European Communities (Amendment) Bill

HL Deb 24 March 1998 vol 587 cc1177-216

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 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.

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 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 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.

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 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 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, 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 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 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 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 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 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 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.

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 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 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 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.

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 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 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 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.

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 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, 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 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 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 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 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 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 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 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 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 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 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 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: 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.