number of amendments which are before the Committee covering these matters. Perhaps I may speak first to Amendment No. 411, in the name of my noble friend Lord Willoughby de Broke, which seeks to ensure that the United Kingdom's frontier controls will not be abandoned or restricted without the prior approval of Parliament.

The Government are at one with my noble friend over his wish to maintain frontier checks—including immigration controls—on all non-European Community nationals who are seeking to enter the United Kingdom. We have repeatedly made it clear that we have no intention of changing this. We will, though, continue to facilitate the entry into the United Kingdom of bona fide European Community citizens who wish to come here.

My right honourable friend the Prime Minister made that clear, when he said in another place: We believe that those frontier controls should be maintained, and we believe that the declaration that Mrs. Thatcher obtained in 1985 recognised that fact. We shall fight very fiercely … that that is the position in law". —[Official Report, Commons, 20/5/92; col. 271.] But the clause which my noble friend seeks to incorporate in the Bill would be quite out of place. I assure my noble friend Lord Harmar-Nicholls that we are not losing our powers over immigration. The possession of a visa does not guarantee entry. The Maastricht Treaty does not alter the position regarding internal frontier controls at all, and the Bill will not be strengthened by inserting a provision like this into it.

Various noble Lords have referred to the "Bangemann wave". That would have enabled a Community citizen to pass through passport control showing merely the cover of a passport unless exceptionally he or she was challenged to open it. The United Kingdom considered introducing such a system last year, but decided not to do so.

The remaining amendments in this group refer to Article 100c and the interior and justice pillar of the Maastricht Treaty. I would re-emphasise that the matters covered by the interior and justice pillar are matters for co-operation between governments. They are not matters for Community competence, or for the European Court of Justice.

The noble Lord, Lord Monson, was worried about judicial co-operation in criminal matters. The Treaty of Rome has no locus in matters covered by the interior and justice pillars, such as immigration policies or customs and police co-operation. It is up to each member state to make its own decisions on those matters. The important point is that the Maastricht Treaty recognises that member states can develop closer co-operation on matters which are sensitive and important to them, and that they can do that outside the Treaty of Rome. To seek to incorporate parts of the interior and justice pillar into the European Communities Act would create a legal anomaly and it would undermine all our efforts to keep those matters outside the Treaty of Rome.

The European Communities Act is concerned with only the Treaty of Rome. The amendments seek to impose elements of the Maastricht Treaty into the European Communities Act—elements which have been specifically excluded from the Treaty of Rome. The idea of those who do not like the Maastricht Treaty trying to put into the Bill something which the Maastricht Treaty does not even want to put in, really is bizarre and reaches the height of incredulity.

Lord Tebbit

I am grateful to my noble friend for giving way. I am sure that he is aware that we are in a slightly artificial form of debate. I should indeed be reluctant to load more into the Treaty of Maastricht. It would be helpful if my noble friend were to explain why the Government think that it is inappropriate to have those matters in the Treaty of Rome. What is the Government's case for keeping them separate from that lovely institution of the Treaty of Rome and the Community?

Earl Ferrers

I thought that my noble friend knew the Government's view perfectly well; namely, that there are certain aspects of our lives in the Community which are best co-operated on and co-ordinated and which come within the Treaty of Rome. There are others which are far better carried out outside the Treaty of Rome; but, nevertheless, they are matters over which we can co-operate. Those matters are ones in which we all have a common interest—for example, drugs or the police, as the noble Lord, Lord McIntosh, said. Of course there is a common interest, but we do not want that regimented by the Treaty of Rome.

The Government also could not accept the proposals to remove Article 100c and its related provisions. The subjects which are within Article 100c are strictly limited areas of activity which have been brought within the competence of the Community. Article 100c merely provides a means for having a common list of countries whose nationals will require a visa to come to a member state of the Community, and it provides for a common format of visa. We think that that is desirable. My noble friend Lord Tebbit is wrong: the treaty is not concerned with the criteria for granting visas or with any rights which may be implied by the granting of a visa, and there is no question of any form of Community competence or involvement over which individuals should, or should not, receive a visa.

My noble friend Lord Tebbit was worried about Australians and New Zealanders requiring visas. It will continue to be entirely a matter for the United Kingdom to decide who should, or who should not, receive a United Kingdom visa. The visa, like the passport, will not be a European visa. It will only be of common European format as regards the shape, size and colour. The entitlement to the grant of a visa will remain the prerogative of each individual member state.

My noble friend Lord Tebbit asked what Article 100d was for. Articles 100c and 100d stand together. Article 100d provides for a committee of senior officials to prepare the work of the Council as it relates to Article 100c. That is the same committee as the one which co-ordinates the work of the interior and justice pillar. It makes sense for the officials who have experience on interior and justice matters to deal also with the work carried out under Article 100c. The list of countries on the common list are only those whose citizens all European Community countries agree should require a visa if they visit any European country. In addition to that, each country can require other nationals to have visas. Each individual of those countries will have to have a visa.

Article 100c does not provide the power for the Community to decide which individuals should or should not receive a visa. Those will all remain matters for national decision.

My noble friend Lord Tebbit referred to paragraph 3 of Article 100c and asked why we should adopt measures relating to a common format for visas. This gives the power to adopt measures specifying the size, makeup, manner of information, languages and so on on the visa. It is only the format of the visa which will be of common European character.

Lord Stoddart of Swindon

I am obliged to the noble Earl for giving way. What he has said takes some understanding. Is he saying that the Community can draw up a list of third countries whose nationals may have a visa but the United Kingdom, and for that matter any other member of the Community, need not take any notice of that list when it comes to deciding who shall be able to enter the country? In other words, although there may be an agreed list of countries, does that mean that each individual country of the EC can add or subtract from that list in accordance with its own desires as to who should or should not be allowed to enter that country?

Earl Ferrers

It can add, but it cannot subtract. I shall try to explain the matter clearly. There will be a list of countries agreed among all the 12 members of the Community whose nationals will require a visa if they wish to enter any Community country. For example, an individual coming from country A, wherever he is going to in the Community, will require a visa. In addition to that, the United Kingdom might say that it wants individuals coming from country X, which is not on the list, to have visas. Therefore, those nationals from that country will require visas. Whether it is a Community list or a United Kingdom list, each individual coming from a country on that list must apply for a visa. Having a visa does not guarantee him entry. I hope that that makes the position clear.

Lord Swinfen

I understand what my noble friend has said as regards an individual wishing to come to this country when this country requires a visa over and above the Community's requirement. But what is the position if an individual enters the Community through a country other than the United Kingdom and then wishes to travel to the United Kingdom from elsewhere within the Community, bearing in mind that there is free movement within the Community? Once into the Community, what checks will there be as that individual moves into the United Kingdom, because I understand that there will be open borders.

Earl Ferrers

The United Kingdom has always made it perfectly clear that it intends to guarantee or look after its own borders. Therefore we intend to check on who is coming into the country. A person coming from the European Community has a right to enter this country. That does not mean that everyone else who comes along who happens to swim in the stream can also enter this country. If a person has a visa to enter this country, over and above the common list of countries which must have a visa, and then goes from our country to another country in the Community, then it is a matter for that country in the Community as to how it operates its own borders.

10.30 p.m.

Lord Swinfen

I am sorry to interrupt my noble friend again but, if such checks are to take place, we cannot tell just by looking at an individual whether he ought to have a visa to come into the country. Will everyone have his documents checked? If not, the system will not work.

Earl Ferrers

There will be a system whereby people will have to have their passports checked. But where there is a common format of a passport, that would allow people to enter quite readily. If a person comes from a country which does not have a common European passport, then of course his documents will be looked at more carefully. Of course, there has to be a distinction between those who have a right to enter and those who do not, but who have a privilege of entry. That is a matter of individual application.

There is a provision in the interior and justice pillar of the Maastricht Treaty in Article K.9 for other subjects to be transferred to Article 100c in the Treaty of Rome pillar. But that is subject to a very important safeguard. I think that I can put my noble friend Lady Park at ease over the matter. A transfer would require two hurdles to be overcome: first, there would have to be unanimity in the Council—in other words, all member states would have to agree to the transfer—and, secondly, there would have to be ratification. in each member state. In the United Kingdom, that would mean an Act of Parliament. Therefore, no such change could be made without the agreement of Parliament. If I may say so, the noble and learned Lord, Lord Slynn of Hadley, was quite correct. to say —as one would expect of him—that only then would the European Court of Justice have any jurisdiction over the matter.

There is a corresponding provision in Article 100c which will safeguard our ability to decide the appropriate voting method should any other subject be transferred from the interior and justice pillar into Article 100c. If that were to happen, we might want unanimity. It is an important safeguard that we should be able to decide the voting rules. It is one that we wish to retain; it requires not qualified majority voting but unanimity.

My noble friend Lord Tebbit referred to Article K.1 and said that he thought that it was a huge extension of matters of "common interest". All matters in Article K.1 involve extensive existing co-operation. All those areas present member states with common problems where it makes sense for them to co-operate. My noble friend also referred to Article K.8.2 and asked whether there was a provision of domestic law which covers the payment of administrative expenses. I am bound to tell him that Article 199 of the Treaty of Rome (as amended by Title II of the Maastricht Treaty) provides for administrative expenditure and, if agreed, operational expenditure under Title VI to be charged to the Community budget. Section 2(3) of the European Communities Act 1972 gives power to pay our share of the Community budget.

The noble Lord, Lord Stoddart, asked why we needed Title VI. Of course, the noble Lord, Lord McIntosh, said that it is not actually part of the Bill. The United Kingdom was keen to establish this pillar of inter-governmental co-operation. The noble Lord, Lord Stoddart, also asked why existing forms of co-operation were inadequate. The answer is that where we have common problems in the European Community it makes sense for us to tackle them together. A series of bilateral agreements is in fact less effective and joint ministerial meetings are less useful if they are not served by a secretariat of some kind. It is an inter-governmental pillar. Community mechanisms could only be introduced if the Government so decided by unanimity and if Parliament gave its assent.

The Government do not intend to seek or to encourage any transfers from the interior and justice pillar into the Community competence pillar; indeed, we shall resist them. The interior and justice pillar of the Maastricht Treaty is an important development: it brings countries together; it enables a better means of co-operation to take place, in contrast to the variety of arrangements which exist at present; and it ensures that such matters will continue to be for governments to decide between each other and together with each other. It will not be something which comes under the control of the Treaty of Rome.

The fact that this is so is one of our main successes at Maastricht. In the negotiations leading up to Maastricht a number of our Community partners were anxious to see the interior and justice pillars subsumed into the Treaty of Rome. My right honourable friend the Prime Minister argued vigorously against that and he won the argument. That is why the interior and justice matters are now a separate pillar outside the Treaty of Rome, one in which it is realised that these are matters for individual governments to decide but are so sensitive and important that they need co-operation among governments.

For all those reasons, I suggest that the Bill is best left as it is and should not be amended in the way in which the amendments propose.

Lord Monson

I am grateful to the noble Earl, Lord Ferrers, for attempting to explain why the Government believe that formal judicial co-operation on criminal matters should be incorporated into the treaty. However, I am afraid that he has not fully answered all our concerns. Given that co-operation on genuine cross-border matters such as customs, terrorism and drugs is already provided for under the provisions of Article K.1—I have no objection to that and think that it is perfectly reasonable—why is there any need to mention judicial co-operation on criminal matters separately unless there is some future intention to extend the scope of judicial co-operation away from customs, terrorism and drugs and on to other criminal matters which may have no genuine cross-border implications?

Earl Ferrers

The noble Lord is misdirected in his views. These matters, which are matters of cooperation, are not incorporated into the treaty. There is no intention of incorporating them into the treaty. If there were any such intention it would have to be the unanimous decision of the Council and then be ratified by Parliament. That is the reason why they are kept outside and we do not wish to see them taken into the treaty.

Lord Tebbit

I thank my noble friend for the way in which he has dealt with these inquiries. Perhaps I should say to the noble Lord, Lord McIntosh of Haringey, who is not in the Chamber at this moment, that he should not be so ashamed or afraid of the word "alien". We are all aliens the moment we leave this jurisdiction. If I go to France I am an alien and I do not feel bad about that. Why should we feel bad about making the observation that a citizen of France is an alien when he comes into this country? We are behaving as though aliens in this technical sense are somehow associated with science fiction programmes, have two heads and are green in colour. I believe that the noble Lord made an awful lot of a very small issue.

I share the hope of all Members of the Committee that through these measures the treaty will help us to fight crime. I must say that I should feel more comfortable about that if it had not been signed by Mr. Michelis, the former Foreign Minister of Italy, now under investigation for corruption and for milking funds from development agencies. Perhaps it is not ideal to have his thumb-print on this particular treaty.

Perhaps I may try correctly to encapsulate matters relating to visas, as my noble friend put it. It is clear to me that it will be the Community which decides whether, say, Australian and New Zealand citizens will need visas to enter the United Kingdom. But it is the United Kingdom which will decide which Australians and New Zealanders receive those visas. That is a clear division of powers.

Thirdly, as I understand it, we can decide that citizens of state "X" will need a visa to enter the United Kingdom even if it has not been required that they should have a visa to enter other Community states. I hope that I have understood that correctly, particularly in relation to the latter provision, because if one was looking at this matter without the experience we have of the way in which the Community works and the way it keeps adding to its powers, one would say that that must be nonsense. After all, it would mean that that citizen of state "x" could arrive at Paris by air, enter the Community and wander at will. As my noble friend said, we would have to maintain our frontier arrangements and look at everybody's passport as they come in to make sure the gentleman who did not need a visa to enter the Community had a visa to enter the United Kingdom. I wonder how long that arrangement would last.

I noted what my noble friend said and the reasons for these matters being kept outside the Treaty of Rome. He said, very reasonably, that these are matters which the Government think should be outside the Treaty of Rome; they do not have to be inside the Treaty of Rome, I say, Amen to that. It is also a good argument for education, for example, because there has been no argument as to why the provisions relating to education should come into the Treaty of Rome except that it is thought to be a good idea that they should be in the treaty. It seems to me to be a highly subjective argument, and one which is scarcely an argument but merely a statement of opinion made as though it were fact.

I shall refer for a moment to provision K.9—which, as some wit observed, is a bit of a dog. It leads the way towards qualified majority voting on Articles K.1(1) to (6). That is the effect of Article K.9. On page 86 one finds that the provision states: may decide to apply Article 100c of the Treaty establishing the European Community to action in areas referred to in Articles K.1(1) to (6), and at the same time determine the relevant voting conditions relating to it". I know that it would be necessary for us to agree to that for it to happen, and I know that my noble friends on the Front Bench will say that once again I am afraid of shadows. However, I recollect the words of my noble friend Lord Cockfield in the Second Reading debate—or it may have been during the debate on citizenship—when he observed that we should have known that the words in the Treaty of Rome referring to an ever closer union of the peoples of Europe actually meant that sooner or later there would be a provision for citizenship of the Union. One does not have to stretch that provision very far to wonder how long it will be before all this is adopted into the mainstream of the Treaty of Rome.

I would not want to give my noble friends nightmares, but perhaps I may for a moment engage in a degree of political fantasy. Suppose that after the next general election there were to be a Liberal Democrat government. Indeed, there are fantasy merchants on the other side of the Chamber, and I am glad to see them there. Suppose they decided to trigger those provisions. Could we ever undo them? Or, in putting these provisions into this Bill and saying that the Trevi co-operation is not good enough and attaching them in this way to the institutions of the Treaty of Rome, have we provided a ratchet mechanism for a future government to pull on that ratchet?

I have always believed that it is a fundamental error to provide enabling powers for another administration to do that which one does not wish to be done. But, of course, in terms of British domestic legislation until the Treaty of Rome one could always undo what had been done. It would not be easy to undo what might be done under these provisions in future. I give way.

10.45 p.m.

Earl Ferrets

I thought that my noble friend had come to the end of what he was saying. If I may say so, he is looking at shadows and picking up stones and hunting for slugs underneath them. My noble friend was concerned that this was a move towards qualified majority voting. If he will read Article K.9 it states: The Council, acting unanimously on the initiative — may decide to apply —we all have to agree— and may at the same time determine the relevant voting conditions". The Council has to agree unanimously about the voting conditions; and we would want those voting conditions to be unanimous. If others do not wish that, then, of course, it will not cone into operation. Therefore there is no question that this would be done by qualified majority voting because the requirement is that it should be done unanimously.

Perhaps I may say this to my noble friend. He was worried about putting obligations on to future generations. Any law that is passed by Parliament always binds its successors unless Parliament decides to unscramble it. The same applies here. If, unanimously, the Council of Ministers after ratification by members states agrees that certain conditions, shall come within the Treaty of Rome, of course they will be binding on our successors unless our successors unanimously agree to remove them; and that would require agreement by Parliament and ratification of the decision too. I do not see that that differs from the present position.

Lord Thomson of Monifieth

Perhaps I may—

Lord Tebbit

I shall gladly give way to the noble Lord in a moment. Perhaps I may take up what my noble friend says. He states, "if we agree". I very much pray that he is right and that we shall have eternal Conservative government. But I do not believe that he is necessarily speaking for a future Government Front Bench if there were to be a change of government. He has explained to us that the other member states were extremely anxious to get these provisions into the main body of the Treaty of Rome. It was only the gallant fight of our own Government, against odds of 11 to one, which prevented it from happening. It sounds as though it would only require this one Government—that is, the Government of the United Kingdom—to change their mind once and we should be stuck with it until we had the unanimous agreement in the Council of Ministers to undo it or until we repudiated the whole of the Treaty of Rome.

Lord Hailsham of Saint Marylebone

Like any other provision.

Lord Tebbit

From the noises that he emits, I believe that my noble and learned friend Lord Hailsham will suggest that there is some other path. I welcome his sedentary observations as much as I welcome that new innovation today of ambulant interjections. However, I think I am right. That is why I believe that we have some difficulties with this legislation.

In conclusion, I would find it much easier to take in good faith all that my noble friend has said but for the fact that over the past 20 years I have seen the Treaty of Rome and the Single European Act in operation. It just depends how often one wants to burn one's fingers, does it not?

Lord Thomson of Monifieth

I wish to remind the noble Earl, under pressure from his noble friend Lord Tebbit, that in picking up stones and finding slugs underneath, he ought to remember that so far we are on his side in the argument.

Lord Tebbit

I rather wish I had not allowed that intervention, I thought I was receiving support there! I cannot say that I regard my noble friend's answer on these matters as totally satisfactory, but I recognise that he is unable to give more satisfactory answers because he is unable to accept any of the arguments which were put forward in the course of the debate because of the nature of the treaty. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 86 not moved.]

[Amendments Nos. 87 to 89 had been withdrawn from the Marshalled List.]

[Amendment No. 90 not moved.]

[Amendments Nos. 91 to 94 had been withdrawn from the Marshalled List.]

[Amendment No. 95 not moved.]

[Amendments Nos. 96 to 101 had been withdrawn from the Marshalled List.]

[Amendment No. 102 not moved.]

[Amendment No. 103 had been withdrawn from the Marshalled List.]

[Amendment No. 104 not moved.]

[Amendments Nos. 105 to 108 had been withdrawn from the Marshalled List.]

[Amendment No. 109 not moved.]

[Amendment No. 110 had been withdrawn from the Marshalled List.]

[Amendment No. 111 not moved.]

[Amendment No. 112 had been withdrawn from the Marshalled List.]

[Amendments Nos. 113 to 116 not moved.]

[Amendments Nos. 117 to 120 had been withdrawn from the Marshalled List.]

[Amendment No. 121 not moved.]

[Amendments Nos. 122 and 123 had been withdrawn from the Marshalled List.]

[Amendments Nos. 124 to 127 not moved.]

Lord Monson had given notice of his intention to move Amendment No. 128:

Page 1. line 9, after ("II") insert ("except Article 109g").

The noble Lord said: The noble Earl, Lord Caithness, has been kind enough to write to me in response to the worries I started to express the other day about Article 109g, which has to do with the currency composition of the ecu. The noble Earl's reply managed to satisfy between 80 per cent. and 90 per cent. of my anxieties, which, at this time of night, is good enough for me. Therefore, I do not propose to move the amendment.

[Amendment No. 128 not moved.]

[Amendments Nos. 129 to 133 not moved.]

[Amendments Nos. 134 to 139 had been withdrawn from the Marshalled List.]

[Amendments Nos. 140 to 143 not moved.]

[Amendment No. 144 had been withdrawn from the Marshalled List.]

[Amendments Nos. 145 to 150 not moved.]

[Amendment No. 151 had been withdrawn from the Marshalled List.]

[Amendments Nos. 152 to 163 not moved.]

[Amendments Nos. 164 to 166 had been withdrawn from the Marshalled List.]

[Amendments Nos. 167 to 173 not moved.]

[Amendment No. 174 had been withdrawn from the Marshalled List.

[Amendments Nos. 175 to 177 not moved.]

[Amendment No. 178 had been withdrawn from the Marshalled List.]

[Amendments Nos. 179 to 189 not moved.]

[Amendments Nos. 190 to 197 had been withdrawn from the Marshalled List.]

Lord Pearson of Rannoch moved Amendment No. 197A:

Page 1, line 9, after ("II") insert ("except the following words in paragraph 1 of Article 146: "authorized to commit the government of that Member State"").

The noble Lord said: I rise briefly to propose Amendment No. 197A, which is in my name. At this stage it is a probing amendment. It refers to Article 146 of the Treaty on European Union, which is a new article, the first sentence of which says that the Council shall, consist of a representative of each Member State at ministerial level, authorised to commit the Government of that Member State".

The amendment would remove the second part of that sentence; in other words it would still allow each member state to send one of its government Ministers to represent it on the Council, but it would not allow that Minister to commit his member state single-handed, as would appear to be the case from the wording of the treaty as it stands.

At first sight, it would appear that this wording must be some kind of mistake. It would not appear possible that it means what it seems to mean. After all, presumably Council meetings will take place, the outcome of which has not been entirely decided by civil servants in advance. Presumably discussion will take place, the outcome of which is not entirely clear. One dares to hope that that discussion may be held by real people, talking about real and live issues, and that it may on occasion lead to the Ministers in question having a new understanding of the subject under consideration. Indeed, if our Government's pretension to get into the so-called heart of Europe and fight to improve things there means anything at all, it presumably means that they can win arguments in the Council of Ministers. But can it be right in those circumstances that those Ministers can commit their governments without referring back to them? That seems to me to be a recipe for muddle and disaster; yet that is what the treaty appears to say will happen.

This is an important new clause because it goes on to deal with the length of the time that the office of president will be held and the cycles by which the presidency will be held. The sentence, the meaning of which I query, comes right at the top of the new clause, so presumably it is more important than such lesser matters as Buggins' turn for the presidency of the Council, and so on. I can only imagine, therefore, that it does not mean what it says it means, like —let us pray—so much of the ill-drafted treaty before us. In that somewhat forlorn hope, I shall be most interested to hear my noble friend's interpretation of the sentence in question. I beg to move.

Baroness Chalker of Wallasey

It may be for the convenience of the Committee if I intervene at this stage. It is a rather unusual step; I try to listen to everybody's arguments. Amendment No. 197A, moved by my noble friend Lord Pearson of Rannoch, focuses on the only change introduced by the Maastricht Treaty into Article 146.

At present, the article provides that the Council shall consist of delegated representatives of member states. As amended, it specifies that such representatives shall be at ministerial level authorised to commit the government of that member state.

it has always been the case that member states' representatives at Council meetings were expected to be able to commit their governments. We know in advance the business that is to be undertaken. We have certain briefing to cover the eventualities. If, as has happened to me and to many other Ministers, an eventuality occurs that has not been foreseen, there are such things as telephones back to London. I can remember many telephone calls at different times when I wanted further advice and further information —but all possible within the sensible running of a Council of Ministers' meeting.

The matter has been made explicit in this treaty in Article 146.1 because certain member states wanted to send regional representatives to Council meetings. In order to ensure that the Council could continue to function properly, we had to make it clear that such representatives would have the authority to commit their national governments. Thus the change, while it may apply to some member states, certainly does not affect the United Kingdom's position.

I can tell my noble friend, as I told the noble Lord, Lord Moran, several nights ago, that Ministers from Scotland and Wales already attend certain councils by arrangement with the UK Minister concerned when specifically Scottish or Welsh topics are to be discussed. I remember that my honourable friend from another place, the Scottish Office Minister Lord James Douglas-Hamilton, formed part of our UK delegation to the Council of Education Ministers in November last year. This is something which we have taken in our stride where our Minister has been fully briefed by his fellow Ministers, and therefore this is no problem and no change for us. In that spirit—my noble friend Lord Pearson of Rannoch said this was a probing amendment—I thought that it might be helpful to the Committee to have this answer at an early stage. I hope that the noble Lord will not press the amendment.

Lord Jay

Before the noble Baroness sits down, perhaps I may ask whether she can reconfirm the assurance that has often been given in this matter that any British Minister operating in the Council of the Community is just as responsible and accountable to the British Parliament for what he or she does and says there, whether committing the Government or not, as he or she is anywhere else in the world?

Baroness Chalker of Wallasey

I am happy to confirm that. Whether one is speaking in the United Nations, or the European Council of Ministers, in a NATO meeting or in any other body of which we are a member, that Minister goes to speak with the brief of the Government. Woe betide any Minister who ever tried to stray from it.

Lord Tebbit

I do not know whether or not it will encourage my noble friend, hut I believe that I can give her some support on these matters. It was a matter of extreme irritation for me at times, when I was in the Council, that Ministers from other member states would proceed in the negotiations all day long until one thought that one had an agreement, and would then suddenly say that they were terribly sorry but they could not give their country's consent to a matter because it had gone outside their negotiating remit. It was the usual story: that the smallest party in the coalition was not entirely happy about it, and so on. So they tended to get an advantage by claiming that they were not able to make a decision. l think that this provision is helpful.

But the one thing that would worry me a little—again recollecting my own experience—is that on many occasions towards the end of the day, as the less important items are dealt with, Ministers head away and leave officials in charge. Does that allow officials to speak for Ministers with the authority of Ministers? It would be a great pity if that flexibility were to be lost.

Baroness Chalker of Wallasey

It is my experience of council meetings over 14 years in four different councils that there are times when perhaps a vote in this Parliament would take precedence over remaining in Brussels until an ungodly hour, when one would not need to stay except for the length of some of the contributions of people who are not in one's own Government. On such occasions I have made absolutely sure that the permanent representative had my brief, used it and did not stray from it. Indeed, any representative at a council meeting must be in a position to commit his own Government. That has always been the case, even when it has had to be a permanent representative rather than a Minister, because of the duties of this Chamber or another place, which must take precedence.

Lord Sanderson of Bowden

As someone who has been a territorial Minister at the Council of Ministers, I agree with my noble friend Lord Tebbit that it is very irritating when other countries' representatives have to 'phone back and we have to wait for decisions. But it is very important in this respect that this addition has been made at this stage because it clears up the matter. I for one know very well that we are responsible to this Parliament. Any territorial Minister in the United Kingdom would be responsible to this Parliament. It dots the "i's" and crosses the "t's" so far as concerns other countries.

Lord Pearson of Rannoch

I am most grateful to my noble friend for her clarification of the procedure. I cannot say that the discussion has enamoured the organisation in question to myself and possibly other Members of the Committee. But at this stage of the evening, I should be very happy to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 198 not moved.]

[Amendments Nos. 199 to 203 had been withdrawn from the Marshalled List.]

[Amendment No. 204 not moved.]

Baroness Trumpington

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at three minutes past eleven o'clock.