Lords Sitting of 24 March 1998

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Norwich.

Indonesia
The Earl of Sandwich The Earl of Sandwich asked Her Majesty's Government:
What is their aid policy towards Indonesia, given the growing economic and political uncertainty there.
Lord Whitty: My Lords, Indonesia is not one of the poorer countries which are the focus for this Government in seeking to eliminate poverty. Our aid programme will concentrate on developing partnerships to improve forest management, with increased emphasis on poor people, on assisting labour organisations and on supporting NGOs in East Timor. Indeed, the Department for International Development has today announced its first major funding of a development project in East Timor. We have urged the Indonesian Government to implement in full the reforms agreed under the IMF package so that financial instability is ended and its impact on Indonesia's poor is minimised.
The Earl of Sandwich: My Lords, I am grateful for the last part of the Minister's Answer. Is he aware that during the past two months price increases and inflation have risen by as much as 15 per cent. a month and that the poor are particularly affected by those increases? Do the Government intend to support the IMF's austerity measures, including more price increases? In order to compensate for that, do the Government have plans for Indonesia to return to a poverty-focused aid programme?
Lord Whitty: My Lords, our basic approach to the financial crisis in Indonesia is the same as that of the IMF. Indonesia needs to respond to the financial crisis and implement agreed reforms. They include ending uneconomic projects and monopolies which distort the economy and restructuring affected banks. Otherwise, the recent achievements in reducing the number of people living in poverty will be reversed. We believe that the IMF package, if properly implemented without favouritism, will maintain the progress which Indonesia was making prior to the current financial crisis. However, that requires an effort of will by the Indonesian Government.
Lord Marsh: My Lords, does the Minster agree that the biggest problem facing Indonesia is its government? There is a likelihood that increased aid will make the ruling political clique richer, but not do very much for the poor.
Lord Whitty: My Lords, there are serious problems about the way in which Indonesia is governed and about
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its economic management. The IMF package, supported by Her Majesty's Government and other major western governments, should provide a more stable outcome which will benefit all elements of Indonesian society. If that is not implemented, there is a serious problem of increased poverty, rather than the reverse, in Indonesia. We would address that issue in those circumstances, but at present the main responsibility rests with the Indonesian Government.
Baroness Williams of Crosby: My Lords, in view of the fact that poverty is driving more and more small Indonesian farmers into clearing more and more of the rain forest by burning it down, will the Minister tell the House whether within the Government's aid programme there is specific provision for encouraging substantial and sustained agriculture rather than the slash and burn which is today destroying huge areas of the Indonesian forests?
Lord Whitty: My Lords, yes, one of the first priorities I mentioned was improved forest management, including the area around the forests. In addition, Indonesia has experienced one of the worst environmental disasters in terms of the haze arising in that area following the disastrous forest fires which are not yet eliminated. The European Union is looking at ways in which it can help Indonesia to tackle similar environmental disasters. In developing the DfID's future forestry programme, we will seek changes in policy and management of forestry areas which presently oblige people to clear forest areas in such disastrous ways. Those changes will be part of our programme and the EU programme.
Lord Jenkins of Putney: My Lords, are the Government continuing to permit the sale of British arms to this corrupt dictatorship?
Lord Whitty: My Lords, the sale of arms to Indonesia and to other regimes was covered by the announcement of the Foreign Secretary in July. We did not think it legal or practical to end supplies under contracts already entered into. However, the new criteria, in line with our ethical foreign policy, will apply to all future applications for export licences to Indonesia.

Nazis' Victims: Restitution of Assets
2.40 p.m.
Lord Janner of Braunstone Lord Janner of Braunstone asked Her Majesty's Government:
What progress they have made with regard to the restitution of assets to victims of Nazism in Britain.
Lord Haskel: My Lords, on 3rd April the Government will publish a joint report from the Department of Trade and Industry and the Foreign and Commonwealth Office on the history of the enemy property. The Government will announce their response at the same time.
Lord Janner of Braunstone: My Lords, I thank my noble friend for his Answer, especially for telling us that this important report will be published at last. Does he

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accept that the purpose of this operation is to seek, even at this late date, some measure of restitution and justice for victims of Nazism—Jewish and non-Jewish—including the heirs of people murdered by the Nazis, all of whom placed their assets in this country for safekeeping and many of whom have received nothing? Will the Minister assure the House that the Government will set in motion a swift and honourable response to the report in order to provide compensation and restitution, recognising not least that if they do not do so Britain's good name will be put in dire disrepute?
Lord Haskel: My Lords, when we debated the matter on 18th February 1 said that this is an honourable and decent Government which will act in an honourable and decent way. Nothing has happened since then to make me change my view. The Government's response to the research is a matter for the President of the Board of Trade and will be announced when the report is published on 3rd April.
Lord Lester of Herne Hill: My Lords, does the Minister recall that in that debate on 18th February, in responding to my suggestion that the United States were being more liberal in dealing with the assets of the victims of Nazism, he drew a comparison saying that by 1953 the United States had returned only 15 per cent. of assets applied for whereas the United Kingdom had refused only 13 per cent. of applications for compensation? Will the Minister confirm the accuracy of that statement?
Lord Haskel: My Lords, I thank the noble Lord, Lord Lester, for that question because it gives me the opportunity to correct a point of detail in the response that I gave. The noble Lord is quite right. In that debate I said that by 1953, the United States Administration had released money to only 15 per cent. of applicants. In fact, documents indicate that by 1953 assets returned to "persecutees"—their word, I assume, for victims of Nazism—amounted to some 15 per cent. of the total vested assets released. However, the documentation makes clear that that figure is at best a guess and should be treated with some caution.
Baroness Miller of Hendon: My Lords, does the Minister agree that no one, least of all Her Majesty's Government, should profit from any kind of criminal activity? In view of that and the fact that the Minister has full confidence in the honour of his Government, which I should not dream of questioning, can he not say at the very least that that money will not be transferred to the Treasury, because the owners deposited it for safekeeping in very tragic circumstances? At least the heirs, or people who could reasonably have been expected by the owners to have inherited those assets, should in fact do so. Is it not a fact that events of tragic proportions deserve compassionate responses which do not necessarily follow the rule book?
Lord Haskel: My Lords, I certainly agree with the noble Baroness that the matter deserves very
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sympathetic treatment. However, the problem is that there are no assets remaining. All the assets have been distributed. That is the crux of the problem. If there were assets remaining to be distributed, the Government would be trying to find the owners. But in fact all the assets have been distributed.
Baroness Park of Monmouth: My Lords, I wonder whether the Minister could enlighten my darkness. I should like to know how he manages to reconcile the action of the Government in encouraging the Nazi Gold Conference and creating a research paper but saying in the last debate that, when that research paper is published, they will be deciding not what to do but whether to do anything. In the light of what is owed to the people who thought they had safe haven here, does he find that credible, or is that after all either a research or a media exercise? I find it very difficult to understand.
Lord Haskel: My Lords, it is certainly a research exercise. I can only repeat what I have said already. I have every confidence that the Government will treat this matter in a decent and honourable way. My right honourable friend the President of the Board of Trade will make her announcement on 3rd April.
Lord Archer of Sandwell: My Lords, I recognise how hard my noble friend Lord Haskel has worked to secure a just outcome to all this. Will he confirm that the assets are in fact in the Consolidated Fund, or at least the equivalent of those assets? Perhaps I may tempt him to a further indiscretion. Has the Minister seen a copy of the report and could he offer us something of the flavour of its contents, or does it have to remain a closely guarded secret for the next 10 days?
Lord Haskel: My Lords, I can confirm that a small amount of assets were returned to the Consolidated Fund. The Government have made a commitment to deal sympathetically with any claims to those assets.
As regards the report, I have seen a draft copy of it. The content of the report is rather mixed. It gives a detailed account of how the Custodian of Enemy Property took control of assets and how they were released after the war. But it recounts some extraordinary insensitivities immediately after the war, which are most regrettable. However, in the late 1940s and early 1950s, attempts were made to put right those insensitivities. That culminated in a letter, which is in the report, dated 15th May 1951 from Mr. Sidney Silverman, Member of Parliament, to Arthur Bottomley, who was then the Secretary of State for Overseas Trade. In that letter, Mr. Sidney Silverman stated that some of those insensitivities had been dealt with.
Lord Campbell of Alloway: My Lords, when this matter arose before, I asked where the assets were. If they are in the Consolidated Fund, does the noble Lord agree that that is irrelevant to the question of fair restitution, because it is no answer? Is he satisfied that

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the machinery for investigating a legitimate claim is sufficient and fair and is being operated in a reasonable way? How is it being done?
Lord Haskel: My Lords, on 22nd April 1988, a statement was made in another place by Mr. Butcher, who was then at the Board of Trade, in reply to a Written Question from Mr. Richard Page on that point. The Government gave an undertaking that the small amount of money which was paid to the Consolidated Fund would be paid to any claimants. The Government have broadcast to the best of their ability the details of the transfer. In order to assist in that matter, they are publishing, on the internet, it is hoped by the end of next month, a list of some 20,000 names of people and companies whose records remain at the Department of Trade and Industry as having assets received by the Custodian of Enemy Property. It is hoped that that may jog memories and people may be able to make a claim.
The Earl of Courtown: My Lords, in view of the Minister's answer to my noble friend, can he say whether legal remedies will be available for those unfortunate people who have suffered unfair treatment?
Lord Haskel: My Lords, I imagine that there are legal remedies if a proper claim can be established. However, there are great difficulties involved in establishing a legal claim for something that happened many years ago and where records are very sparse and thin.
Lord Annan: My Lords, does the Minister remember the injunction which the noble Lord, Lord Janner, gave him; namely, that this is a matter of honour? From the Minister's replies, I fear that a comprehensive document, replete with historical instances, will appear in April and that very little will be done as a result.
Lord Haskel: My Lords, I ask the noble Lord to have confidence that the Government will do the right thing.
Lord Janner of Braunstone: My Lords, can my noble friend the Minister tell the House how much money was put into the Consolidated Fund? Further, can he say how much was paid out, or used by way of set-off with eastern European countries, when the Government well knew that people in those countries would not make their claims against their governments because they would be sent to the Gulag and that, if they did make such a claim, they would get nothing? My noble friend the Minister has been good enough to say that there will be an honourable and decent response to the report. However, can he anticipate any such honourable and decent response which does not mean the return of assets to those who own them?
Lord Haskel: My Lords, in our debate on 18th February I gave details of the amounts of money involved. It is quite a complicated matter and I am not sure that I should give a response now because it would take quite some time. However, I undertake to write to the noble Lord on the matter. I should add that if any
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noble Lords wish to know the details, they have only to read the Hansard report for 18th February, which contains detailed information.

Teenage Pregnancies
2.51 p.m.
Lord Northbourne Lord Northbourne asked Her Majesty's Government:
Whether the fact that more than half the children born in the city of Dundee in 1996 were born to unmarried mothers gives them cause for concern.
Baroness Ramsay of Cartvale: My Lords, in 1996, there were 875 new-born children in Dundee born to unmarried parents—that is, 50.6 per cent. of all live births. Some 80 per cent. of births to unmarried parents in 1996 were, however, jointly registered by both parents. Health statistics show that while the rate of teenage pregnancies in the Tayside Health Board area, which includes Dundee, is high compared with the rest of Scotland, there has been a small but steady fall in the number of such pregnancies in the area. Nonetheless, teenage pregnancies generally speaking are a cause of concern. Addressing the issue across Scotland as a whole has been given priority in the recently published Green Paper, Working Together for a Healthier Scotland.
Lord Northbourne: My Lords, I thank the Minister for that reply. However, if I may say so, it does not really answer the Question, which relates particularly to the institution of marriage in the context of the births in Dundee, and also more generally. Does the noble Baroness agree with the view expressed in an article in the Independent on Sunday two days ago, which was an analysis of the Chancellor of the Exchequer's Budget and was summarised in the following quotation:
"Mr. Brown's message was that Government is a bystander when it conies to love, marriage and divorce … For a poor woman now the only safe marriage is with the state"?
Baroness Ramsay of Cartvale: My Lords, we cannot allow for every spin that newspaper reports put on the Budget. Indeed, I saw many headlines about the Chancellor of the Exchequer being the friend of the family and about it being a family-friendly Budget. As my right honourable friend made clear in his Budget Statement, the Government know that families are the bedrock of a stable and healthy society. The Budget proposals of the Chancellor of the Exchequer seek to ensure that women get a fair deal from the state and that women's choices, as well as men's, are dealt with fairly in both the tax and the benefit systems. That poses no threat to family formation.
The Government's primary concern is with the stability of relationships where children are involved. They recognise the evidence which shows that two parents offer the best prospects for their children and that this stability is often most easily found in marriage. However, it is important to recognise that the Government cannot, and should not, force couples either

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to marry or to stay together. As I said, the Government place considerable value on the family; indeed, we see it as our duty to support and nurture its role. But that is not to deny that there are strong, mutually supportive family relationships outside marriage.
Lord Higgins: My Lords, in view of the rather remarkable statistics revealed in the Question, can the Minister tell the House to what extent the figures for Dundee are consistent with those for the country as a whole? As regards the answer that the noble Baroness has just given on the Budget, surely it is the case that the Budget actually restricts the married couple's allowance. Is that not bound to be a deterrent to those who may wish to marry?
Baroness Ramsay of Cartvale: My Lords, on the noble Lord's first point, I can tell the House that health statistics show that, in 1996, Tayside had a 52.1 per cent. rate of conception per 1,000 female teenage residents against a Scottish average of 41.9 per cent. In other words, the answer to the question is that the figures are higher than those in the rest of Scotland. Regarding the noble Lord's second point, the answer is no. I am afraid that the noble Lord is mistaken; that is not the effect of the Budget.
The Lord Bishop of Norwich: My Lords, is the Minister aware that those of us on these Benches are not happy about the Government's apparent neutrality over the institution of marriage? We speak from these Benches not just for all the Christian Churches but for all the main religions in stating that the institution of marriage is vital not just to the nurture of children but also to the stability of society as a whole. Will the Minister do her best to ensure that the Government make a commitment by introducing practical measures to support the institution of marriage?
Baroness Ramsay of Cartvale: My Lords, I repeat what I said in answer to the noble Lord, Lord Northbourne. The Chancellor of the Exchequer made clear in his Budget Statement that this Government know that families are the bedrock of a stable and health society. We see the family as the essential unit of social stability, which should, therefore, be supported as far as possible by government policy. I do not believe that to be neutrality. Moreover, it is most important for us not to get this out of perspective. Out of 16 million families in this country, four out of five are headed by a married couple. After Denmark and Portugal, the United Kingdom has the highest marriage rate in the European Union. I believe that that shows that marriage is alive and well in this country.
Lord Gisborough: My Lords, does the Minister agree that deliberate teenage pregnancies might be discouraged if the donees were to be given vouchers rather than monetary benefits?
Baroness Ramsay of Cartvale: No, my Lords; I do not agree with the noble Lord. Indeed, I am not quite
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sure what point he is trying to make by using the word "deliberate". As I said, teenage pregnancies are a big problem for all of us and they cause us great concern. However, through the Scottish Office in Scotland—which, after all, is the subject of the Question—the Government are involved in various projects regarding sex education and other measures to try to discourage teenage pregnancies. But I shall not take up the time of the House by listing some of them.
Baroness Lockwood: My Lords, does my noble friend the Minister agree that another important aspect of this whole area is suitable sex education in schools and the availability of family planning facilities and advice? Can my noble friend tell me whether or not these are readily available in the Dundee area?
Baroness Ramsay of Cartvale: My Lords, I thank my noble friend for that important point. The Scottish Office offers general guidance on family planning and sex education and looks to health boards and education authorities to devise strategies best suited to their own needs for implementing that. In 1998–99 the Health Education Board for Scotland is undertaking a project to encourage and promote family planning, including appropriate use of contraceptives and sexual behaviour. In Dundee the Cornerstone Project is a city centre, drop-in facility for young people funded jointly by Dundee City Council, Dundee healthcare and the Scottish Office, providing facilities and services for counselling and advice about contraception.

British Steel Corporation
3 p.m.
Lord Islwyn Lord Islwyn asked Her Majesty's Government:
Whether they have had any discussions with the British Steel Corporation concerning the current exchange rate and its effect on exports.
The Minister of State, Department of Trade and Industry (Lord Clinton-Davis): My Lords, the Government have a continuing dialogue with British Steel at many different levels. This ranges widely over current issues, including the exchange rate and export related matters.
Lord Islwyn: My Lords, will the Minister remind the Chancellor of the Exchequer about the concerns over unemployment levels that may arise later this year? Will he bear in mind that British Steel has already halved its capital expenditure from £400 million per annum to £200 million, and that, overall, manufacturing industry feels it is bearing the brunt of anti-inflation measures yet it employs 4 million people and a further 4 million indirectly? Does the Minister consider that the fiscal measures contained in the Chancellor's Budget are sufficient to stave off further cuts in investment, job losses and factory closures?
Lord Clinton-Davis: My Lords, British Steel is engaged in a long-term programme to ensure cost and

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efficiency improvements so that it continues to be one of the most effective and efficient steel producers in the world. As regards the wider issues, the difficulty was that this Government inherited an accelerating exchange rate because action which ought to have been taken earlier had been deferred for electoral purposes. We believe that is one of the most important reasons for ensuring that the Bank of England takes over objective control of that issue, free of political considerations. I believe that is the appropriate way to proceed to ensure that we have a stable economy, low inflation and therefore in the medium and long term a much more stable rate of exchange.
Lord Hardy of Wath: My Lords, does my noble friend accept that while the present problem relating to the exchange rate may be unavoidable, the difficulties experienced by British Steel and by the engineering industry in particular will be exacerbated if unfair competition continues in the EU, especially from Germany and Spain? My noble friend will be aware that the Council of Ministers established a monitoring committee to consider the matter. Will he consider the work of that committee and perhaps ensure that a report on its activities is circulated widely?
Lord Clinton-Davis: My Lords, of course we are deeply concerned about unfair competition. But one has to establish as a matter of proof that the competition is unfair and that it would be appropriate therefore for action to he taken at European Union level to deal with that situation. The Government, of course, take into account evidence that we receive from time to time, but much of it is generalised and does not constitute a convincing reason for seeking a remedy at European Union level. We must reject trade protection because often flimsy reasons are advanced for it which do not in the long term protect our economy.
Lord Bruce of Donington: My Lords, will my noble friend inform the House what further information is required by Her Majesty's Government as to the existence or otherwise of subsidised steel in the case of Germany?
Lord Clinton-Davis: My Lords, that is an example of what I mean. That is a generalised allegation that steel is being subsidised and that that situation ought to be condemned by the competition authorities in the European Commission. If substantive evidence is forthcoming, this Government will have no hesitation in acting. We have already referred a number of complaints to the Commission from time to time, and latterly the question of coal from Germany.
Lord Ezra: My Lords, will the noble Lord indicate to us the Government's latest estimates of the outturn of visible trade for this year, and to what extent that could have been affected by the present level of exchange rates?
Lord Clinton-Davis: My Lords, it is much too early to do that. The statistics that we shall ultimately produce
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will depend on many other matters—for example, the downturn in south-east Asia and problems regarding the fluidity of the situation in the Soviet Union and its impact upon Germany. There is an amalgam of reasons which constitute the possibility of a downturn in trade. However, exports overall have held up remarkably well.
Viscount Montgomery of Alamein: My Lords, can the noble Lord say whether there are any strong economies that have weak currencies?
Lord Clinton-Davis: My Lords, that is a good point. I have often prayed in aid the fact that Germany has over the years—despite, until recently, the high level of the mark—been able to capture export markets. Japan has done likewise. That demonstrates the importance of productivity, which has been too low in this country over many years. It also demonstrates the importance of quality, quality control, quality of after-service and delivery on time. All these are factors which contribute to the success of exports. There is undoubtedly at present a high quality level in British exports.

Data Protection Bill [H.L.]
3.6 p.m.
Lord Carter: My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the Data Protection Bill [H.L.], have consented to place their prerogative and interests, so far as they are affected by the Bill, at the disposal of Parliament, for the purposes of the Bill.
Bill read a third time.
Clause 7 [Right of access to personal data]:
The Solicitor-General (Lord Falconer of Thoroton)The Solicitor-General (Lord Falconer of Thoroton) moved Amendment No. 1:
Page 6, line 8, at beginning insert ("Subject to subsection (4),").
The noble and learned Lord said: My Lords, in moving Amendment No. 1, I shall speak also to Amendments Nos. 2 and 5. This is a technical amendment. Clause 7(8) requires data controllers to respond promptly to subject access requests. Clause 7(4), read with Clause 7(5), makes provision for the postponement of that duty, at least in part, in some circumstances. Where some of the information sought by the data subject is withheld on the grounds that it would identify a third party who has not consented, the obligation to disclose promptly applies only to the rest of the information. This amendment makes it clear that Clause 7(8) has to be read subject to that special provision.
Amendment No. 2 is also in the name of my noble friend Lord Williams of Mostyn. This government amendment comes before your Lordships' House with the unusual recommendation of being designed to reverse an amendment which we brought forward at Committee stage and which was agreed by the House at that time. The issue is whether or not companies should benefit from the right to claim compensation for breach

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of the Bill's provisions. It is an area in which the directive has set us a difficult puzzle, and we are trying hard to get it as right as we can.
Article 23 of the directive requires us to provide that "any person" who has suffered damage as a result of contraventions of the data protection regime shall be entitled to compensation from the data controller in question. As your Lordships are aware, we had originally reflected that requirement, in Clause 11, with a reference to an entitlement for "individuals". It seemed to us at the time that that was a fair interpretation of the effect we were required to achieve. It was subsequently drawn to our attention, however, that that could lead to some perhaps surprising results. So we reflected with some care on that reference in the directive to "any person" and concluded, on balance, that the right thing to do was to use the same word in Clause 11. That had the effect of admitting companies into the class of persons who would be entitled to claim damages. That appeared to us at the time to be a more generally consistent approach, and one which was recommended to your Lordships at Committee stage.
However, subsequent reaction to the amendment of the Bill has not, on balance, been favourable. It has now been represented to us with some force that the result it produces may in fact be disproportionate. It can create an open-ended liability for data controllers of a potential range which we think, on reflection, may not be the best answer to the question of risk allocation in this area. We do not think that such a result is required or intended by the directive; nor, we have concluded, do arguments for consistency outweigh these disadvantages.
It seems to us, on reflection, that to restrict the availability of compensation to natural persons—"individuals"—is entirely consonant with the stated objectives and the language of the directive taken as a whole, and is in general the better solution. It does sometimes happen that first thoughts are the best after all. The Government have now said to your Lordships' House on many occasions already during the passage of this Bill that we are trying to make the best fist of it that we can. We have listened carefully and open-mindedly to what has been said to us on this matter, and we have come to a revised view. It is on that basis that the present amendment comes before your Lordships today, on which I invite the House to accept the merits, on balance, of making the return journey to the original wording proposed by the Government for Clause 11.
The third amendment in the group is in the name of the noble Lord, Lord Coleraine. I shall wait for the noble Lord to speak to it before I respond to it. I beg to move.
3.15 p.m.
Lord Coleraine: My Lords, I am sure that there is good reason why the amendment has been grouped with the two amendments to which the noble and learned Lord has spoken. I cannot think of the reason, but I am happy to speak to my amendment.
I tabled the amendment to reflect concerns expressed to me last week by the Law Society. Clause 30 of the Bill, in so far as affected by the amendment, provides
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exemptions from the subject information provisions of the Bill for bodies exercising regulatory functions designed to protect the public against, as stated in Clause 30(2)(a)(iv),
"dishonesty, malpractice or other seriously improper conduct by, or the unfitness or incompetence of, persons authorised to carry on any profession or other activity".
It is clear to the Law Society that it will be protected by the exemption provisions when it processes data about the alleged improprieties of admitted solicitors. What is less clear is whether the exemption extends to data processed in respect of trainee solicitors. Those are persons preparing for admission as solicitors. The Law Society regulates and sets standards for them. A trainee solicitor, under the supervision of an admitted solicitor, provides valuable legal services to the public. Trainee solicitors are a valuable legal resource. It would be both anomalous and to be regretted, and not at all in the public interest or in the interests of trainee solicitors, if the Law Society were not to have the same protection from the subject information provisions of the Bill in respect of trainee solicitors as it has in regard to admitted solicitors.
It is unclear to me whether trainee solicitors are,
"persons authorised to carry on any profession or any other activity",
within the meaning of the Bill. Is a trainee solicitor carrying on a profession? The expression "carry on any profession" is susceptible to various meanings. The amendment would put the question beyond doubt. It would also operate for the benefit of other professions which may be similarly affected.
Having heard what I have said, I hope that the noble and learned Lord will either accept my amendment or be prepared to say that he will bring forward a suitable amendment in another place in due course.
Lord Lester of Herne Hill: My Lords, perhaps I may clarify the position as regards the amendment to Clause 11. I understand the reasons given by the Minister for seeking to substitute an individual for a person, a corporation—a body of that kind—in seeking compensation. But what troubles me is how one links this to the European Convention on Human Rights. Article 8 of the convention guarantees the right to personal privacy against unnecessary interference. Case law makes it clear that it protects companies as well as individuals. If through data processing there is then a breach of the corporate rights of an organisation and it suffers direct damage as a result, it is also clear under the human rights convention that it is entitled to an effective remedy in domestic law under Article 13 of the convention.
I appreciate that when the Human Rights Bill comes into force it will require this Bill to be read in accordance with the convention if possible. But it is obviously more desirable that Parliament should state the law of the land clearly in this Bill rather than the courts having the obligation of interpretation to make the Bill fit with the convention.
My worry about the proposed amendment to Clause 11 is that it will remove the compensatory remedy where the victim is not an individual, and will

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therefore give rise to a mismatch, not between the Bill and the EC directive directly, but between the Bill and Articles 8 and 13 of the European Convention on Human Rights. In making up my mind about the amendment I shall be grateful to know whether the point has been considered, and what assurances the Government can give the House as to whether or not there is a mismatch.
Lord Mishcon: My Lords, may I be allowed to support what the noble Lord, Lord Coleraine, said in regard to Amendment No. 5? He covered the ground so fully that it is unnecessary for me to say any more.
Lord Falconer of Thoroton: My Lords, perhaps I may deal first with the amendment in the name of the noble Lord, Lord Coleraine, which my noble friend Lord Mishcon, supports. I am grateful to the noble Lord for having given my noble friend Lord Williams of Mostyn notice of his intention to propose the amendment, for having explained its purpose to him in advance, and for having explained it clearly again.
As the noble Lord made clear, in essence he wants to ensure that the subject information exemption in Clause 30 applies not only to qualified professionals such as solicitors, but also to those being trained for a profession. The argument is that the exemption needs to be available for trainees, too, since they are subject to similar rules of propriety of conduct, competence, and so on.
I have considerable sympathy with this objective. I wonder, though, whether the amendment is needed. The exemption in the relevant part of Clause 30 currently applies to,
"persons authorised to carry on any profession or other activity".
In the first place, I think there is nothing to limit the reference to "any profession" to persons of a particular current status in the profession. Many professions include junior training—or one might say novice—grades which are fully regulated but confined to limited roles. I refer to pupil barristers, or those who used to be called articled clerks. Such regulation seems to me to be integral to protection of the public in respect of persons authorised to carry on any profession, whether by such persons in their present or future capacity. If there is any room for argument about that—which I do not think there is—it must in any event be removed by the Bill's reference to "other activity". I think, therefore, that the Law Society regulation is designed to protect the public in respect of persons authorised to carry on any profession or other activity within the meaning of Clause 30. The same arguments are likely to apply to trainees for other professions.
I certainly understand the noble Lord's concern. I am willing to have another look at this matter, to see whether the position could usefully be clarified, which, with the greatest respect to him, I am not sure his amendment will necessarily do. However, he spoke to it in such a way as to indicate the concerns that we should consider. I shall certainly do so. The amendment goes
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much too wide, and I cannot advise the House to accept it. However, I am very willing to re-examine this subject.
Lord Coleraine: My Lords, before the noble and learned Lord moves on from that point, perhaps I may thank him for his reply. It will save time, and I shall now not need to move my amendment formally. I am glad to hear that he will have another look at the legal points at issue and I am sure that the Law Society will do the same. In the meantime, I am most grateful for his remarks.
Lord Falconer of Thoroton: My Lords, to turn to the point made by the noble Lord, Lord Lester, the answer is this. Our focus in drafting the amendment has been too exclusively on the directive; it has not focused on the interaction between that and the European Convention on Human Rights. It seems to me appropriate, in the light of what has been said, that we should go away and consider the position. I ask the House to agree to the amendment; however, I wish to make clear that we will consider the point that the noble Lord made, which has not yet been considered in detail.
Lord Lester of Herne Hill: My Lords, I am very grateful for that generous reply. No one, in good grace, could possibly do other than accept it with gratitude. Perhaps I may merely make one point, to which I shall return later. The European Convention on Human Rights is embedded in European Community law. When interpreting the EC directive, the Luxembourg court as well as national courts have to keep their eye on the Convention as well as on Community law. Therefore, while we have in mind the directive throughout these debates, to quote the marvellous metaphor of the Lord Chancellor, the Human Rights Act will make our legal system point towards magnetic north—magnetic north being Convention rights, which are paramount. Therefore, as legislators, we have to try to make the statute fit the directive and the Convention. I am most grateful that this matter will be considered.
On Question, amendment agreed to.
Clause 11 [Compensation for failure to comply with certain requirements]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 2:
Page 8, line 26, leave out ("A person") and insert ("An individual").
On Question, amendment agreed to.
The Chairman of Committees (Lord Boston of Faversham): My Lords, in calling Amendment No. 3, I should point out that, if it is agreed to, I cannot call Amendment No. 4.
Clause 28 [Crime and taxation]:
Baroness Nicholson of Winterbourne Baroness Nicholson of Winterbourne moved Amendment No. 3:
Page 18, line 8, leave out subsection (4).
The noble Baroness said: My Lords, this amendment relates to Clause 28(4), referring to wide-ranging secondary legislation powers given to the Secretary of

1099
State in order to subvert crime and to enforce powers of taxation. It is a very wide-ranging clause indeed. The Data Protection Registrar states, in a letter that she sent to me on 18th March, that Clause 28(4) is unprecedented and that,
"Exemptions under this broad heading have been case by case".
She adds that,
"No other enforcement body internationally has asked for broad based exemptions".
She goes on to point out:
"Clause 28(4) takes away protection given by the 1984 Act".
With that in mind, I have placed two amendments before the House today. The first, to which I now speak, seeks to follow the line of the Data Protection Registrar and to remove Clause 28(4) completely. Perhaps I may briefly seek to justify that; first, on the basis that the Government, when in opposition, called secondary legislation—to quote from Mr. Derek Fatchett, now a Member of the Government—
"one golden, malevolent thread running through our constitution, … the transfer of prerogative powers from the Crown, not to the House, not to Parliament, but to the Executive".—[Official Report, Commons, 23/5/94; col. 112.]
He went on to say:
"It is revealing that a Government should have the arrogance to ask for such powers. It would be even more revealing if a Parliament—this Parliament"—
he was referring to 1995—
"agreed to grant Ministers those powers".
Later, during debate on the same Bill, the Deregulation and Contracting Out Bill, on 23rd May 1994, he repeated, at col. 114, a commitment given earlier that,
"no incoming Labour Government will use the powers, because … the powers are an abuse of the House of Commons and give too much power to the … Executive".
He made the further point that,
"The Labour Party oppose in principle the use of order-making powers to repeal primary legislation".
I have no doubt that that is why the Labour manifesto of 1997 stated,
"Unnecessary secrecy in government leads to arrogance in government and defective power decisions".
I would not wish to see the new Government fall into that pattern of activity so early in their time of responsibility. It is against the philosophy of New Labour, as I understand it.
To turn to the detail of the clause, it justifies its existence on two important government arms: first, the police, and secondly, the Inland Revenue. I am glad to be able to tell the House that the police do not wish to have this wide-ranging power. Indeed, they have stated to me that they would rather that it was not available to them.
I have in front of me a letter from the chief constable who is the chairman of the ACPO Working Group on Data Protection, the police body on data protection, in which he states:
"The Police Service is not seeking wider exemptions from the legislation and neither have we made any representations to the Home Office on such matters. It would not be in the interest of the Police Service".
In other words, the police comply with the 1984 Act. They have a good professional relationship with the Data Protection Registrar. They have managed to maintain public confidence in an area of great sensitivity; namely, electronic data holding in the modern era. Their behaviour has been exemplary, and they do not wish that public confidence to be shaken by any well-meant but inherently clumsy attempt to give them wide-ranging powers that they do not desire. Their view is that blanket provision such as this is a step too far for any public body. They wish exemptions to be kept to a minimum, they are knowledgeable about using the new technology and feel that public confidence in the police would be shaken if they were given Clause 28(4) powers. I am grateful to be able to lay a part of that letter, which is already in the public domain, before the House.
Secondly, I turn to the question of the Inland Revenue, on whose shoulders therefore this clause must now rest for its inclusion in the Bill. Here I suggest that the Inland Revenue, if it seeks this broad exemption, should surely not wish to have it placed in front of your Lordships in this hole-in-the-corner method. If this is not a Henry VIII clause then surely, from the way in which such clauses were debated by the Labour Party in the other House while I was in the other place, at least it is a "White Queen" clause. Henry VIII, when he said, "Off with their heads", did it; the White Queen merely said rather loudly, "Off with their heads, off with their heads", and perhaps not so many people suffered. Either way, it is a secondary legislation power. If new large powers are needed by the Inland Revenue, noble Lords should be convinced that there is no proper Inland Revenue legislation under which they could be debated.
As the noble and learned Lord the Solicitor-General said in the previous debate on this Bill, we are in an era where the Inland Revenue's future is unknown. That future may, of course, be less unknown since the Chancellor's speech, with insurance being twinned with Inland Revenue computer systems. Undoubtedly, many more changes lie ahead very soon.
However, is it right that the Inland Revenue, with these changes coming to its work, should be authorised by ministerial order alone to remove from Parliament the capacity to debate such matters and for us to be the judges as to what is right and proper in terms of Inland Revenue special provisions in the electronic era?
Before I sit down, perhaps I may pick up a challenge that will immediately be thrown at me that it is an affirmative order and that we can debate it. When on an affirmative order I raised an important point just before Christmas about EU database protection, I was subsequently informed that 13 minutes was far too long. I am asking should wide-ranging, blanket Inland Revenue powers which take away rights of individuals already given under the 1984 Act be trimmed down to such a narrow window of democratic opportunity? I beg to move.
3.30 p.m.
Viscount Astor: My Lords, we debated this amendment at both Committee and Report stages of the Bill. At Committee stage I added my name to the

1101
amendment by the noble Baroness. Our first debate was largely after the report of the Delegated Powers and Deregulation Select Committee, which stated that it thought that the powers in Clause 28(4) would be "impossible to justify". Those were their words. The Government listened to that concern and came forward with an amendment that dealt with the problem to a degree, but not entirely. It softened the blow, if I could describe it that way. But at the same time, the Government then came up with many other reasons why this draconian power was necessary.
Throughout the progress of the Bill, on this side of the House we have never been entirely convinced by the necessity for those powers. At Report stage we also debated the present Amendment No. 4, which is grouped with Amendment No. 3, moved by the noble Baroness. That amendment did not delete subsection (4) but sought to amend it in a way that we on this side of the House thought might be more acceptable to the Government.
At that stage, the noble and learned Lord gave reasons why the Government did not want to accept that amendment, which is Amendment No. 4. His main argument was that the Government would lose the flexibility to deal with new developments. That was not a convincing argument against the amendment. It may be that deleting subsection (4) is going slightly too far, but we are not happy with the subsection. The noble and learned Lord must accept that unless he is prepared to consider Amendment No. 4 by the noble Baroness, we would support her in deleting subsection (4) so that the Government could go back, consider the matter more carefully and come up with better drafting.
Lord Falconer of Thoroton: My Lords, I am grateful to the noble Baroness for returning to the subject of Clause 28(4). In effect, at this stage we are debating two amendments. The first would remove subsection (4) altogether and the second would leave it in place purely for tax and related purposes and exclude the reference to crime and the prevention of crime. That neatly crystallises the two big remaining issues concerning this subsection: namely, should it be removed altogether? Do we need it for any department's purposes? Secondly, if, as the Government have argued, it is required for Inland Revenue reasons, should our order-making power also embrace other departments in the area of crime and offenders? I will deal with those issues in turn.
First, does the Inland Revenue need this power? I remind the House that without the Clause 28(4) general exemption, as opposed to case by case exemptions, the Inland Revenue and hence honest taxpayers would suffer losses with information being revealed to suspect taxpayers about the nature and origin of material passed to the Inland Revenue by third parties such as banks and retail businesses and about the revenue's risk rules and scores under the new self-assessment tax system. The Inland Revenue would also be unable to receive information disclosed voluntarily; for example, by retailers helping them to identify potential ghosts and moonlighters.
1102
Since our debate at Report, the noble Baroness was kind enough to have a meeting with my noble friend Lord Williams and myself. I know also that she has been in contact with the Data Protection Registrar who is quite naturally concerned that we should minimise exceptions to the normal data protection law mechanisms. Since then, the Home Office has had joint discussions with Inland Revenue colleagues and representatives of the registrar.
Those discussions have been very valuable in further isolating the operational issues at stake and the extent to which there might be scope to meet them through other data protection law mechanisms. We have reached no firm conclusions, but both the Inland Revenue and the Data Protection Registrar's staff have agreed to explore a number of points further. Between them these bear on both of the principal mechanisms at stake, the subject information provisions and the non-disclosure provisions. I would very much like those issues to be explored further before the Government reach a view on whether any modification to Clause 28(4) is possible.
I should stress that this process is without commitment on either side. The Data Protection Registrar's staff have not dropped their general concerns about Clause 28(4), to which the noble Baroness, Lady Nicholson, gave voice in this debate; nor have the Government conceded that its scope can be reduced. We need to look further to see, with good will, what can be done. I am asking for that work to be done quickly so that there can be no delay in reporting back in another place and, in due course, bringing any appropriate fresh proposals back before the House.
I turn now to needs which may arise beyond the Inland Revenue's. The Government have been entirely open about it. At present—and this confirms what the noble Baroness said in relation to the police—the Inland Revenue is the only department which has sought an exemption. But one can imagine similar circumstances arising elsewhere. I note that ACPO's data protection committee has confirmed that it does not seek an exemption, but the police are not the only ones who handle data concerning crime, offenders and taxation.
I also have to say, with respect, that it would be unreasonably optimistic to think that whenever a future need arose there would be other convenient legislation, whether originating in Europe or elsewhere, going through Parliament, whose scope could accommodate data protection amendments. It does not work like that. Opportunities to amend data protection law in practice arise only rarely.
However, there is something more we could do now. Hitherto, we have frankly been loath to ask other departments whether they can foresee a need for a similar exemption because the very question might stimulate over-cautious responses. However, I think we have gone beyond the point of such niceties. The Home Office will now approach other departments generally, making clear the arguments put in this House for restricting exemptions of this kind and asking whether they have any other clear cases for exemption and if so what are their operational needs. If there are any other such cases, the Government would explain them in

1103
another place, and subsequently in this House, to bring out why we need the general order-making power. If there are no other such cases, we will look seriously at an amendment to restrict the scope of subsection (4).
I hope that the House will accept that this is a genuine offer to look again, dealing with both issues raised by the two amendments. Having made our further inquiries, we would come back to Parliament to explain the nature, if any, of our need. Pending that further work, I invite the noble Baroness to withdraw her amendments at this stage in the expectation of further information and assurances in due course.
Viscount Astor: My Lords, before the noble and learned Lord sits down, perhaps I may put to him a question and ask him to respond briefly. He has made a very genuine offer, which is not surprising because we know that the Data Protection Registrar is concerned about these powers and that the police do not want the powers and now we understand that the Inland Revenue is concerned about these powers. He has made a very genuine offer to look at the issue again, but of course with no commitment. Indeed, he cannot, as it were, bind his colleagues in another place.
The difficulty I have—I accept the reasonableness of the noble and learned Lord's argument and his genuine offer—is that if the noble Baroness withdraws her amendment the Bill will then go to another place. If the Government look at the issue and decide, for whatever reason, that they do not wish to alter the clause as it stands the Bill will not necessarily come back to this House and your Lordships will not have an opportunity to ask the Government here in this House why they changed their mind or why they did not change their mind. In those circumstances, it would seem to me reasonable if the noble and learned Lord were prepared to accept the amendment, or one of the amendments, along with his commitment to look at it again. That would ensure that the Bill would come back to this House after it had been in another place and your Lordships could then address the issue, listen to the, I am sure, reasonable arguments from the Government and hear the full consideration that they had given to this issue.
Lord Lester of Herne Hill: My Lords, I am not sure whether the noble and learned Lord the Solicitor-General has yet sat down; but if he has not yet sat down, perhaps I may supplement that question by a further one. The noble and learned Lord has already indicated in the context of an earlier amendment that the European Convention point has not been directly focused upon, for reasons I understand. Can he tell the House whether the effect of Clause 28(4) as it stands, authorising a possible breach of Article 8 of the European Convention on Human Rights by authorising a disproportionate interference with personal privacy, has been taken into account; and if not, whether the Government have it in mind that that too should be taken into account in considering this matter?
Lord Falconer of Thoroton: My Lords, the answer is that I had not sat down. In response to the noble
1104
Viscount, Lord Astor, what I have said to the House the Government will do involves in good faith both discussing the matter with the Inland Revenue and the Data Protection Registrar to see what can be done in relation to the Inland Revenue aspect and also making inquiries of other departments to see whether any other department wants it. I am not sufficiently experienced in the procedures of the House to comment on what he said the procedures are. However, assuming that what he said is correct, it seems to me that the House has to rely on the Government's good faith in doing that which they have said they will do. I respectfully suggest that there is no reason why the House should not rely on the Government's good faith in this respect. If the results of the investigations and the talks bear fruit we will then bring forward the appropriate amendments in another place. If they do not bear fruit, we will explain why not at an appropriate point to both another place and to this House.
3.45 p.m.
Viscount Astor: My Lords, I apologise for interrupting the noble and learned Lord again. If he goes for that process, which I accept is a quite reasonable process for the Government to go through, and finds that the Bill goes to another place and is unamended, your Lordships' House will not have an opportunity to see the Bill again. That is the point I was trying to make. I fully accept the genuineness of the noble and learned Lord's offer and the Government's commitment. However, the point I am making is that without a peg on which to hang a debate so that the Bill can come back, your Lordships may not be able to have such an opportunity.
Lord Falconer of Thoroton: My Lords, as far as a lack of a peg is concerned, there would plainly be the opportunity to explain to another place if the conclusion were reached that no such amendments were to come forward. As far as concerns this place, again, I am not sufficiently experienced in the procedures of the House to indicate whether or not an opportunity could be given for us to report back to this House as to why it was—
Noble Lords: No!
Lord Falconer of Thoroton: My Lords, there is a general noise that suggests that there would not be that opportunity. It all seems to come down to the fact that the House has to rely on the Government's good faith, which the noble Viscount has indicated he quite rightly accepts. I earnestly suggest that that is the right course to take in that respect. We will look at it. But it is up to the noble Viscount whether he accepts that or not. I would strongly suggest that he does.
The noble Lord, Lord Lester, asked whether the European Convention on Human Rights would be breached. That would not depend on this power; it would depend on any order that was subsequently made under it, assuming it remained unamended. At that stage consideration would be given to the question of the

1105
relationship between whatever order was produced and the provisions of the European Convention on Human Rights.
Lord Lester of Herne Hill: My Lords, I am very grateful to the noble and learned Lord for that reply. Going back, if I may, to the question raised by the noble Viscount, the problem is that unless one of these amendments is accepted by the House, and fully accepting the Government's good faith in every respect, there may be a problem. Let us suppose, hypothetically, that the Government decided that they were right in the first place and that no amendment should be made in another place, there would then be no mechanism when the Bill came back to this House because another place would not have disagreed with a decision taken by your Lordships' House. That is why, in effect and in the most charming way, the noble and learned Lord is asking the House to accept not only the Government's good faith, but whatever decision they reach, subject to another place. That does not seem to be a satisfactory position to be in.
Lord Falconer of Thoroton: My Lords, after the position has been so clearly explained to me by the noble Viscount, Lord Astor, after the noble Lord, Lord Lester, has explained it, after the growl from the House and the noble Earl, Lord Russell, nodding so enthusiastically that they could only be right, I have accepted and understood finally what the procedural position is. I also accept, on the basis of what everyone has told me, that if we in good faith decide that we will not bring forward any amendments there will be no opportunity in the context of this Bill for the matter to be debated again by this House, though of course the matter could be raised by other means; for example, by an Unstarred Question relating to the issue. There is no growl of dissent to that suggestion!
The noble Lord, Lord Lester, has put his finger on it. One does have to accept the Government's good faith and accept it on the basis that if we do not bring forward an amendment in the context of this Bill there can be no debate. But, again, I would earnestly suggest in relation to this Bill that in the context of a government who are listening, who are genuinely trying to improve the Bill and who have brought forward amendments at the suggestion of Members of the House, the correct course is to rely on the Government, recognising that there will not be another opportunity for debate if your Lordships take that chance.
Earl Russell: My Lords, of course we accept the noble and learned Lord's word unreservedly. But would it be a correct understanding of his word that he has not said he will do something; he has said only that he might do something?
Lord Falconer of Thoroton: My Lords, with respect, that is a most accurate account. I have said that we will look at something. I have made no commitment on behalf of the Government to come back with any amendment. Therefore, it is perfectly possible, on the basis of what I have said, that we will not come back
1106
with any amendment. That is a perfectly accurate account of the matter. But surely it must be better, when we are looking at it in good faith, for us to do it on that basis rather than putting the matter to a vote, as that would sour the perfectly friendly and constructive approach that has so far prevailed in relation to this most excellent series of debates. I am surprised that everyone laughs when I say that.
Baroness Nicholson of Winterbourne: My Lords, before the Solicitor-General sits down, perhaps I can take him away from the Primrose Farm and the happy debate on mechanics and back to the hard graft, the coal face, which is what this Bill is all about.
Does the noble and learned Lord accept that in his explanation of why he wishes me to withdraw my amendment there is an inherent contradiction? On the one hand, he said that the Government have not conceded that the clause needs altering and, on the other, he stated that if no other department wishes to use the clause it will be restricted. In other words, the noble and learned Lord has not conceded that the clause needs alteration but will now do a wide-ranging, Star Wars-type search around the globe to see whether by any chance anybody happens to want it. It is rather like a Christmas present that nobody has picked up. Does he accept also that he has not offered any recognition of the police position by even giving a guarantee that he will withdraw from the Bill that part of it that relates to crime?
I feel that the noble and learned Lord's offer is rather like a Trojan Horse. Can he reassure me about that?
Lord Falconer of Thoroton: My Lords, I have said that, after what the noble Baroness described as a Star Wars trawl around other departments, if nobody else wants the clause we will look seriously at an amendment to restrict the scope of subsection (4).
I can take the matter no further. I accept what the noble Baroness said—which is a repetition of what everybody else said—and I am making no promises in relation to what, if any, amendment I may come back with. It would be wrong for the House to amend the Bill simply with a view to making sure that the matter can be debated on another occasion. That is what appears to be in the minds of those who tabled the amendment.
I will not assist my case by repeating it. I shall be deeply sorry if those who have until now been so co-operative and received their reward think it appropriate to put the matter to the vote.
Baroness Nicholson of Winterbourne: My Lords, I am grateful to the Solicitor-General. It is a pleasure to work with him on this important piece of legislation. However, I feel that I need to help him out of his difficulties. Since the Data Protection Registrar stated on 17th March,
"It remains my view that Clause 28(4) should he deleted";
since the Chief Constable of Police in charge of data protection for the entirety of the police in England and Wales believes that the clause should not include them; and since so far the Inland Revenue has given no good

1107
cause to include the clause, other than enforced subject access, on which we could have another debate if we so wished, I feel sure that the Solicitor-General will feel a lot more comfortable if the clause is in the wastepaper basket where we believe it belongs.
Lord Falconer of Thoroton: My Lords, before the noble Baroness sits down, perhaps I can say that she should not divide the House simply to make me feel more comfortable. It will make me feel more uncomfortable.
Baroness Nicholson of Winterbourne: My Lords, sometimes the medicine tastes a little sour but the illness is then cured. I am sure that in the privacy of the Lobby the noble and learned Lord will come to see, not the error of his ways, but the error of the Inland Revenue's tempting efforts to draw him down the road of secondary legislation in a way which is antipathetic to the Government whom he so well represents at the Dispatch Box in your Lordships' House.
I feel that I need to test the opinion of the House to see whether it agrees with myself and the noble Viscount, Lord Astor.
3.54 p.m.
On Question, Whether the said amendment (No. 3) shall be agreed to?
Their Lordships divided: Contents, 134; Not-Contents, 99.

Division No. 1

CONTENTS

Addington, L.

Dholakia, L.

Ailsa, M.

Dilhorne, V.

Aldington, L.

Dixon-Smith, L.

Anelay of St. Johns, B.

Dowding, L.

Archer of Weston-Super-Mare, L.

Ellenborough, L.

Astor, V.

Elles, B.

Astor of Hever, L.

Elliott of Morpeth, L.

Avebury, L.

Erne, E.

Baker of Dorking, L.

Erroll, E.

Bath, M.

Exmouth, V.

Beaumont of Whitley, L.

Ezra, L.

Beloff, L.

Falkland, V. [Teller.]

Bethell, L.

Forbes, L.

Brain, L.

Gainford, L.

Bridges, L.

Gardner of Parkes, B.

Brigstocke, B.

Geraint, L.

Butterworth, L.

Glenarthur, L.

Cadman, L.

Goodhart, L.

Calverley, L.

Gray of Contin, L.

Carlisle, E.

Grey, E.

Carnarvon, E.

Hampton, L.

Chesham, L.

Hamwee, B.

Clancarty, E.

Harmar-Nicholls, L.

Coleraine, L.

Harmsworth, L.

Coleridge, L.

Hayhoe, L.

Craigavon, V.

Henley, L.

Crook, L.

Hothfield, L.

Cross, V.

Hutchinson of Lullington, L

Dahrendorf, L.

Hylton, L.

De Freyne, L.

Hylton-Foster, B.

Dean of Harptree, L.

Inglewood, L.

Denham, L.

Jacobs, L.

1108

Jenkin of Roding, L.

Oppenheim-Barnes, B.

Jopling, L.

Platt of Writtle, B.

Kinnoull, E.

Rankeillour, L.

Kirkwood, L.

Razzall, L.

Kitchener, E.

Redesdale, L.

Knollys, V.

Rees, L.

Lang of Monkton, L.

Renton of Mount Harry, L.

Lauderdale, E.

Ritchie of Dundee, L.

Layton, L.

Rochester, L.

Lester of Herne Hill, L. [Teller.]

Rodgers of Quarry Bank, L.

Linklater of Butterstone, B.

Romney, E.

Lucas of Chilworth, L.

Russell, E.

Ludford, B.

Russell-Johnston, L.

Mackay of Ardbrecknish, L.

Sainsbury, L.

McNair, L.

St John of Bletso, L.

McNally, L.

Sandford, L.

Maddock, B.

Selkirk of Douglas, L.

Malmesbury, E.

Stair, E.

Mar and Kellie, E.

Stockton, E.

Marlesford, L.

Strange, B.

Marsh, L.

Swinfen, L.

Masham of Ilton, B.

Teviot, L.

Middleton, L.

Thomas of Gwydir, L.

Monro of Langholm, L.

Thomas of Swynnerton, L.

Montgomery of Alamein, V.

Thomas of Walliswood, B.

Morton, E.

Thurso, V.

Mountevans, L.

Tordoff, L.

Moyne, L.

Vivian, L.

Newby, L.

Waterford, M.

Newton of Braintree, L.

Weatherill, L.

Nicholson of Winterbourne, B.

Wharton, B.

Norrie, L.

Wigoder, L.

Northesk, E.

Williams of Crosby, B.

Norton, L.

Winchilsea and Nottingham, E

Ogmore, L.

Young, B.

NOT-CONTENTS

Acton, L.

Grenfell, L.

Ampthill, L.

Hardie, L.

Archer of Sandwell, L.

Hardy of Wath, L.

Ashley of Stoke, L.

Haskel, L.

Barnett, L.

Hayman, B.

Bassam of Brighton, L.

Hilton of Eggardon, B.

Berkeley, L.

Hogg of Cumbernauld, L.

Blackstone, B.

Hollis of Heigham, B.

Blease, L.

Howie of Troon, L.

Blyth, L.

Hoyle, L.

Borrie, L.

Hughes, L.

Bruce of Donington, L.

Hughes of Woodside, L.

Burlison, L.

Hunt of Kings Heath, L.

Callaghan of Cardiff, L.

Irvine of Lairg, L. [Lord Chancellor]

Carmichael of Kelvingrove, L.

Carter, L. [Teller.]

Islwyn, L.

Castle of Blackburn, B.

Janner of Braunstone, L.

Chapple, L.

Jay of Paddington, B.

Cledwyn of Penrhos, L.

Jenkins of Putney, L.

Clinton-Davis, L.

Kennedy of The Shaws, B.

Currie of Marylebone, L.

Kennet, L.

David, B.

Kilbracken, L.

Davies of Oldham, L.

Lockwood, B.

Dean of Thornton-le-Fylde, B.

Lofthouse of Pontefract, L.

Dixon, L.

McIntosh of Haringey, L. [Teller.]

Donoughue, L.

Dormand of Easington, L.

Mason of Barnsley, L.

Elis-Thomas, L.

Merlyn-Rees, L.

Evans of Parkside, L.

Milner of Leeds, L.

Falconer of Thoroton, L.

Mishcon, L.

Farrington of Ribbleton, B.

Molloy, L.

Gainsborough, E.

Monkswell, L.

Gallacher, L

Montague of Oxford, L.

Gilbert, L.

Murray of Epping Forest, L.

Glenamara, L.

Nicol, B.

Gordon of Strathblane, L.

Orme, L.

Graham of Edmonton, L.

Peston, L.

Gregson, L.

Pitkeathley, B.

1109

Prys-Davies, L.

Smith of Gilmorehill, B.

Puttnam, L.

Stallard, L.

Ramsay of Cartvale, B.

Stoddart of Swindon, L.

Randall of St. Budeaux, L.

Stone of Blackheath, L.

Rea, L.

Strabolgi, L.

Rendell of Babergh, B.

Symons of Vernham Dean, B

Taylor of Blackburn, L.

Richard, L.[Lord Privy Seal.]

Turner of Camden, B.

Sefton of Garston, L.

Wallace of Coslany, L.

Shepherd, L.

Wedderburn of Charlton, L.

Shore of Stepney, L.

Whitty, L.

Simon, V.

Williams of Elvel, L.

Simon of Highbury, L.

Winston, L.

Resolved in the affirmative, and amendment agreed to accordingly.
4.3 p.m.
[Amendment No. 4 not moved.]
Clause 30 [Regulatory activity]:
[Amendment No. 5 not moved.]
Clause 31 [Journalism, literature and art]:
Baroness Nicholson of Winterbourne Baroness Nicholson of Winterbourne moved Amendment No. 6:
Page 19, line 19, at beginning insert ("Subject to subsection (1A) below.").
The noble Baroness said: My Lords, I shall not speak to this amendment for long but I request a small hearing from your Lordships' House. I want to revisit briefly the fact that Clause 31(1)(a) embraces such a wide range of persons that it could be said to undermine to a significant extent the function of the legislation. I seek a definition in this context of the words "journalist", "journalism" and "publication". I suggest that because the word "publication" means "showing a document to another person" and because the word "journalist" has never been defined by statute, it is possible to argue that this clause, which expands the exemption from journalism to include literary and artistic material, will provide a valuable shield to those who gather and hold information for purposes other than those for which the legislation is intended.
I ask first whether the Solicitor-General will look again at the exemption because the wording used is so broad that I believe it will have the capacity in the modern world to bring in other classes of people and undermine the legislation significantly.
Secondly—I raised this point earlier—I want to revisit the concept of accuracy and to remind the noble and learned Lord that no duty of accuracy is imposed by law on print journalists and that the Press Complaints Commission code of practice does not provide an effective remedy. Indeed, it is not even a quasi-judicial procedure. In those circumstances, I can see no logic in exempting the print media from the obligation of accuracy enshrined in the fourth data protection principle. It would readily be possible to amend Clause 31(2)(a) by bracketing the fourth principle with the seventh. The noble and learned Lord knows that I have raised the issue of the necessity for accuracy in the print media previously, but I believe that if an amendment similar to this could be made in the other place it would introduce a new right which could be of considerable value to ordinary citizens.
Finally, the balance between privacy and freedom of expression has been tilted profoundly towards the media, in this case print journalism, as the remainder of the media are already covered by the Broadcasting Act 1996 and by the earlier radio and television legislation. I remind the House that in the United Kingdom there is no right of privacy and that the exemption therefore is not a counterweight against the right of privacy in favour of a proper balance being struck for freedom of information; it is merely a heavyweight against the citizen. Indeed, other European Union nations have a right of privacy. There is a written constitutional right of privacy and therefore the balance that is supposedly struck here is no balance at all. It is a heavy thump against the rights of the individual.
At Second Reading I mentioned that I hoped that, despite the plethora of knowledge now collected about everyone globally in the electronic media, we could create an oasis of privacy for individuals by the mechanism of this Bill. This clause is such a sweeping exemption for the media that it takes away the fragile and existing rights which, slender as they are, will be demolished by this new right which was not contained in the Data Protection Act 1984. I beg to move.
Lord Falconer of Thoroton: My Lords, the insertion of the word "necessary" into the language of Clause 31 is an entirely understandable proposition. As the noble Baroness lucidly explained, the amendment is motivated by a proper concern to achieve maximum fidelity to Article 9 and to the European Convention on Human Rights. However, it is a proposition the logic of which we find to be more apparent than compelling. I shall seek to explain why we do not consider it appropriate to agree to these amendments. I am speaking now to Amendments Nos. 6 to 10 which at the moment are grouped. The noble Baroness has in effect spoken to Amendments Nos. 6 and 8 which are grouped with Amendments Nos. 7, 9 and 10 in the name of the noble Lord, Lord Lester.
4.15 p.m.
Lord Lester of Herne Hill: My Lords, I am grateful to the noble and learned Lord for giving way. It is Amendment No. 6 that has been moved. These amendments have been grouped together. If we are to consider them together perhaps I should speak immediately to Amendments Nos. 7 and 9. I shall not speak to Amendment No. 10 because that raises a different issue about legal certainty. I shall turn to that separately later, if that is for the convenience of the House.
I rise to support Amendment No. 6 and speak at the same time to Amendments Nos. 7 and 9. I should like to take a few moments to deal with this matter because it has not been dealt with previously at any stage of the Bill. I suggest that it is our duty to do our best to ensure that the Bill properly implements binding European law, including the EC directive. If and to the extent there is a failure to give domestic effect to European law that will lead to legal uncertainty and unnecessary litigation in our courts. That may be litigation before both European courts. On a worst case scenario failure to

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implement the directive properly could give rise to a claim for damages against the United Kingdom with the British taxpayer having to foot the bill.
The task is made more difficult for your Lordships by the tortuous structure and language of the directive and the Government's desire to avoid legislating in a way that arouses hostility from the media. I am concerned that Clause 31 as it stands fails properly to implement binding European legal principles as regards the exemption for journalism, literature and art. Amendments Nos. 7, 9 and 10 seek to ensure that the exemptions for the vital right to free expression of the media and the public satisfy the European principle of legal certainty—that is Amendment No. 10, to which I shall turn later—and can be properly balanced against the right to individual privacy using the European "pressing social need" test of necessity which includes the vital European legal principle of proportionality.
In Grand Committee on 25th February the noble Lord, Lord Williams of Mostyn, rightly referred to,
"the need to avoid unnecessary infringement of privacy".—[Official Report, 25/2/98; col. CWH 96.]
He referred to the well-known Strasbourg case law. Unfortunately, Clause 31 does not embody that test of necessity to which he referred nor to the effect of the Strasbourg case law.
The directive's preamble makes clear that the object of national laws on the processing of personal data such as this Bill is to protect fundamental rights and freedoms, notably the right to privacy recognised in Article 8 of the European Convention on Human Rights. It also states in the preamble that the approximation of national laws must not result in any lessening of the protection that they afford but, on the contrary, must seek to ensure a high level of protection in the Community. The directive's preamble also states that the processing of personal data for the purposes of journalism or literary or artistic expression, in particular in the audio-visual field, should qualify for exceptions—I quote the key words—
"in so far as this is necessary to reconcile the fundamental rights of individuals with freedom of information and notably the right to receive and impart information, as guaranteed … in Article 10 of the European Convention [on Human Rights]".
I emphasise the word "necessary", echoing the test of necessity in Articles 8 and 10 of the European Convention, to define the extent of exceptions that may lawfully be made to the rights to free expression and personal privacy. Perhaps I may be forgiven for taking time on this matter. Article 9 of the directive states that member states shall provide for exceptions or derogations for the processing of personal data carried out solely for journalistic purposes for the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression.
Article 9 uses the key tests of objective necessity to justify any exemption of the media from their obligation to respect personal privacy when obtaining, using or publishing personal data. The directive is made within the framework of the European Convention on Human
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Rights that binds all member states. I repeat that the right to free speech under Article 10 of the convention is subject to exceptions that are sufficiently precise to comply with legal certainty and which are necessary to protect, inter alia, the right to personal privacy guaranteed by Article 8. Similarly, the right to personal privacy guaranteed by Article 8 is subject to exceptions that are sufficiently precise to comply with the principle of legal certainty and which are necessary to protect, among other things, free speech under Article 10.
A balance must be struck and maintained in the end by the courts between the conflicting rights based on the test of necessity and proportionality. I would be surprised if the noble and learned Lord the Solicitor-General disagreed with any of that. If he does I am sure that he will tell us. The case law of the European Court of Human Rights also makes it quite clear that protection under Article 10 of the convention of the role of the media as investigative journalists, purveyors of information and as public watchdogs on matters of public interest is essential to a healthy democratic society. The Strasbourg court has emphasised that people in public life cannot use the right to personal privacy to prevent or inhibit the media from communicating matters of legitimate public interest and concern to the public.
But the European court has also made it clear that the right to free expression is not absolute. It must be balanced using the test of necessity and proportionality against the right to personal privacy. For its part, in Luxembourg the European Court of Justice has made it clear, too, that when interpreting European Community law, including directives, regard must be had to the principles in the European Convention on Human Rights governing free speech and personal privacy. My concern is that Clause 31 as it stands unamended authorises interference with the right to personal privacy by the media in breach of the directive and Article 8 of the European Convention on Human Rights.
The media exemption in Clause 31(1) relates to all of the data protection principles apart from the seventh principle; that is, the right of access to personal data under Clause 7; the right to prevent processing likely to cause damage or distress under Clause 9; the right to rectification or destruction of inaccurate data under Clause 12; and the rights in relation to automated decision-taking under Clause 13. The media exemption in Clause 31(1) also applies to sensitive personal data, for example about an individual's physical or mental health or his or her sexual life.
In view of the sweepingly broad scope of the media exemption it is very important to scrutinise with particular care the limits placed on the exemption in Clause 31 and the safeguards against the misuse of personal data. In my opinion, the safeguards contained in Clause 31 fail to satisfy the vital European principles of proportionality and legal certainty. Perhaps I may go through them in turn. Clause 31(1)(a) provides that to be within the media exception the processing must be undertaken with a view to the publication by any person of any journalistic, literary or artistic material. That merely establishes that the data processing must be done for journalistic, etc. purposes and not for a collateral purpose.

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Clause 31(1)(b) provides that the data controller must reasonably believe that, having regard in particular to the general importance of the public interest in freedom of expression, publication would be in the public interest. Of course, the data controller is not an independent person but a person who alone, jointly or in common with other persons in the media organisation—say, the Independent. Sunday Times, Daily Telegraph or Daily Mail—determines the purposes for which and the manner in which personal data are obtained, stored and published. All that Clause 31(1)(b) requires is that the data controller should have a reasonable belief that publication of the personal data would be in the public interest having regard in particular to the special importance of the public interest in freedom of expression.
Clause 31(1)(b) does not require the data controller to have a reasonable belief that publication would be necessary in the public interest to protect the rights of the media and those to whom they publish to freedom of expression, but merely that he reasonably believes that publication would be in the public interest. The data controller does not have to believe that the harm done to the data subject's right to personal privacy, whether because of the unfair and unlawful way in which the data had been processed, or because of the inaccuracy or outdated nature of the data, or because of the damage or distress caused to the individual, outweighs and is disproportionate to the public interest in free expression. Still less does the data controller have to show that his belief is objectively justified in accordance with the well-known principles of the European convention and Community law.
I turn then to the third limb, which is Clause 31(1)(c). That requires the data controller to have a reasonable belief that in all the circumstances compliance with that provision—that is, with any of the provisions protecting personal privacy covered by the exemption—is incompatible with the special purposes; that is, incompatible with the purposes of journalism. Once again, there is no requirement that the data controller's belief should be that it is necessary and proportionate to invade the individual's right to privacy in the interests of the conflicting right to free expression.
Clause 31(3) provides that, in considering whether the data controller's belief that publication would be in the public interest was or is a reasonable belief, regard may he had—not "must"—to his compliance with any code of practice. As it stands, that is no real safeguard but a thing written in water. There is no requirement that there should be a code of practice. Even if there is a code, there is no requirement that the code should include the test of necessity to justify the interference with the right to personal privacy. The Press Complaints Commission's current code does not include a test of necessity. By contrast, the Broadcasting Standards Commission's code is stronger in requiring a privacy infringement to be justified by an overriding public interest in disclosure.
The codes are not to be legally binding under the Bill. Nor is there any obligation for the courts to have regard to the codes in deciding whether the data controller's belief is a reasonable belief. I shall return to Clause
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31(3) under Amendment No. 10. The present amendments to Clause 31(1)(b) are most modest. The amendment leaves intact the concept that it is for the data controller to form a reasonable belief, but it requires the data controller to have a reasonable belief, not just that the publication of personal data is in the public interest, especially of free expression, but that it is necessary in the public interest; in other words, the amendment requires the data controller to have a reasonable belief that the obtaining, storing or publishing of personal data is necessary in the interests of free expression and does not involve a disproportionate interference in the right to personal privacy.
In my view that is the minimum—I emphasise "minimum"—needed if Clause 31 is properly to implement the directive and properly to comply with Article 8 of the convention. It is less satisfactory in some respects than my noble friend's amendment, but it is better than the illusory safeguards contained in Clause 31 as it stands. It probably does not go far enough, because, unlike my noble friend's amendment, it does not import the test of objective necessity required by the convention.
In a case in which I had the privilege of acting for the Sunday Times many years ago, the European Court made it clear in the thalidomide judgment that the adjective "necessary" does not have the flexibility of words such as "reasonable". If the Government will not accept my noble friend's amendment, I hope that they will accept my modest amendment on the basis that half a loaf is better than no bread.
Curiously enough—this is a matter that I am sure will concern the media—the Government's indication of the amendments they propose to introduce to the Human Rights Bill in another place in the interests of free speech and of the press, which are modelled on this Clause 31, are likely to authorise unnecessary prior restraints on free speech for the very same reason that Clause 31 is likely unduly to authorise unnecessary interference with personal privacy. In each case, the vice is the same—a failure to introduce the principle of necessity and proportionality as the touchstone for determining whether interferences with the fundamental human rights are justifiable.
The print media and the chairman of the Press Complaints Commission, the noble Lord, Lord Wakeham, are in my view profoundly mistaken, hilariously profoundly mistaken, ironically profoundly mistaken, in welcoming the Government's declared intention to amend the Human Rights Bill in that way. An amendment modelled on this Clause 31 will make it easier to obtain privacy injunctions against the media than is permissible under Article 10 of the convention. The press is being hoist with its own petard. It would have been much wiser to have heeded the wisdom of the Data Protection Registrar, Elizabeth France, and to have accepted the well-modulated tests in Article 8 and Article 10 of the convention as the basis for Clause 31, while leaving the Human Rights Bill well alone.

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I apologise for having taken so long to explain the matter, but, if I am right, Parliament is being asked to authorise legislation which does not do the job that it was designed to do, which is to implement the directive and convention law properly.
Lord Falconer of Thoroton: My Lords, at the heart of this debate is whether we have complied with our obligation under the terms of the directive. Article 9 of the data protection directive provides:
"Member States shall provide for exemptions or derogations from the provisions of the relevant Chapter for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression".
The amendment moved by the noble Baroness merely says, in effect, "chuck that into the Bill without amendment, and leave everybody else to sort it out". The amendment tabled by the noble Lord, Lord Lester of Herne Hill, says, in effect, that in determining whether the balance is in favour of freedom of expression, consider whether it is reasonably necessary in the public interest to publish. He suggests that the way we deal with the problem is to raise the concept of publication that is "necessary" in the public interest. Those are the two propositions that we have to address this evening.
I should say at the outset that the Government are unreservedly committed to full and proper implementation of Article 9, and I believe that we have achieved that. As has been pointed out this afternoon, this is a provision of pivotal importance. It is the point of confluence of two fundamental rights which naturally proceed in different directions—the right to privacy and the right to freedom of expression. As my noble friend Lord Williams of Mostyn said in Grand Committee, the essential thrust of the directive, and the Bill, is in the direction of the protection of personal information privacy. But the extent of that tendency is inherently limited by the requirements of freedom of expression. Article 9 expressly allows member states to acknowledge those limitations by providing exemptions in favour of the special purposes, but only, as has been clearly explained this afternoon, if they are necessary to reconcile the right to privacy with the rules governing freedom of expression.
Article 9 does not provide a simple answer to the problem of reconciliation. It does not attempt to. There is no reason to believe that there is a single right answer to the problem of reconciliation. It is much too complex and multi-faceted an issue for that. By that I mean, if we assume that every state is introducing protection legislation, it is inconceivable that the Community has it in mind that every state will pitch the reconciliation at the same place.
Member states are afforded, as one would expect, a margin of latitude by Article 9, as indeed they are under the convention itself, to come to their own judgment as to what is necessary to reconcile those two fundamental rights and to give proper expression to them in national legislation. This is plainly not a case where a copy-out
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solution can be made to work. By "copy-out" I mean to put into the terms of the Bill the wording of Article 9, which is the intention of the noble Baroness's amendment. The data protection regime is an extremely detailed network of private rights and public regulation. We are plainly called upon to give a satisfactory detailed, clear and faithful expression to the policy set out in Article 9 as the only realistic means of incorporating the reconciliation it speaks of in our Bill.
We have not ducked the issue of coming to a view on what and when exemptions are necessary to reconcile information privacy with freedom of expression. We cannot duck the issue. We have identified the provisions of the Bill from which we think exemption will at least potentially be necessary, about which there appeared to be no debate. We have identified three elements, all of which are necessary before any exemption may be relied on. In other words, we have decided to tell the citizen what elements must be made out before the balance is tipped in favour of freedom of expression. We have not simply used the word "necessity", which would provide inadequate guidance for the individual citizen in determining where the balance is to be struck.
The three conditions which the noble Lord set out in his speech are our interpretation of what is necessary to reconcile privacy and freedom of expression. The exemptions are no less and no more than what is necessary to achieve that reconciliation. The necessary conditions which must be satisfied are mandatory. In other words, all three conditions must be satisfied before one achieves reconciliation or obtains exemption. We are saying that one achieves reconciliation if one is engaged in journalistic, literary or artistic activity, which is the open door in the directive. The Bill states that:
"the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest, and…reasonably believes that, in all the circumstances, compliance with that provision is incompatible with the special purposes".
Therefore, the data controller must reasonably believe that it is in the public interest to publish, having regard to the need for freedom of expression, and reasonably believe that compliance with the provisions of the Act is incompatible with the special purposes—journalistic, literary or artistic.
The noble Lord, Lord Lester, suggested that we are obliged to require as a prerequisite of reliance on the exemptions that the data controller reasonably believes that publication would be "necessary" in the public interest. For the reasons I have explained, that is not correct. In our view, the fact that the three requirements are mandatory is enough to indicate where the balance is to be struck.
As to whether the amendment would be an improvement, which is the second limb of the noble Lord's argument, we have great difficulty with the concept of "necessary" publication. When is the publication of an individual story "necessary" in the public interest? That is the question posed by his amendment. It is difficult to conceive of a "necessary" publication in isolation from the more general requirements of freedom of expression. The Bill explicitly directs particular attention in this context to

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the special importance of the public interest in freedom of expression. This gives the weighting which we believe is required by the reconciliation of the rights to privacy and freedom of expression by suggesting that there is a general sense in which publication per se is an exercise of freedom of speech in which there is a general public interest.
The public interest in privacy is signalled loud and clear throughout the Bill, and some restoration of the balance in the present context is, we believe, necessary. So if a data controller reasonably believes that publication would be in the public interest, having regard to the special importance of the public interest in freedom of expression, we believe that to be a proper and sufficient expression of one of the conditions for reliance on an exemption.
We do not believe it appropriate to introduce the concept of "necessary" publication in individual cases. There is a sense in which an individual publication is hardly ever necessary in the public interest. There is a sense in which, as a particular example of a general rule about freedom of expression, it will almost always be necessary in the public interest; at any rate, if the publication itself has that quality. We do not see how this could work satisfactorily and we do not believe that we are required by our international obligations to include this idea.
With the greatest of respect to the noble Lord, we reject the idea that it is required by Article 9 because we believe that by imposing the three mandatory conditions we have struck the balance to which we are entitled under Article 9. We further believe that we would not improve the Bill by introducing the concept of "necessary" publication in the public interest because—and again I say this with the greatest respect—it is difficult to apply and may mean everything or nothing. We respectfully submit that it is not a helpful way of amending the Bill.
We believe that the amendment tabled by the noble Baroness provides the system with no assistance whatever in seeking to reconcile the balance in the context of a Bill which is determined to lay down detailed provisions as to how data protection is to operate in this country. Therefore, we do not regard her amendment as either appropriate, necessary or helpful and I invite the noble Baroness and the noble Lord to withdraw their amendments.
Viscount Astor: My Lords, before the Minister sits down, perhaps I may make two brief points. We on this side of the House entirely accept his argument and would not support the amendments. Indeed, perhaps they would have been better debated in Committee because the issue is complicated. I believe that Amendment No. 7 in particular does not work at all.
Lord Lester of Herne Hill: My Lords, I am grateful to the Minister for his explanations. He used the phrase "with great respect". It is an expression which lawyers
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use to each other when they are at their most adversarial. I have the greatest respect for the noble and learned Lord the Solicitor-General—
Lord Hoyle: My Lords, I thank the noble Lord for giving way. As this is Third Reading, there is only the noble Baroness, Lady Nicholson, to reply.
Lord Lester of Herne Hill: My Lords, I thought that we were debating all three amendments together. I must necessarily move my amendment and deal with it separately, if that is the pleasure of the House. I had thought that it was more convenient to deal with the matter in this way, both of us indicating whether we wished to move the amendments. If that is for the convenience of the House, I can deal with it briefly.
Lord Hoyle: My Lords, will the noble Lord move his amendment later?
Lord Bridges: My Lords, perhaps I may make a brief comment on the debate so far—
Lord Hoyle: My Lords, I am afraid that it is for the noble Baroness, Lady Nicholson, to reply.
Baroness Nicholson of Winterbourne: My Lords, I am grateful to the noble and learned Lord the Solicitor-General for his comments on my amendment. I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Lord Lester of Herne Hill Lord Lester of Herne Hill moved Amendment No. 7:
Page 19, line 25, after ("be") insert ("necessary").
The noble Lord said: My Lords, I have spoken to this amendment at some length. Perhaps I may be economical and deal simply with the points that have been raised. First, the principle of proportionality is a general principle of Community law. The test of necessity must be read in context, and under the convention and the directive it is necessary for the courts to weigh competing public interests and rights using the test of necessity. The defect in Clause 31 as it stands is that it does not provide the courts with the proportionality criterion, but leaves the whole matter to the reasonable belief of a member of the media organisation, the data controller. Therefore, the Bill as it stands at present does not provide the necessary legal standard which is required both by European Community and European Convention law.
If we leave the Bill in that way, the misfortune is that it will be litigated upon. The first case in which a newspaper is alleged to have intruded upon personal privacy in data processing—where the data controller says that he has a reasonable belief and where an attempt is made to challenge that belief—will be based upon the proposition that this Bill does not implement properly the directive or the European Convention on Human Rights.
When the Human Rights Act comes into force, the courts will be obliged to construe the Data Protection Act, if they possibly can, so that it is compatible with

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Articles 8 and 10. It is not good enough for us to leave this Bill to be made sense of, if I can express the matter in that way, under the Convention and the directive by a process of judicial interpretation if we are able to use language in the Bill which achieves that result.
At present, the media are under the totally false impression that having secured Clause 31, which is a virtually open-ended exemption, that is where the matter will end. In that, they are completely mistaken because if I am right in my opinion about the European law, it will be entirely open to a data subject to rely upon Article 8 of the Convention and the principle of necessity and proportionality, of course having regard to the particular context. That context is the importance of freedom- of speech. But the importance of freedom of speech is not an absolute concept.
We shall say au revoir to this Bill; it will go to another place; and if the Government do not think again and I am right, the only beneficiaries will be the members of the legal profession. They will find themselves involved in complicated litigation because the Government have not wished to write on the face of the Bill that which is required by European law.
I am concerned that our statutes should be enacted properly in accordance with European law. In the light of that, and not, if possible, have to be interpreted by the courts to put them right under European law, that I very much hope that even if the noble and learned Lord the Solicitor-General is unwilling to accept my amendment, he will be sufficiently open-minded to say that he will reconsider the point when the Bill travels to another place to see whether there is not some way of writing into the Bill the European test of necessity and proportionality instead of leaving it to the personal but reasonable belief of a member of the media organisation, with all the litigation which will follow as a result. I beg to move.
4.45 p.m.
Lord Falconer of Thoroton: My Lords, I have obviously heard and will consider with an open mind what the noble Lord has said. However, the Government's present view is that Clause 31 does effectively comply with the obligation under Article 9 and that it is both in compliance with the law and the best way of dealing with the matter.
Lord Lester of Herne Hill: My Lords, before the noble and learned Lord sits down, does he accept that the courts will have to apply the proportionality principle in interpreting Clause 31 and Article 9 of the directive and the European Convention on Human Rights?
Lord Falconer of Thoroton: My Lords, if the courts apply Clause 31 in accordance with its terms, they will be acting in accordance with the provisions of Article 9 which, in its turn, involves compliance with the Convention.
Lord Lester of Herne Hill: My Lords, I am most grateful. I am reminded of the story of the father with
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the naughty daughter who gets lost in the middle of the city. She keeps saying, "Daddy, daddy, where are you?" "Shut up", he explained. It seems to me that in the nicest possible way, the noble and learned Lord the Solicitor-General has not really answered my point. In spite of my criticisms, he simply said that the Government are satisfied that somehow there is compliance with the tests of proportionality and necessity which, as I say, is not the same as reasonableness.
This is not a matter to be tested by political muscle or numbers. I very much hope that it will be reconsidered. If it is not reconsidered in Parliament, it will surely come to be considered in our own domestic courts and in the European courts. That is my prediction. For the reasons I have given, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 8 and 9 not moved.]
Lord Lester of Herne Hill Lord Lester of Herne Hill moved Amendment No. 10:
Page 19, line 39, leave out ("may") and insert ("must").
The noble Lord said: My Lords, this amendment deals with a wholly separate and important matter. Its purpose is to ensure that the very broad media exemption in Clause 31 satisfies another European legal principle; that is, the principle of legal certainty. Both under Community law and Convention law, the principle of legal certainty requires that the effect of legislation must be clear and predictable for those who are subject to it.
In its landmark judgment in the Sunday Times thalidomide case, the Strasbourg court decided that to satisfy the requirements of legal certainty, the law must be adequately accessible. That means that the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. The legal rule must be formulated with sufficient precision to enable the citizen to regulate his conduct. He must be able to foresee, to a degree that is reasonable in all the circumstances, the consequences which a given action may entail. Those consequences do not have to be foreseeable with absolute certainty, but they must be foreseeable with reasonable certainty.
As the Bill is currently drafted, determining whether the media exemptions in Clause 31 do or do not apply depends largely on whether the data controller's belief is a reasonable belief that the intrusion of a data subject's personal privacy is in the public interest. Clause 31 is without standards. It does not provide reasonably foreseeable criteria as to when the media are or are not immune from liability. Therefore, on its face, it fails to satisfy the requirements of legal certainty because neither the data subject nor the media can reasonably foresee in what circumstances a belief will or will not be regarded as reasonable. In particular, as I have pointed out already in relation to the earlier amendments, Clause 31 is flawed because it leaves out the proportionality principle.
Clause 31(3) provides that in considering whether a data controller's belief that publication will be in the public interest was or is reasonable, regard may be had to his compliance with any relevant code of practice designated by order of the Secretary of State.
If the code of practice is reasonably precise, and if it contains the proportionality criteria that the interference with personal privacy must be necessary, I accept that that will satisfy the European principle of legal certainty provided that the individual and the media know that the criteria will apply.
But as Clause 31(3) stands at present, it does not require regard to be had to the data controller's compliance or failure to comply with the code of practice. In my view, that combination of a failure to prescribe the criteria in the code on the face of the Bill and the failure to require regard to be had to the criteria prescribed in the code of practice, together with the absence of any requirement that the code of practice should contain the test of necessity, create a serious risk that the statutory scheme will fail to satisfy the principle of legal certainty. If that happens, it violates Community law as well as Convention law.
Neither the data subject nor the media, including data controllers, will be able reasonably to foresee with sufficient certainty whether the obtaining, storing or publication of personal data will or will not breach the right to personal privacy embodied in the Bill because of the vagueness of the statutory criteria and the absence of any obligation to comply with the code. That is why I seek to make a one-word change, and to substitute for the word "may" the word "must" in Clause 31(3) so as to require regard to be had to the code in deciding upon the reasonableness of the belief. That is a most modest change and one which would do no violence to the structure of the clause or of the Bill. Indeed, it would go some way to ensure at least the certainty that what is in the code will be had regard to in deciding upon the reasonableness of the belief of the data controller. I very much hope that the noble and learned Lord the Solicitor-General will, in a fit of characteristic generosity, feel able to accept my modest amendment. I beg to move.
Lord Falconer of Thoroton: My Lords, the noble Lord suggests that instead of the courts having the option to have regard to the code, they should in every case be obliged to do so. We believe that the approach now followed in the clause as presently drafted is the better one. It gives the courts flexibility. As my noble friend Lord Williams of Mostyn said in Committee, in response to a similar amendment—
Lord Simon of Glaisdale: My Lords, I thank the Minister for giving way. Surely the term "to have regard to" gives quite sufficient flexibility.
Lord Falconer of Thoroton: No, my Lords. If we say that the courts "must" have regard to it, then, in every case, they would be bound to look at the code and consider whether they should weigh it in the balance as regards the facts in the particular exercise of discretion.
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In Committee, in response to a similar amendment tabled in the name of the noble Viscount, Lord Astor, my noble friend Lord Williams of Mostyn said that compliance with codes will not always be relevant. It is only one factor among others that may need to be taken into consideration. Much will depend upon the circumstances. The position, for example, may be crystal clear without the need to consider compliance with a code. It is the Government's view that leaving the matter to the courts to decide is the right approach, and that the clause as it stands is satisfactory. Therefore, I invite the noble Lord to withdraw his amendment.
Lord Lester of Herne Hill: My Lords, I am sorry to say that I do not understand the Minister's reply to the points that I have raised as regards meeting the problem. As the noble and learned Lord, Lord Simon of Glaisdale, indicated in his intervention, there is nothing in my amendment to require the courts to do more than have regard to the code. That is a perfectly normal provision which is found in all Bills that have codes of practice. Indeed, it is normal to use the word "shall" or the word "may".
Where the code is relevant—and it is bound to be relevant if there is code of practice in the area—I do not understand why the citizen, the data controller and the media should not he in a position to be sure that the code will be had regard to. That would at least give some reassurance to citizens as to the standards which are to be applied. If the matter is left entirely discretionary, coupled with the vagueness of the primary legislation and the fact that we are wholly in the dark as to what the codes will contain, or whether in fact codes will be prescribed, we will still have the vice of legal uncertainty.
I have made my points, although they do not seem so far to have impressed the noble and learned Lord. Again, all I can say is that it will make a lot more work for lawyers, but I do not think that it will make good law. I very much hope that the matter will be further considered, together with what I said about press injunctions on the Human Rights Bill, which are the other side of the coin. Having got nowhere this afternoon on this Third Reading stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 42 [Information notices]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 11:
Page 24, leave out lines 11 to 13 and insert—
("(b) reasonably requires any information for the purpose of determining whether the data controller has complied or is complying with the data protection principles,").
The noble and learned Lord said: My Lords, in moving the above amendment, I shall speak also to Amendments Nos. 12, 13 and 16. In Grand Committee the noble Lord, Lord Norton, expressed concern about the usefulness of the commissioner's power to issue information notices in what was then Clause 41. The noble Lord was concerned about two things: the right of appeal, which the notice attracted; and the fact that the commissioner had no power to seek a warrant while an

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appeal was before the tribunal. My noble friend Lord Williams of Mostyn said that we would look at the noble Lord's concerns.
On Report, the Government brought forward an amendment to deal with the concern of the noble Lord, Lord Norton, about warrants. I made clear then that that amendment was an earnest of the Government's commitment to try to find other ways of making the information notice a more useful instrument for the commissioner, without making it unduly restrictive of data controllers' freedoms.
The present amendments are an attempt to do just that. They complement the government amendment made on Report, and complete the package of improvements to what is now Clause 42. Their effect is to broaden the second of the grounds on which the commissioner may issue an information notice. The amendments do not alter the first ground, which applies where the commissioner has received a request for her to make an assessment. The change is to the second ground. At present this allows the commissioner to issue an information notice where she has reasonable grounds for suspecting a breach of the data protection principles.
The Data Protection Registrar—who will, of course, in due time become the commissioner and need to exercise this power—strongly believes that those grounds are much too restrictive. She thinks that they offer the commissioner very limited opportunities to seek the information which she needs to carry out her functions under the Bill effectively. The registrar believes that the commissioner will need a wider information notice power if she is to be able to carry out those functions properly.
The Government have been rightly cautious in approaching the matter. The case for wide regulatory powers needs to be made. The powers must be consistent with and proportionate to the activity being regulated. The regulation of data protection is unlike most other types of regulation which, by and large, affect limited sectors. Data protection knows no sectoral boundaries: it applies to all organisations, in whatever sector, which use personal data. The case for rigorous scrutiny of the powers available to the commissioner is therefore particularly strong.
The Government have given very careful consideration to this matter in the light of the registrar's concerns. We believe that there is a case for giving the commissioner the wider powers to seek information which the registrar has identified. That is the purpose of the amendments. They allow the commissioner to issue an information notice where she reasonably requires information for the purpose of determining compliance or non-compliance by a data controller with the data protection principles.
The Government have not thought it right to go beyond this and change the grounds of appeal as was suggested by the noble Lord, Lord Norton, in Grand Committee. There is a need for checks and balances. With a wider power to compel information, the case for an appeal right becomes stronger rather than
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diminishing. We believe it necessary to retain the appeal arrangements as one of the necessary checks and balances.
Both in Grand Committee and on Report, the noble Viscount, Lord Astor, sought to build a further balancing mechanism into the clause. He wanted to amend the clause to require the commissioner to seek the information she needs by informal means before being able to issue an information notice. We debated those amendments fully on the earlier occasions, and I do not want to rehearse further the arguments against the approach that he favoured.
However, I have had the benefit of some helpful comments from the Data Protection Registrar. She tells me that it has always been the practice of the registrar to seek good relations with data users and to try to achieve the resolution of problems by agreement. As data protection commissioner, she would expect to adopt the same approach to her use of the new information notice. She believes that this notice should be a valuable extra means of implementing data protection; but she expects that, in the typical case, there will, first, be an informal approach to seek co-operation and obtain information. I hope that that statement of the registrar's position reassures the noble Viscount and other Members of the House.
Clause 42 raises important issues. We have discussed them at some length both in this debate and on earlier occasions. The Government believe that the amendments they now propose, which have been drawn up in the light of that earlier debate, represent a necessary and important improvement to the Bill. I commend them to the House.
Before I sit down, I believe I said that I would also speak to Amendment No. 16. However, that amendment is tabled in the name of the noble Baroness, Lady Nicholson of Winterbourne, and has been grouped with the government amendments. I do not know whether the noble Baroness wishes to move her amendment in the light of what I have just said. I shall wait to see what she decides. In the meantime, I beg to move.
5 p.m.
Baroness Nicholson of Winterbourne: My Lords, I would not wish the Solicitor-General to believe that I had an obsession with Clause 28 and therefore I shall not move my amendment when we reach it.
Viscount Astor: My Lords, we are grateful to the noble and learned Lord for introducing government amendments that go a long way to address the concerns that we raised at earlier stages of the Bill.
Lord Norton: My Lords, I thank the Minister for his kind words. This amendment goes a long way to redress the balance that the commissioner will need in order to enforce the regulations and codes of practice. The amendment completes the package. To replace

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"reasonable grounds" with "reasonably requires" goes a long way to redress that balance. I welcome the amendment.
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 12 and 13:
Page 24, line 17, leave out ("the suspected contravention") and insert ("to compliance with the principles").
Page 24, line 24, leave out from ("Commissioner") to end of line 26 and insert ("regards the specified information as relevant for the purpose of determining whether the data controller has complied, or is complying, with the data protection principles and his reasons for regarding it as relevant for that purpose.").
On Question, amendments agreed to.
Clause 50 [General duties of Commissioner]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 14:
Page 29, line 6, leave out from beginning to ("after") in line 8 and insert ("Where—

(a) the Secretary of State so directs by order, or

(b) the Commissioner considers it appropriate to do so, the Commissioner shall,").

The noble and learned Lord said: My Lords, in moving Amendment No. 14, I shall speak also to Amendments Nos. 15, 17 to 20, 24, 25 and 32 which are grouped with it. Amendments Nos. 14 and 15 improve the drafting of Clause 50(3)(a). At present there is a slight ambiguity in the wording. It is not clear whether "he" in line 8 is the Secretary of State or the data protection commissioner. The amendments make clear that it is the latter. I await the comments of the noble Earl, Lord Northesk, on Amendment No. 17. I beg to move.
The Earl of Northesk: My Lords, Amendment No. 17 in my name, which is grouped with the amendment we are discussing, is simply a matter of good housekeeping. I move it on behalf of my noble friend Lord Skelmersdale, who apologises that, regrettably, he is unable to be present today. He pointed out on Report that Clause 65 contains a table cross-referencing the various expressions used in the Bill. With the acceptance of the Government's amendments at Report stage, the expression "data subject notice" was added to the face of the Bill without any corresponding reference being added to Clause 65. In the interests of tidiness and in a spirit of helpfulness I suggest it would be sensible that this is done. I have it in mind that the noble Lord, Lord Williams of Mostyn, indicated at least some sympathy with this proposition at Report stage. I hope that the Solicitor-General may be able to assist me.
Lord Falconer of Thoroton: No, my Lords, I am afraid not. I understand why the noble Earl, Lord Northesk, has proposed this amendment on behalf of his noble friend Lord Skelmersdale, who, unfortunately, is unable to be here today. The noble Lord, Lord Skelmersdale, mentioned this point on Report in connection with the amendments to Clauses 9, 10 and 13 which the Government brought forward on that occasion.
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My noble friend Lord Williams of Mostyn promised to write to the noble Lord, Lord Skelmersdale, about the matter, and he has done so.
When the same expression is used on several occasions to mean the same thing, it does, indeed, generally make sense to define it in one place and refer subsequently to that definition. This is the approach which is taken in this Bill. Clause 65 is a convenient index of those "defined expressions". But the term "data subject notice" is not a "defined expression". It is not used on several occasions to mean the same thing. As I have said, the term is used in three places in the Bill: in Clauses 9, 10 and 13. Each of those clauses confers a different right on the data subject; and each of them provides for the data subject to send a notice in writing to the data controller in the exercise of that right. These "data subject notices" do not mean the same thing, interchangeably, in each case. They are about different rights. They must contain different particulars. They are not, therefore, defined in the same way each time. There is no cross-reference outside the terms of each individual clause. So "data subject notice" is not a suitable candidate for the Clause 65 definition.
The use of the "data subject notice" in the three clauses in which it appears is no more than a narrative convenience in drafting terms. It saves a few cumbersome back-references. But it is actually quite important to distinguish between this and a "defined expression" with a particular general meaning. "Defined expressions" are useful devices but can be potential traps for the unwary. A check with Clause 65 will tell you whether any expression has a special meaning which may not be apparent from its immediate context. Clause 65 will tell you where to find that special meaning. It is important not to confuse that key function by including terms which do not properly fall within that category. I invite the noble Earl to withdraw his amendment in due course.
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 15:
Page 29, line 12, at end insert—
("(3A) The Commissioner shall also—").
On Question, amendment agreed to.
[Amendment No. 16 not moved.]
Clause 65 [Index of defined expressions]:
[Amendment No. 17 not moved.]
Schedule 1 [The data protection principles]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 18:
Page 43, line 26, at end insert ("or by failing to give a notice under subsection (3) of that section").
The noble and learned Lord said: My Lords, in moving Amendment No. 18 I wish to speak also to Amendments Nos. 19 and 20. These amendments make technical provision consequential upon changes which were made to Clauses 9, 10 and 13 at Report stage. Changes to Clauses 9, 10 and 13 introduced a

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requirement for data controllers to respond in writing within 21 days to a data subject's notice of objection to processing under each of the clauses.
As the Bill stands, there is some provision for individuals to bring court action in respect of a data controller's failure to give the notices in question. But the changes were not carried through to the commissioner's enforcement powers. The present amendments remedy that. They make a failure by a data controller in each case to give the required notice a breach of the sixth data protection principle and therefore something in respect of which an enforcement notice can be issued by the commissioner.
I shall speak also to Amendment No. 24 which is grouped with the amendments I am discussing and which I did not discuss earlier. This amendment puts right an error. It is Section 159, and not Section 158, of the Consumer Credit Act 1974 which should be referred to in the provisions which relate to the commissioner's finances.
I wish to speak also to Amendments Nos. 25 to 32 in this group. This group of amendments is intended to clarify elements of the transitional provisions which were added to the Bill on Report. They are technically very complex and I will not weary your Lordships with a detailed explanation. In essence they are tidying up a few loose ends in the relationship between registration under the Data Protection Act 1984 and notification under the Bill. They also clarify the provision for transitional relief from the preliminary assessment requirements of Clause 21. They make no changes to the policy which my noble friend Lord Williams of Mostyn explained to the House on Report. Their purpose is to give better effect to that policy. I commend them to the House. I beg to move.
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 19 and 20:
Page 43, line 28, at end insert ("by failing to give a notice under subsection (2) of that section, or").
Page 43, line 29, at end insert ("by failing to comply with a notice given under subsection (1) or (2)(b) of that section or by failing to give a notification under subsection (2)(a) of that section or a notice under subsection (3) of that section").
On Question, amendments agreed to.
Viscount Astor Viscount Astor moved Amendment No. 21:
Page 44, line 18, leave out ("in force") and insert ("enforceable").
The noble Viscount said: My Lords, throughout the passage of this Bill multinational companies, whether British or American, have expressed concern about the regulation of data transfers between the United Kingdom and the United States under this Bill. In accordance with the EC directive, the Bill requires that there be an adequate level of protection when personal data are transferred to countries outside the European Community. Although the United States regulates data privacy under a number of state and federal laws, there is no general federal data protection law comparable to those in the European Union.
In these circumstances the required level of protection will often depend, at least in part, on particular arrangements between data controllers in this country and the companies to which they transfer data, for example in the United States. Such arrangements may include provisions under which the US transferee is required to comply with codes of conduct or other statements of data protection rules consistent with those imposed on data controllers in this country.
This amendment provides that such arrangements will be given due consideration in determining whether an adequate level of protection is provided. The initial determination whether the level of protection is adequate will be made by the UK data controller, subject to scrutiny by the data protection commissioner.
I moved similar amendments at both Committee and Report stage. We have had an ongoing debate with the Government. The noble and learned Lord has listened carefully to our concerns and has helpfully allowed me to draft a new and more acceptable amendment in consultation with his officials at the Home Office. I am extremely grateful to him and to them for their help. I hope that this amendment will therefore find favour with the Government. I beg to move.
Lord Falconer of Thoroton: My Lords, these amendments relate to the transfer of personal data to countries outside the European Economic Area.
The noble Viscount, Lord Astor, has explained the purpose of the amendments. Both in Committee and on Report he brought forward amendments to this same broad effect. We said then that the Bill as drafted fully allowed for a finding of "adequacy" in the circumstances about which the noble Viscount was concerned. But we fully recognised the importance which the noble Viscount attached to the issue underlying his amendments. On Report my noble friend Lord Williams of Mostyn therefore said that the Government would look carefully at the points raised by the noble Viscount to see whether any useful clarification could be made.
I should perhaps remind your Lordships that the proposition is that contracts in appropriate cases should be capable of contributing to a finding of adequacy for the purposes of Schedule I. As my noble friend said at Report stage, we are happy to accept that proposition. We believe that the Bill as drafted already provides for that. But we have reflected on the noble Viscount's arguments as to the merits of further clarification. We have concluded that they are persuasive. I believe that the amendments he proposes would improve the Bill in the respects with which he is concerned and I am pleased to be able to tell the noble Viscount that the Government can accept them.
On Question, amendment agreed to.
Viscount Astor Viscount Astor moved Amendment No. 22:
Page 44, line 19, after ("territory") insert ("(whether generally or by arrangement in particular cases)").
On Question, amendment agreed to.
Schedule 2 [Conditions relevant for purposes of the first principle: processing of any personal data]:
Lord Norton Lord Norton moved Amendment No. 23:
Page 44, line 41, at end insert ("and has not withdrawn that consent").
The noble Lord said: My Lords, the amendment is a simple expansion on a right that has been implied in previous discussions. It relates to Clause 9, the right to prevent processing likely to cause damage or distress. If the data subject has given his consent, it has always been made clear that consent could be withdrawn, although it is by no means certain. My amendment is simple. It allows the data subject to withdraw that consent, and in that way have a right to prevent processing likely to cause damage or distress. I beg to move.
Lord Falconer of Thoroton: My Lords, this amendment arises, as the noble Lord said, out of our recent exchanges about the extent of the right to object to processing in Clause 9. But it raises questions about the giving of consent by data subjects, and the subsequent withdrawal of consent, which go wider than that.
When we looked at Clause 9 at Report stage, I was happy to confirm to the noble Lord the general rule that consent given under the first paragraph of Schedule 2 could he withdrawn at any time. That remains the case. I am not persuaded that putting it on the face of the Bill adds anything at all in this respect. If a data subject has withdrawn his consent then, as I say, from that point he cannot be taken to be giving his consent to the processing in question.
The issues of what properly constitutes consent and of when consent can be said to have been withdrawn are, as I may have observed to your Lordships before, matters of general law with which the courts are very used to dealing on a case by case basis. We think it preferable to rely on that general law rather than seek unnecessarily to prescribe special rules for the purposes of the Bill, which might well have a confusing effect. In those circumstances, I invite the noble Lord to withdraw the amendment.
Lord Norton: My Lords, I thank the Minister for that reply. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 5 [The Data Protection Commissioner and the Data Protection Tribunal]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 24:
Page 49, line 13, leave out ("158") and insert ("159").
On Question, amendment agreed to.
Schedule 8 [Transitional relief]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No, 25:
Page 56, line 43, at end insert—
("Exemption from section 21
11A.—(1) During the first transitional period, all processing which was already under way immediately before 24th October 1998 is exempt from section 21.
(2) Where, on 24th October 2001, section 21 first applies to any processing which was already under way immediately before 24th October 1998, subsection (5) of that section shall have effect in relation to the processing with the omission of the words from "and either" onwards.").
On Question, amendment agreed to.
5.15 p.m.
Schedule 12 [Transitional provisions and savings]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 26 to 32:
Page 62, line 26, leave out ("sub-paragraph (2)") and insert ("sub-paragraphs (3) and (3A)").
Page 62, line 30, leave out ("sections 16(1) and 21(5)") and insert ("section 16(1)").
Page 62, line 30, after second ("the") insert ("registration period or, if earlier, 24th October 2001.
(1A) In sub-paragraph (1) "the registration period" means the")
Page 62, line 42, at end insert—
("(3A) If a data controller gives a notification under section 17(1) at a time when he is exempt from section 16(1) by virtue of sub-paragraph (1), he shall cease to be so exempt.").
Page 63, leave out lines 1 to 10 and insert—
("(5) Notification regulations under Part Ill of this Act may make provision modifying the duty referred to in section 19(1) in its application to any person in respect of whom an entry in the register maintained under section 16 has been made under sub-paragraph (4).
(5B) If a person is exempt from section 16(1) by virtue of sub-paragraph (1), he is also exempt from section 21(5). except in relation to processing in respect of which he is obliged, under notification regulations made by virtue of section 19(1) or sub-paragraph (5), to give a notification to the Commissioner.").
Page 64, line 48, leave out (" 40") and insert ("41").
Page 65, line 3, leave out (" 40") and insert ("41").
The noble and learned Lord said: My Lords, I have spoken to the amendments already. With the leave of the House, I beg to move them en bloc.
On Question, amendments agreed to.
An amendment (privilege) made.
Lord Falconer of Thoroton: My Lords, I beg to move that the Bill do now pass.
My noble friend Lord Williams of Mostyn very much regrets that he is unable to be here this afternoon to make his concluding remarks on the Bill. Pressing government business has taken him overseas. He has, however, asked me to convey his own personal thanks for and appreciation of the constructive and courteous way, with the exception of this afternoon, in which noble Lords in all parts of the House have contributed to the debates that we have had on this Bill.

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It falls to me therefore to offer the Government's valedictory remarks. I do so with a great deal of pleasure, since I have thoroughly enjoyed the debates which we have had both in Grand Committee and in this Chamber. Like my noble friend, I am deeply appreciative of the positive spirit in which the debates have taken place.
Although its subject matter is, to some, rather dull, this Bill is very important. It gives effect to this country's obligations under European Community law. It provides important rights for individuals. It affects the vast majority of organisations, big and small, throughout the country. It is broad in its scope, technical in its substance, and intricate in its detail. Those are all reasons why this Bill needs detailed and careful consideration. I believe that in its passage through this House it has been given the careful attention it deserves, save in respect of the amendment this afternoon.
In his opening remarks on Second Reading, my noble friend Lord Williams of Mostyn made clear that the Government would approach the Bill in a non-partisan way, and be very receptive to suggestions for improvement, provided that they were consistent with the Government's overall approach. I hope that your Lordships will agree that the Government have indeed been open and responsive.
Important amendments, reflecting views expressed from all parts of the House, have been made to the Bill. There have been important changes to the provisions on individuals' rights in Part II; to the exemptions in Part IV and Schedule 7—although I recognise from our debate on Clause 28(4) there are clearly issues between us still on that.
As a result of the efforts made by this House, I believe that the Bill is now much improved. But I recognise that there are a number of points still outstanding, including Section 28(4).
A significant change made by this Bill is to introduce data protection controls over certain manual records. Defining which records are caught has proved to be very tricky. We have made some small changes in an attempt to clarify matters. But I know that some Members of the House still have reservations. This is an important definition and I certainly do not rule out the possibility that the Government might wish to return to it in another place.
I also regret that we have not been able to bring forward proposals for dealing with enforced subject access. As I said on Report, the issues are complex, and I am afraid that we still have not been able to resolve all the problems. Again, we shall come back to this at a later stage.
My noble friend Lord Williams of Mostyn also undertook on Report to deal in the Bill with the question of ethnic monitoring, in response to an amendment proposed by the noble Lord, Lord Dholakia. My noble friend said that he hoped we might be able to deal with the matter on Third Reading but stressed that time might be against us. I am afraid that that has proved to be the
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case. But I can assure the House that the Government will bring forward the necessary amendment in another place as soon as we can. I beg to move.
Moved, That the Bill do now pass. (Lord Falconer of Thornton).
Viscount Astor: My Lords, on this side of the House we are extremely grateful for the way in which the noble and learned Lord and his colleague, the noble Lord, Lord Williams of Mostyn, dealt with the Bill. They certainly listened to our arguments, considered them carefully and accepted a number of amendments, for which I am extremely grateful.
It was a rather complicated subject. I was supported by my noble friends Lord Northesk, Lord Skelmersdale, Lord Teviot and Lord Chelmsford. I think that we have improved the Bill. As the noble and learned Lord said, there are issues that will be considered in another place which we were unable to deal with. We shall have the opportunity to deal again with Clause 28. I can assure the noble and learned Lord that we shall do so in as constructive a manner as I hope we have dealt with the Bill as it passed through your Lordships' House.
Baroness Nicholson of Winterbourne: My Lords, I am grateful to the noble and learned Lord the Solicitor-General for this opportunity to wind up the Bill on its way to another place. I am particularly grateful to him and the noble Lord, Lord Williams of Mostyn, for the way in which they have enabled me to discuss the matters I wished to raise with officials as well as with themselves.
I am grateful to the Home Office team led by Mr. Graham Sutton, to the Data Protection Registrar, Mrs. France, and her staff, particularly her deputy, Mr. Aldhouse, and to police Chief Constable Burrow and his colleague, John Black—all of whom the Ministers were comfortable that I should talk to in an attempt to improve the Bill.
I have been met, as indeed we all have, by an impressive range of official talent and expertise. That has been matched at least by the variety of expert opinion that noble Lords have brought to our debates on the Bill. They have been led, primus inter pares, by two Ministers who have addressed a Bill whose purpose was to harmonise the data protection principles and practices, often in opposition, of a number of different EU member states, and to reach a common position. I suggest that the Minister succeeded in reaching an uncommon position of shared political purpose, at least between his party and my own, and from time to time between all three main parties to improve the Bill and not to indulge in trench warfare. This is a Bill in which the devil is in the detail. Ministers are to be highly congratulated on enabling the passage of so complex a piece of legislation to go so smoothly and so well.
Lord Brightman: My Lords, perhaps I may take up a moment of your Lordships' time to thank the noble and learned Lord the Solicitor-General for providing us in this Bill with an index of defined expressions. I refer to Clause 65. This is a device of great value to the reader. It helps to make a long and complicated Bill so

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much more user friendly than it would otherwise be. As noble Lords will know, Clause 65 tells the reader at a glance whether a particular expression has a special meaning, and, if so, where that meaning is to be found. There is no need to grub around in order to find it.
Indexes of defined expressions were at one time uncommon, despite the assistance which they can render to the reader. Things have now changed. Indexes are becoming far more common in appropriate places. There are presently three Bills going through the other place, all of which contain an index of defined expressions: the Government of Wales Bill, which has 35 defined expressions; the Scotland Bill, with 44; and the school standards Bill, with 58.
There is a fourth Bill which has just left this House, the Competition Bill, which has 59 defined expressions but no index. However, at Third Reading the Minister stated that he intended to ask the draftsman to reconsider his previous advice that the Bill should not contain an index.
I venture to express the hope that every Bill will be considered on a case by case basis to decide whether an index of defined expressions will or will not make the Bill more user-friendly. I am grateful for the opportunity to ventilate once more this important aspect of helpful legislative drafting.
Lord Lloyd of Berwick: My Lords, I wish to add a few words to what was said by my noble and learned friend Lord Brightman. Whether the inclusion of an index of defined expressions is a good or bad thing is a matter upon which not all draftsmen are agreed. Obviously, an index will not be needed in every case. I have certainly found that in long and complicated cases an index is an invaluable tool. I had a good deal of experience of long and complicated Bills when I sat as chairman of the Joint Committee on Consolidation Bills. Whatever else may be said about the matter, it seems to me that an index of defined expressions can do no harm.
The Earl of Northesk: My Lords, I should like to add my expressions of gratitude for the most considerate and helpful way in which the Government Front Bench and their officials have dealt with the passage of the Bill through this House—even in the context of Clause 28. The matters with which we have attempted to get to grips in recent weeks are exceedingly technical and complex. Put simply, computers, let alone issues of data protection, are not everyone's cup of tea. I am conscious, too, that the urgency of enacting the Bill by the deadline of 24th October this year, taken with the multiplicity of other measures with which it is currently involved, has imposed the added constraint of an unenviable workload on the Home Office. Nonetheless, I am tempted to suggest that the co-operative approach that has been engendered in relation to this Bill is of considerable credit not only to all involved but to the House as a whole. I thank the noble and learned Lord, and in his absence the noble Lord, Lord Williams of Mostyn, and their officials for that.
Quite deliberately I chose not to pursue the concerns that I raised on Report via the mechanism of amendment at Third Reading. Aside from any other consideration,
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I am unconvinced that the Bill as it stands would respond well to any such attempt. However, my concerns remain, and perhaps I may take this opportunity to touch upon them.
Noble Lords will recall that, in the context of Clause 8 and the credit reference industry, I touched upon the apparent public policy shift away from the provisions of the 1974 Consumer Credit Act to a more rights-based regime, as espoused by this Bill and the Human Rights Bill. In this relatively narrow area, there remains a measure of concern that the Data Protection Tribunal enforcement notice, which has operated satisfactorily for a number of years and which—if I may borrow the words expressed to me recently by the noble Lord, Lord Borrie—exhibited the "wisdom of Solomon", may in some way be summarily superseded by the enactment of this Bill. While accepting absolutely that the noble and learned Lord cannot give any guarantees on the point, I nevertheless hope that he may be able to give some reassurance to the industry that there is no inevitability attached to that, and that there is some hope that the terms of the enforcement notice will persist for the time being.
Turning to Clause 10 and the concerns of the direct marketing industry with respect to opt-out tick boxes, perhaps I may, with the leave of the House, read out the text of a commitment that I have received from the Direct Marketing Association. I believe that the noble and learned Lord has also had sight of a copy. It states:
"The DMA undertakes to provide in its Code of Practice that any written notice by a data subject under Section 10(1) of the Data Protection Act 1998, other than a notice using or forming part of transactional or other commercial documentation, must be acknowledged by the data controller in writing to the data subject as soon as is reasonably practicable.
"In the case of a notice using or forming part of transactional or other commercial documentation, the data controller must take such steps to comply with the requirement under Section 10(1) as he considers appropriate to ensure that no such further processing for the purposes of direct marketing in respect of that data subject is undertaken by the data controller subsequent to the completion of the commercial arrangements, eg: fulfilment of order, to which the documentation relates.
"The DMA also undertakes to use its very best endeavours to persuade other organisations operating relevant Codes of Practice, eg: the Committee of Advertising Practice re the British Codes of Advertising and Sales Promotion, to include similar provisions".
I very much hope that, in the light of that, the noble and learned Lord, while giving no guarantees as to the outcome, might be prepared to concede that this is an issue to which the Government will be prepared to give further consideration as the Bill makes its way through another place.
Lord Teviot: My Lords, like other noble Lords, I wish to add my thanks. The Bill's passage has been a very happy experience. I originally wrote, "pleasant and useful"—which I repeat.
The noble Lord, Lord Williams of Mostyn, suggested, following Report, that I met with his officials and should include anybody that I liked to bring along to a meeting. That meeting took place and was on the whole very satisfactory. If I did not get a green light on one point, I certainly had an amber one. My concern remains, but as a result of the meeting I hope it will be possible in

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another place to devise a form of words which will allow, for example, a solicitor to continue to seek beneficiaries of wills by searching through many kinds of records which contain personal data. There are plenty of other examples which I shall not go into now.
In addition, I hope that the Secretary of State will soon issue an order, as is provided under Schedule 3 to the Bill, endorsing the safeguards which record offices habitually impose on personal material. Such an order would help to reassure depositors of their right to go on depositing non-public records in record offices. It would authorise the latter to process new insertions of such material, all of which are tightly hedged by the Bill.
Finally, I should emphasise that no attempt is being made to seek new powers. Archivists and record users are simply trying to preserve long established practices which are incidentally affected by the Bill. I thank the Minister and also the noble and learned Lord the Solicitor-General for their earlier assurances that such was not their intention. I am optimistic that they and their officials will be able to overcome the remaining problems.
Lord Falconer of Thoroton: My Lords, I think this is neither the time nor the place to embark on the debate again. Perhaps I may make two points, the first on the comments made by the noble Earl, Lord Northesk, about the concerns of the direct marketing sector and the changes to be made to Clause 10. If I understand him correctly, the concern is that the requirement for controllers to respond to every written notice they receive is simply unworkable in respect of "tick-boxes" and similar notices, and it may well work against the interests of the data subjects. The noble Earl quoted the text of an undertaking which the Direct Marketing Association would be prepared to make, were the statutory requirement to be reconsidered.
During the passage of the Bill we have not been shy to acknowledge that we may not always have got everything absolutely right the first time, or even the second time. We have been very willing to respond positively to the legitimate anxieties of those affected by the Bill. The amendment which the Government proposed to Clause 11 earlier this afternoon is an example.
I have taken careful note of the points about direct marketing made by the noble Earl. We shall look very carefully, in consultation with the representatives of the direct marketing sector, at their proposal for dealing with the matter in question by means of a code of practice. Our minds are certainly not closed and if we feel that improvements can be made, we shall return to the matter in another place.
As regards the points made by the noble Lord, Lord Teviot, I am glad that he found that the meeting with the Home Office officials helped clarify a number of matters. As he said, one or two points are still outstanding. We are looking carefully at them and will get back to those whom he represents about them as soon as we can.
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I wish to make two final points. First, perhaps I may echo the sentiments expressed on all sides of the House about the quality of the official team led by Mr. Graham Sutton. They made a real contribution towards making the Bill as good as it is. I also wish to say how grateful my noble friend Lord Williams of Mostyn and I have been for the positive and helpful way in which all the debates have been conducted. We are particularly grateful to the noble Viscount. Lord Astor, and the noble Baroness, Lady Nicholson of Winterbourne, for the constructive spirit in which they have approached the Bill from the Front Benches opposite. I beg to move that the Bill do now pass.
On Question, Bill passed, and sent to the Commons.

European Communities (Amendment) Bill
5.32 p.m.
Lord Whitty: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Whitty.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Brougham and Vaux) in the Chair.]
Clause 1 [Meaning of "the Treaties" and "the Community Treaties".]
Lord Renton: Before the noble Lord, Lord Stoddart of Swindon, moves his amendment, I should mention that there are no copies available in the Printed Paper Office of the Amsterdam Treaty. It is very difficult to follow the Bill without it. I had temporarily to borrow a copy but I hope that more will made available before long.
Lord Pearson of Rannoch: Perhaps I may add to what my noble friend Lord Renton said. I believe that he will find in the Printed Paper Office an excellent publication called: The Treaty of Amsterdam in Perspective. It is from the British Management Data Foundation. Although it is not the document to which my noble friend referred, it is an extremely useful version and it has the great advantage of having the original Treaty of Rome and the Single European Act amalgamated into one column. Then across the page, there is the Maastricht Treaty in the next column and in the final column the amendments made at Amsterdam which we are now considering. In my view, it is the only publication in which one can follow the relentless march of European integration. I commend it to the Committee.
Lord Renton: I believe that it is essential that we should have the principal document in front of us.
Lord Stoddart of Swindon Lord Stoddart of Swindon moved Amendment No. 4:
Page 1, line 12, at end insert—
("() Article I, other than paragraph 11 (Title VI of the Treaty on European Union (provisions on police and judicial cooperation in criminal matters)),").
The noble Lord said: Amendment No. 4, standing in my name, has been grouped with a number of other amendments which I shall not read out. The groupings on the Bill have been difficult, but, as I have already said, the amendment I am moving has been grouped with other amendments and new clauses to enable the Committee to have a full and structured debate on justice and home affairs. It would have been more convenient if we could have discussed the subject in four distinct sections: police and judicial co-operation, extension of the European Court of Justice jurisdiction, harmonisation of judicial procedures and Europol. That cannot be done formally through the groupings.
However, due to the good offices of the usual channels, official and unofficial, and the good work of the clerks in the Chief Whips' Office and the Public Bill Office, the groupings have been set out in a way which makes the Bill more understandable and will make our proceedings easier to follow. I am extremely grateful, as the Committee must be, to all those who have been involved in what I believe is quite a unique occasion for groupings.
The implications of this part of the Amsterdam Treaty are wide and serious. I agree with the noble Lord, Lord Renton, that one needs the document. I am surprised that it is not available in the Printed Paper Office and I hope that it will soon be there.
Amendment No. 4 deals specifically with provisions on police and judicial co-operation in criminal matters. That is under revised Title VI, a new title which has been created because free movement of persons, asylum and immigration, have been transferred to Community competence under a new Title IV which will be discussed in later amendments. The new Title VI,while retaining its inter-governmental character, would, as I understand it, move closer to Community arrangements. Indeed, Article 29 states that member states will cease to be key players. Perhaps I may read paragraph I of Article 29:
"Without prejudice to the powers of the European Community, the Union's objective shall be to provide citizens with a high level of safety within an area of freedom, security and justice by developing common action among the Member States in the fields of police and judicial cooperation in criminal matters and by preventing and combating racism and xenophobia".
It is absolutely clear that the European Union believes that it is a Community competence. Indeed, when one goes through the list of where co-operation is to take place, it is very long. I am afraid I shall have to read it. First, racism and xenophobia; terrorism; organised and other crime; trafficking in persons; offences against children: illicit drug trafficking; illicit arms trafficking; corruption and fraud. That list covers virtually everything—all crime, organised or otherwise, small time and large scale, as well as specifically listed crimes
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which presumably are of a different order of heinousness, if I can put it that way, since they are mentioned separately in the treaty.
Indeed, a new and separate offence is being eased into British law by this Amsterdam back-door. It is called "racism and xenophobia". That is a dangerous importation into our law. For example, noble Lords present here today may have heard people like me being described—because we take a different view of the European venture (or perhaps I should say "adventure")—as "xenophobes". That is extremely dangerous. All we may have done is criticise some aspects of the European Union. Is it to be a crime to say that one does not like the way the Germans do things? Are some of the remarks that the French make about the British or anybody else to become criminal? It seems to me that it is an unreconcilable importation.
I am surprised that our great British press has not picked up on that point. As it is developed—as it surely will be—the press will have to be extremely careful in what it says. There will be no more headlines, "Up yours, Delors", in the Sun. It may well be caught under this section of the Amsterdam Treaty.
Freedom of speech is under constant threat. We know that, and this new offence-in-waiting will constitute a new restriction which will go wider than the proper curtailment of the right verbally to abuse people of different ethnic origin or to incite violence against them, and we should be extremely careful about this item being imported into our law without Parliament being aware of what is happening.
We should be told exactly what the co-operation between the police and other enforcement authorities means. What will it involve? What are the limits of competence? What restrictions will there be on such co-operation, and what is the supervision and control method to be used to ensure that police forces and other enforcement authorities do not overstep the mark and indeed operate against the laws of individual nations?
New Article 30 provides for this enlargement of police co-operation to take place on a wide basis and will allow Europol a greatly enhanced role in the investigation of crime and joint operational action across national boundaries. There is no question in my mind that what is proposed is an embryo European FBI. If anybody doubts that, let me quote from an article in the European Journal by Mr. Torquil Dick-Erikson who said,
"In the February 1997 issue of The European Journal, I reported on an article by Helmut Kohl in an Italian newspaper, in which he stated that the way to build the European currency … was, first of all, the configuration of Europol into becoming a European Police Bureau with operational competences".
Does anybody wonder why people are worried? I know that I shall be told that I am worrying unduly, but we must listen to what people say; we must read what they say and, when we have read what they have said, we must believe that they mean it. When Herr Kohl talked about Europe and operational competence he meant what he said.
The European bureau of investigation will be operating outside the control of Parliament. Parliament will have no say in what is happening. Indeed, it may

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be outside the control of the Government themselves; we do not know because we are not told. Will those activities of Europol and other organisations be subject to judicial review? If those involved in it do anything wrong such as beating people up, will it be possible for the Police Complaints Authority to investigate them? Those are subjects which are important and questions which must be answered.
New Article 31 deals with judicial co-operation in criminal matters involving issues under five separate headings. It will be interesting to see what they are and have them on the record. Article 31 says:

"(a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States in relation to proceedings and the enforcement of decisions;

(b) facilitating extradition between Member States;

(c) ensuring compatibility in rules applicable in the Member States, as may be necessary to improve such cooperation;

(d) preventing conflicts of jurisdiction between Member States;

(e) progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalise in the fields of organised crime, terrorism and illicit drug trafficking".

That is quite a list and we are entitled to a full explanation of what it means and to what extent our own laws and judicial proceedings will have to be changed. We are not told. Indeed, we do not know whether our whole system of justice is being gradually undermined to be replaced by a continental co-ordinated system of law. For example, paragraph (c) says,
"ensuring compatibility in the rules applicable in the Member States".
What does that mean? Paragraph (d) talks of,
"preventing conflicts in jurisdiction between Member States".
That could go extremely wide. Let us hear what it actually means. What does "adopting common minimum rules and penalties" mean? It is going to be extremely difficult to co-ordinate or adopt common minimum rules or penalties without altering great rafts of our statute law. Indeed, where does the common law come in all that?
Those are important and vital matters which need to be explained. How will extradition work? Last week we heard the decision of the Home Secretary not to extradite Ms. McAliskey. Will it be possible, under the co-operation rules, for him to take what many felt was a political decision not to extradite a specific person to Germany or any other country where a crime is said to have been committed? We need to know all these things. These are matters of huge importance to the British people yet they were bulldozed—I use that word advisedly—through the House of Commons on a guillotine.
Lest people should think I am exaggerating the dangers, let me refer them to new Article 32, which states:
"The Council shall lay down the conditions and limitations under which the competent authorities referred to in Articles 30 and 31 may operate in the territory of another Member State in liaison and in agreement with the authorities of that State".
Again, there is no sense in which Parliament will be involved; it is government which will be involved. Although this is under the co-operation pillar rather than under the Community pillar, these things have a habit of growing and growing and eventually resulting in the complete and utter sidelining of Parliament. So it is not national governments, let alone national parliaments, which will decide the limitations of these police and judicial matters and the conditions and limitations under which the competent authorities, including the police, can operate in this country; it is the European Council. This European Conglomerate and not the British Government will be deciding what can and cannot be done.
It will, as I have emphasised, be able to act without Parliament's knowledge or approval. Indeed, my worry about this whole title is that police and judicial matters are being removed from any kind of real democratic control. Article 36 will set up a co-ordinating committee of senior officials to advise on police and judicial matters. I should like to ask my noble friend this question. Will this be a kind of European Association of Chief Police Officers? I should like a reply to that question because many people, including myself, are suspicious of the activities of the Association of Chief Police Officers in this country and would be even more suspicious of such an organisation on a European scale. And of course the Commission is to be associated with this title, as it is with everything else.
I really am extremely concerned about the way power is slipping away from representative bodies like Parliament. That is why I was extremely worried that the Minister without Portfolio, Mr. Mandelson, threw some doubt on the future of representative democracy. I have to tell the Committee that I have grown up with representative democracy, which has served us well over a long period of time, and I sincerely hope that it will not be undermined by the provisions of this treaty.
I hope other noble Lords will deal in depth with the extension of ECJ jurisdiction, which is dealt with under new Article 35. Indeed, it has been held by some that Article 35.6 will have the effect of completely undermining the sovereignty of the United Kingdom.
Finally, there is new Article 39, which gives the European Parliament a role in this new title, Title 6. It does not give this Parliament any role but it gives the European Parliament a role. That is why I am very concerned that once again we are having through this treaty creeping competence and that this title will be eventually absorbed into the European Community complete with qualified majority voting on important and vital matters of our people's freedom.
New Clauses 48, 49, 52, 53 and 54 attempt to give our own Parliament a role under this section of the Amsterdam Treaty, but I shall leave it to other noble Lords to elaborate on that aspect. This new title is a dangerous and unwarranted extension of European Union competence and impinges on the United Kingdom's standing as an independent self-governing nation as well as introducing new concepts to our law and giving foreign police forces the power to operate in

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Her Majesty's realm without the knowledge or consent of her Parliament. I ask your Lordships to support the amendment. I beg to move.
Lord Renton: I warmly support the amendment. We have to be very careful indeed. The treaty proposes, without defining them well, various steps which are steps in the direction of integration within the European Union. The articles to which the noble Lord, Lord Stoddart, has referred are somewhat vaguely worded. Perhaps that it is the intention, but we should be very careful about where they may lead.
One could make a rather long speech analysing the matter. I cannot do so because I do not have a copy of the treaty. I had to borrow one from the noble Lord opposite. I am grateful to him for that. The points that we have to bear in mind in particular are these. First, I refer to co-operation between the police forces of the various territories within the European Union. We already have Interpol, which has done great work for many years and has intensified its work in Europe since we joined the Community. I do not know of any particular reason why the present arrangements, which are helped by modern apparatus of various kinds, need to he intensified constitutionally. If they are to be, we should be told in what way it should be done. But I do not see the need for it.
As for judicial co-operation, we must bear in mind that the Union at the moment consists of 15 different countries with 11 different languages and at least half-a-dozen types of legal system. We know from our own experience within the United Kingdom that if one has different legal systems one must have separate judicial systems. For example, under the Act of Union Scotland kept its own judicial system and still has it; and woe betide us if we in England and Wales try to interfere with the Scottish judicial system. The courts in England and Wales and in Scotland have always been very careful and circumspect about not trying to interfere with each other's methods of reaching judicial conclusions. So when we find that there is to be co-operation between judicial systems we need to bear in mind that there are different systems of law which need different judicial systems, and we must not thrust one upon another. It is clear from the articles which the noble Lord, Lord Stoddart, suggests should be left out that there is a danger of that happening.
Perhaps I may go into one piece of detail which is very significant. I took a careful note of it when I had the treaty in front of me. I refer to Article 11, Title VI. There is also something described as an article, but it should be a kind of sub-article; namely, K.6 paragraph 2(b). I shall leave out any irrelevant words. The words that matter are these, "The Council"—that is the Council in Strasbourg, which is an administrative body,
"may adopt … decisions for the purpose of approximation of the laws and regulations of Member States".
I shall repeat that:
"may adopt … decisions for the purpose of approximation of the laws and regulations of Member States".
What does that imply? What would happen as a result of that?
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Under the original Treaty of Rome the six members who signed it said that they should assimilate their laws, but before we entered we said that we could not possibly accept assimilation with all the laws of the six countries which have entirely different systems from ours. Theirs was based on Roman law. Perhaps the Scots would have found it a little easier, but we really could not assimilate our laws. So the Treaty of Rome was amended under the treaty by which we joined. Assimilation was replaced by harmonisation.
Now there is a duty to harmonise the laws of 15 different countries, with 11 different languages and half-a-dozen different types of legal systems. The lawyers in the Commission have found that an almost impossible task. In the autumn of 1995 I attended the conference of the European Law Association, which is not confined to lawyers of the European Union, but includes others from other European states as well. The then head of the legal department of the European Commission, Herr Rolf Wegenbauer, who is a very able German lawyer and who, by the way, spoke beautiful English, said that the task had become impossible and that there needed to be fewer and better laws within the European Union.
Is the adoption of decisions for the purpose of approximation of the laws and regulations of the member states going to lead to fewer and better laws or to more laws and more confusing laws? We are getting into a terrible state. I do not understand the situation in our Foreign Office and with those Ministers who have responsibility. I suppose that they are pushed along so far and so fast with all the problems that arise, that somehow or other their minds have not been applied to the practicality of harmonisation. Now we have this further factor of approximation.
We need to be very cautious indeed about this. I hope that the Government will take on board the things that have been said by the noble Lord, Lord Stoddart, and the comments of other noble Lords who I hope will support him in the debate on this amendment.
Before I conclude, I wish to welcome the information that has been put before us. I have been in the House nearly 20 years, but I do not know what this splendid piece of paper is called. It lists the grouping of amendments. For the first time it shows what the groupings refer to. Under the title, "Justice & home affairs" there are listed all the amendments which the noble Lord is asking to be taken into account in moving Amendment No. 4. The list then sets out, "Police & Judicial Co-operation". But I must point out that when we come to Amendment No. 52 we are warned that we shall be dealing with "Harmonisation of Judicial Procedures". How on earth are we going to do that throughout the European Union?
6 p.m.
Lord Lester of Herne Hill: When we come to consider these amendments it is very important to do so in their proper context. I remind the Committee that Article 6 of the Treaty of European Union, as amended in Amsterdam, provides that the Union is founded on the principles of liberty, democracy, respect for human

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rights and fundamental freedoms and the rule of law, which are principles common to the member states. The same article goes on to oblige the Union, which includes the institutions in Brussels to respect fundamental rights as guaranteed by the European Convention on Human Rights and as they result from the constitutional traditions common to the member states as general principles of Community law. So one sees at the very outset that this is a union which is founded on respect for human rights, liberty, democracy, the rule of law and the over-arching European Convention on Human Rights.
I mention that because it is something to which all the national courts, parliaments and governments are and must be committed. It is something which the European Court of Justice in Luxembourg must take into account in protecting the rights of the citizens of Europe against the misuse of power.
It is made clear that the principle of subsidiarity is to apply and that power is not to be exercised at any greater level than is necessary to secure good government. When one turns to the provisions to which the noble Lord, Lord Stoddart of Swindon, has drawn attention, under Title VI: namely.
"on police and judicial co-operation in criminal matters",
I suggest that they are serving a very important practical purpose. Criminality transcends national frontiers. To combat criminal wrongdoing and to deal with matters such as extradition and problems of conflict of jurisdiction between members states, requires trans-national rules and principles. One of the important purposes of Title VI is to provide a workable framework within which the national authorities are able to co-operate on judicial and other levels.
Therefore, it seems to me to be in the national interest of this country, as of the other member states, that there should be common action on police co-operation and judicial co-operation. I have not understood anything in the speech made by the noble Lord to suggest that common action and common co-operation are not necessary.
As regards the European Court of Justice, the noble Lord, Lord Stoddart of Swindon, will remember, I am sure, that he, like me, had the privilege of serving on the IGC Committee under the chairmanship of my noble friend Lord Tordoff. After sitting for many months taking evidence, we came to the unanimous conclusion, to which the noble Lord was party, that a strong and independent court of justice is an essential part of the structure of the European Union. We went on to say that we agreed with those witnesses who stressed the important role of the court in the consolidation of democratic structures and upholding the rule of law in the European Community. We rebutted the criticisms of judicial activism that had been made of the Luxembourg court, pointing out that we found, on the evidence, those criticisms to be wholly unfounded.
Lord Stoddart of Swindon: Will the noble Lord give way? I believe that when we discussed this matter, I put in my reservation that since I did not believe at all in
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the European Union, I did not believe that the European Court of Justice should have any jurisdiction in this country.
Lord Lester of Herne Hill: I am not dealing with the individual reservations of any particular noble Lord, but with the unanimous conclusion that was reached by the committee, having taken evidence that the European Court of Justice had done a good job, had not usurped its powers, had acted within its jurisdiction and was vital to the maintenance of the European rule of law. One cannot have European co-operation—
Lord Stoddart of Swindon: The noble Lord said that there was a unanimous decision but my recollection is that no vote was taken, and it was therefore nem. con.
Lord Lester of Herne Hill: Very well, I accept that the noble Lord may have had his reservations, but the point that I am making is not to pin liability on the noble Lord with regard to inconsistency—a great philosopher once said that consistency was simply the mark of narrow mindedness, so I do not criticise the noble Lord in any way for any inconsistency—my point is simply that we sat for months, heard evidence and came to the conclusion that the criticisms levelled at the door of the European Court of Justice were ill founded. That was the report that we gave to the House.
I do not see how one can have transnational co-operation, whether under the third pillar or the first pillar, in police and criminal matters (with judges and members of the police service) without the safeguards needed by the judiciary—both the national judiciary and the European judiciary. What is admirable about the scheme in the treaty is that for the first time it incorporates standards of human rights, gives the power and the duty to the courts (the national courts and the European Court) to safeguard those rights, and ensures the necessary co-operation across frontiers by police services and judges in combating serious crime and in promoting decent principles of expedition and the like. For those reasons, it seems to me, with the greatest of respect, that the real objection (which is the basis of these amendments) is not to a particular form of the treaty but to the European Union itself. That is why I am firmly opposed to this amendment and to anything like it.
Lord Monson: Before the noble Lord sits down, does he not agree that one problem is that not everybody agrees about what constitutes fundamental freedoms, which is essentially a vague concept? Indeed, not everybody would agree on a precise definition of "democracy". There are those on the continent and, indeed, in this country, as the noble Lord well knows, who do not believe that the first-past-the-post system is democratic. Might we not find proportional representation of some sort foisted on us by the European Court as a result of this treaty?
Lord Lester of Herne Hill: I agree, of course, that slavish uniformity is to be deplored and that each society is entitled to maintain its own legal system,

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values and democratic traditions. They are part of the common heritage that we share with other members states. Nothing in the treaty requires slavish uniformity. It insists upon subsidiarity. It respects legal and other traditions, but it lays down common principles and a common framework within which one can operate. There is ample scope for diversity, provided that the basic principles are observed. However, if we are to look beyond the frontiers of this country and co-operate with our neighbours, we need a transnational system which respects subsidiarity and diversity while maintaining the essential principles of European society as a whole in the interests of us and our fellow citizens.
Perhaps I may answer the noble Lord in this way: we are called citizens of Europe as well as citizens of this country. We are all entitled to equal protection of the basic rights guaranteed by, for example, the human rights convention whether we are in this country or any other member state. The bodies that must guarantee those rights are all three branches of government in this country and those across Europe.
6.15 p.m.
Lord Pearson of Rannoch: My name has been put to several amendments in this large group, so I rise to support them. If passed, their general effect would be to spare this country from Title VI or the new Articles 29 to 42 of the treaty, which are largely new provisions governing police and judicial co-operation on criminal matters, as so excellently exposed by the noble Lord, Lord Stoddart of Swindon.
It is hard to read these clauses and not appreciate how far and how fast the European Union is moving to full judicial and political integration. These articles seem light years away from the referendum campaign of 1975, when we were assured that we were voting on whether or not we wanted to stay in the Common Market and that no conceivable loss of our national sovereignty was at stake. It is not hard to imagine the effect on the British people if these articles had been put in front of them at that time with the warning that they were just around the corner.
The same effect on the British people would have been achieved if the Maastricht Treaty had been put in front of them, but, alas, we are no longer debating that treaty now. The European "salami slicer" (to use the famous description coined by my noble friend Lord Tebbit) has moved on—and what juicy slices of our national sovereignty continue to fall from its relentless blade with this Treaty of Amsterdam! Of course, as usual, the Euro-language in which it is couched remains opaque to the point of obfuscation, but we only have to look back to see where we thought we were at the various stages of our weary European journey to know now that the signposts painted and erected by our politicians—of both main parties—were always misleading. We should now know that all roads, in the end, lead to the ever-closer union of the peoples of Europe, as clearly set out in Article 1 of the treaty, whatever contrary gloss our politicians of the day may contrive to put on the clauses concerned. So it is with these articles and so, no doubt, it will be with the present Government's answers this evening.
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If the Minister does not agree with me, can he show me how these articles and the rest of the amendments agreed at Amsterdam do not contribute to that ever-closer union of the peoples of Europe? Indeed, can he give me any example where amendments to the Treaty of Rome do not take us towards political union? When do they ever go in the opposite direction? If the Minister is good enough to attempt to reply to this question this evening, I hope that he will not say, as the noble Lord, Lord Lester, implied, that subsidiarity has done anything to preserve our national independence because clearly it has not, as we shall see when we come to its place on the Marshalled List. The trouble with subsidiarity always was, and still is, that it refers to areas which do not fall within the exclusive competence of the Community, and it is the Community which takes the decision as to which those areas are.
It is against that depressing background that I enter the detail of some of these clauses and put a few questions to the Minister. First, let us look at the first paragraph of Article 29, where we see that the Union's objective—always remembering, alas, that we form part of that Union—is now, among other things, to prevent and combat racism and xenophobia. I gather that the earlier drafts of the clause placed racism and xenophobia in the criminal category, to be dealt with by the proposed vastly expanded Euro-police force. But in the end those sins got let off criminality and are now merely to be prevented and combated. So, may I ask the Minister exactly how we are to combat xenophobia, and what the penalties will be for its perpetration?
I think I understand the crime of racism, which I am sufficiently mundane to see quite simply as a breach of our own race relations legislation—and quite right too. But xenophobia may be more interesting. Can the Minister tell me exactly what xenophobia is? As the European superstate continues to gather substance and, in effect, pretends to its own bogus nationality, my worry is that it will come to regard those of us who wish instead to see a Europe of democratic nations freely trading together as xenophobic.
If I dare to look forward to the day when we have a Europe of nations without a European Parliament, Commission, Council of Ministers or European Court of Justice—if, in short, I see the Treaty of Rome as a colossal mistake for the peoples of Europe, whom I love—does that make me, or might it make me, a xenophobe? If so, what penalty may be in store for me? I urge noble Lords not to dismiss my dream as entirely fanciful.
The ill-fated project of European economic and monetary union, when it collapses, may well have an unravelling effect on the Treaty of Rome. The European Union's unattainable ambitions towards enlargement, when they fall into disarray, as they surely will, may compound this effect. In those circumstances, a very large number of the people of Europe may then stand back and take an objective look at the bloated and misguided bureaucracies in Brussels, Strasbourg and Luxembourg. They may ask themselves: what on earth is the point of them all? If I and others reply that there is not any point at all and that the concept of the Treaty of Rome became redundant when the Berlin Wall came

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down and when the economies of Europe drowned themselves in their own red tape, will we be in breach of Article 29? I look forward with interest to the reply of the Minister.
My second question is perhaps easier. In Article 29 the European Union bravely sets out to combat fraud, which appears to be making off with about 10 per cent. of its budget each year. I ask the Minister what importance is at present attached in Brussels to the several excellent reports on fraud in the Community by your Lordships' Select Committee. Is there any sign of acceptance of your Lordships' concept of truly independent auditing and reporting of public expenditure on the British model, perhaps with auditors supplied by the donor countries? I put it to the Minister that the British presidency should give us a good opportunity to push these suggestions to a fruitful conclusions; or will the Minister tell us that there is still not the will in Brussels to cut this huge cancer out of the decaying European body politic?
Incidentally, I have to remind the Minister that your Lordships' Select Committee did not attach much priority to a souped-up Euro police force in the fight against fraud, but I fear that it will have become part of the justification for what is now proposed. Furthermore, it is hard to see why all the plans put forward by these clauses could not be achieved by intergovernmental co-operation instead of by expansion of the Treaty of Rome. Here I take issue with the noble Lord, Lord Lester of Herne Hill.
Thirdly, can the Minister explain what Section 4 of Article 34 means? The Minister will remember one of the questions put to him by my noble friend Lord Renton, with which I associate myself. I ask the question because Section 2 of that article seems to imply that, acting unanimously, the Council may—the word "may" may be significant—do certain important things such as adopt binding framework decisions for the purpose of approximation of the laws and regulations of the member states, as my noble friend Lord Renton pointed out. But Section 4 says that for procedural questions the Council shall act by a majority of its members; in other words, no longer by unanimity. I would have thought that most of the objects of Article 34 could be described as procedural questions. It would be good to hear the Minister confirm that unanimity and therefore our veto really do apply to all the plans emerging in Article 34.
Finally, can the Minister say anything about the Corpus Juris which I understand is the Commission's detailed but as yet unpublished plan for a single inquisitional system of criminal justice throughout Europe? Apparently, this plan was revealed to a selected audience in San Sebastian in Spain in April 1997, with its first phase covering only crimes against the EU budget. But the President of the European Parliament has said since that the intention subsequently is to extend it to all areas of criminal activity. If that were to happen it would sweep away our system of common law, habeas corpus and trial by jury. Can the Minister bring us up to date with this plan? Can he also assure
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us that it will never be the outcome of these articles which these amendments so prudently seek to remove from the treaty?
I fear that the Minister will in good faith give us just those assurances. But, seeing the way the salami-slicer has gone on slicing over the years and seeing it run smoothly through these articles, I trust the Minister will understand if some of us are unable to believe him and wish to support these amendments.
Lord Moynihan: I preface my opening remarks on this amendment by saying that, although there is no doubt that the measures contained in Title VI address issues of high domestic political sensitivity, including the operations of police and customs authorities and the criminal justice system, the Official Opposition are supportive of some of the general principles behind this part of the treaty which concern police and judicial co-operation in criminal matters. My right honourable friend the former Home Secretary, Michael Howard, had a significant hand in the genesis of some of these measures a number of years ago.
We on these Benches support any reasonable measure that is intended to search out, combat and remove the malignancy of international and organised crime. One of the great challenges that we face today is the fight against terrorism, organised crime, drugs and arms trafficking and illegal immigration. These activities respect no national boundaries, border controls and checks or customs laws. If they are to be effectively addressed it must be done on a multinational basis. Over the past five years we have seen greatly increased co-operation between the law enforcement agencies of member states thanks to number of specific agreements. The convention establishing Europol is one example. Europol was set up to provide a sophisticated facility for exchange and analysis of criminal intelligence. The Customs Information System Convention is another example by which a pooled database of anti-trafficking intelligence has been set up to make it harder for criminals to exploit differences in the legal systems of member states.
While I am in agreement with my noble friend and a number of noble Lords who have spoken so far this evening, in particular my noble friend Lord Renton, there cannot be and should not be any question of supra-national solutions being imposed on member states in these areas—hence the third pillar originally introduced by Title VI of the Maastricht Treaty, which is subject to unanimity, where member states co-operate on an intergovernmental basis within a single institutional framework. Under this title the role of the Commission, the European Parliament and the European Court of Justice was strictly limited.
The creation of a new Community title that we are considering this evening for the free moment of persons, asylum and immigration, as I have described, has necessitated this debate because it constitutes a major overhaul of the justice and home affairs pillar. Four of the areas dealt with under that title will be transferred to the new title and therefore to Community competence. Although this pillar retains its intergovernmental character, it is of great concern that it moves closer to

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Community arrangements and that the difference between the pillars is slowly but surely, and ever more, significantly being eroded. Such changes in the nature of the third pillar involving a much greater role for Community institutions raises real difficulties of principle.
That is why I have tabled Amendment No. 8 to highlight my main concerns on Article K.7, which is new Article 35 of the Treaty of the European Union. That explicitly involves the European Court of Justice in the third pillar, undermining the valuable intergovernmental structure agreed at Maastricht and Article K.2, which empowers Europol personnel to join national policing operations in a support capacity. Potentially that could represent a step in the direction of a European police force in a country which, as my noble friend has pointed out, does not even have a British police force but a number of regional ones.
I turn, first, to the important question of the ECJ. I have tabled new Clause 44, which provides for delay to the Bill's enactment until the Attorney-General is able to give specific legal advice on the extent to which provisions in Title VI of the treaty of the EU on police and judicial co-operation in criminal matters extend the jurisdiction of the European Court, to highlight our concerns about the extension of the jurisdiction of the ECJ.
The new clause provides also for a report based on the Attorney-General's advice, which will be laid before, and, indeed, approved by a resolution of, each House of Parliament. I have already raised the concern that the Amsterdam Treaty does much to undermine the pillared structure agreed at Maastricht as Article K.7 explicitly involves the ECJ in the justice and home affairs, or third, pillar. I shall not repeat the arguments that I have used in defence of the valuable distinction achieved between super-national and intergovernmental sections. Suffice it to say that Article K.7 encroaches upon the intergovernmental structure agreed at Maastricht under which the question of the jurisdiction of the ECJ was to be left open.
As I understand it, Article K.7 provides for the ECJ to have jurisdiction; to give preliminary rulings on the validity and interpretation of decisions and on the interpretation of the conventions established under Title VI on police and judicial co-operation in criminal matters and on the validity and interpretation of the measures implementing them. Those will apply to each member state only if and when that state has accepted the jurisdiction of the ECJ and has made a formal declaration to that effect.
In making such a declaration of acceptance of the Court's jurisdiction, the member state must specify that it applies to courts or tribunals where in that country there is no further judicial appeal and where such a court, in coming to its judgment, considers that it needs the ECJ's ruling, or that it applies to all courts which invite the ECJ's ruling in that way.
Although the ECJ does not have jurisdiction to review police operations, nor does it have jurisdiction over the action of member states in the maintenance of their law and order systems and in the safeguarding of internal
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security, it will have jurisdiction over the legality of member states' actions or decisions on grounds such as lack of competence, infringement of an essential procedural requirement, infringement of the treaty or of any ruling of law relating to its application, and the misuse of powers. It also has jurisdiction to rule on a dispute between member states if such a dispute is not settled within the Council within six months and to rule on a dispute between member states and the European Commission.
The changes that I have described represent a significant extension of the ECJ's jurisdiction. In another place the Government have described such extensions as modest. I should welcome the Minister's comments on the criticism that the modesty of this measure will depend upon the extent to which conventions, rather than framework decisions, are used in the future and the extent to which member states are willing to opt in to ECJ competence in framework decisions.
Furthermore, in the area of police and judicial co-operation I should like to establish who is the final arbiter in any dispute over the interpretation of that area of the treaty. According to Article K.7, it appears that the ECJ's decisions will now override those of the Home Secretary and the British courts. Will the Minister give details of the extension of the Court's jurisdiction, and will he say how they will affect our law, both civil and criminal?
Lord Renton: Perhaps my noble friend will allow me: his argument would be strengthened immensely if one were to bear in mind that for years the ECJ has had to incur great delay in making its decisions because of the volume of work put upon it. With the large increase in its jurisdiction which is now proposed, the delays will be even greater.
Lord Moynihan: As always when my noble friend intervenes, he strengthens the point that I am making, and has done so considerably on this occasion. I shall come to certain examples which bear testimony to the point that my noble friend has made. In the context of the point that I am making, which, as I have said, is admirably reinforced, it is important that we have details from the Minister as to the extensions of the Court's jurisdiction as they impact directly on our civil and criminal law, and an assurance that it is intended that the Government's view that the pillared approach at Maastricht—this is the important point behind my argument—is worth defending and that the ECJ's jurisdiction will not be extended into other pillared areas.
I accept that some Members of the Committee may find that the present encroachment of jurisdiction appears to be marginal. Nevertheless, many Members of the Committee fear that that represents not just something that is substantial but something which is potentially the thin end of the wedge. I seek the Minister's assurance that the Government are cautious about the implications of that extension of the role and

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powers of the ECJ and that the Government will oppose any attempts to extend its jurisdiction further into other pillared areas.
Lord Lester of Herne Hill: I am grateful to the noble Lord for giving way. I am not following the arguments, and that must be my fault. Will he indicate whether his position is that some body other than the ECJ should settle disputes about what the treaty means when there is a clash of arguments? If so, what is that body to be? It was his government in 1971, when we were negotiating entry, who signed the Rome Treaty that gave the ECJ the jurisdiction to decide what the treaty means so far as concerns this country. Is he suggesting that when there is a conflict of jurisdiction or interpretation there is some body other than the ECJ which should decide?
Lord Moynihan: I am sorry that the noble Lord has not followed my argument. I was looking specifically at the proposals within the Amsterdam Treaty which go further than the measures to which he referred. For example, I focused upon Article K.7 where, to date, the Home Secretary and the British courts have the ultimate word over policing matters and judicial co-operation. We are seeking clarification from the Government. That is my purpose this evening in what I hope the noble Lord will accept is a complex area of law. I am seeking clarification that that has not changed and that it is not the case that the ECJ's decisions—not least, for example, in police and judicial co-operation—will now override those of the Home Secretary and the British courts.
On the question of reform of the ECJ, I should like to draw the Committee's attention to new Clause 48 which calls for a resolution on a motion relating to the reform of the enforcement of Community laws—
The Earl of Onslow: Perhaps my noble friend will give way for a moment. I am trying to follow this argument, which I accept is extremely complicated. If police and judicial affairs come in any way under the Treaty of Rome, will they be subject to the ECJ? Do we want that to happen or not?
Lord Moynihan: I have a great deal of sympathy with the point raised by my noble friend. That is precisely why I raised with the Minister tonight the question of whether he is in accordance with your Lordships' view on the issue. I believe that the extensions go much further than he has considered. The Government's position is that these are merely marginal changes, but I would argue that they are fundamental and far reaching. With the limited powers at my disposal, I was trying gently to encourage the Government to be clear about how they see the extension of the powers and the implications for the jurisdiction of the European Court of Justice. I have a great deal of sympathy with the point raised by my noble friend.
One of the difficulties of grouping together so many vitally important issues is trying to cover as many as
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possible as briefly as possible and to lay out the Opposition's concerns. Perhaps I may attempt to make progress by moving to new Clause 48 and the reform of the European Court of Justice. It calls for a resolution on a Motion relating to the reform of the enforcement of Community laws before the Act can enter into force. The amendment refers in particular to four areas: the limitation of the retrospective application of judgments of the European Court of Justice; an internal appeals procedure; national time limits on the implication of directives; and limitation of damages payable by Member states.
Suffice it to say, those were all eminently sensible proposals for a reform of the European Court of Justice tabled for discussion by the previous government at the inter-governmental negotiations. However, the opportunity to examine the role of the European Court of Justice at Amsterdam was completely lost. These extremely important areas required a detailed consideration and review. That opportunity was lost at Amsterdam. Tonight I am seeking to obtain an explanation from the Minister of why that was the case.
The debate on the reform of the European Court of Justice should have nothing to do with divisions of principle over the European Union of the future and with arguments and beliefs for and against a federal Europe or a Europe of nations. Clearly, common rules require a supreme authority to interpret them and it is clearly in the interests of the European Union in certain areas to have a strong, effective and independent court to ensure the even application of Community laws and to prevent the abuse of power by Community institutions. For example, it would be impossible in British law to have a single market in the European Union without trading taking place on a fair basis and without the nations being subject to the same obligations and specifications, including open access to markets and freedom from state subsidy, if there were no means of enforcing the rules.
It is for that reason that the European Court should remain a guarantor of the single market. In the UK, we bind ourselves by the rule of law and our treaty obligations and we are entitled to expect that others will do likewise. That is why we in this country go to the European Court often with persistence and why we win most of our cases when we do so. We would have no redress against claims of unfair trading, breach of treaty obligations and so forth if the status of the European Court of Justice were diminished.
There were important reasons why the European Court of Justice was set up in 1952 and I do not need to rehearse for your Lordships the importance of the Court. My concern tonight with the Bill and the treaty is that the European Court of Justice should remain within the remit given to it by member states and not exceed it. There is increasing concern that the ECJ's interpretation of laws sometimes seems to go beyond what the participating governments intended in framing those laws, that the ECJ has on occasion exceeded its

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competence and has started to adopt its own political agenda. In recent years, there have been judgments which have given cause—
Lord Lester of Herne Hill: I am sorry to interrupt and I am grateful to the noble Lord for giving way. Can he quote a single example so that the Committee knows to what he is referring? The IGC Select Committee examined all the examples that were given and found that not one justified that kind of criticism of the Court. Is there a particular judgment to which the noble Lord would wish to draw the attention of the Committee where in his view the court exceeded its jurisdiction?
Lord Moynihan: The noble Lord will be delighted to learn that I am about to turn to specific examples for his consideration in this context. Suffice it to say that even my right honourable friend Kenneth Clarke is very much of the view that the court's judgment is often rendered unpredictable because it is usually required to interpret treaties, regulations and directives which have been carelessly drafted and to a large extent—and that is partly in reply to the noble Lord's intervention—my right honourable friend sees that is the cause of the politicisation in some of its determinations.
In order to try to satisfy the noble Lord on this subject, perhaps I may give the example of the fishing quota. Surely it is wrong that there should he fishing quotas designed to guarantee a reasonable return for local fishing communities while at the same time there are treaty provisions on non-discrimination which render such quotas unenforceable. Surely, to give another example, it is wrong that the health and safety policies are often so loosely drafted that they can permit the drafting of social policies by the back door, evading the unanimity requirement. That was the point made by my right honourable friend Kenneth Clarke.
Perhaps I may go into detail on the example of the fishing quota dispute. Recently, the European Court of Justice ruled that Britain could not reserve its fishing quota for its own fishermen. When Britain gave up its exclusive right to fish its waters, it did so in return for a guaranteed quota of the total stocks. For that remaining quota to be fished by foreign vessels flying British flags of convenience undermines the basis of the fishing agreement. But the court ruled—and the court ruling is important in this context—that the Merchant Shipping Act, which was designed to return to the intention of the treaties by requiring British registered vessels to be largely British, was illegal. Do the Government believe that such decisions were wrong? If so, why did they not press for the reform—and this is my central point on the amendment—of the institution which gave rise to them?
It was for those reasons that the previous government placed such emphasis on the reform of the workings of the Court. And it was for those reasons that the previous government tabled a package of measures aimed at improving its effectiveness and curtailing any possibility of political bias at the inter-governmental negotiations. Without such reforms to improve its workings, disproportionate judgments threaten to bring the Court's reputation into disrepute.
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From these Benches, we wanted to strengthen the ability of the Court to limit the retrospective nature of its judgments. For example, constant challenges have been made to the European Court about the scope and incidence of our VAT, because whereas in this country we have imposed limits on how far back in time such claims may extend, in the ECJ judgments might be awarded undoing the imposition of VAT all the way back to the introduction of VAT. Clearly, several countries risk billions of pounds of damages. I would welcome the Minister's view on the assertion of the former Chancellor that, based on his expert knowledge of ECOFIN, the finance ministers were enthusiastic about limiting the scope of the Court's judgments. I have quoted a classic example of that.
We also sought to introduce a principle that a member state should be liable for compensation only in cases of serious and manifest breaches of its obligations. We wanted national time limits to be respected when people brought actions before the European Court. We wanted an internal appeals procedure. We wanted streamlined procedures for the rapid amendment of EC legislation which has been interpreted in a way which was never intended by the Council. And we wanted an accelerated procedure for time sensitive cases.
Those reforms cannot and should not be pigeonholed into Eurosceptic or Europhile boxes. This was not an attempt to reduce the legitimate authority of the European institution. Instead, it was an extremely constructive approach to improving the functioning of that same institution and to ensuring that it avoids disproportionate judgments which threaten to bring its reputation into disrepute. I hope that the Committee will agree that they were comprehensive and sensible proposals which would have streamlined the court and eliminated many of its most glaring flaws without affecting its position as supreme guarantor of the treaties.
That constructive approach was totally abandoned by the Government who signed a treaty which has done much to extend the remit of the court and nothing to reform it. I ask the Minister why the Government did nothing to reform the European Court of Justice at the Amsterdam summit.
Instead, the Government abandoned the previous government's constructive proposals to improve the workings of the court and agreed to an extension of its remit into the third pillar, undermining the intergovernmental pillar system. Does the Minister believe that there is a case for the reform of the European Court, including limiting the retrospective nature of judgments? If the Government believe that there is a case for such a reform, why was nothing done?
In Committee in another place the Minister apparently gave a reason when he said:
"I assure the Committee that there was no question of our European partners agreeing to the proposals made by the previous government to limit the retrospective effects of the court's jurisdiction".—[Official Report, Commons, 2/12/97: col. 227.]
Lord Lester of Herne Hill: I apologise for interrupting yet again, but there is no one here really to speak for the European Court of Justice in order to answer some of the noble Lord's points.

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I take the two examples which the noble Lord has given so far. First, in relation to the Factortame fishing case, the European court was doing no more than deciding that there was discrimination based on nationality contrary to the clear words of the Treaty of Rome in discriminating between British and Spanish vessel owners.
The second example was in relation to limiting the temporal effect of the court's judgments. Is the noble Lord aware that the Luxembourg court has developed an extremely fair and careful doctrine which is that it will limit the temporal effect of its judgments of its own motion where to do otherwise would damage the legitimate expectations of those concerned? Therefore, for example, in the Barber case, because no one expected the court to decide that there was unlawful sexual discrimination in the pensions field, the court was careful to limit the temporal effect of its judgment and provide that it would apply only prospectively. It does not do that in cases where the member state has been at fault and knowingly at fault and has failed properly to implement Community law. Therefore, it is quite right that the temporal effect should not be limited.
Is the noble Lord aware that the court itself developed those careful principles and the IGC committee of this House found that entire approach to be fair and not to be criticised on any reasonable basis?
Lord Moynihan: I should be more than prepared to enter into a debate with the noble Lord on the two cases which I raised. I have learnt very early in my career in this Chamber that one does not give examples without undertaking a sufficient degree of research in order to debate on a reasonable basis points which are likely to he made during interventions in Committee.
But that is not the point I am making. I do not seek that anyone should make a contribution in this debate on behalf of the European Court of Justice. I am seeking to question the Government as to why the proposals which we put forward prior to the last election (about which there is widespread agreement in this Chamber) to reform the European Court of Justice, were ignored, were not tabled and were not debated.
I used my examples not to become involved in a detailed consideration of individual cases but as examples of the problems which exist, which need to be confronted and which should have been addressed by the Government when it came to their consideration of this treaty.
As I mentioned to the Committee, the Government's view was that they would never have achieved agreement on those issues so they did not debate them. That is not a satisfactory explanation when every single one of the proposals that I have mentioned this evening—an internal appeals procedure, a procedure for the rapid amendment of EC legislation and a national time limit—was abandoned at Amsterdam. We have never heard from the Government why they did not press for reforms to deal with significant flaws in the working of the European Court of Justice.
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I believe that it demonstrates a very serious weakness on the part of the Government that none of the arguments for reform was advanced. If the Government thought that the reforms were sensible measures, I should have hoped that they would give due consideration to supporting them. But if they did not think that they were sensible measures, then it is important for it to be clear to this Committee why that was so. They really should not use the excuse that there was little support for such reform at the IGC.
That may give rise to grave criticism—and it is not the first time in Committee that I have raised this issue—that they are attempting to mask a fear of isolation in Europe; that they are only too ready to pursue the line of least resistance; and that they are unwilling to stand up for our interests and win round our partners by advocacy and argument. That is particularly unedifying in a Government who are only too happy to reap the rewards of a previous government's preparedness to be isolated when the occasion demanded—as indeed as it did demand, for how else did they secure the opt-out from the single currency?—but lack the courage and conviction to do likewise. That is the point and that is the thrust behind the amendment which I have tabled and the important issues which Members of the Committee have raised during the debate.
I have attempted to answer some of the interventions and I am conscious that we have all too little time this evening to focus on the harmonisation of judicial procedures and Europol. Therefore, I crave the indulgence of the Committee for two minutes to touch on the critically important question of the powers of Europol.
They are covered in Article K.2. This article provides for common action in the field of police co-operation and judicial co-operation in criminal matters and sets a series of targets to be achieved within five years to facilitate the work of Europol. Again, although it is fair to say that from these Benches, we are broadly supportive of some of the general principles behind this part of the treaty and as our record demonstrates, we support any reasonable measures intended to crack down on crime, there are some questions which must be asked on that issue and which I hope the Minister will be able to answer.
The previous government were proud to have agreed measures on common action against international terrorism; on proposals for fighting drug addiction and drug abuse, as well as joint surveillance operations which resulted in major drugs seizures; we were proud to have signed the fraud convention on measures to combat fraud against the financial interests of the Community; and we were proud to have played a key role in the establishment of Europol. At a time when Germany and France held completely different views about Europol's nature and were at an impasse, the former Home Secretary helped to bridge those differences and brought the two countries together.

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However, there are fears, which have been expressed by Members of the Committee that Article K.2 may be a step in the direction towards the creation of a European police force, and I would like a reassurance from the Minister that this is not the case.
Article K.2 empowers Europol personnel to join in national policing operations in a support capacity. This is certainly a significant change, which introduces the concept of granting legal immunity to a whole new class of people from overseas who are operating here. It is hardly surprising therefore, that there is concern over the precise legal ramifications of this change.
What will be the status of those Europol personnel who join in national policing operations in a support capacity? How, and to whom, will they be accountable? Could the Minister give a clearer idea of the type of activities in which such Europol officers will be involved? Will they have diplomatic immunity and will that cover all those activities, and in what circumstances is it likely to be waived? What should a British individual do if he has a complaint about the activities of a Europol officer? Is it the case, as Article 38 of the convention states, that the remedy would lie,
"through action against the Member State in which the damage occurred, in the national courts"?
It provides that if damage is caused to an individual as a result of incorrect data processing by Europol—for example, if false information by Europol led to a British force detaining a person in London—the legal redress would be through action against the member state in which the damage occurred, in the national courts.
Therefore, if I were a British citizen whose reputation had been damaged or who had been arrested or falsely imprisoned as a result of a mistake or a misunderstanding or because someone erroneously gave the police the wrong information, is it the case that I would have to sue the member state,
"in which the damage occurred",
wherever that may be?
I should also like to ask the Minister about the declaration on Article K.2, which establishes that,
"action in the field of police co-operation under Article K.2, including activities of Europol, shall be subject to appropriate judicial review by the competent national authorities in accordance with rules applicable by each member state".
Does the reference to Europol here mean activities carried out by national authorities on behalf of Europol? How would judicial review touch directly on the activities of Europol in the UK?
I very much hope that the Minister will be able to give a satisfactory response to the question about the legal redress for citizens who are aggrieved. I hope that he will also be able to provide some clarity about the scope and status of the operations of Europol officers. From these Benches, we would welcome more details on the limits of the scope of activity over the next five years; we would welcome more information on legal immunity; and, finally, we would welcome more details on the legal implications and ramifications of Article K.2. Indeed, we would welcome more details about how the process will work in practice.
7 p.m.
Lord Swinfen: My Lords, many noble Lords have already mentioned the fact that there are already different judicial systems in various countries of the EC. However, we also heard from my noble friend Lord Pearson of Rannoch that there is a corpus juris, albeit limited in effect to start with, which is already being prepared or, indeed, has been prepared. When responding to the debate, can the Minister confirm my impression that, under Article F.1, we could be forced to change our judicial system to a new system suggested by either one third of member states or by the Commission? I believe that to be an extremely important point. Although there may be close similarities between the judicial systems of the majority of the other states within the EC, it is only the Republic of Ireland and England and Wales that have a totally different system of law; indeed, that also applies to Scotland to some extent.
I have attached my name to Amendment No. 53. While I support in general all the amendments in the group, I should like especially to speak to Amendment No. 53 because it deals with Europol, which has already been mentioned several times this evening. It is possible, therefore, that I shall repeat some of the arguments that have been put forward, but I hope not to bore your Lordships in that respect.
Article 10 of Title III of the European convention gives authority for the European Police Office—in my parlance, the EC police force—to open files on victims of crime, on witnesses and on anyone that it thinks may be able to provide information; and to keep those files, with no suggestion that they will ever be closed. It is a very wide power—indeed, almost like those of a police state.
As I understand it, Europol officers will not be compelled to testify in court, so their evidence may not be tested by cross examination. I also understand that they will be immune from prosecution for,
"acts performed by them in the exercise of their official functions".
This means that their co-ordinator can protect his staff if they abuse their powers or leak classified information, possibly for political purposes. Europol appears to be turning into a European federal bureau of investigation, with undefined powers to participate in police operations and launch investigations. It will operate in an institutional twilight zone beyond full control of democratic forces—possibly out of any real control. It seems to have great powers with little or no accountability.
At present, Europol officers cannot make an arrest, search a house or confiscate property. However, under the Amsterdam Treaty, that power is given to them after a five-year transition period. They will then be able to take part in joint operations which, as I understand it, will include armed assaults. Will they need licences for their weapons in this country'? Will they need licences to import them? I ask those questions because those officers are not members of any of our police forces, or of our Armed Forces.

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This appears to me to be the first step towards a European police force. Is that the Government's intention? After all, they have entered into the Amsterdam Treaty and they want it ratified. What will Europol's powers be after the five-year period? For example, will its officers be able to tap telephones? Further, will they need a court order to do so? Will they have the same powers as a constable in this country?
I understand that the director of Europol will answer in camera to a management board under the Council of Ministers and that the general oversight will be an internal matter. That hardly strikes me as satisfactory. Will Europol be subject to judicial review? Where is our parliamentary control over this body which in five years, if not sooner, will operate without proper control in the United Kingdom?
Finally, I turn to a point that has already been raised. Will the Minister please define xenophobia, as mentioned in Article 29? Given the European Union's propensity to call all its opponents "xenophobes", should I look forward to a late night visit at some time from Europol officers?
Lord Monson: My Lords, perhaps I may suggest that to accept that police co-operation and judicial co-operation should be lumped together and dealt with as one, as the treaty does, is to fall into a trap. Police forces of friendly nations do co-operate and have always done so, both in Europe and elsewhere in the world. Indeed, the police forces of not so friendly countries—that is, countries that may be at loggerheads with one another—normally, and more often than not, also co-operate because it is in their mutual interests to do so. Hence, no new principle is being introduced here, although it is possible to argue, as many of us do, that no additional powers are needed.
However, judicial co-operation is another matter altogether. As a layman, I hesitate to try to follow in the distinguished and experienced steps of the noble Lord, Lord Renton, but, as I understand it, the judiciary of any normal self-governing nation state is, and should be, self-contained and independent, based on that nation's jurisprudence and cultural traditions. This does not apply only to self-governing nation states but also to the separate states and provinces of the United States, Canada and Australia where the judiciary in different states or provinces can approach similar cases in different ways.
The citizens of no continental nation have the benefit of habeas corpus or trial by jury. So far as I am aware, no continental nation has unpaid lay magistrates. Many of these countries require the imposition of minimum sentences for certain offences. We in this country impose minimum periods of disqualification for certain grave motoring offences. I played a small part in getting the minimum period raised from 12 months to two years for causing death by dangerous driving. If the noble Lord, Lord Mishcon, is present, he may remember that. However, minimum periods of disqualification are a very different matter from stipulating minimum fines and—this is even more the case—minimum periods of imprisonment.
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I am not arguing that our way is the only way of doing things and that it is necessarily better in every instance than the continental way. Intelligent men and women of goodwill speaking in good faith can legitimately hold different views on this. That is all the more reason why we should be permitted to continue doing things in our traditional way, and they should be permitted to act in their not quite so traditional way—I believe their system has existed for no more than 200 years—if they so choose, without trying to harmonise the incompatible.
Speaking earlier this evening, the noble Lord, Lord Lester, indicated he believed that the principle of subsidiarity would protect our essential judicial independence. One would like to think that this would be so, but so often in the past subsidiarity has turned out to be a paper tiger against those pushing for more and more integration.
7.15 p.m.
Lord Bruce of Donington: The Committee will have noted that the explanatory memorandum that accompanies the Bill states,
"The amendments to the existing Community Treaties resulting from the Treaty of Amsterdam will modify the objectives and activities of the Communities and thus will have implications for the Community Budget".
I make the initial observation, "You can say that again". It is of course quite clear, on reading through the various activities which are discussed in the treaty itself and which are laid down in precise terms when it suits, that there will be a significant amount of expenditure resulting from the Treaty of Amsterdam. I know full well that in the very next sentence the Government assure us in their explanatory memorandum that this will be within the existing limits laid down at Edinburgh and modified only slightly to deal with very small contingencies that have arisen since.
But one must be singularly unaware of the way in which the Community's budget is dealt with if one fails to realise that as a matter of course the Commission always contrives to arrange money under various headings which it has no intention of using at all, and which at a later stage it can transfer to other parts of the budget upon which it wishes to spend money but which it does not disclose at budget time. This is common practice in the Community. I have no reason to suppose that it has changed since I dealt with the European budget.
It is quite clear—even within this specific section which is dealt with at pages 16 to 21 of the Treaty of Amsterdam—that there is quite a large number of activities to be dealt with. Article K.13 deals with the financial part of it, paragraph 2 of which states,
"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".
Paragraph 3 states,
"Operational expenditure to which the implementation of those provisions gives rise shall also be charged to the budget of the European Communities, except where the Council acting unanimously decides otherwise. In cases where expenditure is not charged to the budget of the European Communities it shall be

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charged to the Member States in accordance with the gross national product scale, unless the Council acting unanimously decides otherwise".
Paragraph 4 states,
The budgetary procedure laid down in the Treaty establishing the European Community shall apply to the expenditure charged to the budget of the European Communities".
The budgetary provisions are quite clear. However, where the money is to come from is not equally clear.
It is remarkable that in the proceedings so far in Parliament, including those in another place, the budgetary implications of this treaty have not been discussed at all, even at Committee stage. There is a curious reluctance—apparently shared by both the political parties and indeed the third, and possibly also the Independents—to discuss the budget. In fact the 1998 budget went through on the nod in another place. It was passed at about 10.30 at night without much trouble.
If I may say so, it does not lie in the mouth of the noble Lord, Lord Moynihan, to protest at the vices of Her Majesty's present administration because under the government of the noble Lord the United Kingdom accumulated a deficit of no less than £30 billion in their contributions to the European budget. So far the Government have not endeavoured to achieve a deficit year after year on that basis. Nor has the country been impressed by it, because the budget simply has not been examined. It arrived too late to be dealt with by the Commons Select Committee on budgets. It arrived too late for it to be considered in a Select Committee in this House. That is surely quite remarkable.
I can understand a certain reluctance on the part of a new administration to get involved in assessing budgetary costs relating to an extremely complicated treaty. They must have noticed by now that the Commission is up to its old tricks once again. It is the oldest device in the world of a bureaucracy so to deluge its political masters, or alleged masters, with material that they cannot possibly cope with it. We know perfectly well that large numbers of Ministers never read the Treaty of Maastricht at all. I am bound to say that I do not remotely accuse my own Government of not reading the treaty; I am sure they have read every line of it and understand every line of it. However, they are under pressure. It is not only the Government that have been put under pressure by legislation of this kind. If the Committee re-reads it—I am sure it has read it already—it will find that it is tremendously complicated. Indeed, I suggest that the Select Committee has barely had an opportunity to read it. In another place the Select Committee on European Legislation is itself already under pressure. It was under pressure before this Government ever came into office. I have before me a document dated 19th March which relates to arrears of business in the Select Committee on European Legislation. I have examined it. I find that no fewer than 136 replies are still required by the Select Committee from various government departments. They go back to 1993 and 1994. In addition, the committee has another 40 or so documents before it, some without an explanatory memorandum, which it has to consider.
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I note that the Foreign and Commonwealth Office still has a lot of information to give to the Select Committee going back to 1994.
If the Select Committee in the Commons is that pressed, how can we get anyone to consider the mere financial implications? It simply will not do. It is not as though those who make inquiries do not have their difficulties in getting information not only out of the Commission but also out of the Government. Because of a question about which I have given advance notice to the Government recently, I hope that I shall obtain information from the Government. But such is not the case with the Commission.
A Member of the European Parliament, Mrs. Caroline Jackson, questioned the Commission. Her political persuasion is PPE, but there is general sympathy across the House on these Questions. I make no point about her party political persuasion; it is roughly the same as those of noble Lords opposite. Mrs. Jackson asked:
"According to the Economist of 18 October 1997, the European Commission was unable, at a recent meeting of ECOFIN, to give figures for net contributions to the EU budget for each Member State. Given the importance of this subject, and the high degree of public interest in it, will the Commission now take the opportunity to publish the list of net contributions to the EU budget for each Member State, using the latest available figures"?
The MEP was exercising her undoubted right to obtain information from the Commission which would enable her to judge in her own mind the political priorities to be accorded to the expenditure running through the Community Budget. In order to determine the fairness of it, the contributions, net or otherwise, made by member states are of great interest to her. Surely she was entitled to a reply. Indeed, one of the first things that the present Government did was to publish those comparative figures for the year 1995. One has since been able to obtain figures, by methods of calculation which are not entirely unknown to your Lordships, for the 1997 sum.
However, let us listen to what the Commission said to this Member of the European Parliament which, if I correctly interpret the mood of Members of your Lordships' House, is held in high affection by many Members. In its reply, the Commission said:
"In a paper forwarded to the ECOFIN Council (a copy is sent direct to the Honourable Member and to the Parliament's secretariat) the Commission explained the reasons why it does not produce estimates of budgetary positions for the Member States.
"To recapitulate, the Commission contends that budgetary flows do not capture all the benefits from membership of the Community. Community membership, which gives rise to financial and non-financial advantages as well as obligations, has a non-budgetary dimension the importance of which dwarfs the budgetary dimension"
—all £30 billion of it since 1975.
"For example, the benefits from the pursuit of common objectives, such as trade liberalisation and European economic integration, cannot be evaluated in terms of budgetary flows alone. Moreover, flows from the Community budget invariably benefit not only the recipients but other Member States in the form of return flows. Typical examples are structural funds and external expenditure, where the implementation of projects often gives rise to purchases of goods and services from other Member States.
"Furthermore, there is no single definition of a budgetary balance. This inevitably makes possible the design of various methods of approximating the net budgetary benefits from membership of the

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Community, and the choice of particular method often reflects the desire to highlight a particular point of view or to defend a specific issue. In view of these difficulties, the Commission neither produces nor does it endorse any particular method of calculating the Member States' budgetary positions".
Is that not charming? Despite that, possibly by an oversight, the Commission eventually published the budget for 1998 in the Official Journal. That has enabled figures to be worked out. I have no doubt that the Government will provide the figures in response to my question.
I have dealt with this issue during debate on this amendment because it has not been dealt with elsewhere. There has been no discussion in Parliament of the 1998 EU budget. There has been no discussion as regards those states in deficit and those in surplus. It is high time that these matters were addressed. They should be addressed in the spirit with which almost everything that happens in politics is pursued, in particular where the Commission is involved—the expenditure of money. A democratic government ordinarily provides, and should provide, for the public scrutiny and accountability of those who spend.
The matter is raised on this amendment because at this stage there is no other point at which it can be raised. I shall therefore spare noble Lords the repetition of the issue on every amendment in the hope that my words about the Community budget, upon which I have ventured to address the House on many occasions, often with its support, still apply; the dominant consideration must be the financial expenditure involved by the British taxpayer who so far has had a very raw deal out of his association with the Community.
Lord Whitty: I beg to move that the debate on Amendment No. 4 be adjourned.
Moved accordingly, and, on Question, Motion agreed to.
Lord Whitty: I beg to move that the House be now resumed. In moving this Motion, I suggest that the Committee stage begin again not later than 8.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

The Role of Grandparents
7.30 p.m.
Lord Northbourne Lord Northbourne rose to ask Her Majesty's Government what importance they attach to the role of grandparents in delivering their commitment to high quality, affordable childcare for all.
The noble Lord said: My Lords, it is a truism to say that our society has gone through enormous changes in the past two decades. I am sure that none of us wants to look back; none of us wants to put the clock back. We must look forward. But in doing so, surely we must be concerned to ensure that vulnerable groups have not suffered, and are not suffering, from the changes that have taken place.
I wish briefly to refer to three of those changes. The first is the change to the extended family. As I shall show using statistics, the extended family is by no means dead. But it has changed its shape. That was particularly drawn to my attention by the noble Lord, Lord Young of Dartington, who was very sorry not to he able to be present this evening, but unfortunately he had to be abroad.
The noble Lord has pointed out that the extended family has narrowed horizontally, in that there are fewer siblings—fewer brothers and sisters are being born—but it has extended vertically, because people are living longer and having a longer active life, and in some cases taking retirement earlier. Today, there are 9 million people over retirement age; 29 per cent. of the adult population are grandparents.
The second change I wish to mention relates to the nuclear family. Fewer people are marrying and more are divorced. I shall not bore the House with the gruesome statistics. More fragile partnerships are being formed. It is important to note that 1.7 million lone parents are looking after children today, of whom two-thirds have at some time been married. It is worth noting that only 4 per cent. of them are aged under 20. One-third of all children will spend part of their childhood in a lone parent family.
The third point to which I want to draw attention is the change in the role of women in the family. Either because they wanted to, or because they have had to, many women have become providers as well as mothers. Today, more women go out to work than do not. In the past 30 years, the labour market participation rate of women with dependent children has risen from 30 per cent. to 70 per cent., and the Government are aiming for many more to follow them.
How do these changes affect vulnerable groups? Let me turn first to children. After shelter, food and clothing, the most important need of children is time—committed, loving adult time. Parental time is precisely the commodity which is in short supply as a result of the social changes that I have mentioned. Here, I divert slightly from the main line of my argument in order to make this point. Young children especially need dedicated time. Most authorities now agree that, if a child is to succeed in school, it needs to enter school with an appropriate level of emotional and social maturity, with the necessary self-confidence to enjoy learning and to succeed. Those qualities are built up in the home during the pre-school years. Sitting in front of the television all day, as, sadly, some young children do today, will not achieve that result. Older children, too, need support from parents and other adults. It has been shown that the single most important factor in success at school is parental involvement.
So where can that time be found? Who has the time to spare? The answer must be, in many cases, grandparents. Grandparents are retiring earlier and remaining active longer—what is now called the third age. Many grandparents want to help their children and grandchildren. They will willingly do so, and, if they can, they will do so at no cost to either the parents or the taxpayer.
The proof is that many are already doing so. A recent survey by Age Concern showed that 92 per cent. of grandparents have regular contact with their grandchildren; 47 per cent. babysit or offer childcare to their grandchildren. Sally Greengross, the director general of Age Concern, said in introducing the report:
"We found grandparents to be still very much part of the family".
The Government have so far chosen to solve the problem of providing care and dedicated time for children principally by throwing money at the matter, by providing a universal professional childcare service subsidised by the taxpayer. I do not for a moment deny that there is a need for a very considerable expansion in the professional childcare service. However, I cannot help wondering, if we rely entirely on that route, whether we shall not run into very great trouble, or else astronomically high cost to the taxpayer. A shortage in the supply of qualified childcarers, and pressure of demand, will force costs up. It takes a lot of money to buy the quality of care that most parents or grandparents are prepared to give.
I therefore proposed this short debate in order to urge the Government, in addition to providing professional childcare, to consider mobilising, enabling and supporting the enormous resource of goodwill represented by grandparents, who do have, if they want to, time, love and experience to offer to their grandchildren. If the Government were to take the view that this proposal was worth looking at, it would reduce costs to the state (funded childcare); it would give a fulfilling life role to many older people; and of course, grandparental care would be of enormous value in enriching the lives of children.
I now wish to turn briefly to a few of the things that the Government could do to help. The first is to bring about a change of heart. The Government ought to be leading the nation into recognising that the philosophy with which we have lived for several decades now—it has been termed the "me first" generation—is not working. "No man is an island". For people to live together, there must be a structure of interdependence and responsibilities as well as rights. The extended family is a key unit in that community of human beings.
The second thing that the Government ought to do is recognise and celebrate the important role that older people in general, and grandparents in particular, have to play. In this context, perhaps I may draw your Lordships' attention to Grandparents' Day, which Age Concern has declared for 27th September.
Then there are more practical things that might be done. For effective grandparental care, proximity is essential. Grandparents cannot support parents effectively unless they live nearby. It is rather like the Division Bell. Ten minutes' walking time is about the maximum time for effective grandparental care. It would not be difficult for local authorities to pay attention to that need when allocating public housing or making recommendations to housing associations as to the allocation of their housing resources.
Singapore does it. There, as soon as people retire, if they are in public housing, they are moved to an apartment or flat adjacent to or near to one of their
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children. Of course, in Singapore grandparents are expected to help with the childcare and the children are expected to look after the grandparents. I am not suggesting that the Government should go that far.
There was an extraordinarily innovative scheme invented by Nicholas Stacey, when he was head of social services for Kent. It was to have granny flat portacabins which could be winched into the garden by helicopter and connected to the services so that the mutual support services could be available. When granny died, the portacabin could be winched out and moved to another garden.
There are interesting features in the design of public housing which should be considered while the houses are being built. We should encourage planners to think in terms of providing a mixture of accommodation.
Employment is another matter. It is important to encourage employers to be sensitive to older people's needs as they reach retirement age so that they may be able to care for their grandchildren.
There are also financial considerations. At present 86 per cent. of children who are looked after by grandparents are cared for free. That represents an enormous subsidy to the taxpayer. If we could increase the number of grandparents able to give that kind of care, we would save an enormous amount of money. Is there a case for help for grandparents who cannot do without it so that they can have a little assistance, perhaps a tax credit, small capital grants for improvements or help with transport where proximity is not possible? Alternatively, should grandparents be eligible for the childcare subsidy? After all, why not? Why should grandparents be discriminated against? Perhaps grandparents should go through training. The question I wish to ask the Minister is: will they get credits for experience or will they have to sit through the same classes as a 16 year-old?
Most mothers prefer care by grandparents. They can offer continuity over a long part of the child's life, its childhood. This is particularly important where a family is breaking up or there is dysfunction in the family. A 1997 survey by the Children's Society showed that 78 per cent. of children considered their grandparents as important figures in their life. I hope that the Government will take seriously the potential of mobilising the extended family, especially the potential for supporting the role of grandparents, encouraging them to give help, time and care as well as motivation to their children.
7.42 p.m.
Baroness Byford: My Lords, the Question posed by the noble Lord, Lord Northbourne, about the role of grandparents could not be more timely, following last week's Budget. The Government aim to make thousands of men and women better off through the new child care tax credit system. That will enable more families to afford childcare, thus enabling more parents to return to work.
However, that assumption rests on four principles, the first of which is the desirability of unemployed people returning to work, for example those with children.

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Secondly, the availability of suitable work for them to do. Thirdly, the provision of adequate support services to free them to do the work. Fourthly, the existence of a reward structure to make their work worth while.
The Government may well feel that they have addressed the reward structure, but I suspect that the desire to work and the availability of suitable work is still uncertain. My concern tonight is with the development of support services. The tax credit system will help many, but that is only one aspect of support. Another, I humbly suggest, is the wider family and, in tonight's context, the role of grandparents. As the noble Lord, Lord Northbourne, said, 92 per cent. of grandchildren have regular contact with their grandparents.
The Government have clearly confirmed their wish to strike the balance between work and family responsibilities. In his Budget speech, the Chancellor spoke of the wider family and specifically mentioned the role of grandparents. That role is a special one which sometimes requires a direct "hands on" approach when grandparents have fully looked after their grandchildren. But for most it is an indirect way in which grandparents give their love and support, visiting them, listening to them, guiding them, giving them a sense of belonging to a wider family, participating with them in sharing school and sport and sharing other gifts, helping them overall with the teaching of life skills and the ability to learn to live and work together. At the end, there is the hope that those children will grow up in full independence and with good moral standing.
That support relays ideals and aspirations in an often uncertain world; it gives closeness and stability. That is especially true, when, sadly, break up of marriage occurs and the children are pulled between parents and often deserted by one or the other. How crucial is that wider stability at such times?
At later stages in childhood, as children grow up, grandparents act as an anchor, the person to whom grandchildren turn to bounce off ideas and question the reasonableness of problems. I suspect that grandparents often hear the words "It isn't fair". Access to grandparents cannot be underestimated; boys as well as girls will seek their guidance. In a previous debate, my noble friend Lady Macleod highlighted the importance of the male role model for children, particularly for those in single mother families. That importance cannot be stressed enough. It is interesting that some primary schools are making a move to encourage men to come and act as mentors to support that role.
The family unit is an important one and we believe that it should be encouraged. The Budget has given assistance to unmarried couples rather than married ones, where the married man's family allowance has been cut. That seems a retrograde step when we should be seeking to strengthen the family unit.
Bearing all that in mind, I ask the Minister whether the Government might consider ways in which grandparents could be dealt with, tax-wise, in the same way as other child minders. The noble Lord, Lord Northbourne, put forward that suggestion. I understand
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that at present grandparents rightly do not require any qualifications to look after their grandchildren. But in the same way, nor are grandparents able to receive any tax relief or financial support. A possible unintentional consequence of the new system could be that the state might end up subsidising people, supplanting the care that is now provided for nothing. Grandparents could find that their access to their grandchildren was reduced and that those close bonds evaporate.
Families today have become fragmented. Many live at great distances from their children and grandchildren, but a proportion still live near enough to help directly. That is why I posed my question to the Minister. Caring within families is not simply about a grandparent/grandchild relationship. It stretches much further. In caring for the younger generation, the grandparents feel that they are valued and intrinsic members of the family. In reverse, their sons and daughters are confident in the knowledge that their parents, probably retired, are not remote or lonely but are kept very much in touch with everyday life and family matters. People today are living longer. Whereas I had only one grandparent alive, and he died when I was four, that would be an exception today. Three and in some cases four generations are still living and provide an important network of care within their community.
It is natural and desirable that all should be able to play their part in raising the next generation—not to interfere, but to be there, giving valuable support. I hope that the Government will have a change of heart. Grandparents are a most valuable resource and the Government should do more to recognise that.
7.48 p.m.
Baroness Warnock: My Lords, I wish to support my noble friend Lord Northbourne in his suggestion that the Government should take seriously the role of grandparents in the provision of childcare, which is becoming increasingly important with the Government's new policies.
It is difficult to take grandparents seriously because the conventional image of grandparents is of funny little old people sitting side by side, smiling benignly when their grandchildren romp around them from time to time. Some grandparents may live up to that conventional stereotype, and they can be tremendously supportive. Indeed, if they still have their wits about them they may be useful in providing childcare, in helping children to read and other such supportive activities. But I should like briefly to concentrate on a different kind of grandparent.
I want to concentrate on what may be a numerically small class of grandparent but one that is of vast importance. I refer to the parent—usually the mother—of a young person, possibly 16 or 17 years old, who has become pregnant and decided to keep the baby. The grandparents of the baby are probably only in their 30s or 40s and may still have children of their own younger than the young mother. They will almost certainly be working people. I suggest that the Government consider giving such grandparents the regular kind of support that the mother can obtain.

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It is paradoxical that, increasingly—as in the education Bill—parents are being held responsible for their children while they are still at school and are compelled to take on that responsibility. However, when a young person who may still be at school or in further education has a baby, the parents are no longer held responsible. I believe that the parents should still be expected to take responsibility for the girl and her baby; the odds are she will be a single mother. What is important is that the young girl who had the baby must be able to go back and complete her education; to take on further education; to be able to enter an apprenticeship or undergo training of some kind so that she will be able, under what is now strong pressure, to enter the job market. With the proper educational background she will be able to obtain a respectable and worthwhile job which will eventually help her to bring up her child.
I believe that a way should be found for grandparents of such young mothers to take on the responsibility of the child to enable the young mother to go back into education. It will make an enormous difference both to her prospects of obtaining a job and to her child in receiving a proper, intelligent upbringing. There is a great deal to be said for housing arrangements whereby care by the grandparents can be made easier. If a grandmother is prepared to devote herself to looking after the baby of a young mother, she should be deemed to have a dependant living in her home, even if the baby goes back at night to the mother's home. That would be of great value in helping a young mother to receive further education.
I urge the Government, committed as they are to continuing education, to consider the plight of young parents who have no chance to complete their education. Of all those who could help a young person in that situation, the grandparents are the best placed. That will not be possible unless financial arrangements are made whereby the grandmother can take over—almost as a surrogate mother—the care of the child, even if the care only takes place during the day. I believe that there are many women in their 30s and early 40s who are in that position and would willingly take on that responsibility if it was made financially feasible for them to do so.
If that happened, all the other benefits would accrue that have been mentioned such as the continuity in the case of the breakdown of a marriage or where a mother may drift from one relationship to another, resulting in a disruptive home life. Continuity would be assured, and we have good evidence that children who are excluded from school or who play truant are, to a large extent, the children of disrupted and disadvantaged backgrounds. We should concentrate on the role that grandparents can play to enable such children to have a proper chance and overcome their social disabilities.
7.56 p.m.
Viscount Brentford: My Lords, I too am grateful to the noble Lord, Lord Northbourne, for introducing the Unstarred Question this evening. Following the noble Baroness, Lady Warnock, I should like to give an
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illustration, though it does not necessarily relate to a teenage mother. It is a story told to me this weekend by one of my daughters relating to an acquaintance of hers.
A young woman had a child by an unknown man. Subsequently she married a different man and the married couple then had two more children. There were then three children in that family group. The women left her husband and three children to move in with another man, by whom she is now pregnant with a view to having a fourth child.
Obviously the father who had been deserted by the mother had a problem in looking after the three children. The husband was responsible—two were his and one was not. The solution that they reached was that the mother's mother—the grandmother—gave up her work to look after the three children. I call that a valiant move on her behalf. Clearly it would be a help to that family if financial aid were available for that grandmother who has given up her paid employment in order to create a full-time home for those three young children.
There is great value in the role of grandparents for both their children and their grandchildren. Grandparents will often offer stability, patience, a sense of history and the sense of family that parents, in their rush for life, may not be able to give. The gifts of experience and time available often accrue to grandparents much more than to parents.
There is tremendous value in grandparents living nearby for mutual support. As the noble Lord, Lord Northbourne, said, that is much more the trend in the East, where there is mutual support; grandparents look after grandchildren and grandchildren also look after grandparents. There is a great deal of danger in the mobility of employment that exists—less now than 10 years ago—which involves social fragmentation, and that is a great shame. Many older people feel that they do not see the qualities of life, youth and unconditional love that grandchildren can offer to grandparents. There is tremendous value in their role.
Secondly, grandparents can teach community and moral values, which again may be eluding the present parental generation. Grandparents have so much more experience of life. They have had an extra generation to acquire that life experience. Grandparents themselves need to muster compassion and courage to bring the different generations together. They are the people who can do it. Grandparents can bring all three and, as someone has already said, sometimes four generations together to avoid the polarisation of families which is such a sad trend today. It is great when grandparents can look beyond their own interests in order to keep the family together.
For instance, I have been told that in Pakistan they have a joint family system in which everyone, young and old, aunts and uncles, grandparents and grandchildren, belongs to a highly interdependent community and every member has a role and place. There is always a sense that one is inextricably connected to each other. That is my vision of what a family should be.

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With this interdependence one avoids the lonely grandparent and one also avoids the unsupported parents and grandchildren. I do not think necessarily that grandparents should sit on top of the nuclear family all the time but they should be available. My own two grandsons live about 20 minutes away from us. It is wonderful. Sometimes we can be free of them but sometimes we love having them. They are coming to stay for a week before Easter, which will be a great experience for us. I hope it will also be for them. They will probably be more spoiled by their grandparents than they are by their parents. It is great having them with us.
Lastly, grandparents need to be told that they are valued and important. The Bible gives us all strength to say this because the Bible stresses time and again the immense value of generational integration. Part of this country's Christian heritage is that family integration. I would plead not only for occasional cash help for grandparents where it is needed but also for the Government to say, "Grandparents, come out of the woodwork. We need you. You are important".
8.2 p.m.
Baroness Macleod of Borve: My Lords, it has now fallen to me to congratulate the noble Lord, Lord Northbourne, not only on having the luck to bring his Unstarred Question before us this evening but also on the figures he has given us, which I did not know about and perhaps other noble Lords did not know of them, either. It was a most interesting speech and I learnt a lot from it.
One has to ask oneself: is grandparenthood a privilege or is it just luck? Not every married couple wants children, and not every married couple can have children if they want them. So, as a grandparent, one is perhaps in the lap of the gods. My interest—one has to declare it in the House now—is that I am a step-great grandmother, which makes me feel very old.
This Question asks the Government what they intend to do about their commitment to affordable child care. We all know that care is very expensive and for a child it is also a very responsible job. Do grandparents come into this picture? They probably love their grandchildren and would like to look after them while the parents are at work; or perhaps they feel that they have done enough when bringing up their own children, who are the parents of their grandchildren.
The question also arises as to who will pay for the care and what calibre the carer shall be—whether the carer would be allowed to look after more than one child or whether the local authority or a member of the ever-increasing number of quangos will take it upon themselves to see that all was well. We have had some disastrous results which have been reported in the press recently. Those have often proved to be the fault of local authorities. Perhaps at such times grandparents can step in and bring a measure of hope for the grandchildren.
As I see it, the grandparent is a shoulder to cry on, a person who can be trusted with secrets, an older and wiser person, a person who can and does reprimand with
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well chosen words when it is needed, and above all by example show the precious grandchildren that life can be tough but it can also be fun.
8.6 p.m.
Lord Meston: My Lords, I entirely follow the spirit of the speech of the noble Lord, Lord Northbourne, in asking his Question, although for a moment I had an alarming picture of my mother-in-law being winched into the garden in a Portakabin, which I think would cause her as much distress as perhaps myself.
The noble Baroness, Lady Warnock, very properly reminded us that it cannot be right to stereotype grandparents. I have no clear recollection of my grandparents and I suppose that for my early life the thought of grandmothers at least was rather like those formidable characters who appeared in the Giles' cartoons. A practice in family law has taught me that there are all sorts of grandparents, many of whom have a great deal to offer. It is in that context that I wish to make a few remarks because very often grandparents are of most value to a family when things go wrong.
In passing the Children Act 1989, Parliament took a considered decision not to give any particular status to grandparents but to allow them a way in which they might participate in care proceedings, with leave of the court, if matters reached that stage. On balance, I suggest that decision was correct and that it has worked well in practice. It has ensured that grandparents with something useful to say or something useful to offer will be heard by the court, either as an actual party to the proceedings or at least as a witness. The courts are astute to ensure that grandparents are not treated separately as represented parties in litigation if their interests in that litigation are the same as those of the parents themselves. But even those grandparents who are less obviously involved should normally have a reasonable opportunity to express a view, directly or indirectly, to the court.
Outside the legal process the official guidance for social workers under the Children Act provides that possibilities for a child to be cared for within the extended family should have been investigated and considered as an alternative to the provision of accommodation by the responsible local authority. However, even when it has become necessary for the responsible authority to arrange provision of accommodation, placement with a relative will often provide the best opportunities for promoting and maintaining family links in a familiar setting.
Apart from the placement of children, there is a duty under the Children Act to promote contact between children in care and their relatives unless it is not reasonably practicable or consistent with the welfare of the individual child. In practice, social workers are usually only too relieved to find that there is a grandparent who is ready, willing and able to assist. But as Professor June Thoburn points out in her book on child placement, one of the legacies of the Colwell report and the report into the death of Tyra Henry, has been a sense of unease about placements with relatives. In any case there has to be a realistic assessment of the

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grandparents' insight into what has gone wrong in the past and of the grandparents' ability to protect from future harm. It is a sad fact that sometimes the more extreme the mistreatment of the child or the risk to the child from the parent or parents, the more unwilling the grandparents can be to accept the position or to accept the need for vigilance.
The reality is that when family relationships break down or when local authorities have to intervene, there are, at one end of the scale, grandparents who are quite excellent at picking up the pieces, keeping open lines of communication and looking after the children either for short-term respite care or for longer-term periods. Professor Thoburn refers to research findings that placements with relatives are among the most successful, giving a child a greater sense of permanence than with other foster parents. But at the other end of the scale grandparents can make bad situations worse by interfering and being over-partisan and hostile. This adds more strain and complication and can de-stabilise placements of children, for example, with conventional foster parents.
Further, one cannot escape the fact that poor parents themselves tend to have had poor parents, and that child abuse in its different forms is all too often repeatedly inter-generational. But it is too easy to forget that family breakdowns involving children do not just affect the parents but often affect loving and anxious grandparents.
If I may remain with the legal context, but in the international setting, I recently read that the rights of children to preserve their identity was first expressly enshrined in the United Convention on the Rights of the Child as a result of the Argentinian initiative to prevent repetition of events in the so-called, "Dirty War" when some 170 children disappeared. Most of the 49 children who were traced, whether dead or alive, were traced by the brave group known as the Grandmothers of the Plaza de Mayo.
Nearer home, a recent decision of the English High Court has recognised that grandparents can acquire rights of custody under the Hague Convention on International Child Abduction. Last but not least, there is the European Convention on Human Rights, Article 8 of which provides for respect to family life. Marginal cases on Article 8 have attracted adverse comment and publicity, which is unfortunate. But the fact is that it reflects the point that Article 8 is concerned with some broader concept than the so-called conventional nuclear family. Indeed, in the leading case Marckx v. Belgium, the court at Strasbourg held that family life in the conventional context, included ties between grandparents and grandchildren since such relatives may play a considerable part in family life.
I have concentrated on the legal aspects of the rights and responsibilities of grandparents and the role they play in proceedings before our courts. I am conscious that this debate has occupied a wider range than the narrow concerns of a lawyer. Reference was made by the noble Baroness, Lady Byford, for example, to the importance of children, particularly in one-parent situations, to have a male role-model. That was a
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valuable point. There is of course a gender consideration here because where the burden does fall on grandparents more generally it means a burden on the grandmother who may well have sacrificed her own career to bring up her own children and who may again sacrifice an opportunity to return to work when she has to look after her own parents or her parents-in-law. But as is obvious from this debate, a further burden may still arise if the grandmother has to become, in effect, the surrogate mother.
The noble Baroness, Lady Warnock, referred to the position of the relatively younger grandmother looking after her daughter's child who had a baby at a young age. At the other end of the spectrum I suspect that we may well have problems with the increasing prevalence of delayed child bearing, meaning that in some respects the grandparents may become more aged. A problem may arise in that situation. It is clear that there are problems ahead and that they are not easy to assess or predict. I look forward to the Minister's response.
8.16 p.m.
The Minister of State, Department for Education and Employment (Baroness Blackstone): My Lords, like other speakers in this debate, I am most grateful to the noble Lord, Lord Northbourne, for tabling this Question. It raises a lot of very important issues. Families are the fundamental social unit in our society. I believe that every speaker in this debate has stressed that. They provide mutual support and self-fulfilment to individuals, as well as a strong basis for care and learning. Upholding and strengthening stable family life are the most effective means of bringing up our children and shaping the values of future generations. It is in this context that the Government want to do more to promote the best possible outcomes for our children by developing a national childcare strategy that will help parents balance family and working life.
The strategy is about making sure that children have good quality care which will enable them to thrive, with stimulating activities to help them develop and learn, and opportunities to mix with other children so that they can gain the social skills that they all need. All this will help them have a good start in life and be better prepared for performing well at school. The contribution of grandparents is vital to this aim.
The Government believe in supporting all families, whatever form they may take. We cannot ignore that social trends in deferred marriage, lone parents, separation and divorce mean that there is no longer a single typical family structure. Last week's Budget announcement set out how we intend to support families, through, for example, the new Working Families Tax Credit, which the noble Baroness, Lady Byford, mentioned. But it is no less important for children to know the love and affection of their grandparents, as it gives them a sense of wholeness by knowing their roots and gives them a link into the past. This link must be maintained, whatever happens to the family, for it is of benefit to both the child and the grandparent. I know that, speaking from experience. We recognise that attitudes have changed, and indeed the world has changed. Multi-generation families in Britain

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also need to adapt to changing personal relations and lifestyles. As a part of that process, we want to encourage grandparents to play their part in children's lives. We also want to emphasise their value as sources of care and support to their families.
In that context, I very much agree with the noble Viscount, Lord Brentford, that we should salute grandparents and cherish the role that they play in their families. That is why we gave a commitment in our education White Paper, Excellence in schools, that we would encourage the involvement of grandparents in children's learning. I believe that the noble Baroness, Lady Byford, referred to that.
To that end, we have been working with Age Concern to provide supportive mentoring for children from responsible older people. The noble Baroness, Lady Macleod, mentioned that not all older people are grandparents, but many older people who may not have grandchildren might like to be involved in such mentoring schemes. This year we have given Age Concern a grant for a feasibility study to test the possibility of extending its "Trans-Age" grandparent mentoring scheme to secondary schools. Depending on the outcome of the study, we will be prepared to consider making further funding available towards the costs of pump-priming a pilot project for secondary schools. Such programmes provide the opportunity for older people to enrich their own lives and at the same time those of young people. That is a most important combination. By contributing and sharing their life experiences, listening, caring and becoming a child's special friend, older volunteers can often provide a stability that might be otherwise lacking.
I did not know that Age Concern was introducing a "Grandparents' Day" and that it will be on 27th September. That happens to be my birthday, so perhaps I can have a double celebration this year of "Grandparents' Day" and my birthday with my grandchildren, although I have a horrible feeling that the Labour Party conference might get in the way!
We must remember that many grandparents also work and that they may not always be available to carry out the full-time care to which some speakers have referred, but that does not stop them playing a role in providing their grandchildren with love and perhaps a little part-time care. We must also remember that some grandparents may be looking after great-grandparents—not great-grandparents like the noble Baroness, Lady Macleod, because she certainly does not need any looking after, although some great-grandparents may.
Many significant social changes have taken place which affect the way in which we live now. There are increasing opportunities for grandparents to be involved with their families when they retire early, and more people have been retiring early in recent years. With healthy life expectancy increasing, there is a greater chance of any child having an active grandparent than was the case for the noble Baroness, Lady Byford.
The noble Lord, Lord Meston, spoke about family breakdown and child abuse. He referred to children in care and the possible role of grandparents in placements.
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He rightly said that it is important that realistic assessments should be made, and are needed, before such placements are made, but loving grandparents can sometimes rescue children from the most terrible situations.
There is also an important role for grandparents as childcarers as part of the national childcare strategy on which we plan to launch a Green Paper after Easter. The aim is to have a range of good quality, affordable childcare provision in every neighbourhood, meeting the needs of the child, providing choice for parents and supporting the informal childcare sector. We recognise that many parents would prefer to leave their children with a close relative when they are not looking after them themselves. Grandparents often play a major role in the provision of such childcare within the family. The noble Baroness, Lady Warnock, referred to that in the context of very young single mothers.
The noble Lord, Lord Northbourne, asked whether grandparents who were being trained for childcare would be given credit for experience. I am sure that any sensible training scheme would do that.
The 1994 British Social Attitudes Survey found that 75 per cent. of mothers used informal care for some of their childcare provision. Out of this 75 per cent., 62 per cent. of mothers used relatives, including grandparents, to provide childcare, while a further 13 per cent. used either friends or neighbours. It is right that parents should have this choice; and the national childcare strategy will not discourage these childcare arrangements. We do not want to fix something that already works. But we must also recognise that this choice unfortunately does not exist for many families where no grandparent is available to support their children by looking after their grandchildren.
As the noble Lord, Lord Northbourne, said, more and more women are working. Over 70 per cent. of the female population are economically active and the percentage is increasing. This is creating a greater need for childcare, especially where both parents are working. Four out of five non-working mothers in the UK say they would go out to work if they had the childcare of their choice. A quarter of mothers who work part-time say they would increase their working hours if they had the childcare of their choice. That is why we made a manifesto commitment to develop a national childcare strategy.
We have already set out the measure of importance we attach to delivering the strategy by committing £300 million to expand out-of-school childcare over the next five years to help up to 1 million children. From April the expansion will start with additional funding made available to the out-of-school childcare initiative. For 1998–99, this means that funding has more than doubled and will create 20,000 new places. The initiative has already created some 80,000 places.
Also in 1998–99 we will extend pre-school places and out-of-school care for four year-olds and expand the provision of childcare in FE colleges. That is important to the issue raised by the noble Baroness, Lady Warnock, because young mothers need to continue their education and training.

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The strategy will also provide support for those such as grandparents who look after children at home. We want to improve the skills of all who work with children, not just those in formal settings. For parents and grandparents who want to look after their own children, we want to make sure they have access to support and information to help them in this role. They will be able to choose to participate in local care activities, such as play groups, toy libraries and One O'clock clubs and to have access to other services which might be provided. We also want to try to encourage employers to have more family-friendly policies and we are taking a variety of initiatives in that respect.
To conclude, despite the range of public policies, the primary role for bringing up children rests with their parents, supported by their wider family, friends, neighbours and the community. The parental role, that of the extended family and that of the wider community are vital in identifying problems and providing the first resource for intervention. Nothing that government do should undermine that. We want to encourage working together to build strong communities with integrated services towards a socially integrated society which is inclusive rather than exclusive. We want to emphasise the nurturing role of families in the upbringing of children and the important ripple effect this has—one family more confident, secure, able to cope, reaching out to others to form the basis of developing a caring community. That is very precious and it is something that we must preserve.

European Communities (Amendment) Bill
8.30 p.m.
House again in Committee on Clause 1: Amendment No. 4.
The Earl of Clanwilliam: In speaking to Amendment No. 4, I should like to speak also to Amendment No. 54 standing in my name. I speak also to the judicial and political elements and the extension of the ECJ into our common law, in particular how the ECJ affects the UK's common law. My contribution may be something of a curate's egg. I have received some advice from an eminent QC. No doubt those parts of my speech that are good will be those provided by that eminent QC, but I assure the Committee that most of this contribution is my own. Article 33 (formerly Article K.5) was not to affect the exercise of responsibilities of member states regarding the maintenance of law and order and internal security. Now under Article 32 (the revised K.4) the Council shall lay down conditions under which competent authorities may operate in the territory of another member state. Who are they? Under Articles 30 and 31 (formerly K.2 and K.3) they are the police, customs and specialised law enforcement services. Under Article 30(2)—the noble Lord, Lord Lester of Herne Hill, may be aware of this—Europol will have the right to interfere in the investigative actions of the competent authorities of member states. That will not be subject to judicial
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review. If the drive for greater integration is inspired by the need for a single area of freedom and security it is the freedom of entry that carries the greatest risk, because it allows the free movement of illegal immigrants around Europe while members of our Commonwealth require EU visas to enter the country.
Additionally, the new and rewritten articles of Title VI place more emphasis on the leadership, guiding role and activities of the Community and less on the initiative of member states. This is intended to strengthen the powers of the Community in operating and developing common action. The role of Europol in co-ordinating and co-operating among the member states has been formalised in the treaty. We do not want that. Under Article 34 (originally K.6 or K.3(1)), we were to collaborate in informing and consulting. What is wrong with that? Now we have Article 34(2), (3) and (4), all of which conspire to interfere by adopting framework decisions. We are to have judicial co-operation and harmonisation. How are we to harmonise Greek law with UK law? It just is not on. Neither of them can be harmonised with ECJ law, so the whole matter is a farce. It is for the Commission and the ECJ to decide on these points, but how can they? Title VI omits the opening words which include a reference to home affairs. Is this not indicative of the presumption that home affairs are the province of the European nation and its government-to-be—that is, the Commission? The omission removes what might have been an inhibition, in the opinion of the eminent QC to whom I have already referred, on the inclination of the ECJ to construct interpretations of the Rome treaties in a progressively integrationist manner, as has already been suggested.
These changes mark another step towards treating the Court as the supreme court and what Commissioner Fischler described as a new nation that would be born when EMU and the single currency were in place. He was reported in The Times on 27th February as saying that the Euro would then set the scene for the Commission to take on the role of a national government. This is a threat to our own legal system. We do not want the Commission to take on the role of government, having stolen the powers and attributes of national governments and transferred them to institutions that are answerable to the Commission.
In contrast, at Amsterdam there should have been a reduction of the powers and functions of the Court. Instead, the treaty is developing the Community's character as a state rather than as a partnership of nations. Article 35 gives the ECJ the right to make preliminary rulings on the validity and interpretation of framework decisions by virtue of a declaration in the Treaty of Amsterdam. Here we have the long arm of ever-deeper unionisation working away to eliminate the nation state. Perhaps the use of the word "unionisation" here is remarkable. We are returning to the 19th century system of Napoleonic edicts which translated themselves into the republican diktat and the dictatorships of the 20th century. It has all happened before and we see it developing again before our eyes with an awful sense of inevitability.

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The vast mass of the British people are sublimely unconscious of what is happening to them. They cannot tell without unravelling the drawstrings. Indeed, the ECJ's control of our legal system is an ever-tightening knot, and the whole of Article 35(1) to (7) pulls the strings ever tighter.
To whom is the ECJ responsible? There is no authority except the Council, who are bound on all occasions to consult an unelected band of bureaucrats whose sole objective is to preserve their authority over member states and deny their national identity. Your Lordships ask in their prayers to put behind them their partial affections and conduct their business under the authority of the Sovereign to whom they have sworn allegiance. But we are not the elected body of Parliament. We can only refer legislation back to the elected House of Parliament. It is they who should decide our laws and preserve our basic rights under the common law of the land. By contrast, the Commissioners are equally sworn to deny all partial affections to their home countries but are required simply to press for ever deeper and wider union with no responsibility to anyone and no recourse to national governments, elected or otherwise.
It is a truism that we are an island race on the edge of Europe. We differ from its other nations in the institutions, laws and practices that we have developed and spread throughout the world and which have been tested over hundreds of years and not found to be wanting. They are in place today throughout the great commonwealth of nations of which we are such a proud member. How can we rationalise or harmonise our legal system with that of the Greeks? Their legal system is not one that has any sense of democracy about it. In contrast, Continental governments and their peoples in general do not have our inherited attitudes towards the importance of government in Parliament and the role of the national Parliament as the true and only lawmaker. It is the common law that grants us our freedom without the restriction of a written constitution that dictates what we may do and places upon us the onus of proof of our innocence when denounced. That is the opposite of our freedoms under common law. Are we to lose that precious jewel that has been handed down to us and developed since Magna Carta?
The British public is unaware of the import of all that is in the Amsterdam legislation which is the fruit of the IGC, appointed to confirm the Maastricht Treaty. It does more than that: it goes ever deeper into our lifestyle. There has been no clear explanation of the extent of the constitutional revolution that is taking place within the framework of the Treaty of Rome, the Single European Act, the Maastricht Treaty, and the Treaty of Amsterdam.
It is for that reason that I have tabled the amendment calling on the Government to report the extent of the loss of rights that the British public is suffering from its common law and will suffer in the future when it finds that our immemorial rights have been traduced by a bunch of unelected bureaucrats.
Baroness Williams of Crosby: I congratulate the noble Earl, Lord Clanwilliam, at his quickness in seizing the moment. I apologise to him for having leapt up before him out of order. I welcome the fact that he spoke to his amendment, but that is about as far as I can follow him, as he will understand.
I shall return to the broad thesis of this whole group of amendments, and say a few words about some of the main issues that we are discussing. I shall keep my remarks brief, because there has already been—I welcome it—a detailed and long debate. One response to the noble Earl is that common law is one of the traditions that the ECJ takes into account. There is specific reference to common law as one of the parts of the traditions upon which European democracy is based.
The Greek Government might be rather resentful about being described as not a democracy, given that they are normally regarded, in the Athenian Republic, as being the very cradle of democracy, although there have admittedly been some lapses from that situation over many centuries.
The Earl of Clanwilliam: The noble Baroness is kind to give way to me. Their current law has nothing to do with Athenian law which originated 2,000 years ago. They are a totally different bunch of bureaucrats.
Baroness Williams of Crosby: I am grateful to the noble Earl. I shall not pursue the matter much further, except to say that Greece has a recognised system of elections and of passing power from one party to another, although we may not find it perfect in all respects.
First, I was sad to hear the noble Lord. Lord Pearson of Rannoch, and some other Peers, make some fun of the references to racism and xenophobia in Title 6 of the Treaty of Amsterdam. Article 6A, for which Her Majesty's Government fought hard in the negotiations, extends one of the areas where the Treaty of Rome was singularly successful; that is to say, action against discrimination on gender grounds to discrimination on religious, racial and other grounds. That is right and proper, and should be part of the basic principles of the EU.
I, for one, greatly welcome what the noble Lord, Lord Whitty, said, and what Her Majesty's Government did in ensuring that that article found its way into the new treaty. There is a great deal of work to be done. The British Government can give some good examples. The noble Lord, Lord Stoddart, perhaps with something else in mind, referred to our anti-discrimination legislation. That is a useful model which can be extended to other parts of Europe, not forgetting that we are looking at a Europe which will be enlarged shortly, where problems of racism and xenophobia are real, and where it is very important indeed to establish exactly what the principles upon which the EU is based happen to be.
Secondly—
Lord Pearson of Rannoch: Before the noble Baroness moves on to her second point, perhaps I can say that I do not think that I did poke fun either at racism or xenophobia. I thought that I made it clear that I took racism extremely seriously, but that I thought that the crime of racism was adequately covered by our own Race Relations Act. I suppose, in the background, I do not really see the point of European interference in British race relations legislation.
As to the alleged problem of xenophobia, I merely asked the Minister to tell us what it is, and how we are to combat it, and what the penalty might be for perpetrating it. I await, with great interest, the noble Lord's reply. I really would not like to be accused of not taking these problems seriously when they exist.
8.45 p.m.
Baroness Williams of Crosby: I fully accept what the noble Lord has said. It is interesting that he and I see this in opposite ways. I see this outcome, which was supported by Her Majesty's Government, as precisely a way in which our own practices might be extended more widely within the EU. The noble Lord sees it as a way in which the EU might interfere with us.
If one looks at the treaty and the way in which the articles are expressed, it is clear that it is unlikely to apply in any negative way to us. It will be the basis of extending non-discrimination to those places where there still is discrimination—and, alas, that remains the case.
I turn, secondly, to what I thought was one of the flaws in some, at least, of the amendments in the group, although I acquit the noble Lord, Lord Moynihan, of it because he made it plain that the Conservative Opposition believe that there has to be closer co-operation to deal with organised crime, smuggling, the drug trade, terrorism, and a whole range of new challenges which would have been unfamiliar a generation or two ago.
I shall give just one example. To save time, I will limit myself to one example. It is the recent discovery by the Italian police, on a tip-off from part of the Mafia which had broken away from the Mafia, of radioactive uranium rods being smuggled into the EU. That is as serious, in its way, as the warning we have been given about the possibility of anthrax entering countries not well disposed towards Iraq. It shows the scale of what organised crime will now engage in, and how reluctant it is to accept any limitations to the areas in which it is willing to make money, and the extent to which that is now reaching global levels.
Indeed, Members of the Committee will remember that only two days ago the British Government agreed with the Thai Government to take steps to limit sex tourism, which indicates the areas in which we are now living and working. That is why close co-operation is essential. Her Majesty's Government are right to say that there must be close co-operation—all the more
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given that the Schengen Agreement has removed internal borders from the bulk of European member states.
We are just living in the past if we believe that we do not need close co-operation of that kind. Within the scope of that close co-operation, Her Majesty's Government have gone a long way to ensure that virtually every framework agreement and operational agreement is based upon unanimity. That is further than we on these Benches believe it probably appropriate to go, given the scale of the challenge; but no one can challenge the Government in terms of their protection of the UK Government's position in a situation where, I repeat, it is crucial that there can be joint operations, as criminals move people and goods rapidly from one country to another.
The third point concerns the extension of the ECJ's powers. They are limited powers. I do not believe that there has so far been any satisfactory answer to the question posed by my noble friend Lord Lester to the noble Lord, Lord Moynihan: "Well then, who else is supposed to resolve disputes between member states and the Commission and member states? Who else is supposed to rule on the legal standing of framework agreements as, by the nature of a framework agreement, although it is unanimous, one cannot expect member states to accept the jurisdiction of any one of their courts?" They will only accept the jurisdiction of a court that includes them all within the EU.
It is merely to live in a world of unreality to suppose that one can do without an interpretation of whether such framework agreements fall within the terms of the title itself, and, beyond that, of the treaty. I can see no other jurisdiction that will be appropriate. Indeed, again from these Benches we should say that Her Majesty's Government have given the most limited extension of European Court of Justice powers that would be compatible with any kind of title of intergovernmental co-operation.
I have one question which I should like to ask the Government. I ask them to confirm what I believe to be correct; namely, that the European Court of Justice cannot go beyond those two issues which I have described—framework agreement interpretation and the resolution of disputes—to the area of preliminary rulings unless the Government specifically ask it to do so in a declaration.
From these Benches, we believe that that is a mistake and that it will involve more time and a greater use of resources than is really necessary if the courts seek a preliminary ruling. But I must say on behalf of the Government that they have leaned over backwards in the direction of sovereignty of the nation by saying that we shall not even seek preliminary rulings which would, therefore, be guidance to our own courts. Our own courts would have to resolve those matters on their own.
I turn now to Europe. With great respect to the noble Lord, Lord Moynihan, much of what he said I found to be thoroughly logical and sensible, but at one point I broke away completely from what he said. The noble Lord and one or two of his noble friends, indeed, in somewhat troubling terms, raised the issue of Europol's

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powers. We have every sympathy with people who are concerned to set against the powers that Europol may have and develop once the convention is fully in force a desire to protect the liberties of individuals. But let us be direct about that. It was the previous government who accepted Europol; who accepted Europol complete with its immunities and privileges. It was the present official Opposition who, in the House of Commons on 19th January, voted against a specific Liberal Democrat amendment calling for those immunities to be limited to the same position as that of the British police. The official Opposition voted against that amendment which was intended to provide the very protection about which the noble Lord, Lord Moynihan, has spoken.
Finally—and one must put this clearly on the record—the official Opposition, at the time they were in government, deliberately made a decision to allow no appeal by an individual to the European Court of Justice against an action by Europol which was believed to go beyond the proper powers of Europol. I presume that they did that with their eyes open.
In other words, they were so much more concerned about extending in any way the powers of the European Court of Justice that they chose quite deliberately to put at risk the rights of the individual. I give one example. If an individual found himself beaten up by Greek policemen and he, being a British citizen, then sought redress, there would be no redress through the British courts, nor through the European Court of Justice, which has been specifically barred from that role by the former government. The redress would have to be sought in the Greek courts.
For the life of me, I cannot see that that is a more effective protection of the rights of the individual than to allow the European Court of Justice to protect that individual by extending its powers in limited ways in relation to human rights and Europol. I do not expect the Government to agree with me, but I expect the official Opposition to recognise that their position is illogical, inconsistent and simply does not hold together on that issue.
Finally, I turn to the position which has been taken with regard to Amendments Nos. 44 and 48 in particular. We can see a strong argument for there to be detailed reports to the British Parliament on issues concerning that title. But the longest step towards some kind of more effective form of national parliamentary scrutiny has been taken in the past few weeks by the Government.
In particular, I refer to the memorandum from the Home Office to the Modernisation Committee of another place which indicates that it will accept the idea of the so-called scrutiny bar to agreements, decisions and so on arising under Title VI. That is a long step in the right direction. It does not go as far as we on these Benches would like it to go because we should like to see a more extensive system of national parliamentary control with regard to both the so-called intergovernmental pillars. But it is essential to say—and we commend the Government on that—that they have taken steps which have not been taken for many years past to strengthen the system of parliamentary scrutiny within this Parliament.
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At the bottom of the whole argument about that title of the European Treaty of Amsterdam lies the issue of how to make accountable intergovernmental agreements. It is absolutely crucial, in an area where civil liberties are very much at risk, that we should do so.
Lord Shore of Stepney: I believe that I am the llth Peer to rise to address the Committee on this group of amendments. I should say straight away that of the 10 or so contributions that we have had so far, I find myself in considerable agreement with at least eight, but not wholly persuaded at all by the contributions which have come from the Liberal Democrat Benches.
In particular, I congratulate my noble friend who opened the debate on the scope of his remarks which have laid out the territory. I congratulate him also on the many interesting questions that he has raised. I am certainly greatly impressed by the contributions which have come from all sides of the Committee. They have probed and worried, very properly, and have raised questions which were not properly answered in the other place. Those questions will come to haunt governments and the people of this country if they are not dealt with adequately at this stage.
In particular, I should say to the noble Earl that I agreed so much with what he said about the wider matters—the common law, habeas corpus and the unwritten constitution. Those are great treasures which we have inherited. When I hear people talk about the rebranding of Britain as though all of that did not matter a damn I feel nothing but rage.
We have some reason to be protective of what we have and what we have inherited. To a great extent, it underlies this debate and, indeed, many other debates as well. There are those who do not share that view about our achievements or our inheritance. There are those who are anxious to give up, to merge, to surrender and to abandon—in the belief that they are doing what? They are creating not a European nation but a European state. It is not the ever-closer union of the peoples of Europe but the ever-closer union of the classe politique. That is what it is. The sooner we wake up to that reality, the better it will be.
I do not have a great deal to say because so much has been said so well already. But I believe that a little bit of background would be helpful to those who seem to me to have treated part of this discussion as though it were entirely a matter of the juridical business of interpreting the law and so on. A little bit of background would be helpful and I hope to supply it very briefly.
We are discussing the future of the third pillar. The noble Lord, Lord Moynihan, pointed out, rightly, that it is the erosion of the third pillar which really underlies so much of this debate.
Perhaps I may remind noble Lords that the Amsterdam Treaty brought for the first time the European Union into the areas of home affairs and justice and into foreign and security policy, to which we may turn later. It was deliberately constructed as a separate pillar outside the purview of the main structure of the Rome Treaty as

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amended by the Single European Act and so forth. It was to be outside; it was to be inter-governmental; implementation was to be by co-operation between member states, which would at most reach conventions. I am not certain who adjudicates the conventions, but that is not the essence of the issue. There are many conventions in international law and we find ways of arbitrating them when disputes arise.
The purpose was to be quite separate. I recall the then Prime Minister, John Major, returning from the long negotiations at Maastricht and proclaiming that it was game, set and match because Britain had secured an acceptance that the important areas of home affairs, civil and criminal law, and so forth, should remain outside the normal treaty arrangements. By that, we mean outside the procedures of the Commission proposing, the Council of Ministers voting and the European Court of Justice in the end adjudicating. That was not to be part of the issues which affected Pillars 2 or 3.
The then Prime Minister claimed that victory because during the course of the Maastricht negotiations he had met very strong pressures from the federalist enthusiasts on the European continent who had been constantly trying to extend the scope of the Community, the Union, to cover ever larger areas of the affairs of the member states. I am afraid that that is a fact of life. Of course, the fact that they did not win at Maastricht did not mean that they abandoned the project; they simply prepared for the next round. They had already written into the Maastricht Treaty that there would be a revision, a further go, of their Articles n and b of the treaty. And so it came about.
We then had a further IGC, which concluded with the Amsterdam Treaty. In that treaty they tried—and their fingerprints are all over it—to erode the separateness of Pillars 2 and 3 and to nudge them, to push them, to trundle them into the coverage of Pillar 1 and the main Rome Treaty.
Unless we begin to understand that, we shall not have a sensible debate, nor will we have a sensible response. However, I am sure that my noble friend who is to reply from the Front Bench is fully aware of what it is all about. and of the history of the treaties, and needs no instruction on the matter. I am sure that he will therefore choose his words carefully because he knows very well what the intent has been. What is still somewhat uncertain is how far the Eurofederalists and Europhiles succeeded at Amsterdam. That requires a great deal of serious thought and probing of the words of the treaty. Much of it has already taken place. My noble friend already has an enormous number of questions to answer precisely because of the uncertainties as to how far the pillar has been eroded.
I have two queries to put to my noble friend. I am aware that we are dealing with the proposals for common action in judicial co-operation in both criminal and civil matters. The two are included. There is an interesting reference in the treaty which I must bring to your Lordships' attention. Some noble Lords referred to articles by their revised treaty numbers. I shall refer to articles in the unrevised treaty numbers. Whereas
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some noble Lords quoted Articles 100 and so forth, I am afraid that I shall quote Article 73 from m to z, or whatever, as well as other related matters.
Article 73m begins with the words:
"Measures in the field of judicial co-operation in civil matters having cross-border implications, to be taken in accordance with Article 73o and insofar as necessary for the proper functioning of the internal market, shall include".
There is then a whole list of issues, including improving and simplifying and promoting the compatibility of the rules applicable in member states concerning the conflicts of laws and jurisdictions. That long list of issues is most important but ill defined, as noble Lords have pointed out.
The governing words in the article are:
"Measures in this field … having cross-border implications, to he taken in accordance with Article 73o".
I am surprised that Article 73o has not featured a little more in the debate so far.
Article 73o is a bit of a mystery. Article 73o, paragraph 1, begins by stating:
"During the transitional period of five years following the entry into force of the Treaty of Amsterdam, the Council shall act unanimously on a proposal from the Commission or on the initiative of the Member State and after consulting the European Parliament".
That is the language and institutions of Pillar 1. Yet we had the list of subjects in Pillar 3—the judicial civil co-operation with cross-border implications—without a word or apology brought back into Pillar 1. That is in the first five years—
Baroness Ludford: I am grateful to the noble Lord for giving way. I believe that we are discussing the inter-governmental part of the treaty, Title VI, relating to police and judicial co-operation. I believe that the noble Lord is referring to the Community pillar, Title ILIA, which the UK will not be part of. Therefore, perhaps it is logical that no one has spoken of Article 73o and we shall discuss those matters later in the debate.
Lord Shore of Stepney: My Lords, I am grateful to the noble Baroness for that partial correction. However, there is an interconnection, which I clearly spelt out. That interconnection begins with Article 73m and then defers directly to Article 73o.
I have dealt with Article 73o(1)—namely, the transitional period—but what about the period when that comes to an end? Paragraph (2) reads in a very puzzling way. After this period of five years, it says that,
"the Council shall act on proposals from the Commission; the Commission shall examine any request made by a Member State that it submit a proposal to the Council".
It then goes on to refer to the Council "acting unanimously". So we have unanimity in a transitional period and, apparently, unanimity in voting in the post—transitional period. I should like to establish, first,

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whether that is correct. If it is, what is the difference between the transitional period and the period that follows after five years?
I believe that we get some idea about that from reading the rest of paragraph (2) of Article 73o, which says that,
"the Council, acting unanimously after consulting the European Parliament, shall take a decision with a view to providing for all or parts of the areas covered by this Title to be governed by the procedure referred to in Article 1896"—
that is, I believe, the co-decision procedure, which covers qualified majority voting, and so on, tooing and froing between the European Parliament and the Council of Ministers, but perhaps my noble friend will confirm that—
"and adapting the provisions relating to the powers of the Court of Justice".
I am sure that my noble friend has mastered the complexity of these texts, but I have not. Indeed, I find myself bewildered; I do not know what they are talking about here. At any rate there must be some difference between the transitional period and the post-transitional period, although both of them seem to be well within the territory of their own treaty and the first pillar.
That is my first range of questions for my noble friend the Minister. I shall not pursue others very much further. I have tabled Amendments Nos. 52 and 53, which I suppose I should speak to formally. However, I shall deal now with Amendment No. 53, which relates to Europol and especially the references to Europol in the treaty provisions of Articles K.2 and K.4. Article K.2 deals with common action in the field of police co-operation and, again, gives us a great range of activities that other noble Lords have already commented upon. Precisely what the powers of Europol are I do not know. I should certainly welcome any information that my noble friend the Minister can give us when he responds.
However, we are dealing with Europol and the second or third pillar—I forget which one. I draw my noble friend's attention to Article K.4, which simply says:
"The Council shall lay down the conditions and limitations under which the competent authorities referred in Articles K.2 and K/"—
which are, basically, the police authorities—
"may operate in the territory of another Member State in liaison and in agreement with the authorities of that State".
That seems fairly clear; indeed, there has at least to be an agreement. But it would be most interesting to know the thinking of Her Majesty's Government on the matter. Do they not see that very considerable problems could arise if the "competent authorities" from other states were allowed to operate in the territory of the United Kingdom? They really must give us some guidance in that respect.
I shall conclude by saying that the amendments I have tabled have emphasised most strongly the need for reports to be made. Frankly, I do not expect my noble friend to answer the battery of searching questions that have been put to him tonight. Nor do I think, with the best will in the world, that we shall be given all the answers even in correspondence because much of this
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concerns decisions that have yet to be taken and practices that have yet to be adopted. It will take quite a while to unfold. That is why we emphasise, in the two amendments to which I have put my name, the need for reports. We need reports on the whole range of matters which we have discussed today. Those reports need to be presented to both Houses of Parliament. Before any implementing decisions are taken, they need the consent of both Houses.
9.15 p.m.
Lord McIntosh of Haringey: As befits—
Baroness Ludford: I thank the Minister for giving way. I was not quite quick enough in rising to my feet. I wish briefly to make a few remarks. My noble friend Lady Williams said that the difference between those who spoke this evening who view the European Union as an opportunity, and those who view it as a threat has been particularly evident. Some speakers perhaps do not quite fall into either category. However, I believe that there is something of a gulf here. I do not aspire to having a complete meeting of minds. I believe that part of that difference is due to differing attitudes to the sharing of power. Some of us believe that by sharing power and by pooling sovereignty in the European Union we gain opportunities and we make concrete progress. However, others see it as a loss. We believe that you win some and you lose some, but that on the whole you win more than you lose.
I believe it was the noble Earl, Lord Clanwilliam, who referred to a threat to national identity. I believe that one of the things that is to be welcomed in the Treaty of Amsterdam is precisely the new provision which states that the European Union will respect the national identities of member states. That provision did not exist before. I refer also to the protocol on subsidiarity. However, I do not wish to dwell on it as we shall have a later opportunity to discuss it. These are matters which make clear what the European Union is not, as well as what it is. They are entirely welcome matters to us on these Benches because, contrary to occasional charges, we do not want a centralised superstate. We want a body where powers are clearly identified and located and a body which is subject to the rule of law and to democratic controls so that we all know where we are. We do not want to see some agglomerate pooling of powers which overwhelms individuals. But unless it is clear that we are sharing powers, there will not be a meeting of minds. We on these Benches welcome—
The Earl of Clanwilliam: I am grateful to the noble Baroness for giving way. My concern is whether we shall retain the common law, and whether the European Court of Justice will uphold the common law of the United Kingdom in its judgments. If it does not, it will be unjust.
Baroness Ludford: It is essential—and, on the whole, it is achieved in the European Union—to make clear what powers are being allocated to the European Community and the European Union and what powers

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are not. I referred in that connection to the subsidiarity protocol. My party would like to see that protocol go further down the chain, if you like, towards regional and local levels to make it clear that power should stay at the lowest feasible level and be raised only when it is necessary. As my noble friend said, the European Court of Justice is being given powers in precise and limited areas. There is no overarching and overwhelming allocation of competence and jurisdiction to the European Court of Justice; it is precisely defined.
We on these Benches welcome the reform of the remaining third pillar. Later we shall discuss freedom of movement and border controls and therefore I shall not discuss those matters now. The substitution under the remaining third pillar of framework decisions, which are likely to be more frequently adopted than conventions, is something we welcome. We welcome the extension of the jurisdiction of the European Court of Justice. As my noble friend said, we might have preferred that extension to give an opportunity to individuals through Article 177 references, but I suspect that we shall be disappointed on that score.
We also welcome the fact that the European Parliament is to be consulted on these matters. It will not have a legislative role—it will not be able to make amendments or be required to give consent—but it will have a consultative role. We would like to see co-operation between the European Parliament and national parliaments because in third pillar matters national parliaments have an important role to play in scrutinising proposed conventions and framework decisions. There needs to be liaison respecting the proper roles and not mutually infringing each other's competencies as between national parliaments and the European Parliament.
With reference to at least two of his amendments, the noble Lord, Lord Shore of Stepney, mentioned reports. We welcome that. What we do not support is requiring the ratification of the treaty to be dependent on receipt of such reports. However, his aim is to increase transparency and accountability. Our Ministers in the Council need to keep this Parliament better informed of the progress of matters. My noble friend referred to the memorandum. While improved scrutiny is proposed, I believe that only the final texts of framework decisions are to be made available. It might be helpful to have earlier texts of drafts. It has been a point of contention in the past that Members of Parliament and Members of your Lordships' House are not kept sufficiently informed of the evolution of texts.
We welcome any action which increases information and transparency while not wishing to delay ratification. We very much hope that the UK can ratify the treaty before the forthcoming European summit.
I accept the point made by the noble Lord, Lord Moynihan. When referring to the European Court of Justice, he talked about poor drafting of European Union decisions making the work of the court more difficult. Attention needs to be given to that. Drafting of Community legislation is often sloppy. When I worked
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in the Commission and the Secretariat-General, and attended meetings of Council of Ministers, I was often surprised by the way in which a new clause was drafted in corridors and became a clause in a directive. I believe that this matter needs greater attention. While we on these Benches are enthusiastic supporters of European integration, we do not accept uncritically poor or sloppy standards of legislation or procedure.
The noble Lord, Lord Bruce of Donington, referred to the European budget. By resisting the operational expenditure under the third pillar being chargeable to the European Community budget, I wonder whether we would deny ourselves opportunities. For instance, if we were to manage to save money on, let us say, the common agricultural policy, the Union might wish to mount a big exercise against illegal importation of drugs. It would be extremely complicated to have a common operation where the financial burden had to be charged to all the different member states' budgets. It would be more convenient to put the burden on the Community budget.
Lord Bruce of Donington: Is the noble Baroness aware that in any one financial year covered by the European budget, the European Commission submits on average between 100 and 120 transfers between one budget title and another, virtually without any query or explanation, and without any interest by both Houses of Parliament here? That has opened up the immediate opportunity—I can assure the noble Baroness that it is taken advantage of virtually every time—to transfer expenditure between titles exactly as the Commission wishes without giving any indication as to what those transfers are really for.
Baroness Ludford: As I indicated earlier, we on these Benches are not defenders of poor practice. I urge the European Parliament, which has the major scrutiny role on the European Community's budget, to do a better job. It is by pushing for high standards all the time in democratic and judicial scrutiny that we can improve matters, not by refusing to make progress.
Finally, on the matter of Europol, it was the previous government who signed the Europol convention which declined to give the European Court of Justice any jurisdiction. As my noble friend pointed out, the Official Opposition did not support the Liberal Democrats' amendment in the other place to counter the immunities for Europol. I believe that the way forward is to strengthen judicial and democratic scrutiny and not to resile from important progress in combating crime, the illegal importation of drugs, terrorism, and other matters, where it will be the citizens of the European Union who will benefit.
Lord McIntosh of Haringey: This has been, quite properly, a wide-ranging debate. I say "quite properly" because of the very large number of amendments that have been considered during the course of this lengthy debate. The focus has been on the changes made within

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the third pillar. It used to be called the Justice and Home Affairs Pillar, and has now been renamed by Amsterdam, under new Title VI, as,
"Provisions on police and judicial cooperation in criminal matters",
to reflect its revised and more focused content.
It is important that we emphasise from the very beginning the word "co-operation". This is not, as the noble Lord, Lord Moynihan, said, a pillar which could justifiably invoke the words, "supra-national" or "imposed", or any words of that kind. There is no extension of Community competence involved in this pillar. Where we come to the issues raised by my noble friend Lord Shore—and I shall certainly answer those—they are under freedom of movement; they are under the parts of the old justice and home affairs pillar which are specifically transferred to the first pillar. My understanding is that our agreement is that we shall deal with that when we deal with the group of amendments starting with Amendment No. 14. I shall answer my noble friend at length when we come to that amendment. The scope of the interventions has quite properly gone wider. I therefore want to address in turn the distinct issues involved.
First, I turn to the broad question of the changes to the scope and objectives of the pillar as well as the new decision-making procedures which Amsterdam introduces. Perhaps I may say again to my noble friend Lord Shore that he is anticipating further changes that may come after Amsterdam rather than the changes that are actually introduced by Amsterdam.
Psychologically, I have a great deal of sympathy with my noble friend. I would draw the analogy of a planning application. The applicant wants to do something to which you object. You object, and it is turned down. But once it is turned down, that is not the end of the matter. The applicant comes back with a slightly modified application. He goes on, until he obtains something which may still be objectionable to you but which actually gets past the planning authorities—and it all seems to be one-way. As I say, psychologically, I understand what my noble friend is saying. I know that he fears, as do many noble Lords who have taken part in the debate, not what is on the face of the Amsterdam agreement but what they believe may follow from it. I think much of what they fear is what they believe to be on the face of the Amsterdam agreement and is not. However, I hope that I shall be able to deal with that during the course of my remarks. What I cannot do is deal with their fears as to what might follow in future. That is not properly the subject of this Bill or of these amendments.
I wish to start by making two key points. First, the UK is committed to improving co-operation among EU member states in the fight against drugs, crime and racism. I believe, from listening to the remarks made, that that interest is widely recognised in this House. The fight against crime and drugs is a key element in the whole programme of the UK presidency of the European Union. The noble Baroness, Lady Williams of Crosby, was quite right to give a practical up-to-date example of the discovery of uranium rods in Italy as
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showing the necessity for increased vigilance and increased enforcement activities on crime, which inevitably crosses national boundaries. Equally important—
Lord Pearson of Rannoch: Will the noble Lord give way? He touched on a point that I made and no doubt the whole Committee is in agreement with what the noble Lord said. The question is: do we need the Treaty of Rome to pursue that collaboration?
9.30 p.m.
Lord McIntosh of Haringey: I hope to show that although the changes proposed here are limited, as has been said, they are valuable and worthwhile changes. I would not leave that point without returning to it later in my remarks.
The second point I wish to make is that the main forum for the co-operation is and will remain the third pillar and the distinctive nature of the pillar is unchanged. Governments will co-operate with each other on the basis of unanimity and outside the Community framework. In other words, although the Community institutions will have a role which is carefully defined in each case, those fields will remain intergovernmental.
Within that framework, some useful changes have been made and I should like to set them out as briefly as I can. Although the scope of the third pillar is reduced by the transfer of immigration, asylum and civil judicial co-operation to the Community pillar—and we will come back to that when we debate Amendment No. 14—it will, for the first time, provide a framework for common European Union action against racism. The Government welcome that.
I have been asked to define "xenophobia", as if it were an appropriate thing for a spokesman in your Lordships' House to do. I have no difficulty in defining "xenophobia". It is hatred of people from other countries. But I do not think that would go down well in legal terms. The point is—and I say this to my noble friend Lord Stoddart and the noble Lord, Lord Swinfen—it is not necessary for me to define "xenophobia". First, there has to be a unanimous decision by the Council—perhaps I may finish my sentence.
Lord Swinfen: In regard to xenophobia, is the Minister telling the House that the Government have signed a treaty of which they do not know the meaning?
Lord McIntosh of Haringey: I thought I was giving way to a serious intervention. I am trying to explain, as seriously as I can, on a serious issue, that action on xenophobia requires, first, a unanimous decision by the Council; and, secondly, United Kingdom legislation. Therefore, any definition of xenophobia which is to be used in this country will be defined in United Kingdom legislation. It will be arrived at by parliamentary counsel and debated by Parliament. It is not appropriate for a definition to come from me now.
Lord Monson: I thank the noble Lord, Lord McIntosh, for giving way. I hope that he will agree that

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this intervention is a wholly serious one. Both racism and xenophobia are emotions, not actions. How can legislation be framed against emotions like fear, suspicion or whatever?
Lord McIntosh of Haringey: The legislation will, of course, be framed as is legislation on racism in this country already under the Race Relations Act. It will be framed in terms of offences which fall under the heading of racism or xenophobia.
Lord Swinfen: I was about to rise at the same time as the noble Lord on the Cross-Benches. The Minister said that xenophobia would be defined by Act of Parliament in this country. That was quite clear. What happens if it gets a different definition under laws made in other countries of the European Community? Then we do not have an agreement on the treaty. It is quite possible that there could be differences of opinion as to the meaning.
Lord McIntosh of Haringey: The law of this country will apply in this country and only the law of this country will apply in this country. Another improvement is that a wider range of legal instruments will be available. A new instrument, the framework decision, will be able to enter into force much more quickly than conventions. That will mean that the people of this country will be able to benefit from the effect of third pillar co-operation much more quickly than before. Framework decisions will not have direct effect and must be agreed by unanimity. That brings me to the whole raft of points raised by the noble Lords, Lord Renton and Lord Pearson, and others.
The point about framework decisions is that they are decisions of the Council and not decisions of the courts of this country. The European Court of Justice has no jurisdiction over the courts in this country. When the noble Lord, Lord Renton, refers in horror—I believe I am right in describing his reaction—to the phrase, "approximation of laws and regulations", I can assure him that unanimity is required; that the procedural questions to which he referred—or it may have been the noble Lord, Lord Pearson of Rannoch—are really procedural questions. They are concerned only with the procedures within the Council; for example, the order on the agenda or how the closure is to be taken. On these substantive issues there must be unanimity. Changes in the United Kingdom law—I say this in capital letters—can only be made by this Parliament. That is my answer fundamentally to the noble Earl, Lord Clanwilliam, though I shall return to his other points if I have another opportunity.
A third change is the limited extension of the role of the institutions. The European Court of Justice's jurisdiction will extend automatically to dispute resolution and an optional preliminary rulings jurisdiction for those that want it—and only those who want it. The Commission, as well as member states, will have the right of initiative and the European Parliament will be consulted as a matter of course before measures are adopted, as well as being kept regularly informed of discussions.
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In case anybody's hackles rise in regard to the European Parliament, I shall say something about the role of this Parliament before I sit down. But I cannot leave that point without referring to the point made by the noble Lord, Lord Swinfen, in his references to Article F.1. He asked whether we would be obliged to change our judicial system by means of Article F.1. The answer is a straight no. The article deals with persistent and serious breaches of fundamental rights set out in Article F. There is no question of that being applied to a judicial system and any decision under Article F.1—the so-called sanctions clause—can be taken only by unanimity less the member state concerned. I can therefore assure the noble Lord, Lord Swinfen, that his fears about Article F.1 are unfounded.
These changes are modest. I know that in some ways the Liberal Democrats feel that they are too modest. But they are welcome. They will increase transparency, consistency and accountability within the third pillar, yet without prejudice to its intergovernmental character and the need for member states to retain their national freedom in the area.
I turn to criminal judicial co-operation—an issue which greatly exercised the noble Lord, Lord Renton. As under Maastricht, criminal judicial co-operation in the framework of the Treaty of Amsterdam will take place on the basis of unanimity. European Union measures affecting the way that the criminal justice systems of member states operate and the way that they co-operate with each other will not be able to be adopted unless all member states agree. That, as I hope noble Lords will agree, is as it should be. Indeed, if the United Kingdom wanted to adopt such measures, it would need primary legislation. They would not be covered by the 1972 European Communities Act.
The Amsterdam provisions on criminal judicial co-operation illustrate the areas in which member states are expected to co-operate within the criminal judicial sphere. That is an advance on Maastricht and a welcome one. The Government are committed to close co-operation with our EU partners in the fight against crime. The common agenda which the treaty sets out to that end will give focus and impetus to the efforts of member states.
Useful work is already being carried out in the third pillar on criminal judicial co-operation. Important new conventions have been signed which, on entry into force, will help member states work together to fight fraud and corruption. A major new convention on mutual legal assistance, which will help our law enforcement and prosecuting agencies overcome existing obstacles to taking evidence in other member states, is under negotiation. It is important that this work should be able to continue in an intergovernmental framework. Amsterdam provides for this.
My noble friend Lord Stoddart queried the co-ordinating committee which is referred to in Article K.8. The committee is not a committee of chief police officers; it is Home Office officials and their equivalents in justice departments in other member states. But in any case, even if it had been chief police officers, its duties—because it already exists—are quite

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limited. It produces opinions for the attention of the Council and it helps in the preparation of Council discussions. But it has no decision-making powers.
I turn now to civil judicial co-operation. Under the Amsterdam arrangements, certain forms of civil judicial co-operation considered necessary for the proper functioning of the internal market will move into the Community pillar—we shall therefore discuss them later on—while all forms of criminal judicial co-operation remain in the intergovernmental third pillar. Under the terms of Protocol No. 4 we will not be bound by any new Community measures on civil judicial co-operation except where we choose to be so bound. We have in the past co-operated effectively with our EU partners in both the first and third pillars in the area of civil judicial co-operation—for instance, in the area of mutual recognition of judgments—and we want to continue to be able to do so whenever this is in our interests.
Lord Shore of Stepney: In this area of civil judicial co-operation, I well understand that parts of the treaty and the protocols that relate to free movement of people and border controls are brought within the treaty except in so far as we have protocols exempting us. But can my noble friend explain why the references are made under Article 73m, which is about judicial co-operation, referring directly to Article 73o, which is where the Community procedures take place? It seems to me that all those matters of judicial co-operation, quite apart from matters relating to free movement of people, immigration and so on, are brought within the scope of the first pillar.
Lord McIntosh of Haringey: I can certainly confirm that there are proposals in the Amsterdam Treaty which transfer certain forms of civil judicial co-operation to the first pillar and to what is now called Title IV. But is it not better if we keep to the division that we have deliberately made of the subject matter of amendments and try to deal with the third pillar now and then deal with my noble friend's questions properly at the appropriate time when we are considering all the issues of freedom of movement under the heading of Amendment No. 14?
I turn now to Europol and it is appropriate that I should do so as the noble Lord, Lord Moynihan, is with us again. I can certainly confirm what he said and what the noble Baroness, Lady Williams of Crosby, said, that the Europol Convention, which was ratified in the UK in December last year, was agreed by the previous government. I can indeed pay tribute to Mr. Michael Howard for his involvement in that process. Europol has not yet been fully established but its forerunner, the Europol drugs unit, which is up and running and is based in The Hague, already provides useful assistance to national police forces. Let me make it clear that Europol is not irresponsible. It is responsible to the Council of Ministers.
The Government attach great importance to Europol which will be able, for the reasons that have been made clear, to play a key role in helping European law enforcement agencies to work together more effectively
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to make Europe a safe place for our citizens. Europol will give national law `enforcement agencies prompt and reliable access to the intelligence that they need to be able to deal effectively with cross-border crime. It will thus add real value to investigations.
Although I am unable to enter into full debate on the Budget with my noble friend Lord Bruce because there are no amendments in this group which refer to it—anyway, there was a fire at the Treasury this afternoon which prevented us getting up-to-date information from it—it seems to me at any rate that the likelihood is that the total cost of criminal investigation in Europe will be less as a result of co-operation between police forces than it would have been if we had been forced to rely on ad hoc arrangements case-by-case between national police forces.
I come now to the issue which has raised a great deal of concern this afternoon and this evening. Once it is up and running, Europol will not have any operational powers. I say that, first, to my noble friend Lord Stoddart. Europol staff will not have powers to arrest people or to initiate investigations independently. I say to the noble Lord, Lord Swinfen, that it will not carry firearms. It will not engage in phone tapping. It will only operate on the territory of a member state with the agreement of that member state and in a support capacity. As a result, the accountability of Europol will be through the accountability which already exists for the police forces of member states.
It is true that some people would like Europol to take a more operational role in future. They would like it to be what the noble Lord, Lord Moynihan, calls a European police force. That is not the view of the British Government. Such a role could only be granted to Europol if all member states, including this country, were content. The Amsterdam Treaty does not confer any new powers on Europol. Its provisions in Article K2(2) in particular envisage a developing role for Europol in support of the law enforcement agencies in member states, but one which will develop within the scope of the convention and on the basis of unanimous agreement at every stage.
Naturally, member states, if they chose at some future point to conclude a new Europol convention, could confer powers on Europol which go beyond the scope of the existing convention. But as with any new convention it would need to be agreed unanimously by the Council and subsequently be ratified by the member states. I realise that I did not spell out the extent to which Europol in its support role would be accountable through the national police force. In response to specific questions that means that these operations would be subject to the authority of the Police Complaints Authority and ultimately judicial review.
The noble Lord, Lord Moynihan, raised questions about the privileges and immunities protocol.
9.45 p.m.
Baroness Nicholson of Winterbourne: The Minister is clearly outlining how much help the Europol system will be to British police in their duties in the

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United Kingdom. Can he also tell the Committee how much they will be hampered by our lack of involvement in the Schengen information system?
Lord McIntosh of Haringey: Clearly, because we have not signed up to the Schengen acquis, the information that will be provided as a result of that will not be available to us. So there must be a significant diminution. But we have to balance that against the fact that it is universally recognised across all political parties that this country wants to keep its border controls. We are in a peculiar geographical position which enables us to keep our border controls in a way which Continental European countries would find difficult. That is the trade-off that we have to make.
I move now to the privileges and immunities protocol, because that is part of the Europol debate. The privileges and immunities of Europol staff are set out in a protocol to the convention which was signed in June 1977. It provides that if Europol's role were ever extended beyond the scope of the Europol convention, to which I have already referred, the question of privileges and immunities would necessarily have to be reviewed. The protocol was debated on a Motion in the name of my noble friend Lord Whitty at the end of last year. As the protocol was debated in both Houses, Parliament has had an opportunity to debate the status of Europol staff. If it is any consolation to the noble Lord, Lord Moynihan, I advise him that those privileges and immunities are no different from those of employees in any other international organisation.
I turn now to the European Court of Justice. The Treaty of Amsterdam provides for certain extensions in the jurisdiction of the ECJ. They are limited extensions. Indeed, for the noble Baroness, Lady Williams, they are extensions which are too limited. I recognise and respect that. Article K.7 gives the Court preliminary rulings jurisdiction for those member states which choose to accept it. It gives the Court jurisdiction over certain disputes between member states and between member states and the Commission. Where the Court already has jurisdiction in the third pillar, the treaty gives additional jurisdiction to ensure that the actions of the institutions respect fundamental human rights. It gives jurisdiction to review the legality of collective acts of the Council—I stress "of the Council"—in the third pillar. Finally, the Court is given a role in ensuring the proper operation of third pillar flexibility.
The noble Lord, Lord Moynihan, asked whether Article K.7 overrides the Home Secretary or the UK courts in police and judicial matters. Several other noble Lords made the same point. First, Article K.7(5) makes it clear that the ECJ has no role to review the validity or proportionality of operations carried out by the police or other law enforcement services or the responsibility of member states to maintain law and order. So that is a whole raft of worries that can be unequivocally put on one side.
Secondly, Article K.7 allows national courts to refer to the ECJ for a preliminary ruling, but only when a member state accepts that process. I must make it clear that the United Kingdom will not accept that process.
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The remaining extensions are limited in scope. They relate to resolutions of the sort to which the previous government agreed. I refer, for example, to the 1995 Customs information system convention. They relate also to determining the validity of framework decisions and decisions taken by the Council. Again, I stress "not by member states" and only in the case of actions brought by a member state or the Commission. That seems a very unlikely contingency.
The noble Lord, Lord Moynihan, asked us to be cautious in all our considerations on this main objective. From what I have said, I think that he will agree that we have been extremely cautious. Some would say that we have been excessively cautious. I stress again that our main objective at Amsterdam regarding the Court was to ensure that it will have no right to rule on cases brought in UK courts on third pillar issues. We successfully achieved that. There is no such right. The preliminary rulings jurisdiction in justice and home affairs will apply only to those members states which choose to accept it—and the United Kingdom has no intention of doing so.
I cannot leave this subject without referring to the point made by the noble Lord, Lord Pearson of Rannoch, about corpus juris. That report was produced by a group of academics. It has never even been considered by the institutions of the European Union, let alone approved by them, and I have no indication that it will be.
It is true that the introduction of a free movement title will entail a new role for the court in this area. It will have a full role to play as in other areas of Community policy, except that references can be made only from courts of final appeal. The court's jurisdiction will not affect the United Kingdom except in areas where we have chosen to opt in. In the rest of the pillar the jurisdiction of the court is automatically extended in so far as all extensions of EC treaty provisions involve an extension of the role of the court. In total, these are not massive changes. They reflect developments made in European Community policies and provide various sensible mechanisms for a limited role for the court in the third pillar. The UK will not be bound by the preliminary rulings jurisdiction nor by jurisdiction under the free movement title unless we choose to be so bound.
The noble Lord, Lord Moynihan, referred at length to Amendment No. 48. That amendment was also spoken to by the noble Lord, Lord Lester of Herne Hill. That amendment has four aspects: first, the limitation of retrospective application of judgments of the European Court of Justice. On all of these aspects the United Kingdom went to Amsterdam prepared to argue the case if it was necessary. However, we encountered two matters: first, a substantial amount of disagreement with us on that subject. That would not be enough by itself. Secondly and much more importantly, we found that the European Court of Justice was already acting on almost all of these points. Certainly, retrospective judgments which potentially could cost large amounts of money might stretch back several years. No such power needed to be written into the treaty because the European Court

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of Justice had already exercised such power in several cases, starting with its judgment in Defrenne v. Sabena in 1976.
The second question was one of an internal appeals procedure which would have involved a chamber of the European Court of Justice comprising three or five judges dealing with matters with a right of appeal to the full court of 15 judges. That would have been a substantial increase in the judicial procedures of the court and would have caused additional delay. As the noble Lord, Lord Renton, has rightly said, cases before the European Court of Justice are already delayed. It already takes 18 to 24 months to go through. On reflection, we thought that to have a subordinate court with a right of appeal could only extend that period.
Lord Renton: I am grateful to the noble Lord for his remarks. Perhaps I may also point out that justice delayed is justice denied.
Lord McIntosh of Haringey: I am happy to add that to my very small collection of legal tags.
The third issue was national time limits on the implementation of directives. I believe that the noble Lord, Lord Lester of Herne Hill, referred to that. During the Intergovernmental Conference that was clarified in a manner reflecting the previous government's proposal by Advocate General Jacobs in the Denkavit case. The court has since confirmed that opinion in its judgment this year in the Fantask case. Therefore, the previous government's proposal has been rendered unnecessary by the ECJ's own case law.
The fourth aspect of Amendment No. 48 is the limitation of damages payable by member states. During the course of the IGC the European Court of Justice gave a series of judgments which established just such a rule, making the proposed treaty amendment unnecessary. These included the fishing case Factortame III, Brasserie du Pecheur and the British Telecom case in 1996. I hope that on reflection the noble Lord will accept that we did not let down his government. The Court itself had achieved the vast bulk of the improvements which they considered to be necessary.
I have a few outstanding points with which I have to deal. The first is the question of the legality of the acts of the Council in the third pillar. The Court's role in reviewing the legality of some acts of the Council, where an action is brought by a member state or the Commission in Article K.7(6) has given rise to much misunderstanding and controversy. The facts are simple. The Court's jurisdiction is limited to reviewing Council framework decisions and decisions which may be adopted by the Council. I say that as clearly as I can to the noble Lord, Lord Moynihan.
Many of the consequences that some Members of the Committee have seen as flowing from that are just not applicable. It is unlikely that article will give rise to a substantial number of cases before the ECJ. To the noble Earl, Lord Clanwilliam, I say that judgments are not
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binding upon the UK courts, because Section 3 of the European Communities Act 1972 applies only to the jurisdiction of the Court under Community treaties. The UK will not accept that jurisdiction.
The final point I want to make is about the involvement of Parliament. The noble Baroness, Lady Williams, in particular, referred to that. It is worth emphasising the extent to which we are solicitous of the need in this country—this parliamentary democracy—to be concerned with Parliament. We are committed to keeping Parliament properly informed of and allowing adequate parliamentary debate on all EU business. By tradition, those arrangements for consultation and information are laid down in convention and the standing orders or resolutions of this House and another place.
We believe that that route, with the flexibility it provides, remains more appropriate than a binding commitment by Act of Parliament which many of the new clauses would entail. Extensive arrangements for parliamentary debate are already in place. They include regular debates on EU and wider foreign policy and defence policy issues; regular ministerial appearances before Select Committees; written and oral reports on Council and European Council meetings; and other opportunities to question Ministers and debate topical issues.
We are committed to building on those arrangements as part of our effort to strengthen national scrutiny arrangements and reinforce the role of national parliaments in the EU. As has been referred to, the President of the Council published a memorandum in January setting out our proposals which has been sent to the committee of this House under the noble Lord, Lord Tordoff. We await his views with anticipation. Our plans include giving Parliament a strengthened formal role in the scrutiny of third pillar business. I can confirm what the noble Baroness, Lady Williams, said about the Home Office memorandum.
Lord Pearson of Rannoch: Would the noble Lord also be good enough to confirm the British Government's continuing commitment to not agreeing any item in Brussels until the scrutiny reserve has been lifted by the Scrutiny Committees of both Houses of Parliament?
Lord McIntosh of Haringey: I do not want to interfere with the procedures of the European Communities Committee. As the noble Lord knows, the committee conducts a sift of papers that come before it. I imagine that it makes a proper distinction—we have the noble Lord, Lord Boston of Faversham, with us—between what is important and what is unimportant.
Lord Pearson of Rannoch: That is not quite the point that I was putting. The problem has been I think in the past that items have not been arriving in time in national parliaments for the Scrutiny Committees concerned to do their job properly. I think that the noble Lord, Lord Tordoff, has made that point in recent debates. My question was: does the British Government's assurance to Parliament still hold that

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they, the British Government, will not agree anything in Brussels upon which the scrutiny reserve has not been lifted by the Scrutiny Committees in both Houses of Parliament, because with the new time facilities which we are being offered by the treaty we hope to have the time to scrutinise all those items properly? I am merely asking whether the Government's previous commitment in this regard still holds force.
Baroness Williams of Crosby: Before the noble Lord replies, perhaps I may add one other question. I appreciate that there may be circumstances in which it would be impossible to await completion of the scrutiny. However, will the Minister give an assurance that he will do his best to make certain that, wherever possible, texts are put before the appropriate committees so that they can scrutinise them before a decision is made in the Council?
Lord McIntosh of Haringey: I can certainly give an unequivocal assurance to the noble Baroness. As regards the noble Lord, Lord Pearson of Rannoch, he is asking for a commitment which involves two parties: first, the Government and, secondly, the European Communities Committee. Certainly, as far as possible, we shall try to see to it that nothing is implemented until it has been decided by the European Communities Committee, but there may be exceptions.
Lord Pearson of Rannoch: I fear that that may be a watering down of the existing situation, in which case it would be quite serious.
Lord McIntosh of Haringey: If it is a watering down, I shall write to the noble Lord on the point. It is not intended to be.
We propose to strengthen the arrangements for reporting to Parliament on Council meetings. We already report on such meetings orally and in writing. We propose more detailed reports in the form of letters to the Select Committee chairmen to ensure that Parliament is better informed.
These proposals, building on existing arrangements, will provide considerable opportunity for parliamentary debate on all European issues, as is witnessed, I believe, by the debate this afternoon.
Lord Bruce of Donington: Will my noble friend confirm that the Government will pay attention to the last report from the House of Commons Select Committee on European Legislation, to which I referred and which showed a very large number of communications still due from the Government, which are greatly in arrears? May we have the Minister's assurance that that list will be taken very seriously and that the items in arrears, in some cases for many years, can be disposed of without much further delay?
Lord McIntosh of Haringey: My noble friend can certainly have the assurance that we treat this matter very seriously indeed.
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We have had a good debate and we have aired all the outstanding issues on the third pillar. If I have neglected any points raised by Members of the Committee, I apologise and I shall write to them. In the meantime, I hope that my noble friend will see fit to withdraw the amendment.
Lord Stoddart of Swindon: This has certainly been a long, detailed and well-conducted debate. There have been 13 speakers, including the speech of my noble friend on the Front Bench. I should like to thank every one of the speakers because they have made all or most of the relevant points which should have been made during the debate.
Also, I thank my noble friend for giving so much time and effort to answering the points which were made. I feel quite sure that further questions will arise from his answers but we shall have to come to those on Report.
I really do not believe that the Committee would welcome my replying to the debate by going through all the speeches, remarking upon them all and giving my own views, not at this time of night. Therefore, I shall not do that. However, my noble friend Lord McIntosh said in reply to my noble friend Lord Shore that what we are concerned about is not simply what is in this treaty but what might come later; in other words, we were anticipating further changes but we fear what will come from this particular treaty.
I must tell my noble friend that experience has taught us to be wary of everything which goes on and of every new nuance which emerges from negotiations on matters concerning Europe. We know that the competence of the European Union has grown by a ratchet effect. Those of us who fought the referendum campaign in 1975 remember, for example, that the Government issued a document stating that they had renegotiated the treaty and that one of the most serious effects would have arisen from the desire of people to enter an economic and monetary union. They stated that that had been negotiated away because they believed that it would create difficult economic circumstances and unemployment. Now we know from bitter experience that that had not been negotiated away. We are seeing EMU being foisted on us, if I may put it that way, albeit 23 years later. That is the reason why we are concerned about what happens in respect of the treaties.
My final comment relates to xenophobia. It is important because my noble friend believes that xenophobia means hatred of foreigners. It does not mean only that; it means fear of foreigners, too. Are we to be prosecuted for being afraid of foreigners? Some people are still frightened of the Germans, and with good reason because they experienced some difficult moments between 1939 and 1945 which have remained with them. Perhaps they no longer apply; but, nevertheless, people can be in fear of other people and other countries without them doing anything criminal.
I urge the Committee to think about that. I believe that we must return to the issue on Report, and I believe that at this time of night it would be right for me to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Moynihan Lord Moynihan moved Amendment No. 5:
Page I, line 12, at end insert—
("() Article I, other than paragraph 10 (Title V of the Treaty on European Union (provisions on a common foreign and security policy and defence identity)),").
The noble Lord said: In moving Amendment No. 5, I recognise that we are entering an important debate covering a common foreign and security policy. Given the time and the decision to move on to debate these important amendments, which I welcome, I intend to focus my remarks on the common foreign policy, recognising that it is grouped with defence issues. I am sure that we shall return to the subject of defence on the next day in Committee unless unexpectedly your Lordships complete the debate tonight. But that is unlikely.
I have tabled a number of amendments which are grouped with Amendment No. 5 in order to address some of the revisions made to provisions for the common foreign and security policy by the Treaty of Amsterdam. As your Lordships are aware, the CFSP was established by the Maastricht Treaty to build on the process of European political co-operation. From these Benches, we believe that it is strongly in this country's national interests that members of the European Union should speak and act together as much as possible on the world stage in situations where they have shared interests. Wherever possible, a common foreign and security policy should lead from common analysis through common policy to common action. Since the establishment of a second pillar, the co-ordination of foreign policy has had some success. Under the previous government, Britain played a role in a number of effective common positions and joint actions under the CFSP, as well as important work outside these formal instruments.
We are well aware that common positions have covered areas from Angola to the Ukraine. There has also been joint action from the stability pact in central and eastern Europe; on Rwanda; on the delivery of humanitarian aid in Bosnia; on the administration of Mostar; on assistance to the Middle East peace process, including the organisation of Palestinian elections; on election monitoring in Russia and South Africa; and on the promotion of nuclear non-proliferation.
Nevertheless, against that background, I should like the Minister's assurance tonight that, under this Government, the CFSP will never become an exclusive policy which will replace national foreign policy. I am sure that he will give that undertaking or, indeed, if the noble Baroness is to reply, I am sure that she will do so. However, where specific British interests are at stake, it is vital that we retain our freedom of action and that we are not constrained by collective decisions which we do not support. That is why the CFSP was established as a distinct pillar of the structure of the European Union under Title V of the Maastricht Treaty, under which co-operation is intergovernmental and the role of Community institutions is strictly limited. That is why decisions on CFSP should be taken by unanimity,
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including those decisions to allow the implementation of measures for specific actions to be taken by majority voting.
Under Article J.3 of the Maastricht Treaty, on the advice of the European Council, the Foreign Affairs Council could decide that some matters should be subjects for joint action. The Foreign Affairs Council was empowered to agree by unanimity that certain decisions with a joint action could, in turn, be decided by QMV. This meant that any single member state could insist that there was not majority voting on a particular subject, and that all decisions connected with a joint action were taken by consensus. We were told that one of the Government's aims at the Amsterdam summit was to retain Britain's veto over issues of common and foreign policy, although I have to admit that the Foreign Secretary's pronouncements on this seemed to be increasingly equivocal as the summit approached.
It is true that the provisions of the treaty mean that the overall strategy on foreign policy issues and the most import decisions of principle—common strategies or general guidelines—will remain a matter for unanimous decision-making in the European Council. So, in that sense, we welcome the fact that the Government have succeeded in their aim. However—and I believe that this is the issue upon which we shall focus in the debate this evening and, indeed, when we return to the matter on the next day of the Committee proceedings—the Amsterdam Treaty contains significant changes to the CFSP decision-making process, by providing for more majority voting in the operation of the CFSP.
Article J.13 provides for subsequent decisions on the implementation of those overall strategies; that is, on the adoption of joint actions. The latter are defined in Article J.4 as,
"[addressing] specific situations where operational action by the Union is deemed to be required".
But that does not apply only to joint actions; indeed, "common positions" are also defined in Article J.5, which says:
"The Council shall adopt common positions. Common positions shall define the approach of the Union to a particular matter of geographical or thematic nature.
We had a fairly lengthy debate on the concept of xenophobia, but I anticipate that many noble Lords will be focused on exactly what we are talking about in the context of a matter being of a "thematic nature". Article J.13 provides for subsequent decisions on the implementation of the overall strategies, which include any other decisions made on the basis of a "common strategy" to be taken by QMV in the Council of Ministers. Given that a common strategy is separate from the principles of, and general guidelines for, the common foreign and security policy, can the Minister define exactly what is meant by a "common strategy", as it is nowhere defined in the treaty? Can the Minister also tell us what decisions it is likely to result in, which we would then have no power to prevent?
We would have no power to prevent such decisions, although it is true that we could abstain. Article J.13, paragraph (1), provides for a constructive abstention

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mechanism. Countries who use this mechanism and who make a formal declaration explaining the reasons for the abstention will be able to opt out of the implementation of those decisions, while allowing the majority of countries to press ahead. However, abstainers would also have to accept that the decision committed the Union as a whole and they could not undermine or seek to thwart it subsequently. According to Article J.13, paragraph 1,
"in a spirit of mutual solidarity, the Member State concerned shall refrain from any action likely to conflict with or impede Union action based on that decision".
If past experience has taught us anything, it is that constructive abstention is a tool best used in a "can't, not "won't" situation, when a country agrees with a decision, but for domestic reasons is not able to participate in its adoption. Can the Minister assure the Committee that the Government do not envisage this article being used to persuade a member state against acting in its national interests if it goes against the views of the majority? Can the Minister tell us if constructive abstention is an adequate and appropriate mechanism to deal with real disagreements between countries over foreign policy decisions? If it is not, it would appear that the Euro train will be repeatedly stopped and delayed as its passengers pull the "emergency cord". The Prime Minister is proud of this "emergency brake" mechanism contained within Article J.13, whereby a country will be able to exercise a national veto and prevent a vote being taken, if there are,
"important and stated reasons of national policy"
which cause it to oppose a decision. Can the Minister tell us what will constitute an important, stated reason of national policy, and who will arbitrate on the matter, and whether the action of a member state in this position would be subject to the jurisdiction of the European Court of Justice?
Furthermore, if a number of other states can achieve a qualified majority on the decision, is it not the case that the adoption of the decision would be regarded as postponed? For the matter could then be referred to the European Council for a decision to be taken by unanimity, which the country in question would have to veto. Given that the number of decisions taken by QMV in the Council of Ministers will ultimately be determined by the number of common strategies decided upon by consensus in the European Council, and by the political will of a particular presidency to try the QMV procedures on decisions of a secondary nature, what vision do the Government have for the practical operation—I am focusing here—of qualified majority voting? Does the treaty text not indicate that the use of the national veto would be seen as a last resort and that countries will not be encouraged to express dissent in this way, even when their national interests are affected?
Let us take an example. Can the Minister tell the Committee what would happen if a decision on a common strategy had been agreed by unanimity to take certain action—against Iraq, to use a still topical example—if then a qualified majority decision was taken that that action should stop short of the use of force? Could such a decision be taken by QMV, so that if this country wanted to use force it would be debarred
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from doing so by the qualified majority voting provision? The treaty clearly provides that decisions having military or defence implications will be taken by unanimity. I understand that clearly. Therefore, a decision to use force would certainly be taken by unanimity, but it is not clear whether a decision not to use force could be taken by QMV, in which case a country who thought the use of force was justified would effectively be prevented from acting independently.
We on these Benches do not accept that the previous unanimity provisions for CFSP were a constraint on its development, nor that CFSP has been strengthened by the introduction of voting models which could override the key concerns of member states. If there is no collective will within the European Union to act, it is unwise to try to force action through artificial voting procedures. The member states have already agreed, at Maastricht, that they should not try to stand in the way of a given policy which has majority support. The CFSP will only carry weight internationally if it represents a genuinely common policy and not a majority one.
I therefore would like an assurance from the Minister that the Government agree that the CFSP should be a complement to national foreign policies, not a replacement for them, and that this does not represent a move away from the intergovernmental approach and a true common foreign policy agreed by all towards a common foreign policy agreed by most. Such fears are raised by even seemingly small changes. For example, Article J.1 began in the Maastricht Treaty with the words,
"The Union and its Member States shall define and implement a common foreign policy and security policy, governed by the provisions of this title and covering all areas of foreign and security policy".
The noble Lord, Lord Stoddart, is right in Committee to concentrate on the importance of nuances. In the new version, in the Amsterdam Treaty, we lose "and its member states". Those words are now omitted. It is now no longer,
"the Union and its Member States shall define and implement a common foreign policy".
It is,
"The Union shall define and implement a common foreign policy".
It is in order to express those concerns, and to elicit a response from the noble Baroness when she sums up at the conclusion of consideration of these amendments, that I have tabled new Clause 41, which seeks to give Parliament an enhanced role in the consideration of the decision-making arrangements for the common foreign and security policy. I welcome the Minister's comments on these issues and the opportunity to hear the rationale behind the Government's acceptance of these changes to the decision-making procedures of the CFSP.
I turn briefly to the creation of the position of the High Representative of Common Foreign and Security Policy. I congratulate the Secretary-General of the Council of Ministers, Jurgen Trümpf, on his appointment as the High Representative of Common Foreign and Security Policy in accordance with Article J.8. However, I wish to ask to whom he will be

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accountable, and what will be his role in promoting decisions where there have been constructive abstentions? The terms of the reference for his office, I hope the Government will agree, clearly need to be carefully drafted to make sure that the high representative is fully answerable to the Council of Ministers and is representing the collective views of member states, not deciding them. Furthermore, when there are constructive abstentions, will those countries going ahead have, for example, access to European Union institutions and funding, which of course are paid for by all member states, even those which abstain?
Again, I shall attempt to be as brief as I can, but there are many issues to be covered under this collection of amendments. Perhaps I may touch on the planning and early warning cell. In the Amsterdam Treaty we see the creation of the planning and early warning cell. I welcome the treaty's provision to set this up under the declaration on the establishment of a policy planning and early warning unit, which I hope will provide improved planning for the CFSP in the form of policy papers, analysis and options for crisis situations. In order to have a more active, effective and coherent CFSP which maintains its inter-governmental character, we need to develop co-ordination between the member states in planning analysis and implementation of common policies. However, I should like clarification from the Minister on the requirement for member states and the Commission to provide,
"to the fullest extent possible, relevant information, including confidential information",
to the unit. What best efforts will be made to prevent leaks of such information? How will this affect our unique shared defence and intelligence arrangements with the United States?
Today the nations of Europe live together in a state of interdependence within a framework of collective standards and disciplines set by a number of international bodies including the UN, the OSCE and the Council of Europe. No negative connotations should be attached to the possession, and indeed the active promotion, of our national foreign policy interests, even when they quite naturally differ from those of our neighbours. I believe that we have reached a time when the "national interest" can be defined as the collective expression of the democratic process in each of our countries: it represents the guiding spirit of democracy. It is for that reason that our foreign policy should be decided here, with the Foreign Secretary answerable to the House.
Moreover, the CFSP is still a fledgling. Its machinery is still running in. It has much potential and, where it acts with the grain of our national traditions and represents the coincidence of our national interests with those of our European partners, it will succeed. But where the CFSP is forced into the rhetoric of solidarity and unity when, whether for geographical, political or historical reasons, that does not reflect reality, it will surely fail.
For example, can the Minister explain how the Government envisage that Article J.9 will work in the future? That article obliges member states to
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co-ordinate their actions and policies at international gatherings to a greater extent than previously, including the requirement that the permanent members of the UN Security Council (for example, Britain and France) must defend the positions and the interests of the Union. But, for example, how should we have fulfilled the requirements of that article during the recent Iraq crisis? In that situation, when we did not always see eye to eye with France on the means to resolve the Iraq crisis, which country would have been deemed to be defending the position and interests of the Union within the Security Council?
No one disputes that close and effective co-operation with our neighbours should be pursued when it is in the interests of the people of Britain, but achieving common positions must not become a goal in its own right. I beg to move Amendment No. 5 standing in my name and the names of other noble Lords.
10.30 p.m.
Baroness Williams of Crosby: First, perhaps I might congratulate the noble Lord, Lord Moynihan, on setting out very clearly the position of his party and asking a series of very important questions about the common foreign and security policy. During my brief remarks, perhaps I might take a somewhat different approach to this issue, and then invite the Minister to adjudicate between those positions—which will not be easy.
It seems to me that the European Union is necessarily the anchor of stability for the whole of the Continent of Europe—a continent that goes beyond the member states of the European Union to include a very uncomfortable, and often very unstable, periphery. We are all very much aware that there is at the present time a critical situation in Kosovo and that there is a very troubling situation in Albania. We are all certainly aware that Bosnia is far from having reached a settled state of mind following the Dayton Agreement. There are many commentators who believe that, once—if indeed it happens in the near future—the NATO force is removed or removes itself, we should quite rapidly move back to a very troubling situation in Bosnia.
For all those reasons, there is another danger as great as that outlined by the noble Lord, Lord Moynihan; namely, the danger of not adopting common foreign policy positions. For it is important to say that the European Union is quite widely regarded by those who wish us well, including some of our most prominent allies, as a relatively ineffective form of co-operation between the member states of the European Union.
As some noble Lords know, I have spent a good deal of my life recently in the United States. One of the opinions that has been visited upon me time and again in various seminars and conferences in which I have taken part is the sense on the part of American administrations, and in particular of the State Department, that the European Union is a relatively uncoordinated and ineffective ally. The criticisms addressed to Britain and France over Bosnia reached a very sustained level for a number of years before finally the Dayton agreement was virtually imposed upon an unsettled situation. Even today, the United States has

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made it plain on more than one occasion that it would welcome a much more co-ordinated policy on the part of the European Union.
We have the Petersburg declarations. We have the fact that the European Union is by far the main source of aid and economic assistance to the whole of its periphery. That is so, even if we extend it to include a major country like Russia, the Ukraine or the countries that lie in eastern Europe and that are not yet part of the enlargement process. In almost all these areas—and I can extend that to the Maghreb and the Middle East—the European Union is the crucial economic actor.
But that economic influence is not paralleled by political influence in anything like the same way. One has the impression that the European Union has up to now simply not been able to speak with an effective voice. That is a matter of great seriousness, because all around the edges of the European Union are areas of profound and troubling instability, of which the Middle East and the Maghreb are but two further instances.
For all those reasons we have to look at the instrument that is being forged in the treaty and ask whether it is an instrument that could possibly work. I have to say that there are so many ways out of any kind of foreign policy that I do not believe any noble Lord in this House should be in the least concerned about the possibility that a common foreign policy could be imposed. We have constructive abstention under J.13. We have the right to ensure that one will not be part of any joint operation. We have the right to state that for compelling national reasons no qualified majority vote can be taken and the matter must be referred to the European Council and that the European Council must reach its decision by unanimity. Frankly, in a situation of crisis such an elaborate and complex way of reaching a decision is tantamount to reaching no decision at all.
In addition, we have the right of any nation not to take part in a particular operation, to stand outside it. Then there is only the rather minimal requirement that it does not oppose that operation if it finds itself in a minority. If that minority is one-third, then immediately again, even under qualified majority voting, any joint operation can be blocked by that minority. For all those reasons, I am surprised that anyone should be much concerned about what appears to me to be an extremely weak title of the Treaty of Amsterdam. It is a much weaker title, in my view, than a title that concerns internal security and home affairs.
Before I conclude, I once again remind the Committee that we are in an extremely serious situation because of our inability to co-ordinate European foreign policy, even on a basis of limited mutual consensus. Allow me to give one example. In the past two years we have seen in parallel a proposal to expand NATO and to enlarge the European Union. That expansion and enlargement engaged almost all, though not invariably all, the same countries. The Czech Republic, Poland, Hungary and others were all involved in NATO expansion and in European Union enlargement. Both of them have set out on that parallel path.
However, I was certainly shocked to discover that there had been virtually no discussion at all between those who led NATO and those who led the European
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Union; that the European Union had made assumptions about the financial cost of enlargement—incidentally stringent assumptions—without regard to the cost of meeting the requirements of NATO and NATO had decided to embark upon expansion without even considering the issues of enlargement. It seemed to me that in anything except a calm period, for such a total gap to open up between allies with similar goals was an extraordinary occurrence and could in certain circumstances be a very dangerous occurrence. Even today the joint burden of enlargement and expansion in fragile economies in central and eastern Europe is, in the view of a number of us, considerably greater than they themselves recognise.
In concluding what I have to say, let me draw attention to the downside of a failure to create at least a minimum common policy; to the downside of failure to create a serious dialogue between the European Union and the United States on issues like the expansion of NATO. I hope, in responding, that the noble Baroness will tell us what steps can be taken to strengthen the prospects of European common foreign policy, not least in fields like the Petersberg declaration, which concerns mainly humanitarian issues, and in the complex and largely unsatisfactory inter-institutional agreement about how to finance joint operations, which seems to end in a rather dying form by saying, "If there cannot be agreement, we don't know what to do, except that it cannot be any more than it was last year". That is hardly an adequate base on which to erect a serious degree of common foreign policy.
Lord Bruce of Donington: My Lords, I have a number of questions to which my noble friend may be able to respond when she replies. The provisions of this amendment deal essentially with pages 11 and 16 of the Amsterdam Treaty. Those paragraphs contain six references to the European Council which, as your Lordships are aware, meets normally twice a year and has a totally different function to the Council of Ministers. The Council of Ministers is referred to on numerous occasions all the way through the section commencing with paragraph 10.
It seems to me that we need to know whether, in all the instances in which the Council of Ministers is mentioned, the normal rules apply; that the specific circumstances set out in paragraph 10 apply. The Council of Ministers, normally speaking, and under the main treaty, can act only on a proposal from the Commission. Will the Minister confirm whether in any paragraph in this section where the Council of Ministers is mentioned—it is normally referred to as "the Council"—there is any occasion in which action by the Council of Ministers is permitted without being on a proposal from the Commission?
My other point arises in relation to the budget itself. The budget for 1998, I discovered, under Title VIIIa gives a total budget in respect of this specific section of some 20.25 million ecu which at the current rate of exchange of 65 ecus to the pound is £13,000,162, of which the United Kingdom share is £1,842,000. Can the Minister explain just what that sum is for? There does not seem to be anything in the section that would justify

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an estimate for the year amounting to 20 million ecus. I wonder where the money is likely to go and whether the Government, in accordance with the meticulous examination which I am sure they carry out of all Community expenditure items, concurred in this item of 20 million ecus. Where and for what in 1998 will it be spent?
10.45 p.m.
Lord Stoddart of Swindon: I have always been brought up to believe that foreign policy exists to further British interests. Any constraints on that must mean that British interests in certain areas may not be pursued as they should be pursued. The noble Baroness, Lady Williams, said that the European Union is a player on the world stage. The only reason why it is a player on the world stage is that this country and presumably other countries channel a lot of their overseas aid through the European Union, where it is laundered and to a very large degree wasted. One of the reasons it has influence is that it has money. It is not because it has better ideas or that its member states act in unison; it is because it has money. That is why the European Union is taken some notice of. However, the interests of this country can only be what is good for its people and its future. I reject any attempt to have that watered down by agreeing a common foreign policy and a common security policy.
What concerns me about the treaty is that, once again, we have Article J.1 saying that the objective is to strengthen the security of the Union in all cases. All reference to member states is gone. Why is that written? Why has all reference to member states gone? Those of us who fear the ratchet effect believe that this is just another step on the road to a fully integrated European superstate. Therefore, we want an answer to the question as to why the reference to member states has been removed.
People may say that we do not trust our own government. I do not. I do not trust any government because they do things which are not always in the best interests of the people they are supposed to serve and therefore should always be under suspicion and their motives should always be queried.
The article goes on to say that we are to decide on common strategies and that we are to adopt joint actions and common positions. We have found a great deal of difficulty in doing that in the past. The reason is, of course, that our interests do not usually coincide with the interests of other countries. Where they do coincide, we are able to co-operate. But what one does not need to be able to co-operate is a treaty of this kind. That is why so many people are fearful of our foreign policy and the future of this country being tied into a treaty which will restrict the actions of a British government on the world stage in many respects.
Some of us also fear that if we progress then we shall lose our place on the Security Council. We are told, of course, that that is unimaginable. But we are often told that things we believe are unimaginable, but they come to pass. I would like to have the absolute assurance of
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my noble friend tonight that there will never be any prospect of this country giving up its seat on the Security Council under any circumstances. Those of us who are fearful of what is happening are entitled to receive that assurance and I hope that we shall get it tonight.
The other matter that worries us is what I once described as "this high representative". That is good Eurospeak, is it not? That is what we are now going to have. I suggested last year that the high representative would be the European Foreign Minister. I received a letter from my noble friend Lord Whitty in which he said,
"The High Representative will not be an EU Foreign Secretary. Article J.16 of the Amsterdam Treaty makes clear that the High Representative will be subordinate to Member State Foreign Ministers, and able to act only on the basis of clearly defined mandates from them, with no power to initiate policy".
That sounds quite reassuring. The only problem is that once they get these positions these people describe themselves as something different. For example, I believe that there are 131 EU representatives in various countries throughout the world. Presumably, they are representatives to look after the grants-in-aid to various countries. But they go around describing themselves not as representatives of the EU, but as European Union ambassadors. So how soon will it be before this high representative is describing himself as the Foreign Minister of the European Union? Some of us are very concerned about that.
Time is getting on and I do not want to make a long speech about foreign affairs, although I could very well do so. I could refer to Britain not as a regional power stuck in the backwater of Europe, but as a global power which has responsibilities outside Europe—for example, to our great Commonwealth. We do not want our responsibilities to the Commonwealth constrained by responsibilities that we may have taken on in respect of countries of the European Union. So one could make a great speech about all these things, but I shall not do so tonight.
I can also recall occasions such as the Falklands War, when we got less than good and fullhearted support from our European Union partners or competitors, call them what one likes. I hope that my noble friend on the Front Bench will not think that I am criticising her in any way. I just want her to understand the views of those of us who have been around in this business for a very long time. Like my noble friends Lord Bruce and Lord Shore, I have been around it since 1962, so we know what has happened during that period. We were the ones who fought the referendum in 1975. It is because of that experience that we are suspicious of every move that is made forward and of every ratchet that is turned. I ask my noble friend to believe that we are serious about our fears. I hope that she will treat them seriously when she replies.
Baroness Ludford: I have promised to speak for no more than one minute and I shall do so. In speaking briefly to Amendment No. 35, I take the rare pleasure of supporting an amendment in the name of the noble

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Lord, Lord Shore, and his colleagues. I refer to the provisions which require reports on the positions taken by the UK and the EU in international organisations. That is a desirable move on which I hope that the Minister will be able to give some assurances. Reference has been made to the memorandum on scrutiny from the President of the Council which promises reports from European Union meetings. I am surprised that the provisions do not cover reports on European Council and Council of Ministers' meetings. They could usefully have done so. The memorandum promises a letter to the chairman of the Select Committee on European Legislation in the other place. Perhaps the Minister will assure us that parallel reports on European Council and Council of Ministers' meetings will be made to the chairman of the Select Committee on the European Communities in this House.
Lord Hamilton of Dalzell: One matter which has mystified me, on which I hope that the Minister will be able to enlighten me, is how one can have an independent foreign policy if one does not have control of one's own money. One of the effects of being part of the single currency would be that if one wished to carry out an exercise such as the Falklands War, it would at once imperil one's budgetary position under the stability pact. The noble Baroness, Lady Williams, said that she rather despaired of Europe ever putting together a common foreign policy front. If all the countries which are now involved in the single currency chose to step out of line and to join us and the Americans in an exercise such as the Gulf War, what would happen to their budgetary position and how would they be affected by the stability pact? Presumably they would have to get permission from the central bank to overdraw in order to finance their war.
Lord Grenfell: I have two brief points. When I hear my noble friend Lord Stoddart defining the objectives of British foreign policy, I sometimes wonder whether the word "globalisation" has ever managed to force itself into his vocabulary. John Donne would be turning in his grave at the insularity of such a foreign policy. We live in a very interdependent world.
Possibly we can get rid of the strange worry about removal of the words "member states" in many places. As far as I understand it, the word "Union" describes the collectivity of member states. One need look no further than Article A to see that one line among the objectives refers to maintaining and developing the Union as an area of freedom, security and justice. What does "area" mean? It means the member states. I sometimes think that some of my noble friends deserve Oscars for special effects, given the way in which they manage to turn modest mice into woolly mammoths of evil disposition.
Perhaps I may turn to the apparently contentious—although I cannot understand why—issue of the high representative. Perhaps it is a slightly Gilbertian title, but I have heard worse and more intimidating titles than that. After all, the person who will perform this task, the
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Secretary-General of the Council's secretariat, has been around for a very long time. That person will effectively replace the past holder of the presidency of the troika. His or her roles are very much circumscribed. That individual will not be anyone of the kind described by some parties in the IGC. Certainly, some wanted a kind of foreign Minister, but that idea was thrown out of the window at the IGC.
The job to be done is very modest but despite its modesty it has great importance, in that it responds to the reality that one cannot always depend on the diplomatic resources of the country holding the presidency to take on all of the responsibilities as spokesperson for the Union. That has been one of the weaknesses of a common foreign and security policy. This represents a modest attempt to try to clear it up.
As a related point, the noble Lord, Lord Moynihan, said he very much hoped that the high representative would reflect the views of the members of the Union. In the past the problem has been the other way round. It has often been the case that when people who have been made special representatives of the EU have tried to speak on behalf of member states they have been placed in a difficulty, as in Bosnia. I heard yesterday from Richard Holbrook that when the special EU representative, Mr. Carl Bildt, saw him, he, Mr. Bildt, found that he had been short-headed, so to speak, by representatives of other member states. They had come to see Mr. Holbrook to inform him that he must not regard the spokesman as representing the views of their countries. That is the problem. With respect to the noble Lord, Lord Moynihan, he got it the wrong way round. EU representatives want to be able to reflect the views of the Union but often they are undermined by individuals.
I beg the Committee not to be scared by the appointment of a high representative. Perhaps we can change the title if that is what scares people, but this is a very sensible step in a modest treaty. This is a pragmatic way to try to improve the running of the machinery of a common foreign and security policy and ensure that the views of the Union and its members are properly represented.
11 p.m.
Lord Monson: The noble Lord, Lord Stoddart of Swindon, has drawn the attention of the Committee to one worrying aspect of Article J.1. I cite what appears to me to be another alarming aspect. The Treaty of Amsterdam introduces a new Union objective: to safeguard the common values, fundamental interests and independence of the Union, to which one cannot object, but also to safeguard the integrity of the Union. This is ominous. Why should that be included? To safeguard the integrity of the Union implies that if any one or more member state wishes to withdraw, sanctions, or worse, may be employed against it or them. This may seem fanciful today, but let us remember that up until the middle of the 19th century the United States were always referred to in the plural. The American civil war

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was fought essentially to ensure that henceforth the United States would always be referred to in the singular.
Those who are concerned about a common foreign and security policy are generally told not to worry because the Council will make policy decisions only on the basis of a unanimous vote. Normally, when one is deciding issues of major importance to a nation, unanimity means active unanimity; in other words, everyone has to vote positively in favour. In this case, for some reason, Article J.13 states categorically:
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"Abstentions by members present in person or representatives shall not prevent adoption of such a decision".
That introduces something new and, as far as I know, without precedent. That, too, is worrying.
Lord Carter: I beg to move that further debate on Amendment No. 5 be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at six minutes past eleven o'clock.