§ 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".]
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.
I believe that it is essential that we should have the principal document in front of us.
§ 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 1138 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 1139 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 1141 Her Majesty's realm without the knowledge or consent of her Parliament. I ask your Lordships to support the amendment. I beg to move.
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?
1142 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 1143 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 1144 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, 1145 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.
1146 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 1147 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 1148 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 1149 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 1150 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?
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 1151 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 1152 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 1153 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.
1154 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.
1155 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 Barbercase, 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.
1156 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.
1157 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.
1159 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.
1160 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 1161 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.
1162 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 1163 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.