Lords Sitting of 2 April 2003

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

Turkey: EU Membership
Lord Cobbold Lord Cobbold asked Her Majesty's Government:
To what extent they are committed to the accession of Turkey as a full member of the European Union.
The Minister for Trade (Baroness Symons of Vernham Dean): My Lords, the United Kingdom fully supports Turkey's EU candidature, as confirmed at the Helsinki European Council in December 1999. We welcome the agreement of the December 2002 Copenhagen Council that the EU will start accession negotiations without delay if the European Council agrees in December 2004 that Turkey fulfils the political criteria for membership. The criteria relate to democracy, the rule of law, human rights and the protection of minorities. The UK continues to support Turkey's EU accession both in the EU and bilaterally.
Lord Cobbold: My Lords, I thank the Minister for that response. Does she agree that the possible accession of Turkey to full membership of the Union raises some fundamental issues of geography, history, culture and religion?
I greatly respect Turkey and its achievements, in particular the contribution it has made to NATO over the past 50 years, but where does Europe stop? Who will be next? Is the Minister aware that Article 1 of the draft constitution for Europe, which we shall be discussing later today, states that the Union shall be open to all European states whose people share the same values, respect them and are committed to promoting them together? Does the Minister believe that the accession of Turkey is compatible with this article?
Baroness Symons of Vernham Dean: My Lords, the fact is that there is no internationally agreed formal definition of Europe. The EU has accepted, from the time of the conclusion of its association agreement with Turkey in 1963, that Turkey is in principle eligible for membership. The Commission, in its 1989 opinion on Turkey's request for accession to the EU, recommended against accession negotiations because of Turkey's political and economic situation, not because of doubts about whether or not it was
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European. Those political questions are now being addressed and we hope that they will be addressed successfully.
Lord Renton: My Lords, as the attitude towards minorities is one of the relevant factors in this matter, what will be the effect of the Turkish attitude towards the Kurds?
Baroness Symons of Vernham Dean: My Lords, the fact is that the Turkish Government have introduced a number of very important human rights reforms over the course of the past 18 months or so. There has been a great deal more emphasis on the human rights of minorities in relation to the minorities within the country. Furthermore, there are issues about the attitude of the Turks to the Kurds across their borders. For example, laws have been passed which allow the Kurdish minority within Turkey to have more access to, for instance, their own language in their schools and within their own communities.
Lord Wallace of Saltaire: My Lords, does the Minister recall that both Morocco and Ukraine have expressed interest in future membership of the European Union? As she has stated that there is no agreed definition of Europe, do the Government have a settled view of how they might respond to them? In particular, have the Government yet formed a view on the Commission's communication of 11th March on a wider Europe and the way in which, after the current round of enlargement, the European Union should respond to these new neighbours, some of whom will wish to become members in due time?
Baroness Symons of Vernham Dean: My Lords, I am bound to say to the noble Lord that, as he knows and as I hope he would expect me to say, his question is absolutely way off the mark in being wide of the Question before us. As I have already explained in answer to the noble Lord, Lord Cobbold, given the history of the discussions with Turkey, there have been historical reasons why we have gone ahead with Turkey. If the noble Lord wants to raise that question, his best means of getting an Answer out of me will be to do so on the Order Paper.
Lord Bruce of Donington: My Lords, is my noble friend aware that statements today in so far as they affect the Kurds seem to be rather less robust? It has always been the stance of the United Kingdom in this that the position of the Kurds, who have hitherto been oppressed by the Turks, should be fully safeguarded before Turkey is admitted to the European Union.
Baroness Symons of Vernham Dean: My Lords, I regret if anything I have said indicates in any way that I and Her Majesty's Government are not as concerned as we have been in the past about the way in which minorities are treated. I merely sought to point out to noble Lords that some of the concerns we have raised have now been addressed by changes to the Turkish laws dealing with these matters.
Lord Howell of Guildford: My Lords, we agree with the positive approach of the noble Baroness and of the

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Government towards Turkish membership of the European Union. Does she accept that Turkey has developed good relations with the two Kurdish factions inside Iraq; that is, the KDP and the PUK, although not of course with the PKK, the terrorist organisation, which is quite different? Furthermore, can the noble Baroness reassure the House that no undue pressure has been put on Turkey by European Union institutions to withhold her full support from the Americans during the current war? If there has been that kind of blackmail, have the British Government completely dissociated themselves from it?
Baroness Symons of Vernham Dean: My Lords, let me be absolutely clear on this. In the Statement made on 21st March last, Her Majesty's Government made it clear that they agree with the European Council in what it has said on the issue. The council called on all countries in the region to refrain from actions that could lead to further instability in relation to Iraq. We have certainly made that point clear to Turkey, but I do not believe that any undue pressure has been brought to bear. I say that because the points that we have made to Turkey have been very similar to those made by our ally, the United States.
Lord Hardy of Wath: My Lords, does my noble friend accept that Turkey has been a member state of the Council of Europe for over three decades, and that all member states involved in the council accept that Turkey is qualified? It is hardly sensible for Europe to stand on its head on the matter at this time.
Baroness Symons of Vernham Dean: My Lords, I agree strongly with my noble friend Lord Hardy. As I have already indicated to noble Lords, for a long time the United Kingdom has been a firm supporter of Turkey's candidature. Turkey is an important partner for Britain as a NATO ally and, indeed, as a major market for UK exporters. A further reason for our support is that Turkey's EU candidature has acted as a spur to her attempts to reform, in particular in the field of human rights, which I know is an area of considerable interest to all noble Lords in the House.
Lord Hylton: My Lords—
Lord Stoddart of Swindon: My Lords—
The Lord Privy Seal (Lord Williams of Mostyn): My Lords, I think that it is the turn of the Cross Benches.
Lord Hylton: My Lords, the noble Baroness referred to the minority languages that are spoken in Turkey. Can she confirm that the recent change, although welcome, extended only to fee-paying schools? Is not a great deal more progress needed in this area?
Baroness Symons of Vernham Dean: My Lords, I do not know whether the change extended only to fee-paying schools, but I shall look into it and write to the noble Lord. However, I would say to him that Turkey
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is engaged in a process of change on these issues. Rather than only one set of reforms which came to an end, further reforms were brought forward in August of last year, and in January of this year another package was introduced. In that package the key emphasis was again placed on the prevention of torture and ill treatment. Incommunicado detention was to be abolished for both the ordinary and the security courts. Furthermore, important matters were addressed, such as if the police are accused of using torture, no longer will it be necessary to hold an administrative investigation to see whether there is a case to answer. Rather, the case will go straight to prosecution.
Much more emphasis has been placed on the effective implementation of human rights laws and we are engaged in an ongoing process. However, as I have said, I shall write to the noble Lord on the specific point that he has raised.

Iraq: International Aid
2.44 p.m.
Lord Renton of Mount Harry Lord Renton of Mount Harry asked Her Majesty's Government:
Whether they consider that co-operation between the Department for International Development and international aid agencies is satisfactory in relation to the Iraqi war.
Baroness Crawley: My Lords, DfID has been in discussion with representatives from UN agencies, the Red Cross/Red Crescent movement and NGOs for many months. As soon as the UN made public its contingency planning for conflict, we ensured that details of that planning were shared with NGOs. We have held weekly meetings with NGOs in London since 13th February, and are in discussion with the international agencies through our representatives in their headquarters. Members of DfID staff in the region are liaising with many humanitarian partners.
Lord Renton of Mount Harry: My Lords, I thank the noble Baroness for that reply. Does she agree that the problem at the moment is how to make the Iraqi people partners in their own liberation? Whatever the Department for International Development has done so far, could not much more be done—as the time for humanitarian aid becomes more pressing—to encourage it to work with international agencies in the effort to convince the Iraqi people that post-Saddam peace and reconstruction is possible, but that preferably it should be done under a United Nations flag rather than the Stars and Stripes?
Baroness Crawley: My Lords, I very much agree with the noble Lord, Lord Renton, that it is essential for UN agencies to return to Iraq as soon as possible and that we have a phased development of humanitarian operations there. While it is too soon to go into detail on reconstruction plans for Iraq, it is

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important to draw to the attention of noble Lords the fact that yesterday my right honourable friend the Foreign Secretary made it clear that we shall work with the United Nations and others on the long-term redevelopment and rehabilitation of Iraq. We see that as an extremely important aim.
As the noble Lord, Lord Renton, will know, a couple of weeks ago an agreement was reached in the Azores between the United States and the United Kingdom to seek the urgent adoption of a new United Nations Security Council resolution that would affirm Iraq's territorial integrity, ensure the rapid delivery of humanitarian relief and endorse an appropriate post-conflict administration in Iraq.
Baroness Whitaker: My Lords, I believe that my right honourable friend Clare Short played a very active part in the successful renegotiation of the Oil for Food programme. Can my noble friend tell me how that is now working out in practice?
Baroness Crawley: My Lords, I thank my noble friend for that question. The Oil for Food programme is a massive humanitarian operation. Noble Lords will know that the programme spends 10 billion dollars each year from the proceeds of the sale of Iraqi oil on the essential requirements and necessities of the Iraqi people. I refer not only to food, but also to water and medical supplies. Securing a unanimous United Nations resolution on the Oil for Food programme was a great achievement. As soon as it is safe for the NGOs to go into Iraq and for the UN agencies to return, we want to get the Oil for Food programme up and running again.
Baroness Northover: My Lords, have the aid agencies been able to offer any useful advice on how best to distribute the very limited amount of aid that is currently reaching Iraq, so that it is not simply the strongest who receive it? If such advice has been provided, what recommendations have been made?
Baroness Crawley: My Lords, the noble Baroness will know that the Red Cross and the Red Crescent were extremely active during the early part of the conflict. DfID has been able to offer advice to the MoD and our forces. There are DfID advisers with the United Kingdom forces in Iraq. They are advising on how best to ensure that the most vulnerable members of the population are targeted so that it is not just the strong who receive the aid first. To that end, the Army is working closely with the MoD.
Lord Astor of Hever: My Lords, although it is early days, can the Minister say what contingency plans have been made for the provision of humanitarian aid should there be a lengthy siege of Baghdad?
Baroness Crawley: My Lords, there are a number of contingency plans. Decisions have been made in the past few days on the budget for humanitarian aid. A total DfID budget of £210 million is available for this crisis; a flash appeal has been made by the United
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Nations for 2.2 billion US dollars, to which we have contributed £65 million; and we have provided £30 million-worth of food and supplies, which the MoD is distributing through our forces.
The Lord Bishop of Guildford: My Lords, I rise to speak wearing my hat as chair of' Christian Aid. We have a proper concern for the safety of our staff and the staff of our partners in the midst of conflict. Does the Minister accept the position unanimously adopted by the agencies that they can do their work only in complete independence of the military operation? The noble Baroness gave a helpful answer about the importance of the role of the United Nations. Can she confirm that the work of the agencies would be seriously compromised if that were compromised, as would the reputation of the British Government?
Baroness Crawley: My Lords, I agree absolutely with the right reverend Prelate. Our humanitarian strategy is to seek to provide support where there is the greatest need, not where certain occupying forces are.
Lord Chan: My Lords, does the Minister—
Lord Williams of Mostyn: My Lords, I am afraid we are out of time.

European Union: Fraud
2.52 p.m.
Lord Pearson of Rannoch Lord Pearson of Rannoch asked Her Majesty's Government:
Whether adequate progress is being made by the European Union Vice-President for Administration and Reform, Mr Neil Kinnock, and others to eradicate fraud and mismanagement in the European Union.
Lord McIntosh of Haringey: My Lords, since the publication of the reform White Paper in March 2000 there have been a series of major reforms of European Union governance and finance. The latest and most far reaching of these, the new financial regulation, came into force on 1st January this year. A major modernisation of the accounting framework and its supporting IT system is also being carried out. We expect that the bulk of these reforms, including a move to accruals accounting, will be implemented by 2005. This is an ambitious timetable and we strongly congratulate the EU Vice-President on the substantial reform programme that he has put in place.
Lord Pearson of Rannoch: My Lords, I thank the noble Lord for that reply and for doing his best to justify the unjustifiable. Does the noble Lord agree that it is now four years since the Commission resigned in disgrace and that at least five of the senior officials who blew the whistle have been silenced? Although the Minister said that the new accounting system is on the way, my understanding is that it will not be in place until 2006. In the mean time, no normal auditor would

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sign off any of these accounts. In these circumstances, is it not time that Her Majesty's Government stopped pouring so much of our money down such a hopelessly corrupt drain?
Lord McIntosh of Haringey: My Lords, the noble Lord, Lord Pearson, is right in his first and plainly historical point about the amount of time since the Santer Commission resigned. He is wrong about everything else. For example, if he is talking about Mrs Marta Andreasen, she herself has said that she was not a whistle blower and that she was not dismissed for criticising the reforms introduced by Neil Kinnock. The most recent accounts—those for 2000—were granted discharge by the European Parliament in April last year and the final stage of that is fast approaching. No accounts have failed to be given discharge by the European Parliament. As to the European Court of Auditors, it has rejected all of the last eight accounts. But it has done so on a basis which is generally recognised to be outdated—that is, a 5 per cent sample without any systems accounting procedures.
Lord Saatchi: My Lords, why did the EU pay out subsidies in Austria for 60 per cent more alpine pastures than exist? How did it manage to pay 2.5 billion euros to olive oil producers in Greece last year, despite the fact that there is no register of olive oil producers in that country?
Lord McIntosh of Haringey: My Lords, I am disappointed in the noble Lord, Lord Saatchi. He has forgotten about the import of bananas into southern Italy and tobacco subsidies in Greece. The newspapers are full of examples of fraud and irregularities. There is no doubt that there are both irregularities and fraud. Of course there are; there are in all systems. But the Question was about the reform programme—and the reform programme that Neil Kinnock is introducing is quite remarkable. The EU is moving over to accruals accounting, with a proper balance sheet, in a period of only four years. It took us seven years to do that and only three other European Union member states have succeeded in doing so.
Lord Wallace of Saltaire: My Lords, does the Minister agree that we need a strong and effective Commission and that Vice-President Kinnock's work to reform its working and accounting practices is extremely important? Can he assure the House that the British Government have given the fullest possible support to Vice-President Kinnock in his work?
Lord McIntosh of Haringey: My Lords, I hope that I said so in my Answer. I said that we congratulate the European Union Vice-President on the substantial reform programme that he has put into place. That continues to be our position. Incidentally, we are also supportive of the Budget Commissioner, Michaele Schreyer, because she has been responsible for many of the reforms involved.
Lord Stoddart of Swindon: My Lords, I can assure the Minister that I have not forgotten the subsidisation of tobacco. I cannot help drawing attention to the incongruity of banning tobacco advertising while subsidising awful tobacco in Greece and other countries of the European Union by some hundreds of millions of pounds. Is it not a fact that most of the fraud in the European Union—I almost said "the United States of Europe", but that comes later—is due to the operation of the common agricultural policy? Is it not time that our Government and other governments took real action to end this awful, corrupt regime?
Lord McIntosh of Haringey: My Lords, the noble Lord, Lord Stoddart, continues to fail to distinguish between those actions which are the responsibility of the European Commission and those which are the responsibility of member states. A very high proportion of the irregularities—which exist; the noble Lord is quite right about that—is the responsibility of member states and it is the responsibility of member states to eradicate them. The noble Lord's flight of fancy about the United States of Europe makes it very difficult to give serious answers to what ought to be serious questions.
Baroness Oppenheim-Barnes: My Lords, while on the subject of bolting the stable door after the horses have long escaped, does the noble Lord have any estimation of exactly how much taxpayers money—certainly of taxpayers in this country—has been lost since the inception of the European Community, and now the EU, in terms of fraud and definable waste?
Lord McIntosh of Haringey: My Lords, I was not on the subject of shutting the stable door after the horses have escaped. The noble Baroness, Lady Oppenheim-Barnes, is entitled to her own agenda. I do not carry with me figures going back 40 years. All of the reports of the European Court of Auditors are publicly available. There has never been any concealment of the criticisms, both internally and externally, of the European Union's financial systems.
Lord Renton of Mount Harry: My Lords, on the important point made by the noble Lord, Lord Stoddart, has the Minister made any calculations of how many British farmers would go bankrupt if the CAP were abolished and all CAP subsidies removed?
Lord McIntosh of Haringey: My Lords, this is a large, important and worthwhile subject, but it is not the subject of the Question on the Order Paper.

Iraq: Post-War Reconstruction
3 p.m.
Lord Smith of Clifton Lord Smith of Clifton asked Her Majesty's Government:
What steps they are taking to ensure British firms get a fair share of the contracts for the post-war reconstruction of Iraq.
Baroness Symons of Vernham Dean: My Lords, we are discussing a range of issues with the United States authorities, including the post-Saddam administration and reconstruction of Iraq, which should be endorsed by a UN Security Council resolution. United Kingdom companies have a great deal of experience in the Middle East, and we wish to see them play a substantial role in the redevelopment of Iraq's essential infrastructure. We will continue to discuss with British business how they can best contribute to the development of Iraq for the benefit of the Iraqi people.
Lord Smith of Clifton: My Lords, I am grateful to the Minister for that Answer. May I take from that Answer that the Government support the view of General Colin Powell that the post-war reconstruction of Iraq should be under United Nations auspices, including the letting of commercial contracts?
Secondly, does the Minister regard it as unseemly, if not downright obscene, to observe privateers, literally "red in tooth and claw", scrabbling to make a quick buck out of the current carnage and conflagration? Will she assure your Lordships that Her Majesty's Government will discourage any such appalling behaviour on the part of British firms?
Baroness Symons of Vernham Dean: My Lords, let me say plainly and without equivocation that this conflict is emphatically not about business opportunities. Our aim remains the disarmament of Iraq and the liberation of the Iraqi people. But United Kingdom companies, perhaps as well as other companies, have a great deal of knowledge and expertise to offer regarding redevelopment issues. We would like to see them play a substantial role in the humanitarian effort and the redevelopment of Iraq's essential infrastructure and, where appropriate, we will support them in so doing.
I agree with the noble Lord, Lord Smith of Clifton, about post-war construction being part and parcel of a United Nations effort. I hope I made that clear in my initial Answer by saying that we very much hope that these efforts will be endorsed by a UN Security Council resolution.
Lord Howell of Guildford: My Lords, does the Minister agree that Iraqi construction companies appear to have considerable skills, as all those enormous statues of Saddam Hussein indicate? More seriously, they have built extensive infrastructure in Iraq over the years. Does she also agree that the real kind of infrastructure that needs reconstructing is the detailed sort—in the courts, medical services, local government, and in a thousand and one areas of everyday life? That is where we must bring to bear all possible help to enable Iraq to recover from the dark night that it has been going through.
Baroness Symons of Vernham Dean: My Lords, the skills needed by the Iraqi people are those that will bring them water, roads and the essential infrastructure to make their economy work again. The
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noble Lord is quite right that in addition there will be issues concerned with schooling and the reconstruction of civil society. We must not forget how much Iraq has slipped down the league of economically viable countries during the past 12 years and how the way in which it has been governed has acted to the detriment of its people. Of course I agree that there must be all sorts of ways in which the reconstruction is approached, through the civic as well as the physical infrastructure.
Earl Ferrers: My Lords, following on from my noble friend's Question, I understand that it is desirable that companies in Britain should be able to play a part in the reconstruction of Iraq. But is it not also desirable that Iraqi companies should play a part in the reconstruction of their own country and not just see all the contracts go to countries outside?
Baroness Symons of Vernham Dean: My Lords, emphatically so. I hope that this will be approached not just by United States, British or other overseas companies but by companies operating in partnership with Iraqi companies in trying to build a better future for the people of Iraq. In doing so, it will be essential for the people of Iraq, with the skills to do so, to be heavily involved in that endeavour.
Lord Campbell-Savours: My Lords, is not the issue not who owns the company but that the company employs local labour?
Baroness Symons of Vernham Dean: My Lords, that may indeed be very important. These are early days, and we have already had some discussions with the United States of America about these issues. They have set up the Office of Reconstruction and Humanitarian Aid to deal with this. Of course it is right that, in seeking to establish public services and civilian infrastructure, the local labour force is used and the skills to which other noble Lords have referred are utilised.
Lord Roberts of Conwy: My Lords, is there not a great danger that we are running ahead of ourselves, because Saddam has not yet been defeated and nor has an interim government been set up to succeed him?
Baroness Symons of Vernham Dean: My Lords, it is for that reason that I believe we have been very sensitive to this important issue. Your Lordships have on previous occasions raised not only humanitarian issues but those concerning the reconstruction of Iraq. My noble friend Lady Crawley answered questions on humanitarian issues but there is a point at which there is an interface between when an activity is humanitarian and when it becomes about reconstruction. So where humanitarian issues end and reconstruction issues begin is not an entirely clear-cut science. I cite the importance of building roads to get aid to the people who need such roads; however, those roads might be to do with the reconstruction of the future of the country.

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I do not believe we are running ahead of ourselves. We are trying to do this sensitively, but it is sensible to have proper contingency planning. When your Lordships ask questions about the future of Iraq, as you rightly do, we should not say that we cannot answer them because it is in the future. We should be able to say that contingency plans are in place.
Lord Hardy of Wath: My Lords, although Saddam Hussein is still there, is it not reasonable to suggest that EU member states or any other state which took a particularly careless view of UN sanctions over the past two or three years should not expect the lion's shares of the orders that may accrue once Iraq is satisfactorily liberated?
Baroness Symons of Vernham Dean: My Lords, I think that the international community will approach this in a spirit of co-operation. It is enormously important that we get a United Nations Security Council resolution on this. That is being discussed not only in New York but also in capitals. However, as the British Minister for Trade, I am bound to say that I look to UK companies to play their part in this important work.

Secondary Schools: Performance Tables
3.7 p.m.
Baroness Sharp of Guildford Baroness Sharp of Guildford asked Her Majesty's Government:
Whether, in the light of the reported views of the former Chief Inspector of Schools on the need for schools to co-operate in future over GCSE and sixth-form studies, secondary school league tables will become irrelevant.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland): My Lords, we believe it important for accountability to continue publishing data which reflect the performance of individual schools. We recognise that, as our 14 to 19 reforms are realised, a means must he found for ensuring performance measures properly reflect increased collaborative working. We are working on this now. But schools must remain accountable for the services they provide to their students, whether directly or in collaboration with other institutions.
Baroness Sharp of Guildford: My Lords, I thank the Minister for that reply. Does she realise that teachers and inspectors are becoming increasingly unhappy with the degree to which the education system, like the health system, is driven by targets and performance indicators? First, Her Majesty's Chief Inspector of Schools, Mr David Bell, has been attacking targets as distorting the primary curriculum. Now we have his predecessor, Mr Mike Tomlinson, arguing that performance indicators are unnecessary because
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schools ought to be co-operating. When will the Government learn the lessons of the Soviet system that performance indicators and targets serve no other purpose than to alienate the workforce and distort and frustrate the objectives they are seeking to obtain?
Baroness Ashton of Upholland: Well, my Lords, once again the noble Baroness equates what we are trying to do in schools with the Soviet system, which I find rather alarming from a Liberal Democrat policy perspective. I should like to quote Mr Bell from the Times on Monday, when he said:
"There is an entirely legitimate debate"—
which we accept—
"about how secondary tables properly reflect performance. But it would be extremely bad news for parents if less information were to be made public".
Referring specifically to the Question, it is very important that, as we develop the ability to be more creative and to reflect the performance of schools, we do so. However, it would be entirely wrong to see this as a mechanism to say that we should rid ourselves of such very important information for the standards-raising agenda.
Baroness Blatch: My Lords, I do not agree that it is Stalinist. I think it is more Maoist than Stalinist. The noble Baroness appears to be confused about government-led targets and government performance indicators and outcomes from schools. It is essential that we know how young children are progressing. It is certainly important to their parents and to the local community. It is also important to the way in which the country as a whole is progressing. However, government meddling and government performance targets on almost everything that professionals do in the health service and in education are stifling professionalism and progress.
Baroness Ashton of Upholland: My Lords. I am not sure whether being called Maoist was a compliment in the context of having been called Stalinist, but I accept that it was probably not. I am not at all confused about targets and tables. The Question referred to tables, which is where I began. If the Government are serious about what we are trying to do for our children—and for our health service—it is important that we are clear about how we measure our own success. It is right and proper to have targets aimed at ensuring that as many as possible of our 11 year-olds are able to access the secondary school curriculum. It is also right and proper to say that we want as many of our young people as possible to get good GCSEs at grades A to C. I shall be proud to be measured on that, because it is terribly important.
It is also important that we celebrate what our schools are able to achieve with our young people and support those schools that need additional help. One way in which parents in particular get their information is through those tables.

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I accept that, as we develop the collaborative working that we want, especially around the 14 to 19 agenda, we must work out cleverer and better ways of ensuring that the tables reflect what is happening in schools. In his lecture, Mike Tomlinson was musing over the issues that need to be raised rather than making a point about what he believes should change.
Baroness Perry of Southwark: My Lords, does the Minister accept that the imposition of targets from outside a school often distorts what a school is trying to do to respond to the needs of its pupils? More than anything else, schools desperately need a period of continuity and calm to pursue the national curriculum and their own internally set examination targets without further interference from the Government.
Baroness Ashton of Upholland: My Lords, what the noble Baroness refers to as interference I see very much as part of the supportive mechanism that we have put in place to work with our schools. It is terribly important that we have high aspirations for every school. Noble Lords will know from their own familiarity with schools and from the work that has been done, not only by this Government, that we have achieved a step change in the ability of schools to deliver for their pupils a good, rounded curriculum that enables those young people to succeed. We should all be proud of that.
Part of looking across at the successes must be to define what we can do further. The work on key stage 3 for 11 to 14 year-olds and on the 14 to 19 strategy is all about what more we can do to support young people to be able to deliver. All these reforms are based on the best practice that we see in our schools and are generally welcomed and applauded by them.
Lord Forsyth of Drumlean: My Lords, I welcome the conversion of the Minister and the Government to league tables. Does she share my concern about the amount of time that youngsters, particularly those doing AS-levels, are spending working for examinations? Children are now being over-examined. That is distorting the curriculum in the sense that teachers have to spend all their time teaching children to pass examinations. Could we not have a little more balance in the system?
Baroness Ashton of Upholland: My Lords, in a sense that is a further reflection beyond where the Question takes us. I accept that, as part of the 14 to 19 strategy, it is very important to consider the collaborative models that involve schools and further education and how exactly we ensure that we have the necessary breadth of curriculum, which is why we brought in AS-levels. Noble Lords will know that Mike Tomlinson and the 14 to 19 working group are beginning to examine how we get that breadth, how we ensure that young people are examined correctly and properly—that is important, not least to your Lordships—and how we make sure that, in doing so, we give them the rounded education that they desperately need.

Business
3.14 p.m.
Lord Grocott: My Lords, with permission, I shall make a brief statement about business next Thursday, 10th April, which is the last day before the Easter Recess. The usual channels have agreed that the House should sit at 11 o'clock on that day, with Starred Questions as first business and with no break at lunch time. As your Lordships will be aware, this has frequently been the pattern that we adopt on the last day before a Recess. It has been indicated in Forthcoming Business since last Thursday.

Business of the House: Debate this Day
Lord Williams of Mostyn: My Lords, I beg to move the first Motion standing in my name on the Order Paper.
Moved, That the debate on the Motion in the name of the Lord Blackwell set down for today shall be limited to five hours.—(Lord Williams of Mostyn.)
On Question, Motion agreed to.

Police (Northern Ireland) Bill [H.L.]
Lord Williams of Mostyn: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That the Commons amendments be considered in the following order:

13 to 15,

52,

4 to 12,

16 to 21,

25 to 44,

22 to 24,

45 to 47,

53,

1 to 3,

48 to 51,

54 to 57.—(Lord Williams of Mostyn.)

Lord Renton: My Lords, I have been assured that there are good reasons for the rather strange sequence that the Motion proposes, but I hope that it will not be regarded as a precedent.
Lord Tordoff: My Lords, I join the noble Lord, Lord Renton, in that feeling. I was inclined to ask why. I am sure that there may be good reasons. Will people please bear in mind the life of the poor Chairman on the Woolsack when dealing with Commons amendments, quite apart from other Members of the House? There is a terrible danger that we will get ourselves into a confused state if we deal with Commons amendments in this way, based on a random method of determining numbers.
Lord Williams of Mostyn: My Lords, it will not be regarded as a precedent. We obviously approach these things on a case-by-case basis. I am always deeply sympathetic to the plight of the Chairman of Committees and the Deputy Chairmen, but they need not worry. This is not random; it is intellectually considered.
Lord Tordoff: My Lords, will the noble and learned Lord give us the intellectual basis for it?
Lord Williams of Mostyn: My Lords, there are some deeply controversial amendments that need to be given full consideration. We attempted to put those on early in the business so that your Lordships could have a full opportunity to reflect, consider and vote on them if it came to that.
On Question, Motion agreed to.

Convention on the Future of Europe
3.17 p.m.
Lord Blackwell Lord Blackwell rose to call attention to the proceedings of the Convention on the Future of Europe and the case for a referendum on any consequent constitutional treaty; and to move for Papers.
The noble Lord said: My Lords, I thank the House for finding time for the debate. I thank the Minister in advance for being here to respond.
The European convention was set up under the Laeken declaration following Nice, with the objective to consider the options for the future development of Europe in the wake of enlargement. From the start, its scope was ambitious. The Laeken text described Europe as being at a crossroads, a defining moment in its existence. It declared:
"The unification of Europe is near".
Others involved in the convention have compared it to the Philadelphia convention two centuries ago, which set out the constitution for the United States of America.
Today I would like to raise two questions. First, do the proposals now emerging amount to a major constitutional shift in the nature of the European Union and its relationship with nation states, or are they simply a minor but helpful codifying of the existing rules and conventions that may even help to contain the power of Europe by defining its limits? Secondly, if the implications have far-reaching constitutional implications, should they be adopted by the UK without the consent of the people in a referendum?
Before I develop my response to these questions, let me address the issue that I know some will raise on timing. The proposals we have today from the convention are still draft proposals and could be significantly changed before the convention reports, or
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subsequently in the negotiation between heads of government. Indeed, the Government can claim that a large number of possible amendments have been tabled, including some from the Government themselves. My response is that these are the proposals we have on the table today, and unless we debate and assess them now, we will miss our opportunity to influence any possible changes. By the time we are certain, we shall be presented with a fait accompli and told that a draft treaty cannot be reopened. The proposals have already emerged from working groups, where they gained the consent of the majority of nations. Therefore, it is unlikely that the drafting changes will alter the main thrust of what is intended. The Prime Minister, far from rejecting the intent of the proposals, committed the UK Government, in a speech made last November, to accepting many of the key propositions.
The proposals as drafted clearly set out a constitution for a new European entity, which for the first time would have its own international legal personality, rather than simply being a set of intergovernmental treaties. In other words, it creates the concept of European rather than national sovereignty. Under the constitution, the sovereign powers of the European Union would be vested in European institutions, which are given clear legal supremacy over the laws and sovereignty of the member states. We would all, for the first time, become legally bound as direct citizens of that legal entity. We would be legal citizens not only as an honorary title, in the manner of Maastricht, but with rights and obligations direct to the European institutions rather than through our national institutions. The European institutions would claim and exercise a direct democratic mandate from its citizens through both the existing European Parliament and a proposed new congress of the peoples of Europe.
That is not just some minor tidying up of the rules, nor is it a way of limiting the power of Europe. It crosses a major divide in creating a new legal entity, which is no longer in the power of the nation states but, as I shall explain, would have the power and means to extend its scope indefinitely. That is clearly what our Prime Minister understands and intends. In his Cardiff speech, he explained his support for the transfer of sovereignty to Europe as follows:
"We must end the nonsense of this far and no further".
He went on to say:
"The basic ideology should be described in this way. Europe is the voluntary coming together of sovereign nations. Their will is to combine together in the institutions of Europe in order to further their common interests. Insofar as it is necessary to achieve these interests, they therefore pool their sovereignty in Europe. There is no arbitrary or fixed limit as to what they do collectively; but whether they do it depends on their decision as a group of nations. So whilst the origin of European power is the will of the sovereign nations, European power nonetheless exists and has its own authority and capability to act".
I take that as a fairly clear statement of intent to create a sovereign European power that has no fixed limits to its powers.
Let me now turn to some of the specific draft clauses that are intended to give effect to these intentions. The central authority comes from Article 9, Clause 1, which states:
"The Constitution, and law adopted by the Union Institutions in exercising competences conferred on it by the Constitution shall have primacy over the law of the Member States".
To ensure there is no possible ambiguity, Clause 4 of the same article states:
"Member States shall take all appropriate measures, general or particular, to ensure fulfilment of the obligations flowing from the constitution or resulting from actions taken by the Union Institutions".
The following clause adds a principle of loyal co-operation to bind the member states, noting:
"Member States shall refrain from any measure which could jeopardise the attainment of the objectives set out in the Constitution".
Noble Lords will know that the objectives set out in the constitution are very broad indeed.
So what are the areas of competence conferred on the European Union by the constitution, in which it would have legal supremacy? How much comfort can we take from the words also included in the draft, which propose support for the principle of subsidiarity—in other words, that the Union should do only those things that member states agree it can do better than they can?
The draft constitution defines a number of different classes of competence. The first are those where the Union has exclusive competence. These are for the most part a direct translation of the existing treaty powers for EU action over trade negotiations, CAP and fisheries, and euro area monetary policy. More significant are the areas where the constitution gives the EU so-called shared competences under Article 12. These areas include transport, energy, social policy, economic and social cohesion, environment, public health, consumer protection and, significantly, the area of freedom, justice and security. In other words, this represents the collapse of the current second pillar from an intergovernmental arena to an area of EU competence.
So what does "shared competence" mean? Clause 2 of Article 10 spells it out thus:
"When the Constitution confers on the Union a competence shared with the Member States in a specific area, the Union and Member States shall have the power to legislate and adopt legally binding acts in this area. The Member States shall exercise their competence only if and to the extent that the Union has not exercised its competence".
I emphasise—
"only if and to the extent that the Union has not exercised its competence".
In other words, subsidiarity is turned on its head. Instead of the Union being limited to those things that nation states cannot or choose not to do on their own, the constitution gives European institutions the right to decide where they believe that they should act in support of the Union's broad economic and social objectives. It grants the nation states only residual powers to make their own laws in those areas that the Union decides are not significant. One does not have
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to devote too much study to the workings of the Commission and its bureaucracy to suspect that, in the course of time, the areas that are considered too unimportant for Brussels to legislate will become de minimis.
Furthermore, while the rules for decision making have yet to be drafted, it is unlikely that we would retain widespread powers of veto. The Treaty of Nice already provides for significant extensions of qualified majority voting to cope with enlargement. Working Group IX has addressed these issues and has recommended that QMV should be generalised to all legislative procedures that are subject to co-decision making between the Council and Parliament. In practice, that means all legislation except for a few categories specifically listed for exemption. QMV would become the norm.
Although the list of shared competences covers the vast majority of domestic law making currently undertaken by national parliaments, it does exclude a few areas, notably economic policies, employment, industry, education and sport. Just to make sure these are not excluded from the EU's competence, they are caught by a further category of areas for co-ordinating or supporting action. That term leaves plenty of scope for increasing intervention.
There is, I concede, a proposed new safeguard for subsidiarity in the draft protocol that proposes that national parliaments should have the right to monitor new legislative proposals. When at least one third of national parliaments lodge a reasoned opinion that they believe the principle of subsidiarity has been breached, the Commission is required to review its proposal. However, the proposal goes on to state:
"After such a review the Commission may decide to maintain, amend or withdraw its proposal".
In other words, the Commission is judge and jury on subsidiarity, and national parliaments would be rendered toothless. That is no safeguard.
Of course, I have not yet mentioned foreign and defence policy, on which events of recent weeks have focused particular attention. There can be little doubt that the intention of those drafting this constitution is that a fully-fledged united states of Europe should progressively move towards full control of foreign and defence policy, creating a European power block that could fulfil the ambition of some to create a rival to United States, or perhaps Anglo-American, dominance. Article 10 of the draft European constitution states in Clause 4:
"The Union shall have competence to define and implement a common foreign and security policy, including the progressive framing of a common defence policy".
Article 14 states:
"Member States shall actively and unreservedly support the Union's common foreign and security policy in a spirit of loyalty and mutual solidarity. They shall refrain from action contrary to the Union's interests or likely to undermine its effectiveness".
In other words, if the EU defined a foreign or defence posture with which we disagreed, we would be prohibited from taking independent action or even from stating a contrary case. In the Light of current divisions over Iraq, it is inconceivable that the British

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Government could consent to a legal constitution that contained that clause, but I welcome the Minister's specific assurance on that point.
There are other points on which I could have dwelt, including the proposal in this draft to incorporate the Charter of Fundamental Human Rights in the constitution, which the Government assured us following the Treaty of Nice would not happen, then said that they would oppose, but now seem to have conceded. There are other noble and learned Lords in this House better qualified than me to set out the ramifications that would follow, but my understanding is that it would open up a whole new area for the Union to expand its competence through legal interpretations that could go far beyond the defined areas of legislative competence. I should welcome the Minister setting out exactly what the Government's position is on that point.
Before I leave the draft clauses, I should draw attention to just one more—the innocently named flexibility clause under Article 16. Again I quote:
"If action by the Union should prove necessary within the framework of policies defined in Part Two to attain one of the objectives set by this constitution, and the constitution has not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall take the appropriate measures".
In other words, we would be granting the Union institutions carte blanche to extend their competence into any area they chose, whether or not specified in the initial constitution. While they require the consent of the Council of Ministers, there would be no requirement for further ratification by the UK Parliament.
Taking all the proposals together, I find it difficult to accept the Minister's previous reassurance that this constitution is not a once in a lifetime decision. It would directly concede power and sovereignty over vast new areas of public policy and over the legal and constitutional framework that guards our civil liberties and democratic rights. It would change our status from being a sovereign nation to being a subordinate state within a greater European power. We should be open about the fact that it would, for good or bad, mark the end of Britain as an independent sovereign nation.
I shall, if I may, return briefly to one point. Some will rightly say that what is currently drafted and what I have just quoted may not survive the redrafting or be agreed by the Council of Ministers. As I said, I accept that there will almost certainly be some changes and some compromises. But what is worth focusing on is how much the Prime Minister has already agreed and welcomed in his speech last year in Cardiff to which I referred. In particular, he described the objective of his own proposals as not just rewriting the rules but:
"The strengthening of Europe at every level: Council, Commission, Parliament and Court".
He went on to advocate all of the following steps—I should be grateful if the Minister would confirm that they remain government policy—to achieve that. He
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advocated: the adoption of a "proper constitution" for Europe; more decisions by QMV with fewer national vetoes; home affairs and justice incorporated as part of the competency of the EU; a strengthening of European foreign policy, with a stronger role for an EU high representative to speak for Europe; a stronger Commission with more authority to enforce European rules and laws; a stronger European Court with more ability to enforce European laws through fines on national governments; more power for the European Parliament to vote on EU legislation and budgets, balanced by a greater role for National Parliaments to defend subsidiarity; and a stronger president chairing a strengthened Council of Ministers for a fixed term.
Those are not just proposals in the draft but proposals that the Prime Minister was advocating. As we have seen, all but the last of them are part and parcel of the draft and, we must assume, will form part of a core part of the agreement that emerges. I would suggest that, on their own—whatever else may be included and whatever other concessions the Government may claim—those proposals firmly deliver the Prime Minister's objective of a transfer of sovereignty to Europe and fully justify the label of major constitutional change.
Some in this House may welcome the proposals as building a true European state. Others may sympathise with the intent, but feel uneasy about the extent and nature of what is proposed. And others may reject them entirely as moving us further from the vision of a European alliance of free nations and taking an unacceptable step across the legal boundary that subjugates our sovereignty to a pan-European government.
What I do not accept is the argument that, like it or not, we have to go along with the best compromise that we can reach. The Government, and the people, have the opportunity—perhaps the last opportunity—simply to say no, to use our national veto. The initial consequence of that would be simply to preserve the status quo. In due course, however, it would almost certainly open up a healthy discussion about alternative futures for Europe—no doubt including what has previously been called "variable geometry" in which we might allow some countries to proceed on a course to closer integration in return for some looser arrangement which better served our interests, and in which I believe a number of other current and accession countries might want to join.
Whatever the outcome, and whatever view one takes about the best outcome, it is hard to believe that these are not fundamental proposals for our constitution. For that reason, whatever concessions the Government may achieve on defence or the Charter of Fundamental Human Rights, I hope that many across the House will agree that the consequences of any treaty that reflects the intent of those proposals is likely to be so far reaching that no government should commit the country without a public debate and a referendum.
Of course I accept that the Government may wish to wait until they have completed the negotiations before making such a commitment. But I believe that this

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House would be within its rights to amend any ratification Bill to require a referendum if the constitutional issues that I have raised this afternoon are not addressed. I give notice to the Government that I would intend to table such an amendment in those circumstances.
Lord Barnett: My Lords, before the noble Lord sits down, he overlooked telling us how many amendments have been proposed to the draft constitution.
Lord Blackwell: My Lords, I am sure that the Minister will be able to respond to that in due course. However, I believe that more than 1,000 amendments have been proposed. As I believe that many of them would work in opposite directions, I leave it to the noble Lord to imagine how many will be incorporated. My Lords, I beg to move for Papers.
3.35 p.m.
Lord Grenfell: My Lords, I thank the noble Lord, Lord Blackwell, for initiating this debate. He has chosen a very significant subject and it is a good moment to discuss it. I shall be brief because I speak in my capacity as the chairman of the European Union Select Committee. I shall accordingly confine myself in this debate to outlining some of the work that the Select Committee has undertaken on the convention which I hope will be of assistance to your Lordships' House. As chairman of the committee I obviously cannot engage in the more political aspects of this afternoon's debate—although the noble Lord's Motion in other circumstances would have tempted me to do so. Although that self-denying ordinance is almost physically painful, I shall stick to my role as chairman of the committee.
I start by recording my thanks to the members of our Select Committee, its sub-committees and our staff for the extraordinary effort that has been put into keeping the convention issues under review on behalf of your Lordships' House. I also take this opportunity to thank very warmly our two representatives on the convention, the noble Lords, Lord Tomlinson and Lord Maclennan of Rogart—who I am pleased to see in his place on the Front Bench. They have done an enormous amount of hard work on behalf of this House in the convention. I thank them also for the time that they have taken to report back to this House; it has been extremely important and valuable. They have reported to our Select Committee and to the joint committee of the two Houses, and they have also done so less formally. We had an excellent meeting last Monday in the Moses Room, open to all Peers, where our two representatives came and enlightened us on what was going on in the convention. Without that I think that our continuing review of the convention issues would have been far less well informed.
I take the opportunity also, if I may, to thank the noble Baroness, Lady Scotland of Asthal, for her very able work in alternating for the Government's Minister on the convention, Peter Hain, who has also been working assiduously at the convention. I know
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that she has contributed with her usual high level of forensic skill in the convention as she does in other forums.
As I said, I intend only to summarise for your Lordships some of the work that your Select Committee has been undertaking. We published a short report back in July which was debated in your Lordships' Chamber in January. Our recommendations then included noting that this Parliament should have a full opportunity for debate on the convention's work after it was concluded but before the IGC in 2004—that is to say, during the period of reflection. In light of the continuing speculation over the timing of the completion of the convention's work, to which the noble Lord, Lord Blackwell, referred, I hope that the Minister will confirm that that proposal will not be lost from view.
Our work since then has continued. There has been a recent spurt of activity as we published reports on the emerging draft treaty articles and on the reports of the working groups. I commend the commentaries on the treaty articles. In each case we have set out what the Praesidium has proposed and how it relates to the existing treaty. We then offer our own commentary, in some cases noting that what is proposed, however apparently controversial, is in fact already in the treaties—a fact that has often been overlooked—and in other cases we suggest changes to proposed articles or even their outright rejection. I give two illustrative examples: we suggest changes to the proposed extension of co-decision in place of the present legislative procedure; and we suggest deletion of the proposal for the creation of a European public prosecutor.
For the work on the draft treaty articles we are greatly indebted to the House's second counsel, Dr Chris Kerse, who is legal adviser to the Select Committee. He has performed a formidable task with both skill and speed.
We have also produced a short report on the protocols on national parliaments and subsidiarity. In it we have suggested strengthening the scrutiny role of national parliaments to bring it more into line with the proposals from the working groups than those in the Praesidium's own text. In addition to supporting the proposed "yellow card" on subsidiarity—by which a number of national parliaments could together force the Commission to reconsider a proposed piece of legislation on subsidiarity grounds—we have also supported the "red card" proposal put forward by Praesidium member Gisela Stuart of another place. We tackled head on the arguments that that would delay the legislative process or weaken the Commission's right of initiative. We concluded as follows:
"The successful marshalling of the necessary majority to activate the 'red card' will, in our view, be a very rare event. The fact that so many national parliaments were concerned about a proposal might well reveal a serious concern that would need addressing. Any effective early warning system would of course require an effective mechanism to allow national parliaments to exchange information".

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We also agree with the working group that it is important that national parliaments should have the possibility of challenging a measure in the Court of Justice on subsidiarity grounds. The proposed protocol accordingly needs strengthening, as Gisela Stuart proposed, to give national parliaments the right to bring proceedings for violation of the principles of subsidiarity and proportionality.
In a separate Select Committee report entitled Review of Scrutiny of European Legislation which will be debated in the near future, we have also proposed that the powers of the European Parliament over comitology matters should be strengthened. I should be grateful for the Government's latest view on how that idea is running in the convention.
More generally, we have supported greater openness in the Council—that is an extraordinarily important issue—when legislating, and better provision of information to national parliaments (including by electronic means in the interest of speed and efficiency), although managing that information may well require the House to provide greater resources, and I hope that it will.
We have also continued to press the Government on the thorny question of the so-called "provisional agreements". This, however, is more properly a matter for our separate debate on the scrutiny review, so we shall return to it in due course.
More Select Committee reports on the convention were agreed in our committee last week: on a social Europe; on defence and external action; and on freedom, security and justice. There is more to come over the coming months as the convention's work unfolds.
It should therefore be clear that there is a great wealth of information now available to the House on convention issues. I therefore earnestly hope that the House can always debate these issues in an informed way. It would ill behove your Lordships' House, endowed as it is with Members of great expertise and justly proud of its role as an effective scrutinising Chamber, to discuss such significant issues with inadequate recourse to the facts. I believe that we need to set an example for public debate on matters which so profoundly affect our nation and our people. If we cannot, or will not, hold a truly informed debate here, how can we expect the country to do so?
I therefore hope that the House, and those outside it who share our concerns and our interest in these matters, will enjoy the fruits of our labours, both in this and in other debates and in the work of our committees, all of which, I emphasise, are freely available on our Parliament's website. I look forward eagerly to the rest of the debate.
3.44 p.m.
Lord Howell of Guildford: My Lords, I rise early in what will be a very interesting debate not just to congratulate my noble friend Lord Blackwell both on initiating the debate and on his excellent speech with which I very largely concur but also to congratulate the
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noble Lord, Lord Grenfell, on the superb work which the European Union Committee does in keeping us abreast of the unfolding stream of proposals from the convention praesidium on the European constitution and other matters.
I wish particularly to emphasise the extreme importance that we on this side of the House attach to this whole issue, which we believe to be one of national and constitutional significance. Frankly, I believe that issues of this kind at this level of constitutional importance should be debated in government time. I hope that they always will be in the future. As it is such a large issue we shall return to it again and again and there will be a lot more to discuss, and probably very soon too, but time is not with us. I hope that it will be useful if I try to set out the views of some of us on this side of the House about the whole matter.
First, we are told—my noble friend Lord Blackwell touched on this—that this is just another treaty in line with the various treaties amending the original Treaty of Rome, and therefore that it should be dealt with in the way that other treaties have been dealt with by normal procedures and decided by Royal prerogative and so on. That is not correct. The proposed constitutional treaty, however it is amended, will be a blockbuster. It will replace all previous European Union and EC treaties from the Treaty of Rome onwards. So, it is not just another treaty amending existing EU legislation. It will be much the most important and far-reaching piece of EU legislation ever to come before us, giving the EU institutions a new source of legitimacy—this goes beyond the Treaty of Rome—above the nation states.
My noble friend Lord Blackwell mentioned turning things upside down. The proposed constitutional treaty turns upside down the whole assumption that the democracy and legitimacy of the European Union institutions come from below and are ceded to them and gives a new legitimacy imposed from above. The draft constitution is a vastly comprehensive document—although we have not seen all of it yet—including a massive new charter of social rights—which we were told would not be grafted on to it, but will be—and just about everything else except God and space. Perhaps space has got into it now but I think that, so far, God has not.
The Government say not only that it is just another treaty but also that we need not worry ourselves because it is all yet to be decided. That is not correct either. As my noble friend Lord Blackwell rightly made clear, many of the key issues appear to have been agreed by the Government and are government policy. The Prime Minister called for a proper constitution in his Cardiff speech. The Foreign Secretary says that he wants one and even the noble Baroness, if I may say so, has confirmed that the Government want an EU constitutional treaty provided—I believe she said—that it is a clear text and a reference document for the public—something which I am afraid she will not get if we are to believe the excellent Gisela Stuart who has been trying to get such a thing but has concluded that what is coming will be more complex and more remote.

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In short, let us hear no more of the point about the future. This area of the EU constitution is already government policy and we should debate it as such. It is fast setting in concrete. We have only a few weeks left on the present timetable before the matter will be put to the intergovernmental council. As the noble Lord, Lord Grenfell, mentioned, it could be postponed. It would be interesting to be told before the end of the debate whether there will be a postponement and what that will do, if the matter is postponed until the autumn or even until next year, to the whole enlargement timetable and to the interests of all the applicant states who are watching this matter very closely.
There is another argument; namely, that we are wrong to be concerned because the measure will clarify the roles of the nation states and entrench them and that, anyway, foreign and security policy, as very important national areas, will not be encroached upon by the Community structure. But the convention and the draft as they stand do just that. As David Heathcoat-Amory MP, who is on the convention, has pointed out again and again, they raise important new doubts about the national role in a range of shared competences, as mentioned by the noble Lord, Lord Blackwell, including security policy, transport, social policy, energy and many others. Far from decentralising power, clarifying the role of nation states and bringing Europe nearer to the citizen—all reasons that we were told as to why the convention had to go forward with the constitution—it appears that the draft at any rate is bringing massive new powers to the centre.
For instance, we were told in Article 13 that the Union shall co-ordinate economic policies. That goes far further than the previous commitment by the Union to taxation, budgets and so on. We are told that subsidiarity will save us. The noble Lord, Lord Grenfell, touched on that issue with great expertise. In fact, what has come up so far is not what Gisela Stuart and other Members of Parliament argued for with heroic vigour, which was the power of our national parliaments to reject the competences and demands of the Union when it is felt that they intrude on the national scene. Instead, there is simply a procedure for delaying the process and putting the whole matter back to the Commission for review, which when held can simply allow it to go on as before.
Then there are new categories that noble Lords will have to get their minds around in due course if they have not already, such as the proposed -non-legislative" Acts. What are they? How does one have a non-legislative Act? According to the draft constitution, those are apparently to be issued by the Council or the Commission in the exercise of their executive powers. There is not much decentralisation with that.
As has been mentioned, at the centre there is to be a single pillar for everything. Justice and home affairs—freedom, security and justice. as it is now called—foreign policy and defence policy will all be under a single pillar. All will presumably—we need clarification on the subject—be under the jurisdiction
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of the European Court of Justice. It is goodbye to a separate intergovernmental pillar. That is proposed to go, and has apparently been agreed to go. If there is any doubt about the centralising effects on the foreign policy side, we have the agreement and support of the Prime Minister for foreign policy unification, carried forward under a new euro-Minister of foreign affairs who would report to and be involved with both the Council and the Commission. That would bring the Commission into the heart of foreign affairs business.
There are many other aspects of centralisation including the commitment—again, this has been agreed all round; it is policy—for a single legal personality for the European Union. As the noble Lord, Lord Blackwell, said, that makes the European Union "sovereign" and gives it a place or the right to a place in all international organisations, presumably including the United Nations. Before anyone says that that is a fantastic proposition, I shall quote in aid the leader of the Liberal Democrats in the European Parliament, Mr Watson, who tells us that Europe needs only one seat at the UN, so that,
"Europe's world view would prevail",
whatever that is.
There is to be a European Union justice and interior Ministry and a European Union attorney-general. The noble and learned Lord, Lord Goldsmith, had better look out for his job. Finally, although it is quite true—the noble Baroness reminded me of it the other day—that the superiority of Community laws is of course already established by treaty and court rulings, it will now be imposed from above by the new European Union constitution. That is a new and quite different proposition.
We on these Benches therefore believe that if the constitution idea in anything like its present form is backed by the Council of Ministers next June—it may be later; we do not know—the Government should indicate now that if necessary they would be prepared to use their veto. If they none the less let it all slip through, a referendum in the United Kingdom on the proposed constitution is absolutely essential. Indeed, a referendum will be available to several other members of the Community, so it should be available in this country as well.
As we know, the constitution is a core part of a predominantly French-influenced plan to make the European Union a counterweight to the United States of America. As we have seen in recent days, it is plainly inspired by feelings of rivalry and, I am afraid, anti Iraq war thinking on a very intense level. If it were in place today, the UK's position on Iraq could well be declared illegal under European law. It will certainly make the whole question of repairing the trans-Atlantic alliance infinitely harder. There will be no American alliance with a France-dominated old Europe of this kind. New bridges will have to be built. I believe that the Prime Minister himself recognises that.
Jack Straw implied this morning that we must forgive and forget the French and German antagonism of recent days. About the forgiving, I totally agree. Of course we should forgive. They are

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great nations and we should understand their fears. However, we should be much more cautious on forgetting. What we have here is a reassertion of centralised old-European thinking. In taking up the stance that they have, I believe that France and Germany, great nations as they are, have made a huge geo-political mistake which will damage not only them but us all. Indeed, it is already doing so.
The concept of a fixed, written constitution is anyway a fossilised and fossilising idea. It is trying to give fixity to what is fluid and ever-changing, more so than ever in the network age in which we now live, in the relationships between nations. As the great constitutionalist Sidney Low long ago pointed out, the essence of the British constitution has always been that it is in a constant state of development, which would be frozen by the kind of proposals now being aired at the convention. We should fight against this power-seeking, rigid, European construct and, in case we are accused of being negative, fight for a democratic Europe of nation states—nation states on which the entire international order, when it is restored more properly than at present, ultimately rests and always will.
We want a place at the table in Europe, but it must become a table where, instead of constantly trailing behind other big countries' conceptions and agendas and too often losing out, we make the running at last with our ideas and initiatives for the Union's further evolution, in very close concert with all the smaller and newer states— which incidentally have rightly refused to keep silent during the debate. That is the essence of the new Europe. Perhaps at last the time has come to make a reality of that far better vision.
3.58 p.m.
Lord Maclennan of Rogart: My Lords, I join the noble Lord, Lord Howell of Guildford, in expressing warm appreciation to the noble Lord, Lord Blackwell, for initiating such an important debate at an extremely appropriate time. I also thank the noble Lord, Lord Grenfell, and the European Union Committee. I do so not only on my own behalf and that of my colleague in the convention, the noble Lord, Lord Tomlinson, but on behalf of the wider House and the wider Community.
In particular, I single out the work of the Select Committee's Sub-Committee E for the extraordinarily helpful analysis of the draft articles of the convention which is being brought forward with a speed that shows great dedication. It is widely appreciated inside the convention, before which the noble Lord, Lord Tomlinson, and I have placed the documents as they have appeared. The work of the Select Committee obviates the necessity for me to make a speech in explication of the draft articles of the proposed constitutional treaty. That has been done with an authority and sense that will commend itself to all Members, whatever their point of view.
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It is worth recalling at this stage the mood of the 15 member governments when the Convention on the Future of Europe was set up. In the Laeken declaration of December 2001, they said:
"The Union stands at a crossroads, a defining moment in its existence. The unification of Europe is near. The Union is about to expand to bring in more than ten new member states…thereby finally closing one of the darkest chapters in European history".
It may be difficult to keep a sense of that perspective as we survey the present disarray of the European Union in the face of the Iraq war. It is, however, the duty of those engaged in the work of the convention not to be blown off course by those events. I do not believe that we shall be.
The chairman of the convention has sensibly postponed until May the publication and discussion of the draft articles on the CFSP and defence. By then, the problems will not have gone away, but cooler calculation may be more possible than it is today. Yesterday, under the ESDP, the Union took over responsibility for the policing of Macedonia. Preparations for Bosnia next year are now in train. The work to which we have set our hand must go on.
Not much more than two months is left of the time allotted to the convention to complete its work. The chairman has expressed concern about slippage and time. In my judgment, it would be unwise for the convention to go beyond the summer break. The issues to be decided have been well opened up. Conclusions would not be assisted by the availability of more time for debate. The convention has acquired its own momentum which should not be dissipated.
Although today we are debating work in progress—and what is yet to be proposed is certainly as important as what is now on the table—the shape of what is to come is, I believe, already clear. What is most striking is how closely the convention has attempted to follow the Laeken lead given by member governments. The mandate set out there had four broad heads: to attempt a better division and definition of competence in the European Union; to simplify the Union's instruments; to strengthen democracy, transparency and efficiency in the European Union; and to consider the basic features which might be adopted as a constitutional text for the Union.
It would be premature to predict how each of those challenges will finally be met. We shall not know until May how the praesidium of the convention will respond to the many amendments—more than 2,000 now—proposed to its initial draft articles. But it is not too soon to point out some striking areas of agreement.
In the division of competences, the fundamental principle of conferral is adopted in draft Article 8.2. I quote:
"The Union shall act within the limits of the competences conferred upon it by the Constitution to attain the objectives the Constitution sets out. Competences not conferred upon the Union by the Constitution remain with the member states".
On the issue of the flexibility clause to which the noble Lord, Lord Blackwell, sensibly drew our attention, I say in passing that there is already a flexibility clause

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in the existing treaty—Article 308—which, in many respects, is more defective than the one before the convention.
Simplification would be assisted by reducing the legal instruments used by the Union from 15 to five, dropping, for example, in the field of justice and home affairs the use of the "convention"—a clumsy and largely ineffective instrument.
We await the praesidium's draft articles for the reform of the Union's institutional architecture. But already there are pointers within the convention as to how the challenges of democracy, transparency and efficiency may be addressed. For example, the European Parliament's right to "call back" delegated legislation is likely to be secured. The requirement that when the Council is acting in a legislative capacity its proceedings should be in public, as called for frequently over the years, is likely to be strengthened. The efficiency of the Union's actions is likely to be enhanced by the more general use of co-decision with qualified majority voting.
The basic shape of the constitutional arrangements is more advanced than might have seemed possible a year ago. The charter of rights will be incorporated with safeguards. The noble Baroness, Lady Scotland, has played a significant part in that. The charter of rights is to be treated as a legal document. With a single legal personality, the Union will be empowered to accede to the European Convention on Human Rights. Citizenship of the Union will be provided for, and the principles of subsidiarity and proportionality will be properly constitutionalised. It is of course a matter of political debate as to whether the proposals go far enough. In my judgment, as they stand, they have much to commend them. The extent of the national parliaments' right to be informed, to be consulted and to warn will be spelled out.
Much of what is being done is not new, as the noble Lord, Lord Grenfell, pointed out. For example, whether or not the word "federal" is employed to describe what has been called "the community method"—or, more accurately, "methods"—the Union's mode of operation will remain as prescribed by the agreement of the member states, in some cases ratified under their national constitutional provisions by a referendum of their citizens.
In the United Kingdom, the use of the referendum in constitutional matters has a relatively short history. In the early 1970s, I was opposed to its use to settle the issue of Britain's membership of the European Communities. That referendum, however, did serve some purpose. It did not prevent opposition parties in the 1980s and 1990s striking attitudes remarkably at odds with their performance in government; nor did it end the bilious insularity of much British newspaper commentary on the European Union's progress. It did, however, allow us some time to put our own commitment to the test and to judge whether or not the Union in its economic purposes should be viewed positively or negatively. Today, few would quarrel with the positive verdict of successive governments.
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Should we repeat the referendum test at the end of the convention process? We are already committed to a referendum—long favoured by the Liberal Democrats—on the euro. It is our general view that significant constitutional change, which is intended to provide a settlement to outlast changes of government, should be the explicit consequence of either a general election mandate or a nation-wide referendum.
It might be possible to provide for a single referendum on the euro and on the proposed constitution for Europe to take place at the same time. Certainly, a positive vote in such a "double-hatted" referendum, to coin a phrase, might be a liberating—even an exhilarating—experience. It could free this country from the carping, backward-looking questioning of our European identity. It might enable British governments in future to get on with the job of working in true partnership to achieve the common purposes of which this rich, old and experienced continent of ours is capable.
There are, however, two unresolved questions, and they cannot be answered today. It is possible that the treaty agreed at the end of this process will come too late in time to be linked in the United Kingdom with the decision on the euro—or perhaps too early.
There is another possibility. The constitutional treaty may turn out not to be a new beginning despite its apparent form and the pulling together of commitments already entered into the four treaties which have preceded it. The subsequent IGC may experience a failure of nerve as much as a failure of judgment and reduce what is proposed to little better than a tidying-up exercise. Were that to be the outcome, it would scarcely require the arbitrament of a popular referendum. It is not too soon to raise the issue—I am grateful to the noble Lord, Lord Blackwell, for that—but it cannot be concluded today.
There is a risk of failure of nerve. If the Union simply wants to ensure that its continuing economic purposes are subserved by its way of reaching decisions, there is some need for change, but not for much. But the disarray over Iraq may change the goals. From very modest beginnings and over a 10-year period the European Union has dared to express a larger political goal for itself. At the July session of the convention it was widely expressed as the wish to exercise in the global community a political influence commensurate with our economic strength. Such a responsible role seemed to many like sense for a community of nations united in their attachment to democracy, human rights and the rule of law. Iraq has spectacularly demonstrated the shortcomings of the traditional diplomatic method as the way of delivering Europe's self-proclaimed goals. Too much of Metternich and not enough of Monnet, as Alain Lamassoure, one of the French MEPs, put it.
Political will is the key. If we do will the end of greater political influence, we should listen to the evidence of Europe's much-respected High Representative, Javier Solana, given to the convention in October. It is not an easy message. He said,
"It means working harder to achieve common EU positions, even when starting points may be divergent, and it means a greater readiness to mobilise national resources in the pursuit of EU aims".

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Ultimately, our effectiveness as a global actor will depend on the willingness of member states to share analysis and set joint priorities. It also depends on their commitment to act together and, above all, to share the burdens fairly. That is what Javier Solana called coherence and solidarity among member states.
Polls of public opinion in Europe, as in this country, have consistently shown that, in principle, Europe's citizens are supportive of such a role for the Union. To conduct such a role effectively and democratically would indeed require significant new European constitutional underpinnings from which Britain and some others may, however, choose to hang back.
But in this area, Europe will not necessarily proceed at the rate of the slowest. The debate in the convention may focus on enhanced co-operation and the use of constructive abstention to advance common decision making. Outside the convention it is reasonable to anticipate that others will not wait for us. The summit call by Belgium for 29th April has been heard. Schengen provides a precedent for a two-speed Europe. Like my colleagues in your Lordships' House who recently visited Washington DC with Sub-Committee C of the European Union Committee, I am not attracted by playing the role of "little Sir Echo" to the Pentagon policymakers. If we would be true transatlantic partners, whose voice is not merely heard but sometimes heeded, we had better not find ourselves left behind by Europe. Therein would lie the true threat to Britain's independence.
Baroness Crawley: My Lords, I thank the noble Lord for giving way. I remind noble Lords that this is a timed debate.
4.14 p.m.
Lord Harris of High Cross: My Lords, I join other speakers in thanking the noble Lord, Lord Blackwell, for initiating this important debate. I also take the opportunity of thanking him for his quite splendid paper, A Defining Moment, published by CPS. His lucid account, clear even to a non-lawyer, helps me to withstand the daily outpouring of legalese from Brussels.
In return for that enlightenment and the enlightenment I hope to gain from other speakers, I should like to widen the discussion by offering some clues to the economic philosophic background to the deep-rooted disagreements that have repeatedly ruffled Anglo-French relations. In so far as I have an interest to declare, it is of strong links through family and friends scattered around Normandy, Paris and Provence. I visit those delightful places at least four or five times a year.
Starting as a liberal free trader, my early hopes for the original Common Market were already severely qualified by the illiberal elements, such as the common agricultural policy, the quotas on Commonwealth trade and, not least, the establishment of a powerful Commission in Brussels dominated from the start by
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French apparatchiks with the technocratic elitist mindset common to "enarques", the lofty graduates of l'Ecole Nationale d' Administration.
On this occasion I do not want to dwell on the long political and military rivalry between our two great countries. Rather, I want to emphasise the distinctive addiction of the French to dirigisme, étatisme, planification and all that kind of thing. The phrase laissez-faire, laissez-passer was known to every schoolboy before the days of comprehensive education. But it is not one much visible in French politics over a very long period going back into the last century and earlier.
More in character with French politics was Louis XIV's principal minister, Jean Baptiste Colbert, whose name became a byword in economic texts for protectionism and subsidy. Colbert's great idea was to favour manufacture at the expense of French agriculture. His successors' even better idea is to favour French agriculture at the expense of other countries' taxpayers and consumers.
Nevertheless, an awkward truth for me to face is that undoubtedly, although the French have not been much good at winning wars since 1066, they are very good indeed at making centralism and planning work in their own land. The classic case of French education is famed for its central direction and control from Paris.
French planning also played an important part in the recovery from the effects of war after 1945. Yet when we in Britain slavishly attempted to imitate planification francais, although we had in charge of our country a fully-fledged Oxford economist named Harold Wilson, even the creation of a brand new department of economic affairs could not conceal the abject failure of the whole operation within the space of one year. The truth seems to me that the close collaboration of government. business and unions which we call "corporatism", reinforced by the "enarque" system of ruling elites, succeeds better in France than in many other countries. The French, indeed, almost exult in concentrating power at the centre and using it purposefully. That has some unpleasant side-effects, such as raising the political stakes in a way that spawns an extensive industry of lobbying. It also tends to harbour a good deal of corruption, which is anyway more characteristic of the closed French political system than of our open British parliamentary democracy.
For proof positive of the fundamentally conflicting economic approaches of our two countries, we need look no further than the repeated, vehement French denunciation of the British and Americans over a long period—long before Iraq—for their "Anglo-Saxon economics", by which they mean the importance that we have attached since at least the 19th century to markets and competition. We might understand—if we cannot share—the proud French view that clings rather desperately to the EU as a rival global power to the dominance of the American language, culture and economy. From our more open station, we cannot be blamed for resisting the full embrace of the United

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States of Europe, which is at last openly proclaimed as the ambition of the Franco-German axis—or at least of its more thrusting leaders.
Unfortunately, Germany also lacks any deep-rooted tradition of liberalism—apart from a brief post-war surge under Ludwig Erhard. A vivid characterisation of the European project was as a marriage between a jealous wife and a guilty husband. More brutally, the partnership that has bestrode Europe for the past decade has been described as a scheme to achieve French ends by the use of German muscle. The Elysée treaty, signed in 1963 by de Gaulle and Adenauer, committed both countries specifically to agree a common position on every European issue in advance of meetings of the Council of Ministers, and so forth. At least until German reunification, the common position meant to have France plainly on top.
It was thus with the support of Germany that M Jacques Delors was appointed President of the Commission and promptly set about exploiting the Single European Act to bulldoze a so-called level playing field in place of competition, mutual recognition and subsidiarity. Such a total transformation was, alas, legitimised by the European Court of Justice, which is plainly a missionary court bound by the unlimited mantra of "ever closer union".
Dominant French influence was also shown by the absurd creation of a duplicate Parliament in Bonn and the rather shady deal over the governorship of the European Central Bank, requiring the successful candidate to give way at half time to the defeated French candidate, M Trichet.
It is not surprising that when France backed a commission on a new European constitution, its head should be a French pro-consul, enarque and former president, Giscard d'Estaing. Nor is it surprising that the commission immediately began to steer towards a more powerful, centralised, supra-national European state. The only question that seems to be left open is which Frenchman is being groomed for ultimate enthronement.
My objections to the European roller-coaster range from the costly bureaucracy of Brussels and its insatiable appetite for regulation, right down to the impertinent interference with such valued British freedoms as duty-free shopping for foreign travellers. I set aside the exaggerated pretensions of the European Parliament, but I still from time to time ponder the divided loyalty of respected Privy Councillors who if going to Brussels are compelled to recommit themselves to a primary allegiance to the European Union. A more personal regret—about which the noble and learned Lord, Lord Howe, will know—is the division sown between long-standing friends on the overwhelming, towering issue of whether the relentless European process must end in the final extinction of our national sovereignty.
It was last Remembrance Sunday, in a Paris bistro, that one of my beautiful Anglo-French grand-daughters, now studying law in Paris, told me sadly: "Grandpa, it is more difficult for the French to feel
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equal pride in their country since 1940 than for the British". I understand and am truly sorry for that, because I wish France well. But for Britain I conclude that the best outcome of the proposed constitution, as a final leap too far, would be to provoke an open, honest, informed debate about our future relations with Europe. Of course we must have a referendum, and I have some confidence in the verdict of the still sovereign British people.
4.26 p.m.
Lord Howe of Aberavon: My Lords, I rise with pleasure to follow for the first time the noble Lord, Lord Harris of High Cross. He rightly stated that on almost every other issue save this, we are hound by ties of friendship and even ideological agreement. I once even had the pleasure of representing him in a notable lawsuit in which we successfully challenged illegal "comprehensivisation" of the school attended by his children. So we have much in common, but nothing at all on this matter.
I join all the previous speakers in thanking the many people who have helped to keep the House so well informed—the noble Lords, Lord Maclennan and Lord Tomlinson, the noble Lord, Lord Grenfell and those who work on his committee, and many others. I agree with my noble friend Lord Howell that this issue should be being debated in Government time, and I hope that we can have an assurance that that will be more forthcoming in future, because the issue remains of huge importance.
Beyond that, I confess to a feeling of being somewhat remote from the up-to-date, comprehensive expertise of many other noble Lords who have spoken. I have been involved neither in the European committees of this House nor in detailed, day-by-day study of the immense volume of helpful documents that confront us. Far from being post-modern on the issues, my knowledge is almost neolithic, because it goes back not merely to the European Communities Act 1972 itself and the Single European Act but to an occasion that my noble friend Lord Howell may remember, when that distinguished journal, Crossbow, which he was then editing for the second issue after my editorship of it, carried one of the first comprehensive pamphlets entitled, "The Rome Treaty and the Law". That paved the way ahead of many others.
What was made clear was that at the heart of our accession to the European Community was the acceptance of the concept of directly enforceable Community law, adjudicated by the European Court of Justice and directly applicable to our citizens in many ways—ways defined by the treaties that followed. In that sense, we are now discussing that same law—in a different context, of course.
My neolithic past compelled me to look back at some of the earlier things that I had said and done about the European Community. I came across a long and tedious lecture that I gave in 1996, entitled, "What next for the European Union: a constitution or a foreign policy?" I then had no hesitation in answering that we needed a foreign policy much more than we

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needed a constitution. If that was true then, to an even larger extent is it true today. I am not suggesting that we should push President Giscard's activities off the agenda, but I think that that insight should determine our approach to these issues.
I should also point out that I am not in principle against referenda full stop, come what may. In company with the cousin of the noble Lord, Lord Hooson, at a meeting of the Welsh Conservative Party in 1962, we put forward the proposal for local referenda on the opening of Welsh pubs on Sunday. That proposal was adopted by the then Home Secretary, Henry Brooke, and 35 years later the process of liberation of the Welsh drinking classes had been completed. So, in the right circumstances, referenda can achieve a good purpose. It would be nice to think that the Prime Minister could before long find the courage of his own convictions and decide to have a referendum on the euro.
Despite the importance of the issue, I find it surprising—to some extent for the reasons advanced by the noble Lord, Lord MacLennan—that my noble friend and others, in particular the noble Lord. Lord Blackwell, whose speech was a lucid presentation of the issues set out in his very clear pamphlet, so far ahead of the outcomes that will finally emerge, are arguing for a referendum on the issues still very much under discussion. The present reality, as many have pointed out, is that the convention is almost waterlogged by the volume of amendments now before us. Despite the intermittent arrival of Foreign Ministers into its deliberations, we are a very, very long way from arriving at or foreseeing the single agreed text that will emerge from the intergovernmental conference.
If one looks back over the history of these matters, a series of ambitious texts has been generated by the European Union—the Genscher/Colombo Act, which turned out to be no Act at all, and the Spinelli Treaty—each of which was an ambitious constitution—and the report of the Dooge committee, which preceded the intergovernmental conference on the Single European Act. All those bore very little relation to what finally emerged.
I have to say, particularly having read the pamphlet by my noble friend Lord Blackwell. that one must wonder whether calling now for a referendum does not foreshadow a rather different objective, perhaps only lurking in the back of my noble friend's mind. If one is determined now, ahead of the emergence of the treaty, to conclude that it will result in a quantum leap into a super-state, and if we say now that Britain is about to see its nationhood abolished, we risk backing the Conservative Party into a position where I would not like to see us. Effectively we would be backed into a commitment to withdraw from whatever emerged from this treaty. If we did that, or if we were to do it with a specific commitment now for a referendum, it would risk repeating on a much more serious scale the
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mistake of the Labour Party in 1974 under the less-than inspired leadership of the Oxford economist to whom the noble Lord, Lord Harris of High Cross, referred.
The House should be aware that many in the Conservative Party do not share that gloomy view of the implications of what is now taking place. I dare say that not many Members of your Lordships' House will be aware of the memorandum submitted at the beginning of September last year by a group of us under the chairmanship of my noble friend Lord Brittan of Spennithorne, including the noble Lords, Lord Garel-Jones, Lord Hayhoe, Lord Heseltine, Lord Hurd, Lord Inglewood and Lord Tugendhat, and a corresponding cast from another place. That memorandum suggested to President Giscard that we were expressing our,
"deeply held belief in the importance of Britain being fully committed to the European Union and playing a positive and constructive role in the development of the EU".
On that basis, and given that we are still far from the end of the negotiations, there is much to play for in the negotiations, the hard core of which still lies ahead.
I have two general observations to make about those. The first is that I think that the timetable under which the process is being conducted is unrealistic and reckless, particularly given the preoccupation with so many other events around the world. People engaged in the process can understand that much more clearly than I do. But there is a risk of the substance of the matter being swamped by ceremonial ambition—to have a treaty signed in Rome on the anniversary of an earlier treaty, for example. It is very important that the negotiations should not be unduly constrained by an artificial timetable of that kind.
If I may give a rather absurd parallel without immodesty, the tax law rewrite project in which I am engaged is doing nothing more harmful than simply rewriting existing English legislation—we all speak English—in simple language. We thought that we would cover the entire statute book in five years. It has taken us six years to produce two quite modest tranches. If one looks at that alongside the polyglot procedure of the convention, I think that festina lente must be the right motto for President Giscard and his colleagues.
The other danger is that the Government may be too ready to make concessions, almost subconsciously, as it were, to compensate for their non-membership of the eurozone and a feeling that, if we may be regarded as not fully paid-up members of the club, we cannot be quite as substantial as we would like to be in defending propositions that need to be defended. It is of the utmost importance—and I agree with both my noble friends who have spoken—that the Government should be pressed to sustain our case in ensuring that, where it is proper, the institutional balance of the existing European Union is maintained.
I support two examples that have already been mentioned by the noble Lord, Lord Grenfell: the case for a robust attitude towards the right of national parliaments to oversee and enforce subsidiarity, as

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commended by the committee over which he presides, and to do so with the right of access by national parliaments to the European Court of Justice to enforce that, as Gisela Stuart has been arguing. I also support the case, which I think everyone can make, for more openness of the council procedures when acting as a law-making authority. I shall not weary the House by going into those areas any further at this stage.
Returning to the last point, I would put the common foreign and security policy, as I did in my address in 1996, at the very top of the agenda that concerns us alongside the convention. That may seem difficult and unrealistic in today's circumstances—much more difficult in the long run—but it is an area where we must succeed. It is interesting that that is recognised even by public opinion in this country now. In a YouGov poll a couple of days ago everyone agreed that relations between ourselves and the United States and Europe have been severely damaged by the present arguments—who could argue? One of the questions put was: if the result was to bring the United Kingdom closer to the United States than to Europe, would you be sorry or pleased? Forty per cent of people would be sorry at the idea of being drawn closer to the United States than to Europe, and 31 per cent would be pleased. There is a narrow majority, which is surprising in the present circumstances, that recognises that we need to adhere to that European relationship.
If one looks at the hazards that confront us, there could be no doubt about our concern if we faced a Rumsfeldian future based upon the proposition "might is right". But equally we should be concerned if we faced a Chirac-Putinesque future, trying to construct a multi-polar world on the basis of a competing superpower stretching from the French coast to the Urals embracing Russia and some parts of the European Union. Surely, nobody can doubt that the way to handle sensibly American unilateralism and the anxieties that that causes is not rivalry; it must be partnership. But it cannot be Anglo-American partnership, which is the alternative canvassed, at least by implication, in the pamphlet by my noble friend Lord Blackwell. He talks about our retaining our freedom to work in alliance with our American partners. I regard that as a fragile framework indeed—one small voice in the United States Administration, often carried along we know not where. We need to cement ourselves within a European framework to get the authority we need.
I understand entirely the point made by my noble friend Lord Howell. It cannot be a framework designed by old Europe as caricatured or as represented now. It needs to be a framework shaped as well by new Europe, including the newly acceding states as well as ourselves. If we can achieve that, and we have a stronger European voice in foreign policy, it will be more credible when we try, when we have to, to say "No". It is also less likely that we should have to say "No' if we worked together as strongly as that. For me, that is what the foreign policy of the European Union has always been about; it always has been and always will be. It was at the heart of the reasoning that
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persuaded Harold Macmillan in 1962 to join our partners in Europe then. It remains fundamental to the long-term projection of British foreign policy in the future.
4.40 p.m.
Lord Hooson: My Lords, I agree with much of what the noble and learned Lord, Lord Howe of Aberavon, said. He reminded me that my late cousin and he had decided to hold a referendum on the opening of public houses in Wales. I am sure that my late cousin would never have accepted it as a general principle that one should be in favour of referendums. I do not think that we should go along with the idea of a referendum now.
What has been lacking in our approach to Europe, under successive governments, has been fine, determined leadership. We should have taken the lead. We complain when other countries take the lead in Europe, when we have given up the opportunity of being leaders in Europe. Looking back on many years in both Houses, I think that Sir Edward Heath was one of the most underestimated Prime Ministers. He was the one Prime Minister who provided true leadership on European issues.
I decided to take part in the debate because I believe that the Convention on the Future of Europe is of even greater historical significance now than when it was set up. I speak as one who believes that the achievement of a united Europe is the most important political goal for this country, as well as for the continent of Europe, and the greatest contribution that we in Europe can make to world stability. That is clear. The day of the independent sovereign state is virtually over.
The truth is that, over the years, we have surrendered our sovereignty by degrees, as has almost every other country. Speaking as a Welshman who is proud of his language and culture and a specific way of life, I think that it is possible to maintain all those things without being a sovereign state. It is, for example, obvious that English will become the everyday language of commerce all over the world, including Europe. That does not mean that we will see the death of French culture, German culture or anything else. It means that we have accommodated ourselves to a way of life.
Many of us were firm believers in the Atlantic alliance as a cornerstone of security for the West and of world peace. Nevertheless, we have become increasingly and uncomfortably aware of an obvious divergence of view and reaction to events and developments between the United States of America and Europe, particularly after the shocking events of 11th September, which illustrated to the strongest military and economic power on Earth with sickening drama the vulnerability of its citizens to attack from without, against which its massive defensive shield afforded no defence. That has had an enormous effect on world thinking. Mention was made of Mr Donald Rumsfeld, who is an old friend of mine. We were delegates to NATO Parliamentarians and went on military tours together. Mr Rumsfeld is what you see. He is no diplomat, but, in my experience, he always speaks the truth as he sees it.

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Reaction to those events has illustrated the different approach of a confident, powerful United States that regards the selected rogue states mentioned in the "axis of evil" speech as threats that must be tackled by military action. The military might of the United States enables it to do so. The military might of Europe would not enable it to do so, even if Europe had that intention. The attitude of the European populace, by and large, which has experience and recollections of the horror and suffering inflicted by war on ordinary people, has led to serious disagreement between European leaders. Those leaders have accentuated those differences by failing to make sufficiently meaningful progress in developing co-operation between themselves that would enable Europe to speak with an agreed voice, achieved by democratic means in a united Europe.
I mentioned the deep problems that beset the alliance. The transatlantic alliance is a supremely important relationship. All of us have a duty and a prime reason to appreciate that the Americans regard the "special relationship" as being with Europe, in particular. For example, Mr Donald Rumsfeld comes from a German background. Years ago, people were surprised when I referred in your Lordships' House to the number of people who claimed descent from various backgrounds. More people claimed descent from the Germans than from the whole of the British people. Few claim descent from the British; they claim descent from the English, the Scots, the Welsh or, as they would call them, the Scots-Irish—the Ulstermen.
It is important that we should be regarded as a pillar. The Americans regard Europe as a pillar of the Atlantic alliance. We always talked about the American pillar and the European pillar. The truth is that we have failed miserably to create a European pillar. We have not contributed to the bridge across the Atlantic as we should have done.
We should put out of our mind the outmoded nationalism that I heard about today. We are out of date, if we think that we are an independent sovereign state and that we must maintain that sovereignty at all times. We can regard sovereignty only as a series of spheres. There is a huge sphere—ineffective, in many regards—of world-wide sovereignty, which, we hoped, would be provided by the United Nations, which needs much reform, no doubt. Then, there is the European sphere, in which we have surrendered a certain amount of sovereignty. We have devolved sovereignty on certain matters within this country to the Welsh Assembly and the Scottish Parliament. We must learn to think of sovereignty in such spheres.
We have been subjected—particularly in recent times—to old, dredged-up stories about the infidels in France and about the unreliability of other European countries. Old stories are dragged out that are the leftovers of bygone imperial battles in war-torn Europe. We should remember that our forebears gradually replaced tribalism with the so-called nation state. It is high time that we replaced the nation states or placed them in an effective united Europe. Therefore, I hope that the work of the convention will
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continue apace and achieve what will be, effectively, a prospective constitution—call it what you like. The presidium will remain committed to the June 2003 deadline, if possible.
We must remember that in a democratic society allowance is always made for amendment of a constitution. We all know how important amendments, frequently introduced, have affected the United States. There must be liaison with the European Parliament, the national parliaments, the regional bodies, such as the Scottish Parliament and the Welsh Assembly, and the proposed regional councils in this country. The relationship of all these institutions must be considered. Therefore, it is necessary to have an elastic constitution which will enable change to be made in the light of experience. The European Court of Justice should not be bound by rigid rules. We must allow for its development in the light of requirements.
I turn to legal personality. I agree with the concept of an ever closer Union provided that the doctrine of subsidiarity is involved as an essential principle; that is, subsidiarity in retention of agreed powers at certain levels below the European level. Thought must be given to what matters should be entrusted to the nation states as they are today and whether some powers should be given to local government, and so on. All those issues must be considered.
However, I agree with the view that there should be a merger of the treaties of the European Community and of the European Union. There is also the vital importance of a charter of fundamental rights spelt out in any constitution of a civilised state. As a matter of thought, should there be a requirement for every citizen of the European Union eventually to take an oath or declaration of loyalty to that Union? That could be a matter of vital importance.
Perhaps I may make one point concerning the euro. I have always regarded a coin—whether a dollar, a euro or sterling—as simply a means of exchange. It may be of some reassurance that, apparently, in the reign of Edward the Confessor an attempt was made by his government to impose a coinage for the whole of England. Thereby he greatly affronted people in Wessex, Northumbria and Kent, as well as other areas, who were all jealous of their own currency. They objected and rejected the proposition. A few years later, William the Conqueror imposed his own currency over the whole country overnight and abolished the existing coinage. I do not think that England was any the worse for that because it had a means of exchange, which is all that coinage really is.
I conclude by referring noble Lords to the book, entitled, Paradise and Power, about America and Europe in the new world order, by Robert Kagan. It was published about a fortnight ago and is well worth reading. It has only 100 pages, but it is a brilliant analysis by an American of how America views its role as a preserver of the peace, with a great military strength, and its perception of Europe. Kagan writes about the reaction that he hopes to see eventually building up in Europe, whereby the two pillars of the Atlantic assembly come together and we do not resort

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to a special relationship with the United States, because really, the United States is dying for a special relationship with Europe.
4.55 p.m.
Lord Norton of Louth: My Lords, I, too, welcome the debate initiated by my noble friend Lord Blackwell. As various speakers have said, we need more such debates. Possibly it is appropriate that I follow the noble Lord, Lord Hooson, in this debate because I think that his is the only speech so far with which I entirely disagree.
My starting point is that action was necessary to address the increasingly complex and chaotic structure of the European Union. Enlargement of the Union means that the existing arrangements are not likely to endure. However, I believe that in addressing the need for change, the methods and the approach adopted have not proved adequate. We are in danger of finding ourselves faced with an outcome that is undesirable but one that the Government are not prepared to reject.
I fear that some amendments along the way may be claimed as victories but with the overall result constituting a paradigm shift on a par with our initial membership of the European Community and more significant than the Single European Act. We are in danger of finding ourselves faced with a fundamental decision to accept or reject a package that could undermine, potentially even destroy, the concept of the nation state within the European Union.
I start with the problems of the process adopted. The convention is the wrong size and does not have the most appropriate membership for drawing up a draft constitution. It is too large to be a proper drafting body. It is too small to be a body that is representative of opinion throughout the European Union. As Dr Ann Robinson and my colleague at Hull University, Dr Paul Robinson, have written in their recent study entitled A Constitution for Europe?, the size of the convention means that it has had to rely on the presidium to guide its work and on the secretariat to organise it. That moves power out of the hands of individual delegates and into the hands of the presidium and secretariat. Leadership lies in the hands of the president and two vice-presidents who are not chosen by the convention.
Having analysed the membership and method of selection, the authors conclude that,
"The composition of the EU Convention is confusing, and its democratic mandate limited and obscure. Its members do not genuinely represent either the member states, or the people of Europe (via some direct selection procedure). They are in many cases divorced from the consequences of what they decide".
The convention is thus not the best body for engaging in the exercise mandated by the Laeken summit. Nor has it approached its task in the most appropriate manner.
There are two fundamental problems. First, there has been no full and proper debate derived from first principles as to the ultimate aim of the exercise. As my noble friend Lord Blackwell argues in his recent pamphlet entitled, A Defining Moment?, there is a
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debate to be had about Britain's future in Europe. There is a much wider debate to be had about the future of the European Union. However, rather than seeking to engage in such debate and to identify common values and a shared goal, the convention has charged ahead ignoring the very issue that needs resolving first.
The approach of some members of the convention to addressing this fundamental question appears to be the same as that of the Lord Chancellor to the West Lothian question; that is, do not ask it. One member of the presidium said:
"Federalism and a constitution means different things to each of us. There is no point in discussing them"
There is every point in discussing them.
Secondly, there is a failure to consult adequately with civil society. I appreciate that this has been attempted. In some countries, there has been far wider debate than has occurred in this country. I accept that we have not done as much as we could and should have done to engage debate on the issue. However, the extent of the debate with civil society throughout the European Union is, in my view, completely inadequate relative to the sheer significance of the issue.
There has been the Youth Convention. There has been the Forum. These are fine as far as they go, but they do not go far enough. After all, the latter is confined to self-selecting groups. There is very little evidence of engagement with the public. I know that my right honourable friend in another place, Michael Ancram, said that MPs are receiving letters about the convention—I suspect not very many.
Indeed, I am concerned as to what is defined as public opinion. Speaking in a Westminster Hall debate two weeks ago, the Welsh Secretary, Peter Hain, said that the Government did not accept the proposal for a European public prosecutor. Yet the day before he spoke, the European Commission claimed that "public consultation" confirmed the need for the convention to take action to establish a European public prosecutor. The public consultation on which this claim was made comprised 200 written and oral communications. For a Select Committee inquiry, that is a lot. For an EU-wide exercise, I do not think it can be deemed necessarily to reflect the opinions of civil society.
The convention is thus proceeding almost in a vacuum, detached from first principles and detached from civil society. It is producing a draft constitution that, so far as I can see, is not clearly the product of the remit given it by the Laeken summit. Perhaps at this stage I may pose a question to the Minister who is to reply. Let us take Articles 10 to 14 of the draft constitution. Can the Minister explain how these relate to the questions posed in the Laeken declaration'? One could ask the same question about many other articles, but Articles 10 to 14 are unquestionably among the most significant. So far as I can see, the convention is working well beyond its remit. In so doing, it is producing a document that fundamentally reshapes the EU and, as my noble friend Lord Howell argued, poses a threat to the role and independence of the nation state.

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We are at a stage where, if the convention proposals are to proceed, there should have been widespread consultation and discussion. Yet the "listening" stage of the convention ended last June. If there was a major engagement with civil society then, as I indicated, I am not aware of it. We thus face a dilemma. The recommendations of the convention go forward to the IGC next year. The Government are right to remind us that any changes have to be agreed by EU governments acting by unanimous agreement. But does anyone seriously doubt that the political pressure to agree to some change will be massive, that the IGC is unlikely to have the time and the political will to engage in a complete re-write of the convention's proposals, and that the Government will be unlikely to utilise the nuclear option of the veto?
Given that, what can be done if we find objectionable sections or even large parts of the draft constitution? My noble friend Lord Blackwell advocates a referendum once the IGC has agreed a new treaty. I have previously expressed my opposition in principle to referendums. I do not want today to pursue those arguments. They are on the record. It is clear from some of the speeches we have heard today that I shall have an opportunity later to return to them. In any event, I think that advancing the argument for a referendum on whatever the IGC may approve is premature. One of the purposes of a referendum is not only to enable citizens to express a preference but also to educate them on the issue. My view is that we need to be educating people now about what is proposed rather than leaving it until there is a referendum.
The relationship between the nation state and the EU is fundamental to how we are governed. That relationship is likely to, indeed will, undergo dramatic change if the draft constitution becomes a reality. We need to be thinking about that now. It is appropriate, as the noble Lord, Lord Grenfell, said, that Parliament itself spends more time on it. It is appropriate that we consider how we ensure that people are more aware of the implications of what is proposed. The more extensive the debate, the more likely it is that the Government will have to pay heed to the concerns that are expressed. Government need to be listening now and acting upon what they hear ahead of and in preparation for the IGC. As my noble and learned friend Lord Howe of Aberavon indicated, there is still time to influence the convention. I do not want to leave it until the IGC itself or until a referendum debate—a debate that may or may not take place.
That brings me to my second question to the Minister. What do the Government propose to do, and how soon, to disseminate information to citizens about what is emanating from the convention? We need to ensure that information is made available and in a form that people can grasp. There is a divide between the political elite and the people in the EU—it has existed for some time—and we need to ensure that it is reduced or eliminated in the United Kingdom.
There is a very real danger of paradigmatic constitutional change taking place without our really noticing, certainly without our fully appreciating, what
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has happened. That was the case with the Single European Act. In many respects, certainly in constitutional terms, it was true of our initial membership of the European Community. We must ensure that this time we are fully aware of what the implications are. The sooner we turn our attention to what we see as the future for the European Union the better. We have in many respects left it too late—far too late. We need to make up for lost time.
5.6 p.m.
Lord Stoddart of Swindon: My Lords, the noble Lord, Lord Norton, is right: we have almost—perhaps certainly—left it too late to understand exactly where we are going in the European Union. I want to join other noble Lords who have spoken in thanking the noble Lord, Lord Blackwell, for introducing the Motion and for the way in which he did so. It was lucid and dealt with the problem very firmly indeed. He was right in saying that if the proposals in the convention were adopted, they would mark the end of Britain as a sovereign and independent nation. I believe that to be absolutely true.
I suppose that I am one of those people who the noble Lord, Lord Maclennan, describes as having a carping, backward-looking attitude to the European Union. I would not describe it quite like that. My attitude has always been that when we were told we were joining a Common Market, we were joining nothing of the sort. We were in fact joining an organisation which had as its final objective a United States of Europe—and so it has proved. Unfortunately, the road has been gradual and built on a number of treaties and misleading information, to say the least, if not downright lies about where we were heading. It is therefore right that we have people in this country who query what is being done by government and in the name of the British people.
I heard for the first time today what is almost a seditious speech from the noble Lord. Lord Hooson. He goes further than anyone I have ever heard on the subject in that he wants us all to swear an oath of allegiance to the European Union. When I came here, I affirmed an oath of allegiance to Her Majesty the Queen. How many oaths of allegiance do I have to swear in order to satisfy the noble Lord, Lord Hooson? I am satisfied with one. Indeed, our system of government over many hundreds of years has proved to be superior to many whom the noble Lord so admires.
Since the debate on 7th January—I said pretty much of what I want to say then, but perhaps I had better say a few more words at this stage—the convention has been grinding on, wallowing in an ocean of paper, to produce a constitution and a system of European government which will be more powerful, more centralised and less democratic than ever before. Indeed, as the noble Lord. Lord Howell of Guildford, said in his excellent speech, it gives the European Union a new legitimacy, imposed from above. We are not talking about building a federal state; we are talking about building a unitary state, and we should remember that. This is not a federalist convention; it is a unitary convention.

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What is taking place is being done ostensibly to accommodate a United States of Europe of 25 countries and is precisely the opposite of what many of those favouring enlargement sought to achieve. They believed that the more countries that joined, the greater would be the push for decentralisation and the return to the nation states of powers lost to them. My own view has always been the opposite. The more countries that join the European Union—or the United States of Europe—the more centralised it would have to become, and so it has proved. The convention is working towards just that. The final building blocks of the European super-state are being put into place, aided and abetted by the Tower of Babel that the convention has become, in an attempt to hoodwink people into believing that there is a democratic element in putting the final touches to the United States of Europe.
Incidentally, the term "United States of Europe" is not mine. It was coined by Giscard d'Estaing. In his first draft he proposed that one of the names might be the "United States of Europe". Perhaps the noble Lord, Lord McIntosh, who at Question Time today accused me of fantasising, ought to read that draft and apologise for his remarks.
What is even worse is that this huge project, further to deprive nation states of their sovereignty, is being driven forward to accommodate an unrealistic timetable. An attempt is being made by the Italian Prime Minister to speed it up even further in order to meet his silly, vain and arrogant ambition to have the new treaty, constitution or whatever it is called, signed during his country's presidency. When we are dealing with something like this, we need all the time it takes. It is too serious to rush and we should make sure that we have all the time it takes, irrespective of the wishes of the Italian Prime Minister.
As we know, the new constitution will involve ceding more powers to the Union, increasing the competences and influence of its institutions and enabling it to intervene in and make decisions about virtually every aspect of policy, from foreign affairs, defence, economic policy, taxation to social and environment matters—and even the electoral arrangements and financial assistance for political parties. It will interfere in every nook and cranny of our national life. What is more, as the noble Lord, Lord Blackwell, pointed out in his opening remarks, it will be able to alter things as it goes along. Under Article 16, it will be possible for the Union to put right things which perhaps it got wrong at the beginning. Even Gisela Stuart, one of Parliament's representatives at the convention, is very concerned about that and, it is to be hoped, will be able to do something about it.
What is not understood is that, due to the qualified majority voting system, which the Prime Minister wishes to extend—he said so in his Cardiff speech—great decisions will be made not by Her Majesty's Government or our Parliament, but by a gaggle of 25 countries whose interests are so often inimical to those of our own. But the Prime Minister, who claimed to be a British patriot in an article in the Sun, in March 1997, believes in more integration—again, in his Cardiff speech he said that he wanted to see more integration; that is, a stronger Commission and the President of the Council to be
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elected for four years, who would co-ordinate the European Union, speaking and acting for it not only on the home stage, but on the world stage as well.
Of course our friend Mr Prodi, the President of the Commission, and, since last week, Mr Solana, have agreed that we should go even further. They are demanding a single European Union voice in the United Nations and other international bodies. Let us face it, they are simply taking a common foreign policy, which Mr Blair supports, to its logical conclusion; that is, if we have a common foreign policy, it cannot be effective unless it has a seat and a voice in the councils of the world.
There is yet another serious aspect to what is being proposed in the draft constitution: the requirement for loyalty to the institutions and decisions of the new order. Even the proposers do not suggest that an oath of allegiance should be taken, but nevertheless they are demanding that loyalty should be given to the decisions that are taken. That will apply not only to governments, it will extend to individual citizens, who will also owe that loyalty. Although it might appear at present to be somewhat innocuous, the long-term aim is to transfer loyalty to one's country to loyalty to the European Union. We know now that some Members of this House believe that that would be a good thing.
In the face of all that, it is difficult to understand the policy of the Official Opposition and the Conservative Party, which is to be in Europe but not governed by Europe. They must surely now recognise that that position is untenable and that you cannot remain in Europe if you do not agree to be governed by it. If they stick to that policy, it will be hung around their necks, as was their policy on the pound; that is, their commitment to retain the pound only for one Parliament instead of insisting that the pound was a symbol of our independence and sovereignty and would never be relinquished. If they have any sense, the Opposition and the Conservative Party will say that they will resist the convention proposals and that, if they are returned to power, they will repeal them, even if that means leaving the European Union, or whatever it may then be called.
If the Conservatives really want to hold a referendum—and I am not at all sure that I agree about that because it needs to be thought through—unless they are prepared to take that kind of policy to a referendum, I think that they will not win it.
Finally, I have to say that the Prime Minister seems to be suffering from a diplomatic and political close of schizophrenia. At the same time as wanting to be at the heart of Europe, he is also desperate to be a junior partner in the new world construct of the United States of America. Recent events must surely have convinced him that he cannot have both and that the cure for his schizophrenia is to become a real British patriot, which demands that Britain's position as a free and democratic nation is to be safeguarded at all costs. That cannot be achieved by even further European integration, but only by disengagement from the process of creating a United States of Europe.
5.20 p.m.
Lord Saatchi: My Lords, I join the noble Lord, Lord Stoddart, and other noble Lords in congratulating my noble friend Lord Blackwell on introducing the debate and on gathering together so many distinguished Members of your Lordships' House to speak on this important and urgent subject. Those of us privileged to serve under my noble friend's chairmanship in the Centre for Policy Studies are particularly proud of his pamphlet, which my noble and learned friend Lord Howe and the noble Lord, Lord Harris, both described, quite rightly, as extremely lucid and helpful.
Is it a coincidence that the publication of draft Articles 1 to 16 of the new constitution coincides with the worst breakdown in relations between Europe and America in our generation? Is it possible that this chilling document and that distressing breakdown can both be traced to the same root cause—an issue touched on by my noble friend Lord Howell and my noble and learned friend Lord Howe—that is, a profound rivalry with America and envy of it?
When considering the rightness or wrongness of an action, English law advises us to consider the motive behind it. I accept that this is only a first draft and I am aware, as my noble and learned friend Lord Howe said, that there have been many, many amendments to it; no doubt there will be many redrafts. I also accept that the Minister will shortly say that some Members of your Lordships' House are afflicted with paranoid delusions; that if only we put our faith in the Minister and her Government then all will be well. However, the first draft of any document is often the most revealing of the motives and the mind of its author.
It is understandable that America would be envied by poor people and poor countries. But would it not be ironic if the power of America had now created envy among the so-called rich countries of the world, the authors of this document? Envy twists the mind so that envious people despise, and yet wish to ape, the object of their envy. Freud's law of ambivalence describes this mental process by which the envious ones come to love and hate the same object at the same time.
So, as the first draft reveals, those same Europeans who display such palpable distaste for American capitalism appear to have belatedly fallen in love with the American concept of globalisation. Is it not a supreme irony that Europe, which probably contains more critics of globalisation than any other area, where people routinely link hands under the unlikely banner of "Join the world-wide movement against globalisation", should have so enthusiastically embraced that American doctrine in this first draft document? Size is all.E pluribus unum. Unity is strength. If mergers of companies are good, so too must be the merger of countries.
So they want Europe to become one big country like America. Is that not why they drafted Articles 10 to 14, which, as my noble friend Lord Norton said, contain by far the most telling provisions of the draft constitution? For example, Article 13, which concerns
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the co-ordination of economic policies—my noble friend Lord Howell referred to its striking use of language—states that,
"The Union shall co-ordinate the economic policies of the member states".
It continues for emphasis:
"The member states shall conduct their economic policies so as to contribute to the achievement of the objectives of the Union".
Do not the authors want that because they believe America has too much economic power? Have we not heard, for example, the French complain that while America accounts for seven of the top 10 investment banks and eight of the top 10 companies, and so on, France is dismissed by Americans as a "tourist destination"? For example, is it not right that Jean-Claude Trichet, the governor of the Bank of France, likes to tease audiences by pointing out that America accounts for only 30 per cent of world trade and then asking them, "But what does the dollar account for in the total of world transactions?"? He enjoys surprising people by telling them that the answer is "70 per cent". He points out the obvious injustice and says that the euro was created to put right that injustice—as, perhaps, was Article 13.
Is it America's military power that gave birth to Article 14? Perhaps it is painful for the authors to contemplate that America's military expenditure is greater than the next nine countries in the world put together: or to observe that this year's increase in the US defence budget is greater than the entire defence budget of the whole of the eurozone. Hence former French Foreign Minister Vedrine's expression "Hyperpuissance"—beyond superpower—to describe the so-called "hectoring hegemon" America.
Article 14 will provide the antidote to what Le Monde called the "cretinization" of American foreign policy. Not only does it lay down what we will do, but the manner in which we will do it. As my noble friend Lord Blackwell pointed out, Article 14 concerns the common foreign and security policy. Its language is striking. It states:
"Member states shall actively and unreservedly support the Union's common foreign and security policy in a spirit of loyalty and mutual solidarity. They shall refrain from action contrary to the Union's interests".
Who will decide whether an action is "contrary to the Union's interests"; whether we have provided our support "actively and unreservedly"; whether our loyalty has been shown to have the exact right degree of "spirit"? Never has so much been given away by so many for so few.
Everyone now knows how offended European diplomats are by America's unilateralism; by its reluctance to commit itself to what Kofi Annan calls "multilateral solutions", whether in matters of war, justice or the environment. Maddeningly for them, "Stupid GI Joe"—as they dub America— is so dim that he persists in his gunslinging ways, failing to appreciate post-modern transnational due process, negotiation and co-operation to adjudicate disputes. Is that why they drafted Article 9, which concerns the

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application of fundamental principles, as my noble friend Lord Blackwell also pointed out? Its opening phrase states that,
"The constitution shall have primacy over the law of the member states. Member states shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the objectives set out in the constitution".
Or was it the basis of Article 10, which introduces us to one of the more unusual uses of the English word "competence"—to mean not "ability" but "jurisdiction"—and, as my noble friend said, helpfully sets out who will have jurisdiction over what?
My noble friend Lord Blackwell drew the attention of the House to this sentence:
"The member states shall exercise their competence only if and to the extent that the Union has not exercised its".
What would drive someone to draft such language? Are the authors among those who so resent American cultural imperialism that they complain that precious national identities are being homogenised and paved over by a US version of life—people for whom anti-Americanism is a branch of anti-philistinism? As Ken Tynan memorably put it, "We mustn't sell our souls for a pot of message". And so it goes on—the list of possible reasons for envy is endless.
The authors of the draft document want regime change. The regime they want to change is the one in which America is dominant. But the Ten Commandments condemn covetousness. Envy is one of the deadly sins. The original sin of envy arose from resentment of God's monopoly of the tree of knowledge. In the same way as now, envy and resentment have risen up in Europe, never more clearly expressed than in this first draft document, against America's monopoly of financial, military and cultural success.
We remember what happened to those who succumbed to the sin of envy. The serpent's life would be to crawl on its stomach; the woman would for ever suffer pain in childbirth. And the man? He would bear worry and anxiety on his head for the rest of his days. I personally would not wish such a fate on the authors of this draft constitution, but to avoid it, I advise them to gather up all the copies of the first draft and tear them up before my noble friend Lord Norton gets his way and more members of the public notice what is in it.
Lord Wallace of Saltaire: My Lords, before the noble Lord sits down, may I ask whether he intended explicitly to compare America to God?
Lord Saatchi: My Lords, that was not my intention, but I am glad that the point has been made.
5.32 p.m.
Lord Stevens of Ludgate: My Lords, it is a pleasure to follow my noble friend Lord Saatchi. If I may say so, the dearth of speakers on the Benches opposite is more than made up for by the quality of the speech of the noble Lord, Lord Stoddart. I agree with practically everything he said. I cannot hope to match his oratory, but I may be able to match some of his views.
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In 1956, the Economist Intelligence Unit was approached to report on what the effects would be on the UK or Britain, as the unit called us, should we enter a European free trade area. Entitled "A study on the effects on British Manufacturing Industry of a free trade area and the Common Market", it was published in 1957.I have a copy from my Cambridge days—it was the guide to Europe for Economics undergraduates. It stated, among other things:
"If moreover the decision is taken to join it is no less important that we should make our preparations with a full knowledge of the likely course of events".
It said later on:
"It is the avowed intention of the authors of the Common Market treaty to complete their work by establishing a political federation of the Six. Supposing that they succeed what then would be Britain's position it World Affairs? A third great power would be added to the USA and the USSR less formidable than either but with a much greater claim to consideration than the UK. To put it at the very lowest Britain would probably cease to be America's ally number one in Europe".
Well, my Lords, how right and yet how wrong.
The train has been coming down the tunnel for a long time now and yet our Governments—yes, I include my party—seem to think that once drafts are agreed they can be negotiated away. Once the draft is published, you can either reject it in totality—veto it—or try to change it, an almost hopeless task. The only way to get a good draft on the future of Europe is for us to draft it.
The UK cannot dictate its own terms for joining the euro. We will have to negotiate with the other members, now made even more difficult by recent events.
The Prime Minister has conceded that he would accept that future Presidents of the European Commission should be elected by the European Parliament, even if there is a President of the European Council. This gives even greater power to the bureaucrats in Brussels.
The Prime Minister has stated that the UK belongs in Europe. The founders of the EEC had as their objective the ever-closer union of Europe. This has been repeated many times in the past 40 years and is still being repeated. In speech after speech, Mr Prodi, President of the European Commission, Chancellors Kohl and Schröder, former French premier Jospin and President Chirac have been laying down the principles on which a new Europe will be established.
The EU is to be expanded as soon as possible from 15 countries to 28. This increase means that there will be no right of veto in future. To quote Mr. Prodi,
"for the veto to remain is like a soldier trying to march with a ball and chain around one leg".
Tax rates must be harmonised. Highly taxed countries like France and Germany will force those with lower rates to increase taxes. Sadly, the UK is rapidly becoming one of the highly taxed. The EU must have its own foreign policy and its own armed force, independent of NATO. I shall say more on this later. It was agreed in December 1999 in Helsinki to set up a joint 60,000-strong rapid reaction force as a first step

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in this process. It was agreed, also in Finland, to have a single EU judicial system with a European prosecutor and staff to operate throughout the EU.
Let us pause for a moment on the proposed pan-European army, particularly in the light of recent events. Its creation was sparked off by the EU's failure to react firmly to events in Bosnia and Kosovo, but there was in fact another agenda. It is a further attempt by some major powers in Europe to create a common security system which might eventually exclude the USA.
The UK's contribution was proposed to be a quarter of this force, or 15,000 troops. It would absorb a quarter of our front-line aircraft, half the Navy's operational warships. Do we really want to be subservient to Brussels in deploying this force? What would the US think of this when we are, I believe, the only country allowed to purchase US cruise missiles?
Let us return to Helsinki for a moment. Mr Prodi received a document drawn up by a committee appointed by himself. Among other things, the UK was to lose its power of veto in leading policy areas including tax, and Brussels institutions were to be reorganised in a way that was to be more similar to a parliament and a national government. Downing Street distanced itself from this report, stating that,
"we would not be in favour of such sweeping reforms. What we need is limited reform".
The document also proposed that the power of the large member states should be curbed to cope with the future enlargement of the EU. Mr Prodi is clearly, as he has stated many times, going for a centralised, federalist system.
However, on a different note, in October 1999, we signed up to a European commitment on merging European asylum policies. Look at what has happened to that.
Why should the UK which, for centuries, has never been occupied by a foreign power and has fought for democracy in mainland Europe now join an integrated Europe when we have resisted the major European powers of the day which attempted to absorb or conquer us? We should not agree to any further attempt at European integration.
The United States was our ally in two world wars. Without the United States, I doubt whether we would have succeeded in Kosovo. It is our largest country trading partner. It has loyally stood by us. Why should we allow the anti-Americanism of some European countries to determine our future? The EU is consciously seeking to build itself up as a third world economy to the USA. It resents American influences. Do we really want to surrender our sovereignty to an EU like that?
So we arrive at the Convention on the Future of Europe. I congratulate the parliamentary resources unit on its briefing paper. It says:
"The Convention has three distinct phases—the first was of listening which ended in June 2002".
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I quote again from Welsh Secretary Mr Hain:
"A lot of representatives are wondering whether the people who drew up this document have been going to a different convention".
Mr Heathcoat-Amory said:
"I tabled 100 amendments. We were each given two minutes to speak to our amendments".
The convention is not listening. It is on transmit. The Economist 1957 forecast is all too true. The agenda is a federal Europe.
Lastly, we have an alternative from the convention:
"A procedure for voluntary withdrawal from the Union".
There is nothing wrong with a free trade area. World tariffs are much lower now than before. We normally have a trade deficit with Europe. They need us just as much as, if not more than, we need them. By all means have a referendum, but not on the convention. The referendum should be on staying in or leaving the EU, as it will exist—static, ageing, with declining populations and pensions not funded. We really do not need European influence or interference on pensions. The pension assets held in the UK are still among the highest in Europe—15 times the level of France and eight times the level of Germany. Who will finance their deficits, to give just one example? Europe also has restrictive practices, state interference galore, crippling tax rates and, above all, huge differences among the members. They even ignore their own stability pact. We are innocents in dealing with European machinations. One size does not fit all, even in the existing EU.
That is how I was proposing to finish until I read the Daily Telegraph this morning. A proposed tough secession clause in the new European constitution would make it illegal for Britain to leave the EU without the permission of two-thirds of the members. We must leave while we can. It is broke and cannot be fixed.
5.41 p.m.
Lord Williamson of Horton: My Lords, with the war in Iraq dominating our thoughts, it is difficult to concentrate on issues nearer home. But the Convention on the Future of Europe and the subsequent intergovernmental conference are of great importance and I am grateful to the noble Lord, Lord Blackwell, for giving us the opportunity to debate this subject today. He will not be surprised that I do not agree with him on everything. None the less, he may find a few gold nuggets in what I have to say. I do not agree with quite a lot of the speeches that have been made already, starting with the reference by the noble Lord, Lord Harris, to the American language. Having spent many years defending the English language, I was really hurt by that phrase. Generally, I do not share the attitude of many noble Lords, who seem to take on a little bit the attitude of Cassandra on the one hand and Savonarola on the other.
I shall concentrate on the value or otherwise of the treaty texts that have already been presented to the convention by its presidium. These are the crux of the matter. When the convention has finished with

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them, they will provide the material for the discussion, possible amendment and acceptance or rejection by the heads of state and government in the next stage, the intergovernmental conference, where, as we know, unanimity is required. Subsequently, the draft treaty must come to the process of ratification in each member state. Like others, we will have to decide how we do that. There is obviously the parliamentary method or a referendum method. The pilgrim's progress is under way and it is far from finished.
The appearance of the draft articles of a new constitutional treaty, which may replace the treaties of Rome, Maastricht, Amsterdam and Nice, as well as the Single European Act, is a staging point where careful examination and reflection are called for. In this, we have had excellent information from the parliamentary members of the convention and the active alternate members, the noble Lords, Lord Tomlinson and Lord Maclennan of Rogart. In addition, as the noble Lord, Lord Grenfell, mentioned, the Select Committee has been active and has produced good reports, most recently the 11th, 12th and 16th reports on Articles 24 to 33, on Article 31—about freedom, security and justice—and on national parliaments and subsidiarity.
Before I turn to the proposed articles and protocols, I shall make some important preliminary comments. First, the system being used for the preparation of the constitutional treaty is better than that used for the preparation of earlier treaties. I speak with some experience of earlier treaties—so much so that I have suggested to my wife that my tombstone should read:
"He led a happy life, except for the time spent on the preparation of EU treaties".
However, we should not exaggerate the difference between the convention and earlier treaty preparation. It is evident that in any case the views of the representatives of the sovereign states are vital, as they have to arrive at consensus in the next stage or abandon the proposal. The convention has for the first time allowed some input from national parliaments and at least some limited—I know it is limited—input from civic society in general.
Secondly, I am surprised at the large measure of agreement that has been reached in the working groups of the convention and which seems likely to be reached at the level of the convention itself, despite the large number of amendments that have been put down to the treaty articles. I am one of those who believe that we are at a point when we can clearly see what the articles that will go to the intergovernmental conference look like. That is why I think it is important. The fact that there is a large measure of agreement indicates some cohesion in the European Union.
Thirdly, it is important to recognise that the convention is dealing with two different types of European responsibilities and actions. On the one hand there are the traditional community competencies, whether exclusive or shared. On the other hand there are the so-called intergovernmental pillars, covering common foreign and security policy and questions of justice and home affairs. I am not sure that the United Kingdom has fully come to terms with the differences. In the traditional community competencies, where
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decisions on substantive legislation and policies are taken by the member states in the Council of Ministers, often in co-decision with the European Parliament, there is always an important role for the Commission, the Parliament and, potentially, the Court of Justice.
I do not see any significant wish from the people of' Europe to extend those competencies or to make significant changes in the balance between the institutions. There is nothing wrong with being at cruising speed. Most legislation in coming years will probably relate mainly to the accession of new countries. We do not have to want continually to do something new. We just have to manage our existing policies as well as possible.
That is an important point for me. It means that the task of the convention is primarily to clarify and perhaps improve—but not extend—the treaty provisions. Because of the concerns expressed in some member states, particularly the United Kingdom, it is wise to make clearer the application of subsidiarity and proportionality and the increased role of national parliaments. That is broadly the approach that the convention has taken. We have to judge whether the convention has got it right.
On the other hand, we have the intergovernmental structure, which is not community competence, although it falls within the general structure of the EU. In that structure the role of the Commission is supportive, not central, and the role of the Parliament and the Court of Justice is marginal or non-existent. Generally, the result is an EU law that applies throughout the Union. My plea to Europhiles and Eurosceptics alike is that the convention proposals on what are now the second and third pillars deserve the closest attention. Some have pointed out the possible effects of changes from unanimity to qualified majority in these sectors. That is important, but it is also possible to foresee some surrender of sovereignty where unanimity remains. If the Government agree to some changes of structure—for example, a command structure for defence or the creation of a European public prosecutor—the water will have flowed over the dam and it will not flow back.
A large percentage of the important documents that currently come to the Select Committee relate to the common foreign and security policy and to justice and home affairs. It is therefore important that the new articles in the constitutional treaty on these matters should be satisfactory and acceptable.
I conclude that, broadly speaking, the limited number of treaty articles we have seen confirm the situation on community competence, improve the situation on subsidiarity and the role of national parliaments and expand the Union role on questions of security and justice—that is Article 31.
The Select Committee examined Articles 1 to 16 in its ninth report. In due course those articles will surely add to the United Kingdom's book mountain on European affairs. However, they are simple and clear, which is a great virtue in a constitutional treaty.
For me, the key points are the continued assertion of respect for the identity of the member states. I note

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that the reference to an ever closer union of the peoples of Europe no longer appears. The phrase "European values" replaces "European principles", which is an improvement. More controversial is the statement that certain competences are administered on a federal basis. That may be accurate, but an alternative text would be less challenging.
Article 4 would give the Union legal personality. Other noble Lords have referred to that matter. It was recommended by the Working Group, and is supported by the Select Committee of this House. It is important to avoid one misunderstanding: the Community already has legal personality and has exercised it for many years as a party to numerous international agreements and as a member of various international organisations. What is at issue now is whether a legal personality should apply to the Union, thus being extended into the so-called intergovernmental areas of foreign and security policy, justice and immigration. Will the Minister comment on that point?
In Titles II and III, there are three important issues. First, should the Charter of Fundamental Rights be in the treaty, and thus legally enforceable? Secondly, how do we express Union competences in the treaty? Thirdly, should there be a flexibility clause allowing an extension of Union action by unanimity but without treaty amendment?
First, on the charter, I was content with the position that we took recently—that it is a good charter, but not legally enforceable. I am somewhat surprised that we have begun to move beyond that position. Will the Minister comment on that point?
Secondly, on competences, the convention has decided to treat the question in the simplest and most straight-forward manner, by simply listing the areas of exclusive and shared competence and the areas in which the Union can take supporting action, although competence remains fully with the member states. For me, the list of competences contains no surprises—perhaps I was too long in Brussels—although I suspect that many in the United Kingdom will be surprised at the extremely short list of exclusive competences of the Union. For me, those articles show a much clearer picture for the citizen.
My third point relates to the flexibility clause. I am always suspicious of such clauses. We have had them in a lot of treaties and they have never led to much joy. This clause replaces the well known, not to say notorious, Article 308 of the current treaty, giving the power to act at Union level beyond the competences set out in earlier articles. Do we really need that flexibility clause? A disadvantage is that it makes it more difficult to say to the British citizen when he looks at the new treaty, "What you see is what you get". The clause means that we may get more than we see in the list of competences.
The second set of articles deals with the structure of European law, primary legislation, framework primary legislation and subsidiary legislation. There is a proposal for some changes and better definition. That subject is known, in Euro-jargon, as the "hierarchy of
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norms". I am quite used to it, as for many years for breakfast I would have a soft-boiled egg and a large hierarchy of norms. At one stage, it ran comitology close as a specialist science.
Some colleagues see difficulties, but I see advantages in greater simplification and clarity of European Union legislative acts. It would be more sensible if they consisted of primary legislation, generally adopted by the Council and the European Parliament, described as a European law or a European framework law. The term "regulations" might be more appropriately applied to subsidiary legislation, adopted by the Council and Commission under their treaty authority or by the Commission under delegated powers. I agree with the noble Lord, Lord Howell, that the phrase "non-legislative actions" should be ditched very soon.
Article 31 and related articles deal with justice, immigration and asylum. Here we move into pillar three, which is not part of the main competences. Many noble Lords will see points where the Select Committee welcomes proposals under that heading. However, there are also some completely new provisions. For example, the European Union may adopt laws covering the rights of victims of crime. That may be desirable, but should it be a Union responsibility? I doubt it.
Article 19 extends the role of Eurojust. Many noble Lords will be irritated by that, principally because, rather than referring to a specific list of offences, it now covers all serious crime affecting two or more member states and requiring a joint prosecution. That is a substantial increase. Article 20 would establish the European public prosecutors office, which would act as prosecutor in the competent courts of the member states in relation to serious crimes affecting several member states and European Union financial interest.
On those three articles, it would be helpful if the Minister could give us a government view, or at least a provisional view. In this area, the convention seems to have "stepped into touch", to use a rugby phrase. It would be a good idea for us to consider those articles closely and, possibly, to remove them from the convention.
5.55 p.m.
Baroness Blatch: My Lords, I wish that I could be as optimistic as the noble Lord, Lord Williamson of Horton. I listened this morning to the right honourable Peter Hain answering some fairly penetrating questions from a Select Committee about the Convention on the Future of Europe. I cannot say that my fears were allayed or that I was much the wiser about the Government's position.
The same cannot be said about my noble friend Lord Blackwell, who provided this opportunity to debate this important constitutional issue. I thank him warmly for initiating the debate and for what he has written in an excellent pamphlet on the subject. I must also pay tribute to my noble friend Lord Howell, who holds Front Bench responsibilities for these issues for the Official Opposition. He has been assiduous in studying all the papers on the convention to date, and

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the knowledge and foreboding that he expressed during his excellent speech requires us all to take heed of such expert opinion.
It was only in October and December of 2001 that it was agreed to establish a Convention on the Future of Europe involving all member states. The plan is that the convention will precede the next intergovernmental conference in 2004. A root and branch review of the Treaty of Rome and all subsequent amending treaties would be undertaken. Although many papers have been produced and much has been said by participating representatives, especially by our Prime Minister and other Ministers, who have indicated the shape and form of the outcome of this work, we will see the definitive proposals only in June this year. They will go before the IGC in 2004.
My noble and learned friend Lord Howe, who is not in his place at the moment, referred to the fact that the constitution was flooded with amendments and said that there was still time to influence change. However, we have seen the Prime Minister commit himself publicly to agreement to aspects of the convention. When he visited Spain and spoke to José Maria Aznar, there was definitely a good hint of how he viewed the constitution in its present form.
As for the so-called democratic process, why was my right honourable friend Mr. Heathcoat-Amory given a mere two minutes to speak to nearly 100 amendments to the first 16 articles of the draft constitution? That hardly bodes well for progress on modifying the articles of the constitution. What did Mr. Hain mean when, seeing a draft of the articles, he said:
"A lot of representatives are wondering whether the people who drew up this document have been going to a different convention"?
So much for his influence. Is there no control over the drawing-up of these proposals, if they are so out of kilter with the meetings attended by Mr. Hain?
The timetable allowed for this momentous constitutional change is very tight. Such is the nature of the changes envisaged, that it is unthinkable that there is not to be a referendum. This Government have proposed a referendum for regional assemblies in eight parts of England, but set their face against allowing the people to vote on the future of the United Kingdom. However, this Government have so devalued the integrity of the United Kingdom as a whole that that is not surprising.
Although Giscard d'Estaing, chairman of the convention, has warned of a possible delay in its work, some countries are pressing for the IGC not to be delayed. On 19th March, on BBC Online, Giscard d'Estaing warned that,
"we cannot have the debate on foreign policy until things have been clarified a little"—
in Iraq. However, with breathtaking arrogance, the Italian Government have argued—as reported in the Financial Times on 25th March this year—that,
"the risk of developing things too much is that we could have a stalemate with a new set of actors and no consensus".
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In plain language, that means, "Let's settle this before the accession countries enter the EU because they may not agree with our proposals". Apart from that view throwing light on why they do not want to widen the democratic debate, it also gives a broad hint of why our Government have set their face against a referendum. The new accession countries just may disagree, and the people of the UK may also reject the proposals.
I cannot believe that the eastern European countries who won their freedom from the USSR will want to enter into another superstate without first having a determining role in its formation. If the Government are confident that it is such a good package and that it will be in the British interest, then why not just put it to the test? Any comparison with Maastricht—which will no doubt be the Government's retort—will not do. Maastricht was an amendment treaty; what we have here is a rewriting of the primary Treaty of Rome and all subsequent amendment treaties.
Iraq has changed everything. The behaviour of France, the indecision of member countries, the damaged relationship with NATO and the USA—all mitigate against the convention's proposals on foreign and security policy. On 19th March, referring to post-war Iraq, one UK diplomat was reported on BBC Online as saying that,
"no one on the British side will seek to belittle or dismiss the difficulties that exist—it will not be business as usual".
Yet, measure those words against the EU draft constitution, which states:
"The EU shall have competence to define and implement a common foreign and security policy … member states shall actively and unreservedly support the Union's common foreign and security policy in a spirit of loyalty and mutual solidarity. They shall refrain from action contrary to the Union's interests or likely to undermine its effectiveness".
I agree with my right honourable friend David Heathcoat-Amory, who said:
"democracies should not be corralled into actions against their gut instinct".
That is why I ask for two things: first, to delay this work until the accession countries can play their full part in shaping the future of their Europe; secondly, if it is to go ahead, that there must be a referendum of the people in the United Kingdom.
The Liberal Democrat leader in the European Parliament wishes to remove individual sovereign country membership of the United Nations committees and replace them with a single European vote representing all EU countries. As I said, he argued that,
"it would constrain the unfettered exercise of American power, and Germany, France, Britain and Spain would have to agree to speak with one voice—Europe's world would prevail".
After the recent debacle over Iraq—and if that is what a legal personality actually means—God help the UK if his view were to prevail.
We need a clear indication from the Minister as to what will not be agreed in the draft as it presently stands. That would give us at least some idea of what we should not be worrying about. The Government cannot argue that the EU as a single legal entity—with

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a common foreign, security and defence policy, an entrenched Charter of Fundamental Rights, and common principles of law—would not create a shift in self-determination or sovereignty. Such a change, if it is to happen, should be endorsed by the people of our country.
Since 1997 the Government have engaged in nothing short of constitutional vandalism: ill-thought-through devolution to Scotland and Wales; changes to the House of Lords without considering fundamental powers and functions first; the creation of town mayors voted in by a fraction of the popular vote; London government; and now the complete carving up of England into pro-European regions. Scotland and Wales at least still enjoy the status of whole countries, whereas England will be completely fragmented. That combination destroys the integrity of the United Kingdom as a whole. The contempt shown for our Parliament and its democratic processes is there for all to see.
It is therefore no surprise that the Government are prepared to take the next step—to subordinate the whole of the United Kingdom in fundamental areas of policy to the European Union. As my noble friend Lord Howell said, it is a fossilised and centralised idea. It does not protect nation states, and it will involve huge new European powers. Should that be refuted by the Minister and her colleagues, then we should allow the people of this country to make their judgment on what they think of the proposition.
In a sentence, the executive is strengthening; parliament is weakening; and the axis for decision making is moving to Europe. My plea is to invite people to rise up, take an interest and not to sleepwalk into this single state called Europe. What is left of UK sovereignty is too precious to be given away by Mr Blair and Mr Hain at the next IGC. We must fight for a referendum.
Lord Renton: My Lords, before my noble friend sits down, I wonder whether she realises that, although she made a most brilliant speech, only five Members of the Labour Party were listening to it—two on the Front Bench and three on the Back Benches.
6.6 p.m.
Lord Cobbold: My Lords, I should like to add my name to those who thanked the noble Lord, Lord Blackwell, for initiating this important debate. I also thank the noble Lord, Lord Grenfell, and the Select Committee for their excellent reports and comments on the draft constitution.
The idea of a constitution for the European Union is a dream. As with most dreams, the problem lies in waking up to the real world. As we have heard this afternoon, even among those who have long believed and continue to believe in the building of the European Union, there remains a fundamental schism between those favouring a loose Union of like-minded national states and those seeking a more unified superstate. The
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challenge for the convention is to produce a constitution that satisfies both viewpoints—a seemingly impossible task.
Nevertheless, I believe, with some other noble Lords who have spoken, that the effort is worth while and has updated and improved many of the provisions in the existing treaties, as explained by the noble Lord, Lord Williamson. I agree with the noble and learned Lord, Lord Howe, and the noble Lord, Lord Norton of Louth, that more time and more public consultation is needed and that it should start as soon as possible both in Parliament and in the country at large so that all are aware of the momentous decisions involved. After a final text is agreed, I think that there should be a referendum to give the people of this country and of the whole Union the ultimate choice. But if we are beholden to the reckless timetable referred to by the noble and learned Lord, Lord Howe, I should like to take this opportunity to raise three specific issues and to express the hope that the Government and the Select Committee will think about them and, if in agreement, might feed them into the convention.
First, I should like to return to the issue I raised today at Question Time. I believe that the constitution must be more specific about the long-term boundaries of the Union and of what it means by "Europe". That issue has been brought to a head by the prospect of bringing Turkey into the Union and the consequent debate as to whether Turkey is a European state. Whether or not it is, I believe that the rationale should be made clearer in the constitution than it is at present.
A possible way out of this difficulty could be for the constitution to allow for a category of associate membership which would be available to neighbouring countries, "whose people"—according to Article 1 of the draft—
"share the same values, respect them and are committed to promoting them together".
Such a category would also allow the extension of the single market and other economic provisions, but would avoid the difficulties of integrating a wider group of non-European countries into the already highly complex administrative mechanisms of the Union. Such a proposal is akin to the variable geometry option referred to by the noble Lord, Lord Blackwell, and could be used by member states within Europe which were not prepared to accept the full commitment to the Union.
Secondly, I turn to a more specific point. Articles 11 and 12 deal with exclusive competences and shared competences. Among several exclusive competences in Article 11 are included the "free movement of capital" and "a common commercial policy", whereas "the internal market" is listed as one of the shared competences in Article 12.
I find these definitions rather vague and am concerned that there is no specific reference to financial markets, which I believe are of fundamental importance to the development of the Union. By financial markets I mean a common stock and bond market, common take-over rules, a unified retail banking and savings market and a Union-wide retail

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payment system. I believe that financial markets are a shared competence but are worthy of a specific mention.
Lastly, I should like to support the comments of the Select Committee on the use of the phrase "sustainable development" in Articles 3(2) and 3(4) of the draft constitution. I believe that that phrase is a piece of meaningless modern bureaucratic jargon which should not be allowed to creep into a document of this importance.
6.10 p.m.
Lord Shaw of Northstead: My Lords, I, too, should like to thank my noble friend Lord Blackwell for initiating the debate. I should like to thank particularly the noble Lord, Lord Grenfell, and his team—his committee, sub-committees and all his staff—for the very valuable reports that they have produced and are continuing to produce, I am glad to say. I shall refer to several points raised in those reports during my speech.
It is clear that the proceedings of the convention began very much along the lines promulgated in the Laeken declaration. We have had six months of "listening phase" followed by working groups producing a large number of proposals. But the real test lies with the praesidium. Meeting in private—13 strong—it is now drafting specific treaty articles for subsequent debate and the proposed date of submission of the final draft is rapidly approaching. How far those articles will reflect the proposals put forward by the working committees and others remains to be seen. But if they are to reflect those proposals, I suspect they will need close and time-consuming examination and debate. The danger must be that that will not happen. Already pressure is being brought to bear to present the convention's conclusions to the Council on 20th June, in which case the praesidium's proposals will be put forward with far too little examination.
There is a further reason why it is important that the final conclusions should not be arrived at prematurely. The candidate countries have demanded that the start of the IGC be postponed until they have formally joined the Union in May 2004 so that they can take part in what they term an "appropriate reflection period". I am greatly sympathetic to their request. I have never forgotten the damage that was done to our fishing industry—and in particular to the fleets in Scarborough and Whitby in my former constituency—by our being forced, as a prior condition of our entry into the Community, to accept an ECC future fishing policy, a policy which, although drafted, had not been enacted at the date of our entry. Had we been allowed to debate that policy after we had entered, that policy would never have been enacted, certainly not in the form that it was, and the North Sea would still be full of fish.
After all, one of the main purposes of the convention is to prepare the ground for the entry of the candidate countries. While it has been established that they are approved candidates for membership, it is none the less clear that when they do enter the European Union
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the variety of economies and social conditions within the enlarged Union will be much greater than that which exists among the present membership. I believe that such a greater variety of conditions emphasises the need for changes, some of which have already been identified and discussed, particularly in the important reports that have been produced by our Select Committee on the European Union.
The first change that I believe has to be made is in the relationship between the Council and the Commission. The Council must become more effective, certainly than it has been in the past. It has not provided the leadership that it should have done. Consequently, and not unnaturally, the Commission has become too strong. In practical terms what should be done? The size of the Commission must be restricted. The more commissioners that are appointed, the more responsibilities have to be acquired to build up the departmental empires. The number of commissioners must be related much more to identified responsibilities.
The whole subject of subsidiarity must be looked at afresh. In June 1999 we debated an excellent report from the European Communities Committee on the subject of comitology. In that debate I pointed out, for example, that there are about 250 committees all beavering away in Brussels on secondary legislation of one sort or another. Yet their efforts very often result in legislation that does not happily fit in with the procedures and circumstances of national governments.
Jacques Delors in 1992 offered a prize for anyone who could define subsidiarity. I wonder whether anyone has ever claimed that prize. He claimed that the principle was still a matter of interpretation. So far, interpretation has always been for an ever-widening scope of responsibility For the Commission and its committees. One of the consequences has been, of course, that when a regulation is challenged the excuse is made that nothing can be done because the regulation was made in Brussels. That problem has been taken on board by the convention and it has been studied by a working group. It has also been studied by our Select Committee.
There is overall general agreement on the need for greater involvement of national parliaments in the monitoring of the application of subsidiarity. As the committee states:
"An opportunity has to be provided for such monitoring at the earliest possible stage of the legislative process".
The Protocol on Subsidiarity attached to the 1999 Amsterdam Treaty also stressed, among other things, that,
"forms of legislation that leave the member states the greatest room for manoeuvre are to be preferred to more restrictive forms of action".
That is stated in paragraph 6.
So far as the early warning system is concerned, as described in the committee's report, I entirely agree with the committee's support of the proposal put forward by Gisela Stuart whereby, if the Commission received reasoned opinions from two-thirds of national parliaments, the Commission would be required to

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withdraw its proposal. I also strongly agree with her suggestion that during the rest of the legislative process national parliaments should be kept informed of any amendments to the text so that they can monitor changes. There is an objection, of course, to her proposal, which is that it would slow down European legislation. Frankly, I do not regard that as an objection. But the implementation of any such changes makes even more imperative the need for a much improved system of dealing with European legislation in our own Parliament. When Bills go through the full parliamentary procedure they arouse an interest and discussion in Parliament and in the country that is essential to their satisfactory enactment.
European legislation that is to be applied and monitored in this country must be subjected to much more of those processes than it has been in the past. Even at present we are finding that the European legislation is at times being interpreted by government regulation in a way that would not have passed the full scrutiny of parliamentary process.
Finally, I have always believed that the long-term success of the European Union must be based on a sound and respected financial regime. Many changes have been made over the years. The Court of Auditors was set up in 1977. In order to give it more clout, at Maastricht it was made a Community institution. Although it has become more effective, it has still come in for a lot of criticism.
On 8th January 2002, the House debated a very valuable report on the Court of Auditors by the European Union Committee. Its report and the evidence given to it were first class, and are both deserving of serious consideration by the convention. The report noted that:
"The need for the Court to be independent and to be seen as independent was accepted by all of the witnesses questioned about this".
It went on to stress the need for a highly qualified chief executive, supported by a large team of audit staff who were mainly qualified.
In the light of experience, and particularly in view of the future enlargement, I feel that the convention should review the constitution and working of the Court of Auditors. Our European Union Committee's report provides a sound basis for any such review.
6.21 p.m.
Baroness Seccombe: My Lords, I add my thanks to my noble friend Lord Blackwell for bringing this important matter before us today.
Perhaps one of the most unwise things that I ever did was to not take too much notice of the Treaty of Rome until it was on the statute book. In my innocence, I was excited by this brave new world that would emerge, bringing peace and prosperity to a Europe that had spent hundreds of years tearing itself apart. I loved the thought of free trade, easier travel, and the pulling together that I was certain would benefit us all.
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Thirty years ago, I was one of many who campaigned for a "Yes" vote on the crest of a wave. With the new flag flying and "Ode to Joy" playing, I was inspired to knock on doors day after day, whatever the weather. I remember the atmosphere at the count, which was euphoric as the "Yes" vote succeeded. However, what I did not realise was that the EEC was destined to become the EU, with the ultimate goal of ever-closer political union.
A quarter of a century on, I observe with sadness and even anger our nation being slowly strangled by all the regulation, bureaucracy and interference in our daily lives. Over the past few weeks, the sham that is the European Union has been exposed for all to see. Personally, I found French arrogance in the attitude to United Nations resolutions an absolute disgrace. However, all that may be a blessing, as surely now the idea of a European army and common defence policy is ludicrous. That is confirmed by the YouGov poll in the Sunday Times on 29th March. It would appear that public opinion has shifted since the outburst from France, hardening against further integration into a Europe of the regions.
I am angry that the Government are attempting to tear England apart in the Regional Assemblies (Preparations) Bill, currently passing through the House, simply because that suits the EU better. It is appalling that this country should be treated in that cavalier fashion, with the Government casually bringing about the abolition of the county councils—councils which have served us well for centuries.
I will not discuss the finer points of the convention debate, as others are much more qualified to do so than I am, and nor do I know all the detail. However, what I gather to be under consideration fills me with horror and foreboding.
The convention is now in the process of finalising proposals for a new treaty of Rome. I believe that it is the duty of this Parliament to ensure that the British people are made aware of the detail of the treaty in good, plain English, as my noble friend Lord Norton of Louth said. Phrases such as "community competence" and "legal personality" will not do. I am sure that no one would understand what they meant unless it was spelt out very clearly. It must also be explained how any treaty would impinge on every facet of our lives. Then the question must be put to the British people in a referendum. For surely the treaty would have a more far-reaching impact than acceptance of the euro.
In another place, the right honourable Peter Hain said:
"We have not gone down the referendum route, except in the case of the original decision to join and—if we indeed decide to hold a referendum—in the case of the fundamental decision of joining the single currency … we shall proceed as we have done in the past, by ratifying treaties through Parliament, because, frankly, that is the best way". [Official Report, Commons, 20/3/03; col. 305WH.]
That may be so in his opinion, but what could be more fundamental than the proposed treaty? Surely the Government must recognise that the proposals are so far-reaching that it is essential that the people are consulted and their views taken into account. As the shadow Foreign Secretary, Michael Ancram MP, said:

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"It would be totally wrong to accept a further transfer or surrender of sovereignty, and a diminishing of our constitutional rights, contained within a European Constitution without a referendum".
My noble friend Lady Blatch pointed out that many of our established institutions have undergone major surgery during the past five years. Taken together that constitutes a revolution, with many lives being turned upside down. We must not allow the British people to be led blind into a future where our sovereignty and rights are lost.
I well remember the Second World War song "There'll Always be an England" and what it meant to everyone. It could not be sung today with confidence. I just cannot understand the Government's determination to decimate our country and hand it over to the European Union. It would in my view be a catastrophe if that were allowed to happen.
As I have said before, the European Union has for me been a shattered dream, but I have said today 'what many people have told me are their thoughts. I do not wish to become an oath-taking citizen of the federal states of the European Union. I simply want to be British and English in a loose association of European member states. I can only hope and pray that we do not be become so submerged in the United States of Europe that we drown in its regulation. If we do, I am certain that our children and grandchildren will never forgive us.
Lord Stoddart of Swindon: My Lords, the noble Baroness mentioned that Mr Hain said that there was a referendum before we went into the Common Market. If he said that, he was completely in error. There was no referendum before we went in, but there was one in 1975 as to whether we should remain in.
Baroness Seccombe: My Lords, I thank the noble Lord for making that very important point.
6.28 p.m.
Lord Pearson of Rannoch: My Lords, the acquis communautaire; comitologie; COREPER; competence; Corpus Juris; collapsing the pillars; concentric circles and variable geometry; the democratic deficit; directives, regulations, common positions, framework decisions and derogations; enhanced co-operation; flexibility; tax harmonisation; the hierarchy of norms; inter-governmentalism; legal personality; qualified majority voting; the Petersburg tasks; Schengen; the Social Chapter; sovereignty; the treaty-making power of the royal prerogative; Protocol 30 and subsidiarity—no wonder people find the subject of Europe very confusing and boring.
And what do we mean by "Europe"? Do we mean the continent of different nations which we know, respect and even love? Or do we mean the European Union, that corrupt octopus in Brussels, which many of us fear and dislike intensely?
The trouble is that one cannot really participate in the debate about our relationship with the European Union unless one has a pretty good idea about all the expressions I have mentioned, and a good many more.
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For example, a normal human being might think that if Brussels has "competence" to do something, then Brussels should be capable of doing it and even do it competently. But in Eurospeak, of course, "competence" does not mean that at all. It means that Brussels has power over us in that regard, and normally uses that power incompetently, dishonestly and always in a way that we could do much better by ourselves or in friendly collaboration with other countries of Europe, without the filter of the European Union at all.
The common agricultural and fisheries policies come to mind, of course, as other noble Lords have mentioned. But it is hard to think of any policy to which it does not apply or of any benefit that we have actually enjoyed from our membership of the European Union which we could not have had without it.
So I have to say that I and other Euro-realists are really very grateful to M. Giscard d'Estaing and his collaborators for producing such a sparklingly clear constitution for the future EU. A normal human being can now read and understand exactly what is proposed and can also see, perhaps for the first time, just how much of our sovereignty we have already given away.
It is one of the oldest tricks of the Europhile's trade to claim that if something which we did not notice at the time is already in the treaties, it must be all right. "This is not new", they say, "so there's nothing to worry about". I am afraid that the noble Lords, Lord Grenfell and Lord Maclennan, gave us an example of that today.
Let us take, for example, legal personality. Article 4 of the draft constitution simply says:
"The Union shall have legal personality".
The Europhiles say that that is harmless because the EU already has legal personality, which, indeed, de facto, it does. It can conclude international trade agreements on behalf of the whole EU. But the convention proposes to extend the powers which go with the new explicit legal personality massively, as my noble friend Lord Blackwell and other noble Lords have revealed.
I would add that with the new legal personality, the EU flag, which at the moment is mere advertisement and requires a local authority licence before you can display it, will presumably achieve the status of a national flag. Beethoven's "Ode to Joy" will presumably be promoted to the status of the EU's national anthem.
More worryingly, could I ask the Minister—she has not been asked many things—a question which I have asked before but to which I have never had a satisfactory answer? Can Her Majesty's Government give a clear assurance that when the EU has legal personality, and after Parliament has rubber-stamped the outrageous EU arrest warrant, as, according to the treaties, we must, one will not be committing the crime of xenophobia when one speaks against the European Union? Could calling it the "corrupt octopus in

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Brussels", or worse, then lay one open to prosecution? I should be most grateful if the noble Baroness could answer that this time.
I have little doubt that the Minister will reply that that question is entirely fanciful. If that is her intention, could I take her back to our debates on the Maastricht Treaty in 1992? I know that she was not with us at the time, but at Maastricht an amendment was made to the treaty establishing the European Community—the treaty which was there before Maastricht—to introduce the concept of citizenship of the European Union. Every person holding the nationality of a member state became a citizen of the new Union, whether they liked it or not. Article 8.2 of the TEC went as follows:
"Citizens of the Union shall enjoy the rights conferred by this Treaty, and shall be subject to the duties imposed thereby".
Some of us who did not like it put down amendments to discover what those rights might be. We were even more worried by what our new duties might be. I fear it is a matter of record that the Lord Chancellor of the day tried to dismiss our fears—several times—by saying that the new rights, whatever they might have been, did not carry with them any duties. There were no duties; it was just Eurospeak, and so we could all relax.
Well, now we see the emerging duties which we always feared. The proposed European constitution will found a new Union, separate from the member states, with its own legal personality, laws and supreme court. The primacy of Union law and the constitution becomes explicit, together with the proposed harmonisation of criminal laws and procedures, new legal instruments, some of which are delegated to the Commission, and the wholesale switch to qualified majority voting. Oh yes, my Lords, we shall have duties all right, and we shall owe them to the corrupt octopus in Brussels and not to Her Majesty the Queen in Parliament.
So we must not be fooled into accepting even the status quo just because it has been cleverly hidden in the intolerable verbiage of the treaty wordings and the Commission has decided that the time has come to bring it into the open and perhaps to embellish it.
As to the detail of the proposed new constitution, I suppose that we may dare to hope, as other noble Lords have suggested, that the new common foreign and security policy, or EU army, as the President of the Commission more accurately describes it, is a deadish duck. If so, we must be grateful to M. Chirac, who so admirably reflects France's deep psychotic need to bite the hands that freed her in two world wars.
But, apart from that, it looks as though the eventual treaty will contain most, if not all, of the frightening features of the present drafts. I am aware that the Government, like all British governments before them, are about to enter the usual "we shall negotiate to get what we want" phase. That is what happened, after all, at Maastricht, Amsterdam and Nice, to no real effect.
But, as my noble friend Lord Howell and others have pointed out, the Prime Minister appears to have already agreed most of it in his Cardiff speech last
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November. I would also draw your Lordships' attention to his Madrid communiqué with Mr Aznar last 28th February, as did my noble friend Lady Blatch, but perhaps I could give your Lordships three very brief extracts:
"The UK and Spain support a strong and independent Commission. We want to extend its power of initiative, particularly, in the area of Justice and Home Affairs".
Then:
"We should explore the scope for recognising in the Treaty a category of 'delegated acts' for implementing framework laws…Lastly we must strengthen the role of the Commission President, preserving his/her independence and democratic accountability".
I suppose that that may be because the Prime Minister is rumoured to want the job himself. I do not know.
The next quote is:
"The European Parliament, as the body which is directly elected by the citizens of Europe, must be developed further. Its powers have been successively expanded coinciding with each reform of the Treaties. The future Constitutional Treaty cannot and shall not be an exception in this respect".
Whatever the Prime Minister's position, and one can only hope that Iraq may change it, the Government's negotiators have clearly been already swept along on the tide of their Europhilia and in the wake of the convention's incestuous and inward-looking determination. However, I have to agree with my noble and learned friend Lord Howe, if it does not cause him too much inconvenience. It is clear that the Government have given in far more than they should have done in the convention because they are unable to play with the toy of the euro in the European nursery.
If I am wrong and unanimity is not reached on the new treaty, can the Minister tell the House what happens about Clause 48 of the TEU, which requires unanimity for any treaty change? Could the "enhanced co-operation" procedures of the Nice Treaty come into play, allowing those that want to go ahead with the new constitution to do so? But, if so, what happens to those countries which do not go forward with it? Will they be stuck with the existing treaties, or will they be offered some new form of associate status, as M Giscard d'Estaing has suggested?
Clearly, some of your more Europhile Lordships would regard associate status, perhaps along the lines of a free trade arrangement, as being cast into outer darkness. But that is what the British people thought they voted for in 1975, and a substantial proportion of them want to go back to it. We Euro-realists do not regard leaving the European Union as a retrograde step, looking backwards, as the noble Lord, Lord Maclennan, suggests. We regard it as liberating, refreshing, new, forward-looking and enriching in every way. So, roll on associate status as far as we are concerned.
But my worst fear is that, given the requirement for unanimity and the controversy of these proposals—the 1,000 amendments which have been tabled and so on—we shall not end up with a new treaty at all. Instead, we may go into yet another renegotiation of the present treaties, with all the usual obfuscation and deceit in the new drafting, and with all the doors left unlocked through which the Eurocrats later wish to

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walk, which hardly anyone will spot and virtually no one will understand. In other words, more of the same. That to me would be the worst possible outcome and I hope we shall be on our guard if it happens.
If, on the other hand, anything similar to the present draft comes before us for ratification, I join other noble Lords in saying that it should be unthinkable for the Government to use the treaty-making power of the royal prerogative and steamroller it through Parliament. Yet that is what the Government have said they intend to do, and I find it very hard to believe.
The proposals now before us quite simply spell the end of British democracy; the extinction of the right of the British people to elect and dismiss those who make their laws and levy their taxes. The proposals before us would therefore herald a change as great as that brought about by the Norman conquest, or which we faced in the last war. If the Government think they can get away with imposing such fundamental change without a full and clear national debate in language which the people can understand, and if they think they can do so without a referendum, they must be mad.
6.41 p.m.
Lord Wallace of Saltaire: My Lords, I am glad that at last we have the opportunity to debate some aspects of the convention. I much regret that we have been unable to do so in government time long before now. I have been looking again at the excellent reports which the EU Committee published for our attention. I note that they were published for information but, indeed, that the report of the national parliaments states it is hoped that it will contribute to the debate to which the committee looks forward to having in government time. Unfortunately, it has been held in Conservative debate time and I regret that it has been dominated by such a Eurosceptic tone.
The noble Lord, Lord Blackwell, is right to draw attention to the significance of the convention and the importance of having an informed and open public debate on this subject. This is an important exercise. It was intended to involve national parliaments in a wider process of debate. Our four parliamentary representatives have worked extremely hard to report back to both Houses and to their respective committees. The two committees have worked extremely hard. There have been some excellent reports. The Joint Standing Committee has met to discuss the monthly reports which our representatives have given us on successive occasions. I regret there has been very little encouragement from the Whips of any of our parties to attend the Joint Standing Committee. There has been no government-led debate and no Green Paper or White Paper. Despite urges from many noble Lords that there should be some government leadership in this, sadly there have been few ministerial speeches.
So, we are left to a Conservative-led debate linked to a call for a referendum and, as has been made clear, to calls for Britain to opt out of the wickedness of continental integration, even to leave, as the noble
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Lord, Lord Stevens, bids us to do now, or to look forward to some limited opted-out associate status, as suggested by the noble Lord, Lord Pearson of Rannoch. That is not where we should be.
The purpose and the progress of the convention, after all, has been relatively clear. As the noble Lord, Lord Williamson of Horton, said, it is an improvement on the four intergovernmental conferences which national governments within the European Union have dragged through since 1985. Noble Lords will remember the Single European Act, which Mrs Thatcher famously signed and on which she did not ask for a referendum, and which, indeed, in many ways was the biggest single revision of the original treaties that we have so far been engaged in.
The question of whether we need a referendum now and the suggestion that somehow Britain still remains an independent and sovereign nation to this day but that we would lose it catastrophically if we were to move a step further forward is a great deal different from where we are now.
The noble and learned Lord, Lord Howe, referred to an obscure lecture he gave in 1996. I remember an obscure lecture given by the noble and learned Lord in 1985 in which he talked of "pooled sovereignty". I believe it was published as an article the following year in International Affairs. In that lecture he argued, I believe to his own Government as much as to anyone else, that we had great advantages in recognising that one could not have either full sovereignty or no sovereignty, but that we were in an international process in which it was to our advantage to share sovereignty with other governments on an increasing range of issues.
As the noble Baroness, Lady Blatch, clearly bitterly regrets, we have now also begun to share some of our sovereignty with Scotland and Wales and will perhaps, in time also, to a limited extent share it with the English regions. We are now the most centralised state in Europe. The French have begun to decentralise. We are now the country in which at a given time each week one could almost tell what the Secretary of State has insisted should be taught in every English school. It would be rather better if we were willing to be a little more decentralised. I felt that I was hearing, particularly in the speech of the noble Baroness, Lady Blatch, the authentic old-fashioned voice of unionism, of the Conservative and Unionist party resisting Home Rule for Ireland, insisting that the imperial parliament and monolithic sovereignty is the only thing we can have. When I was extremely young I used to hear people make wonderful speeches on that, when the Empire still existed.
We have moved a little way beyond that. Some of the speeches I heard today reminded me immensely of things I heard when I was very young. Indeed, I have the distant memory that I heard the noble Lord, Lord Harris, who has just returned to his place, make almost exactly the same speech at the time of the 1975 referendum. I do not think much has changed in the content since then.

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The convention was intended to promote a wider debate. It is not totally unrepresentative. There are national government representatives, almost all of whom are Cabinet Ministers. We have the Secretary of State for Wales. A number of other governments have their foreign Ministers. It is not decisive; it is consultative. There is an intergovernmental conference to follow, which may or may not take as long as the previous intergovernmental conferences. The style is better than the last four intergovernmental conferences, most of which were guided by Conservative governments, although with the Treaty of Amsterdam everyone else became so fed up with the inability of the Conservative Government to come to any decision that they waited until the British general election before they completed the intergovernmental conference.
What is the aim? To some extent it is primarily about simplification and clarification. It is true that there are those within the convention, particularly those from the European Parliament, who are still pursuing a substantial expansion of powers. They have unusual weight in the praesidium and to some extent are attempting to push their agenda against the overall weight of the convention. If national parliaments were more fully engaged in that we would be countering those who still want to pursue a more centralist agenda. However, the confusion and technical complexity of the last four revisions of the treaty justifies simplification and clarification.
I remember one of the permanent representatives who negotiated the Maastricht Treaty of the European Union saying that if he had understood during negotiations that at the end of it this document would be distributed to every household in Denmark, they would have understood that they were conducting a slightly different exercise. Indeed, it was the distribution of that immensely complex document to every household in Denmark that had much to do with losing the Danish referendum. After all, it was immensely difficult to understand.
If there is a major extension of powers at the outcome not of this convention but of the following intergovernmental conference, clearly there will be a case for a referendum. If it is a matter much more of simplification and clarification, what is needed above all is informed public debate led by a government. Referendums catch public attention. Those of us who were engaged in the 1975 referendum will remember how much that focused a public debate on the European issue. Public opinion shifted quite radically over the course of the referendum debate splitting eventually 2:1 in favour of remaining inside.
The case against referendums;—as in Ireland and Denmark now—is that after a while, if there are too many on issues that are not so central, public exhaustion and inattention creep in because the public do not share the sense of urgency. The Irish referendum on the Nice Treaty, without an immense effort from political leaders, led to an extremely low turnout and an initial "No" vote.
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The mistaken style of successive Governments—Conservative and now Labour—is part of our problem in Britain. Governments have always tended to present European commitments as things that are not new—saying that we have already accepted them 10 years before—rather than accepting where we are and how we are changing. I am sorry to say that the present Government are following the same path as their predecessors.
What issues are involved in the convention? I hope that we all accept the tremendous advantages of the current enlargement to an EU of 25 and want the successful introduction of those former socialist countries to an area of peace, security and prosperity, which is what an EU of 25 will be about. However, that will have costs.
Lord Pearson of Rannoch: My Lords, briefly, the noble Lord knows that we do not all agree that enlargement is a good thing. We think that it is a bad thing for the emerging economies of Eastern Europe; they cannot possibly afford it and they are far better off on their own, retaining their democracies under NATO.
Lord Wallace of Saltaire: My Lords, I apologise; I had not accounted for the eccentricity of the views of the noble Lord. The representatives of 28 states are present in the convention; it is not a convention in which the views of the candidates are being taken for granted. But we clearly need more effective decision-making. I want a European Union that is able to do less a great deal better, with a smaller Commission and a stronger Council leadership. The rotating council presidency must clearly change. Perhaps we need a much more effective Council presidency or a team presidency.
However, the question of subsidiarity and national parliaments is an important issue to which we have not yet paid sufficient attention and on which the convention, the praesidium, is going in the wrong direction. We want a strengthened role for national parliaments, to resist the tendency for those in Brussels to believe that when things are done in Brussels, they are necessarily done better and to strengthen democratic checks.
I welcome the ideas that Gisela Stuart advanced for not just a yellow card when a sufficient number of national parliaments question Commission proposals, but for a red card, whereby if two-thirds of national parliaments object to proposals, the Council should have to vote on the basis of unanimity. All of that needs to be advanced. I should also like national parliaments to have much closer links with their national Members of the European Parliament.
I regret that so much of the debate has been at a different level, with many old arguments repeated and with the linking of the defence of an absolutist view of British sovereignty with support for Anglo-Saxon solidarity—indeed, following the United States. It is always a great oddity about anti-Europeanism in this country that those who think that any further cooperation with France, Germany, the Netherlands and

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Belgium is an invasion of British sovereignty seem to assume that when we follow what Washington tells us, that is not in any sense a derogation of British sovereignty. The noble Lord, Lord Saatchi, captured that well in his comparison of America to God the Father—something that we therefore have to follow—with the European Union as the serpent tempting Eve.
There is a real divide here. It is a divide between the noble Lord, Lord Howell, and the noble and learned Lord, Lord Howe, about whether we are "America Firsters" or Europeans—"Europe Firsters". As the noble Baroness, Lady Blatch, said, Iraq presents a real difference in that debate. That is our biggest divide. I strongly agree with the noble and learned Lord, Lord Howe, that common foreign policy and a more effective basis for European co-operation in foreign policy is the priority. On the question of how we rebuild European collaboration to balance the United States—not to oppose the United States but to answer the call made by President Kennedy in 1962 that the United States would be better off with a European pillar to balance it—I stand on one side of the divide and some noble Lords who have spoken stand on the other.
In this House, we suffer from Gresham's law in European debates. Euro-scepticism drives out reasoned debate on other Benches. I apologise for the fact that my Benches have been rather empty this afternoon; I note that the Labour Benches have been emptier than usual. We need an informed debate on the preferred outcomes and on the details of reform. Britain has now been in the European Union for 30 years. The world has changed around us. We have had the end of the Cold War and surges of asylum-seekers, people smugglers and trans-national crime—a whole set of changes of circumstance to which our Government and others must react.
The noble Lord, Lord Howell, suggested that what we really need is a flexible structure for European co-operation. If it is to be flexible, it must react to changes in the international environment. The convention is addressing some of those issues—not as well as it should, but at least it provides the opportunity and focus for debate. I wish that the Government were leading the British response rather more and encouraging the British Parliament to pay more attention to what is under discussion.
Baroness Blatch: My Lords, before the noble Lord sits down, he has had a very good deal of fun at my expense and at that of others who have spoken in the debate. Does he regard loyalty to country and sovereignty and a concern for the integrity of the United Kingdom as a country as a sin?
Lord Wallace of Saltaire: My Lords, I was brought up on the novels of JA Henty. I used to believe that Britain—or England—was a wonderful empire different from the rest. I have moderated my views on that. Patriotism and pride in one's country is fine, but pride in one's country does not have to involve hatred of all other countries except the United States.
Lord Pearson of Rannoch: My Lords, might not the noble Lord be confusing patriotism with nationalism?
6.57 p.m.
Lord Astor of Hever: My Lords, I am sorry that the noble Lord, Lord Wallace of Saltaire, will not respond on his outrageous accusation.
I, too, am grateful to my noble friend Lord Blackwell for introducing today's debate—an issue to which, as my noble friend Lord Howell said, we attach great importance. I agree with my noble friend Lord Norton of Louth that we should have more debates on the subject—and in Government time. It is disappointing that there are no speakers from the Government Benches on this vital subject, apart from the Minister.
I have not been disappointed by the quality of speeches from all sides of the House. Despite what the noble Lord, Lord Wallace of Saltaire, said, it has been a sensible and reasoned debate. I was especially pleased to listen to my noble and learned friend Lord Howe of Aberavon. I compliment him on the excellent work that he and others performed in producing their memorandum to the convention. It contained much solid good sense and practical reforms, not vainglorious ambitions.
We are all grateful to the noble Lord, Lord Grenfell, Chairman of the European Union Committee, for the knowledge and expertise that he brings to the House. I welcome the Select Committee's request for greater openness in the Council when they are legislating. I was also glad to listen to the noble Lord, Lord Maclennan. The whole House will agree with the noble Lord, Lord Grenfell, about the hard work that the noble Lord, Lord Maclennan, has performed at the convention and in keeping the House Informed.
I was not surprised at the widely divergent opinions—from those noble Lords who welcomed the constitutional shift presented by the convention's draft proposals to those who fear subjugation of Britain's sovereignty and the creation of a more powerful but less accountable central bureaucracy. My noble friend Lord Blackwell set out the two vital questions: first, do the proposals amount to a major constitutional shift in the nature of the European Union and its relations with nation states, or are they simply a minor codifying of the rules, and, secondly, should the Government hold a referendum? By my count, today the response by the majority of speakers to both questions has been "Yes".
My noble friend Lord Blackwell pointed out that the proposed constitutional treaty should be seen as a once-in-a-lifetime constitutional change. My noble friend Lord Howell, in a very powerful speech, described it as a "blockbuster" and the most important and far-reaching piece of EU legislation ever to come before us, giving the EU institutions a new source of legitimacy above the nation states. Both believe that the Prime Minister should reject the constitution idea. The House has heard some very strong speeches following on from the theme of my two noble friends. A healthy majority has supported the call for a referendum.

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No one can doubt that this country's relationship with the EU is vital for our future. The shared cultural heritage and attachment to democracy is far greater than any differences, and the EU forms part of the bedrock of western alliances. We always have been, and, I hope, always will be, intimately connected to the European mainland. I myself have worked in France, and my children have had part of their education there. No matter how often our governments may quarrel—and they will—our affairs will be entwined with those of our European neighbours.
Indeed, the EU has accomplished much to advance the European family of nations. It has increased our prosperity through the single market, which some of my noble friends here did so much to establish. The freedoms that it creates allow thousands of Britons, from students to businessmen, to travel, live and work in the EU. Moreover, the European Union has brought stability to young democracies. We have seen that in Portugal, Spain and Greece, and we very much hope that that will be the case in the new democracies of eastern Europe. I was privileged to visit Estonia last year, and I know how much they look forward to the challenges of EU membership.
The EU, then, has accomplished much, and there is still much to do. The single market must be completed, and enlargement must be made a success. But for the EU to be a success in the 21st century, it needs radical reform and a change of attitude among its leaders. I feel that the speech of the noble Lord, Lord Hooson, was far removed from the views of most noble Lords, particularly on the EU loyalty issue.
While the world's attention is, naturally, focused on the war in Iraq, the outcome of the Convention on the Future of Europe has not diminished in importance. It remains the case that any constitutional treaty emerging from the convention is meant to provide the EU's framework for many, many years to come.
I agree entirely with my noble and learned friend Lord Howe of Aberavon and the noble Lord, Lord Stoddart of Swindon, that the convention should not be constrained by an artificial timetable, and particularly in a rush to have a new Treaty of Rome.
The convention was set a vital task. The Laeken declaration rightly stated that,
"the European Union must become closer to its citizens".
The EU faces a crisis of democratic accountability and connection with its peoples. Turnout for European elections has fallen below an average of 50 per cent across Europe. My noble friend Lord Pearson of Rannoch is right to point out that many electors find the subject of Europe very boring. We on these Benches want this grave predicament for the EU solved. We want an EU fit for the 21st century and a membership of 25 or more. We want an EU able to deliver its core tasks, the job its people want it to do, the job it was set up to do: helping provide prosperity and stability in Europe.
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During this debate, many noble Lords were not confident that the convention would meet that challenge. Their fears are shared by our representatives in the European Parliament and, as several noble Lords pointed out, the honourable member for Edgbaston, Gisela Stuart, the only British parliamentarian on the praesidium. She warned, in an interview with the Independent, that the constitution could make the EU more bureaucratic, complicated and remote from its voters.
When the first draft articles of the constitution were published there was, she said, "fairly serious disquiet" from governments. She added:
"I was taken aback by the strength of the reaction. If they find it difficult to accept this, how do you think the public feels?"
She said that, although many voters appeared unhappy with the status quo, the convention was,
"embarking on a process of expanding that. Unless that is what people really want, you get a huge gap developing between the people who make the decisions & the electorate. That is when you get the Le Pens and the far right".
For the honourable Member, who is seen as one of the main architects of the draft constitution, that was quite an admission. We, on these Benches, have warned for a long time that there is a huge gap developing between the people who make the decisions and the electorate.
A number of noble Lords, including my noble friends Lady Blatch, Lord Saatchi, Lord Stevens of Ludgate and Lady Seccombe, mentioned Article 14 and the implementation of a common foreign and security policy. The effect of the war in Iraq will shift the post-war debate in ways that we would be foolish to underestimate. As my noble friend Lord Blackwell said, it seems inconceivable that the Government would consent to a constitution that contained this clause. Like him and a number of other noble Lords, I would welcome the Minister's specific assurance on that point. It is no surprise that the convention has postponed discussion of the place of the CFSP in any new treaty until the situation has settled.
A number of noble Lords, in particular my noble friend Lord Shaw of Northstead, mentioned national parliaments. I agree with the honourable Member for Edgbaston that they are too weak. I detected the same thought from the noble Lord, Lord Wallace of Saltaire. The consensus of the convention appears unable to recognise that national parliaments, for all their faults, are the political bodies that the peoples of Europe understand best and to which they feel closest. They must have real power over European legislation. It is pleasing that they should be able to warn of breaches of the principles of subsidiarity and proportionality. National parliaments must be allowed to halt legislation if it breaches those principles.
The important Articles 26 and 27 have not been mentioned. Does the Minister agree that the draft constitution provides far too little legislative oversight on what the document calls "non-legislative acts"? After all, many of the envisaged "non-legislative acts" are, in fact, legislative in character. Will those non-legislative acts not affect what the draft constitution calls "framework laws", at present known as directives, which are

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supposed to leave more discretion to national parliaments on their implementation? Article 249 of the current EC Treaty states:
"A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods."
Will the proposed non-legislative acts diminish that national discretion? The draft constitution provides for no national parliamentary oversight. That is yet another example of how the draft constitution has all the wrong priorities, centralising—not devolving—decision making.
That measure even manages to diminish democratic accountability, which is already in inadequate supply in the EU. I hope that the Minister will deal with that point in her winding-up speech and tell the House what the Government propose to do to remedy the situation. Does the Minister agree with the Conservative members of the convention that the competencies given to the EU by the constitution are excessive and should he reduced?
Until its final report is published and agreement is reached in the Council of Ministers, it is uncertain whether the convention will signal the final steps towards putting in place a fully fledged European political union or mark the high tide of the integrationists by reinforcing national sovereignty. Many people would disagree with the observations made by the noble Lord, Lord Wallace of Saltaire, about the speech made by my noble friend Lady Blatch. Many people, myself included, are proud of this country and of the Union.
It should come as no surprise that the draft constitution is so ambitious. That is the nature of constitutions; they are not like golf club rules. They redistribute the balance of power. Whatever the content, any constitution would represent one of the greatest changes in the balance of power that our country has ever experienced. I find it disappointing that the Government that set up referendums for a variety of purposes in Scotland, Wales, London and Hartlepool refuse to allow the British people a say on a European constitution.
The convention's final text should not be a constitution for a federal European state. The Government have tabled many amendments to the draft constitution. I hope that they will now devote all their energies to fighting for a Europe of nations, not a nation of Europe.
7.12 p.m.
Baroness Symons of Vernham Dean: My Lords, I begin by adding my voice to those of many noble Lords who congratulated the noble Lord, Lord Blackwell, on introducing the debate today. The Convention on the Future of Europe is considering many important issues in an effort to mould a Union that will serve us well in the years to come. It is right that the House should have sufficient opportunity to debate those matters.
As always, the subject of Europe has brought out some fine speeches and some of the strongest convictions that we hear expressed in your Lordships'
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House. There has been a wide-ranging and fascinating discussion of many—though by no means all—of the key issues raised by the convention. I echo the sentiments expressed by the noble Lord, Lord Grenfell, concerning the two Members of the House who are alternates on the convention: the noble Lord, Lord Maclennan of Rogan, who is in his place, and my noble friend Lord Tomlinson, who is in Brussels on convention business this afternoon. I also commend the valiant efforts of my noble friend Lady Scotland of Asthal and the enormously hard work that she has undertaken on our behalf on the matter.
As the noble Lords, Lord Howell of Guildford and Lord Maclennan of Rogan, implied, the convention has moved into its most crucial phase, with the consideration of the draft treaty articles produced by the presidium. I am delighted that the Select Committee on the European Union, under the wise leadership of the noble Lord, Lord Grenfell, has been so active and so swift in its consideration of the draft treaty articles. I thank the noble Lord and his committee for all their hard work. Like the noble Lords, Lord Astor of Hever and Lord Wallace of Saltaire, I commend the papers that they have produced to your Lordships.
Despite what some of your Lordships evidently believe—I enjoyed the speech made by the noble Lord, Lord Harris of High Cross—the fact is that, we have made considerable progress in the convention discussions so far. For example, we have secured a substantial new and formal role for national parliaments to ensure that action is taken at the appropriate level, national or European. That is the early-warning mechanism for enforcing the subsidiarity principle to which the noble Lords, Lord Blackwell, Lord Howell of Guildford and Lord Grenfell, referred. As we heard in some detail during the debate, at the beginning of the year my noble friend Lady Scotland of Asthal worked very hard to ensure that the European Charter of Fundamental Rights did not change the competences in those crucial respects of the EU. We resisted pressure to make further moves towards qualified majority voting in social policy. We argued that the provisions introduced by the Treaty of Nice needed to be tested first. That does not mean that we are, in any sense, complacent.
I agreed with many noble Lords that there is still a great deal of work to be done. That point was made forcefully by the noble Lord, Lord Norton of Louth. Work needs to be done to protect the United Kingdom's key interests and to ensure that the progress made on the working groups is not undone in the draft articles prepared by the preasidium. It is always important to remember that there will be others who wish to see some adjustments to what has come out of the convention so far. Not all those adjustments will necessarily be welcome to us.
As the noble and learned Lord, Lord Howe of Aberavon, said in his well crafted contribution, it is important to remember how much hard work lies ahead. I assure the noble and learned Lord and the noble Lord. Lord Cobbold, that there is no fixed agenda for the intergovernmental conference. As your

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Lordships will know, the date is set for 2004, but there is some argument about when it should be. Some argue for it to happen sooner, towards the end of this year. The key point for Her Majesty's Government is that the IGC must allow full participation by the accession states so that they can debate the form of the European Union that they will join. We also believe that it is important that there is space between the end of the convention and the beginning of the IGC for national parliaments to consider the issues fully. I hope that the noble Lord, Lord Hooson, will be comforted by that. Again, I agree with the noble Lord, Lord Norton of Louth—I hope that he is not too embarrassed by the degree of agreement between us—that it is important that the public be informed and the information disseminated on all the key issues.
I turn to the draft treaty articles, starting with Articles 1 to 16. As many of your Lordships have said, the first set of draft treaty articles—on the values and aims of the EU—created a stir, and rightly so. They cover issues that go to the heart of the debate about Europe. They tell us about the genesis of the Union, its objectives and the values to which, we hope, we all subscribe. As the noble Lord, Lord Norton of Louth, implied, there are some odd elements—it might be appropriate to describe them as surprises—in the draft articles before us that do not reflect the conclusions and recommendations of the convention's working groups or the plenary session discussions.
At the same time, we should remember that the draft articles contain some good ideas, such as the new subsidiary mechanism, to which many of your Lordships referred, and set out more clearly the competences of the Union and of member states, although, as we all know, we do not agree fully with those lists. We have also prepared for supporting action that confirms that, in certain areas—education, for example—the Union cannot harmonise legislation. If we do not support proposals, we have submitted amendments to the convention. Your Lordships will recall that the Secretary of State for Wales, the Government's representative at the convention, spoke out strongly on several issues as soon as we saw the draft. Both Peter Hain and my noble friend Lady Scotland of Asthal raised concerns about the "federal" reference, as many of your Lordships have done today. As the noble Lord, Lord Norton of Louth, pointed out, the term "federal" means different things to different people in different countries. I agree with the noble Lord that the constitutional treaty should simply say what we mean: that is, that certain policies are co-ordinated at European level to achieve goals that member states cannot achieve for themselves.
I must make it clear that, like several of your Lordships, particularly the noble Lord, Lord Saatchi—I am sorry to see that he is not in his place—we were especially unhappy with the language on economic governance and foreign policy. We shall not accept these becoming full Community competences. The proposals do not reflect the discussion in the working groups. The economic governance group, for example,
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was split and did not come to a conclusion. The external relations group agreed that there should be no communitisation of foreign policy. We also emphasised the need to preserve distinct arrangements for the common and foreign security policy and some aspects of justice and home affairs, to which I shall return later.
The noble Lord, Lord Saatchi, took issue with the way the draft treaty articles deal with who has responsibility, or what, indeed, are the competences. I agree with some of his points. The Government have raised concerns on some of these issues. We have made it clear that what we want is what the noble Lord, Lord Williamson of Horton, said; namely, a scheme of competences that is clear, flexible and simple. There is also a need for accuracy and legal certainty. The scheme must allow us to protect and safeguard our own national interests. The convention president has publicly accepted the need for a constitutional treaty to clearly state that the power of the Union comes from the member states and not the other way around.
I turn to the draft treaty Articles 20 to 33, which are the second set. I think that it is right that these are much more technical than the first set which we received. But that does not make the second set any less important. Much of this set is related to simplifying the Union to make the processes less complex and, it is to be hoped, easier for people to understand. That is a good thing.
We want more people to understand how the European Union works. Again, I agree strongly with the noble Lord, Lord Williamson of Horton, that we are all for simplifying and reducing the number of instruments and terms used. Introducing words such as law and framework law will make it easier to follow what is going on in Brussels compared to the current mix of terms recited by the noble Lord, Lord Pearson of Rannoch.
While we naturally support greater clarity and simplicity for the instruments, we must maintain a distinct range of instruments for CFSP in the new treaty. After all, most of CFSP is not based on legislation and the various institutions really do have very different roles. While we support co-decision and QMV as the general rule for legislation, there will be exceptions. Therefore, we must examine each case on its merits. There will be instances that are simply not appropriate for all the articles.
Part 2 of the treaty contains the detail of the Union's policy and instruments. What we have seen so far is the result of a technical exercise to prepare the ground for merging the current treaties. The legal experts group responsible seems to have done a good job. We are content that those responsible have fulfilled and have stuck to their mandate—a very important point. But this does not mean that we agree with all the changes.
The legal experts group mandate was based on the conclusions of the simplification working group. We fully support that simplification, as I have clearly stated. The noble Lord, Lord Stoddart of Swindon, was right in saying that we were looking at some extension of QMV on co-decision. But I assure him that we are doing that on a case-by-case basis. We

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would not, for example, accept QMV on taxation. We made that very clear when the simplification working group reported and we shall continue to make it clear.
Many of your Lordships, including the noble Lords, Lord Blackwell and Lord Maclennan of Rogart, mentioned the charter of fundamental rights. The United Kingdom's position has always been—we are not alone in this—that the charter, although welcome as a political declaration, was not drafted in a form suitable for incorporation in the treaties. That remains the case. The charter is not clear about what citizens may expect or from whom they may expect it. Such ambiguity and uncertainty is unsatisfactory for the law. The charter was not intended to change the competences of the Union. We must ensure that an incorporated charter is faithful to that.
However, we need not be afraid to look at ideas of how to give the charter some legal status. The challenge has been to find ways to give our citizens legal security and to give them certainty in relation to the charter's ambiguous or conflicting text. The working group came forward with some amendments to the so-called horizontal articles in the charter, plus the prospect of satisfactory official legal explanations to accompany it. That was endorsed by the plenary. It makes sense to decide how the charter might be recognised in the constitutional theory after work on the commentary has been completed.
My noble friend Lord Grenfell concentrated on the role of national parliaments. Indeed, many of your Lordships were very concerned on those points; notably, the noble and learned Lord, Lord Howe of Aberavon, and the noble Lords, Lord Shaw of Northstead and Lord Wallace of Saltaire. I remind noble Lords that at the moment national parliaments have no formal role in the EU. Given the abundance of knowledge that is present certainly in this House, that is clearly a flaw in the system. I am pleased, therefore, that the convention has recognised that national parliaments should be more involved in EU business. I welcome the wide endorsement of the UK's proposal to introduce an early-warning mechanism which would see national parliaments enforcing action being taken at an appropriate level.
I was rather sorry that the noble Lord, Lord Stoddart of Swindon, did not discuss this matter because I know how much he has concentrated on it in the past. Perhaps he did not believe that the new mechanism amounted to very much. I can imagine that, given his position, maybe he did not. But I would disagree if that is the basis of his not having made any mention of the matter. It is important because the Lacken declaration draws attention to the need for national parliaments to play a greater role in EU affairs.
Lord Stoddart of Swindon: My Lords, I am obliged to the Minister for giving way. I would have mentioned it but, of course, we were limited to 14 minutes. I mentioned most things but I could not mention everything. I am pleased that national parliaments are at least mentioned in the convention.
Baroness Symons of Vernham Dean: My Lords, thank you very much. I regard it as something of a success to have obtained that admission from the noble Lord. But I believe that it is groundbreaking because it signals for the first time in the history of European Union co-operation that national parliaments, such as ours, have a formal role at EU level. That is very important; it is a significant achievement. I hope that your Lordships take the opportunity that the new mechanism will provide to demonstrate your extensive knowledge and. indeed, interest in European affairs.
The noble Lords, Lord Blackwell and Lord Shaw of Northstead, and the noble and learned Lord, Lord Howe of Aberavon, spoke extensively about subsidiarity. As I indicated, we have made good ground in obtaining support for the principle of subsidiarity to be more vigorously enforced. However, it is disappointing that there is not as much Interest in the partner principle of proportionality, a point many of your Lordships did not mention. This refers to how detailed and intrusive legislation may be, and, like subsidiarity, it was introduced by the Maastricht Treaty.
Of course, both principles—that of subsidiarity and proportionality—are essentially political. They certainly do not raise technical issues on which a court could be asked to rule. Given that natural linkage between the two, we are trying to generate support for proportionality to be considered by national parliamentarians in the same way as was envisaged for subsidiarity.
I turn to the question that exercised many of your Lordships about CFSP. The noble and learned Lord, Lord Howe of Aberavon, and the noble Lords, Lord Maclennan, Lord Pearson of Rannoch and Lord Astor of Hever, concentrated much of their remarks on this matter. Let us be clear: we said from the start of the convention that we must focus on making CFSP and EU external action more coherent and more effective. Inevitably, that involves some discussion of institutional issues. But it is not just about institutions. Much of the discussion in the External Action Working Group was about practical ways to improve the effectiveness of CFSP.
I say emphatically to your Lordships that communitisation is not the answer for CFSP. I am sure that we can agree on that. We, and many other member states, such as France, Spain and. Sweden, would not be prepared to accept communitisation of the CFSP. The intergovernmental nature of CFSP is the key to its success. ESDP is an integral part of CFSP. We, and many colleagues, firmly believe that only national governments can take the decision to pledge national troops to an ESDP operation. I believe that all your Lordships who spoke on that today could agree with that principle.
We should like to see better co-ordination between the high representative and the external relations commissioner. We have said that before. Our overriding objective is to improve the effectiveness of

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CFSP so that we would have to be satisfied that double-hatting would achieve that. It cannot be a way through the back door of communitising CFSP.
I know that there are concerns about extending QMV in CFSP. But, of course, we should note that although it is hardly ever used we already have QMV for any decision which implements joint actions or common positions and any decisions on the basis of common strategy. We would accept nothing that would threaten our national interests. That includes any challenge to a British seat as a permanent member of the United Nations Security Council.
Lord Howell of Guildford: My Lords, the Minister has not mentioned the fact that CFSP, like everything else, is to be brought within a single treaty. Does that mean that it will fall within the jurisdiction of the ECJ, or will we somehow devise a treaty that is partly governed by the ECJ?
Baroness Symons of Vernham Dean: My Lords, in these respects, we would be looking at some extension of the European Court of Justice. I know what is worrying the noble Lord: it is the way in which the ECJ might then impinge on the ways in which our own troops operate. We have discussed these issues previously.
I still believe that we have a good deal of work to do on these issues, but I assure the noble Lord that we will not agree to anything we do not believe to be in the interests of this country, nor indeed of the commitment we have made that the disposition of British troops is a matter for the British Government, accountable to the British Parliament. I hope that that is a clear statement of where we stand at the moment on this issue, but I am sure that there will be much more to discuss on it.
Concern about the granting of legal personality was expressed by the noble Baroness, Lady Blatch. I believe that I responded to the point when I answered a Question from the noble Lord, Lord Pearson of Rannoch, on 20th March this year. I said that,
"the explicit grant of legal personality to the Union would have the advantage of clarity and simplicity. But if the European Union were to have its legal personality recognised in the European treaties, it could only be on the basis that the distinct arrangements for the common foreign and security policy and aspects of justice and home affairs were fully safeguarded. along with the existing arrangements for representation at international bodies".—[Official Report, 20/3/03; col 375.]
I repeat that assurance to your Lordships and remind them that that stance was endorsed by our own Select Committee. I believe that your Lordships will find it at paragraph 27 of its initial report.
I turn to justice and home affairs. Organised crime and migration are international issues which require international solutions. We need to co-operate with our European partners to ensure our security in the UK and the security of our citizens abroad. The draft treaty articles need to spell out clearly which JHA issues are for Europe and which are not. Europe can help the fight against cross-border crime, but it is not
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for Europe to tell us how we should be policing our streets, for example, or what our domestic criminal justice system should look like.
Where the proposed new treaty achieves that clarity, we will support it. Where it gets the balance wrong, we will argue hard for changes. In this, as in other matters, we are not in the business of signing up to anything which is against our national interest—a point I thought was implicit in the arguments put forward by the noble Lord, Lord Williamson of Horton, on the JHA aspects.
I am not persuaded of the need to create a European public prosecutor, for example. I hope that the noble Lord, Lord Norton of Louth, will again be pleased on that point. And we are not alone. Ireland, Sweden, Denmark, Finland and Austria are also very firmly opposed. Her Majesty's Government believe that there are better ways to fight fraud. Prosecution should essentially be a national responsibility. Our national prosecutors are accountable to our courts and ultimately to our national parliaments and a European public prosecutor simply would not be.
In response to the point raised by the noble Lord, Lord Williamson of Horton, the proposals on criminal procedures do not respect the diversity of our legal system. We believe that they are too far-ranging and not sufficiently focused on cross-border crime. Our concern is that the proposals will potentially allow Europe to get into the workings of our national criminal justice system and we simply do not want that to happen.
Perhaps I may tell the noble Lord, Lord Pearson of Rannoch, that he will be able to continue to speak with his customary gusto on all matters European, without any hint of sedition or treachery, and that we would all wish to protect his rights to free speech, which he enjoys with such colourful enthusiasm in your Lordships' House. I assure the noble Lord, Lord Williamson of Horton, that the proposals on police and co-operation are directed at fighting cross-border crime. There would be no question of the EU deciding how we police our own streets, as I have already indicated.
I agree with the points made by the noble Lord, Lord Wallace of Saltaire, about welcoming a Union of 25. In a Union of 25, it makes sense that some things should be decided by majority voting if we are to co-operate effectively. We support majority voting for asylum and illegal immigration, for mutual recognition and for most substantive criminal issues. However, there are some areas where unanimity remains essential to us; for example, on criminal procedural law. We do not agree to anything which would allow new EU institutions or bodies to be set up without our agreement.
I wanted to make some points to the noble Lord, Lord Harris of High Cross, about regional issues because some of his concerns ranged around them. However, as he was the only noble Lord who raised those points, I shall write to him about them.

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The noble Lord, Lord Shaw of Northstead, made some telling points about the relationship between the Council and the Commission. Our proposals for a full-time chair of the European Council are designed to give greater continuity and strategic coherence to the EU. In a Union of 25, a Council with a constantly changing chairman cannot be an effective partner for the Commission and Parliament. Just like those institutions, the European Council needs the continuity of the strategic drive of a long-term chairman if it is to play its full role in the dynamic new enlarged EU.
But let me be clear with the noble Lord, Lord Stevens of Ludgate: this is not about creating a president of Europe, as he implied. We do not want that. The creation of a full-time Council chair would not involve giving the Council extra powers or creating an new institution. But we need a chair of the Council working in partnership with the president of the Commission. The chair could, for example, be responsible for getting sectoral councils to deliver on the EU strategic agenda and would report jointly, with the Commission president, on progress. In our view, that would lead to better co-operation between the EU institutions and the kind of balance which I thought the noble Lord, Lord Cobbold, was supporting.
I want to say a couple of words on the question of the European Court of Justice because of the points raised by the noble and learned Lord, Lord Howe of Aberavon, and the noble Lord, Lord Hooson. Our key aim here with reforming the ECJ is to improve its effectiveness. There were discussions in the convention on how best to improve the enforcement of EC law and to facilitate the Court's work. My noble friend Lady Scotland and the noble Lord, Lord Maclennan of Rogart, have been active members on the discussion group that was set up to look at the ECJ in more depth. The final report supports more effective appointment of judges and QMV for procedural matters, including the set-up of judicial panels. We warmly welcome that. We also support the moves afoot to improve the systems of penalties.
The noble Lord, Lord Maclennan, spoke about extending access to justice. I understand from my noble friend Lady Scotland that in the discussion group on the issue there was a vigorous exchange of views hut, sadly, no agreement on that point. The Government are not convinced of the change needed to the current system; nor is the president of the ECJ.
I cannot close the debate without commenting on the referendum, as so many of your Lordships have raised it. The noble Lord, Lord Blackwell, and the noble Baronesses, Lady Blatch and Lady Seccombe, spoke at length on the referendum. As your Lordships know, the final recommendations to the convention will form the basis of discussions by leaders at the intergovernmental conference. It is at the IGC where the decisions will really be taken; not here, not now and not on these proposals in front of us. They will be taken at the IGC and on the basis of unanimity. So, in a sense, the noble Lords, Lord Blackwell and Lord Pearson of Rannoch, were right when they said that I
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would point out that these were only drafts and proposals and that we have negotiations ahead of us. I point it out because it is true.
The final decisions of the IGC will most likely take the form of the new treaty, as we all know. As is the norm for ratifying treaties, the Government intend to ensure that this Parliament scrutinises the treaty properly. This was the way in which we dealt with the Treaty of Nice; it was the way in which we dealt with the Treaty of Amsterdam; and, if I may say so, it was the way in which the Conservative government dealt with the Treaty of Maastricht and the Single European Act. The constitutional treaty for the EU would embed and clarify what already exists; that is, it would deal with a great deal of what has already been agreed, as the noble Lord, Lord Grenfell, pointed out.
There would of course be some new elements—that is self-evident—such as the early warning mechanism for national parliaments which reflects consensus in the convention and across member states. But that does not amount to the significant change in the crucial area of the relationship between the EU and its citizens, nor does it alter the position of EU member states as the fundamental basis for the Union.
Some of your Lordships have sought to draw comparisons with issues where referenda do or may take place. The convention's outcome will not create a new tier of government, as would the introduction of the regional assemblies in England, nor does the convention offer a once-in-a-lifetime choice such as whether or not to go into the euro. I say to the noble Baroness, Lady Blatch, that she should go back and look carefully at the Maastricht Treaty because, quite honestly, the changes in it are more far-reaching than those proposed in this treaty. It is slightly quirky to argue that—
Baroness Blatch: My Lords, I am grateful to the noble Baroness for giving way. The point I sought to make is that this particular IGC will review the Treaty of Rome and every single amending treats that has since been created.
Baroness Symons of Vernham Dean: My Lords, the IGC will be looking at them for the purposes of clarification, not for the purposes of changing what has been set out. When making comparisons between the treaties, I should stress in particular the point I made about the Treaty of Maastricht. That treaty laid down the stages for progress towards economic and monetary union. It created the citizenship of the European Union. Those changes were every bit as fundamental, if not more so, than those now being anticipated. But I see that noble Lords on the Front Bench opposite are supporting the noble Baroness by shaking their heads. This is an issue to which no doubt we shall return.
I am bound to say to noble Lords that we should listen closely to the wise words of the noble and learned Lord, Lord Howe of Aberavon. He asked the House to look carefully at how noble Lords on the Benches

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opposite are proceeding. What he said was enormously important. Again, I hope that I do not embarrass him by returning to that point.
The United Kingdom team; that is, the United Kingdom Government, Parliament and European parliamentary representatives, are fully engaged on the issue of the convention. We are proposing ideas, we are trying to persuade others, and we are listening closely to what is being said to us. Our efforts are focused on delivering the Europe that we believe British citizens want: a Europe that is safer, stronger and, indeed, a Europe that will be richer for the future. There can be no question of our not pursuing those aims. We have made some promising gains in devising a new political architecture for a Europe of 25 nations or more. There will be new responsibilities for this House as national parliaments take on an enhanced role in European Union affairs. A great deal remains to be done in continuing to protect our national interests, but we are confident that not only the Government, but also those noble Lords who take such an active interest in these debates, will be well capable of rising to the challenge.
7.42 p.m.
Lord Blackwell: My Lords, I thank all noble Lords who have contributed to this debate. With other noble Lords, I should like to thank in particular the noble Lord, Lord Grenfell, for his contribution as chairman of the Select Committee and to thank him and his colleagues for the work they do on our behalf. I hope that he feels, as I do, that the speeches which followed his contribution, including a number from noble Lords with great experience in this area—I refer in particular to my noble and learned friend Lord Howe of Aberavon and the noble Lords, Lord Williamson of Horton and Lord Maclennan of Rogart—lived up to his exhortation for an informed debate.
I am conscious that there would be some way to go before our five hours were all used. I do not intend to take up much of that time, but perhaps I may take a few minutes to make one or two comments and observations in the time we have available. I shall begin with the response of the Minister, for which I was very grateful. I thought that it was a reasonable and reasoned response which gave detailed answers to a number of specific questions raised in the debate. The problem for many noble Lords concerns the gap between the Minister's words of reassurance and the reality of the draft treaty before us. As she herself admitted, it includes a number of odd elements and surprises, along with areas that she spelt out where the Government would want to oppose the draft as it currently stands. I think that the jury is out and many noble Lords will want to study her words with care and compare them with what emerges over the coming weeks and months.
I shall return briefly to the two questions I raised at the start of the debate and the responses that have been drawn out of our discussion. The first question asked how important is the constitutional convention. It would be fair to say that a variety of views were
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expressed across the House about the changes that are likely to be effected. Some were hopeful and some were fearful of what was likely to emerge.
On the one hand, my noble friend Lord Norton described it as a paradigm shift in line with our initial membership. The noble Lord, Lord Hooson, said that he thought that the constitutional convention would have even greater significance than he had thought when it was initially set up. The noble Lord, Lord Maclennan of Rogart, reminded noble Lords of the new era that the convention intends to usher in and that only a failure of nerve would lead to it turning into a treaty that was merely tidying up. The noble Lord, Lord Stoddart of Swindon, made the point that it would mark the end of Britain as an independent nation state, while my noble friend Lord Stevens of Ludgate said that now the draft has been published, in practice it is very difficult to effect substantial changes.
On the other hand, my noble and learned friend Lord Howe thought that much discussion still has to take place and that the convention was waterlogged, so that it was not yet possible to see what is likely to emerge. The noble Lord, Lord Williamson, saw the treaty as a document more concerned with clarifying rather than extending powers, but unlike my noble and learned friend Lord Howe, he remarked that he was surprised by the large areas of agreement already reached on what has been put forward. The noble Lord, Lord Wallace of Saltaire, said that the treaty was more concerned with simplification than extension.
In my view, the brunt of the argument, based on the draft before us, is that if it was enacted, we would see very significant changes. Furthermore, the fact that so many amendments have been tabled is not a source of reassurance. I suspect that it will be easier for those amendments to be ignored. As we have heard, there will be little time for each of them to be considered. However, time will tell. A more important point is one that I notice the Minister did not address: the Prime Minister has already agreed many of the key changes which, as they stand, many noble Lords would judge to be important.
My second question asked whether this is a matter on which we should hold a referendum. While a number of noble Lords said that they would not be opposed to a referendum in principle, others said that they wanted to wait to see what emerged. That follows on from the points that I have just made and here I indicate most notably the remarks of the noble Lord, Lord Maclennan, and my noble and learned friend Lord Howe. I believe that the noble Lord, Lord Wallace, too, would fit into that category. The majority of noble Lords on all sides of the House have expressed support for the principle that if what emerges from the constitutional convention does have the kind of significance that has been suggested, they would support a referendum. I am grateful to the noble Lord, Lord Maclennan, for clarifying the Liberal Democrat position; namely, that a significant constitutional change should be either the explicit subject of a general election or the subject of a referendum. I agree with that view.

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For my own part, I am quite willing to accept that, while we must have debate along the lines suggested by my noble friend Lord Norton and other noble Lords, the Government may want to wait until after the text is clear before reaching a judgment on whether this would be a matter for a referendum. I would be happy if ways could be found to minimise the concerns that have been expressed because that would mean that there would be no need for a referendum, a point made by several noble Lords. However, I judge that to be unlikely and I should say now that I would not be prepared to accept a prejudgment from the Government that a referendum would not be needed. It would be wrong to take such a decision at this stage.
In conclusion, I shall repeat what I said at the beginning of my remarks. If necessary, I would seek to table an amendment at the ratification stage when the Bill came before the House to enable noble Lords to make a judgment at that point on whether a referendum was appropriate and, if so, to require a referendum to be held before ratification took place. In the mean time, I beg leave to withdraw the Motion for Papers.
Motion for Papers, by leave, withdrawn.

Harbours Bill [H.L.]
7.48 p.m.
Lord Berkeley: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Berkeley.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Boston of Faversham) in the Chair.]
Clause 1 [Amendment of procedure for dealing with applications for harbour orders]:
Lord Berkeley Lord Berkeley moved Amendment No. 1:
Page 1, line 8, leave out from "unless" to end of line 4 on page 2 and insert—

(a) he decides that the application shall not proceed further,

(b) he considers the objection is frivolous or trivial,

(c) the objection does not specify the grounds on which it is made, or

(d) the objection was not made within the period allowed for making it.

(1A) Before making his decision under paragraph 19, the Secretary of State may—

(a) cause an inquiry to be held, or

(b) give to the person who made the objection referred to in sub-paragraph (1) an opportunity of appearing before and being heard by a person appointed by the Secretary of State.

(1B) Where—

(a) the objection referred to in sub-paragraph (1) is made by a person within sub-paragraph (1D), and

(b) that person informs the Secretary of State in writing that he wishes the objection to be referred to an inquiry or dealt with in accordance with sub-paragraph (1A)(b),
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the Secretary of State shall, before making his decision under paragraph 19, either cause an inquiry to be held or, if lie so determines, cause the objection to be dealt with in accordance with sub-paragraph (1A)(b)."

The noble Lord said: I beg to move Amendment No. 1 and, for the convenience of the Committee, to speak to Amendments Nos. 3, 5 to 11 inclusive, as well as to Amendment No. 13, also standing in my name.
Before going into the detail of the amendments, I should once more like to thank my noble friend Lord McIntosh of Haringey for expressing at Second Reading the Government's support for the Bill and for the prompt publication of the regulators impact assessment.
The noble Lord, Lord Luke, asked at Second Reading which organisations had been consulted. I responded that organisations would be consulted after the regulatory impact assessment had been published. I can now state that the Environment Agency, English Nature, the RSPB and the British Marine Federation are generally supportive of the Bill.
The amendments have been prepared by Parliamentary Counsel. They do not make any difference to the substance of the Bill; they are technical drafting amendments. The Bill as introduced seeks to amend Schedule 3 to the Harbours Act 1964. The substantive clauses of the Bill—that is, Clauses 1 and 2—make amendments mainly to paragraphs 18 and 28 of Schedule 3. One deals with orders made on application to the Secretary of State—the most usual orders—and the other deals with orders made on the initiative of the Secretary of State.
The provisions of the Bill would make the minimum changes to Schedule 3 required to achieve the change in the law proposed by the Bill, while leaving the drafting of Schedule 3 as little changed as possible. The amendments improve and clarify the drafting of paragraphs 18 and 28 of Schedule 3 to the 1964 Act, as amended by the Bill. These provisions would be more complex if left unchanged. The improvements made by the amendments incorporate the changes to the law proposed by the Bill. I beg to move.
Lord McIntosh of Haringey: I reiterate the support the Government gave to the Bill at Second Reading. We are content with the amendments.
On Question, amendment agreed to.
Lord Berkeley Lord Berkeley moved Amendment No. 2:
Page 2, leave out lines 11 and 12.
The noble Lord said: In moving Amendment No. 2, I shall speak also to Amendments Nos. 4, 12 and 14. Amendments Nos. 2 and 14 have been grouped with Amendment No. 4. Amendment No. 14 is the principal amendment in the group.
During Second Reading I mentioned that the Bill appeared to extend to Scotland. I explained that after the passing of the Scotland Act 1998, harbour matters in Scotland—such as the subject matter of the Bill—no longer fall within the competence of the Westminster Parliament but must be dealt with in the Scottish Parliament. As I indicated then, I am bringing forward

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Amendment No. 14, the effect of which is to make clear that the provisions in the Bill do not extend to Scotland. Amendments Nos. 2 and 4 are consequential on Amendment No. 14.
The Bill as introduced applied to its provisions the definition of "local authority" contained in paragraph 12 of Schedule 3 to the Harbours Act 1964. However, that definition includes references to Scottish local authorities which will not be needed because the Bill will not extend to Scotland. Amendment No. 2 seeks to leave out the application of the definition of "local authority" contained in paragraph 12 of Schedule 3, while Amendment No. 4 seeks to insert a new definition of "local authority" which is confined to local authorities in England and Wales.
The amendments in this group also have the benefit of being drafted by Parliamentary Counsel. I beg to move.
On Question, amendment agreed to.
Lord Berkeley Lord Berkeley moved Amendments Nos. 3 and 4:
Page 2, line 14, leave out "(1B)" and insert "(1A)(b)".
Page 2, line 14, at end insert—
"( ) In sub-paragraph (3), paragraph (a) is repealed.
( ) After that sub-paragraph, there shall be inserted—
"(4) In this paragraph "local authority" means—

(a) in England, a county council, a district council, a London borough council, the Common Council of the City of London, the Council of the Isles of Scilly, a parish council and a parish meeting of a parish not having a separate parish council, and

(b) in Wales, a county council, a county borough council and a community council.""

On Question, amendments agreed to.
Clause 1, as amended, agreed to.
Clause 2 [Amendment of procedure where harbour revision orders are made by the Secretary of State of his own motion]:
Lord Berkeley Lord Berkeley moved Amendments Nos. 5 to 13:
Page 2, line 21, leave out "or"
Page 2, line 23, at end insert ", or

(d) the objection was not made within the period allowed for making it."

Page 2, line 24, at beginning insert "Before making his decision under paragraph 29,"
Page 2. line 24, leave out ", if he so decides"
Page 2, line 26, leave out from "to" to "an" in line 27 and insert "the person who made the objection referred to in subparagraph (1)"
Page 2, line 31, leave out from beginning to "by" in line 33 and insert "the objection referred to in sub-paragraph (1) is made"
Page 2, line 38, after "shall" insert ", before making his decision under paragraph 29,"
Page 2, line 45, leave out "12" and insert "18(4)"
Page 2, line 45, at end insert—
"( ) In paragraph 29 of that Schedule (decision on harbour revision order proposed by Secretary of State), in sub-paragraph (1)(b), after "inquiry" there shall be inserted "and of any person appointed for the purpose of hearing an objector"."
On Question, amendments agreed to.
Clause 2, as amended, agreed to.
Clause 3 agreed to.
Clause 4 [Short title, commencement, transitional provision and extent]:
Lord Berkeley Lord Berkeley moved Amendment No. 14:
Page 3, line 14, after "to" insert "Scotland or"
On Question, amendment agreed to.
Clause 4, as amended, agreed to.
House resumed: Bill reported with amendments.

Public Interest Immunity
7.56 p.m.
Lord Thomas of Gresford Lord Thomas of Gresford rose to ask Her Majesty's Government whether they will review the law, practice and procedure of public interest immunity in criminal cases.
The noble Lord said: My Lords, the Question I pose today has been sparked off by the answer that the noble and learned Lord the Attorney-General gave to the Starred Question of my noble friend Lord Goodhart on 6th November last year. The Question concerned reviewing the circumstances surrounding the prosecution of Paul Burrell.
In reply to my noble friend's supplementary question, which inquired about the public interest immunity issue, the noble and learned Lord said:
"No Minister was asked to give a public interest immunity certificate or to sign one; a draft certificate was not ever prepared; and nor was any consideration given by anyone to preparing such a certificate to place before the judge".—[Official Report, 6/11/02; col. 715.]
That is not an issue.
My first question to the Attorney-General is whether, following the Scott inquiry and report, it is the Government's intention ever to rely upon public interest immunity certificates again. In such instances, Ministers claim the immunity; the courts will not interfere and so they are effectively deciding the matter in their own cause. I had understood that the practice—at least so far as criminal proceedings were concerned—would fall into desuetude and the question of public interest immunity would be pursued in the ordinary way, allowing the court, the judge, to make the decision as to whether such immunity is properly claimed.
But that was not the Question my noble friend Lord Goodhart posed. The issue was why there were three days in the Paul Burrell trial on which the court did not sit and during which there were discussions between the prosecutor, on his own, and the judge. The prosecutor explained to my noble friend Lord Carlile at the time that a public interest immunity application was taking place. My noble friend contemporaneously noted it in his notebook, and I have seen his notes.
When pressed on the matter by myself, the Attorney-General said that the discussions with the judge were technically a PII application but were not

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what most of us would think of as a PII application; it was not an attempt to keep back evidence but to continue with the trial. But if the decision to withdraw the prosecution had already been taken, there was no need for three days' delay before that fact was communicated to the defence. If it had not been taken, then the possibility was still alive that the prosecution would continue with the case if the court was prepared to order non-disclosure of the sensitive material.
We now know that this material was, essentially, the recollection of Her Majesty with regard to some of the facts in issue. That was not sensitive in any of the senses set out in the code of practice under the Criminal Procedure and Investigations Act 1996, which covers national security, intelligence information, confidential information, identity of informants, police methods and so on.
Our concerns were immediately raised that matters, the disclosure of which were merely slightly embarrassing because of their very late discovery, were being withheld on the grounds of public interest immunity. I hope that the noble and learned Lord the Attorney-General will give an assurance that it was not the intention to extend the boundaries of nondisclosure to matters which are merely embarrassing. I am not concerned so much with the facts of the particular case or the way in which it might have been embarrassing to certain people, but I am concerned that such applications should not be made where there is merely material that is embarrassing, particularly to political figures who might have the power to suppress information that the court should know about. Well, it is all water under the bridge now.
A date was fixed in January for this Question, rather closer to the time, but it was postponed. I do not think that either the noble and learned Lord the Attorney-General or I understood why. Perhaps it was just coincidence that another case against another royal butler was withdrawn the day after the Question was due to be heard. However, I take this opportunity to discuss the efficacy of the current law, practice and procedure relating to public interest immunity applications. Those applications are now an industry involving many people in a considerable amount of work and labour which is, in my view, costly and not of great advantage.
The fundamental grievance of the present procedure from the point of view of the defendant is that applications are made to the judge in not only his absence but the absence of his legal advisers. So the judge hears an application in his chambers without any representation for the defendant, who naturally asks what on earth is going on.
The history of public interest immunity in criminal cases is not very long. There was in the past Crown privilege, a concept with which we were all very familiar. It covered informers and matters of that sort. That was rather different from the sort of concepts that have now emerged. The Attorney-General's guidelines in 1981, which had no force of law, set out exceptions to the common law duty to disclose to the defence evidence of potential assistance to it. Sensitive
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material, in particular, was defined in very similar terms to those in the current code of practice. The guidelines included,
"details of private delicacy to the maker…might create the risk of domestic strife".
That type of sensitive material no longer appears in the current guidelines.
In practice, such material was frequently disclosed by the prosecutor to defence counsel on a counsel-to-counsel basis. The noble Lord, Lord Carlisle of—
Noble Lords: Bucklow.
Lord Thomas of Gresford: My Lords. I am sorry. The noble Lord gets confused with my noble friend Lord Carlile of Berriew, and I am doing the same.
The noble Lord, Lord Carlisle of Bucklow, and I are very familiar with the counsel-to-counsel disclosures that used to take place without causing any problems at all. Then in the case of the R. v Governor of Brixton Prison, ex parte Osman in 1991, the Secretary of State at the Foreign Office sought public interest immunity for papers which had been handed to me, as I was involved in the case. They were protected by a public interest immunity certificate. For the first time, there was a firm declaration by the Court of Appeal. Lord Justice Mann said:
"The seminal cases in regard to public interest immunity do not refer to criminal proceedings at all. The principles are expressed in quite general terms. Asking myself why those general expositions should not apply to criminal proceedings, I can see no answer but that they do. It seems correct in principle that they should apply. The reasons for the development of the doctrine seem equally applicable to criminal as to civil proceedings".
Whereas Crown privilege was something claimed by a prosecutor in respect of documents in the hands of the police, we have now introduced the concept of a. third party—a government department—issuing public interest immunity certificates to protect disclosure in criminal proceedings.
In the case of Ward in 1993, it was stressed that it was for the court and not the prosecutor to decide where public interest immunity should be allowed. In that case, the Court of Appeal said:
"A judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against, on the other hand, the interests of justice. Where the interests of justice arise in a criminal case touching and concerning liberty or conceivably on occasions, life, the weight to be attached to the interests of justice is very great indeed".
In the case of Douglas shortly afterwards, the Court of Appeal stressed that the court itself must view the material in order to carry out an effective balancing exercise between the interests of justice and the interests of those claiming that the documents should not be disclosed.
In the case of Davis, Johnson and Rowe, three different procedures were then outlined. The prosecution could apply to the court and tell the defence, indicating the nature of the material, and the defence would have the opportunity to make representations without knowing the detail of the material to the judge, indicating what his defence was,

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and asking the judge to use his judicial capacity in coming to a decision when considering in private the material the prosecution were showing to him.
In the second procedure, where the material was more sensitive, the prosecution could notify the defence of the application but apply ex parte without revealing the nature of the material. Thirdly, there are in exceptional cases the secret applications, where the prosecution goes to the judge without telling the defence at all. The defence knows nothing about the application or the material that is put before the judge.
In the case of Keane in 1994, the practice that had then occurred, which involved the prosecution dumping all the material it had on the judge and asking him to sort out what was material and what was not, was said to be an abdication of the prosecutor's duty. It was put on the prosecutor that he had to carry out a preliminary sorting of the material documents. The prosecutor choosing what is and is not relevant without the defence knowing what he is talking about came into the system in 1994.
There have been later cases. The matter went to the European Court for a decision in the case of Jasper v the United Kingdom. On the facts of that case, it was held by nine to eight that the procedures of Rowe and Johnson were compliant with Article 6 of the convention. However, in a different situation from the facts of that case the result might very well have been different.
The Criminal Procedure and Investigations Act 1996 set up a statutory scheme covering disclosure by the prosecution: primary disclosure, followed by the defence statement, followed by secondary disclosure. The code of practice that I have referred to came into force and the Attorney-General's guidelines were issued in November 2000. They said:
"The scheme of the Act…should also ensure that material is not disclosed which overburdens the participants in the trial process, diverts attention from the relevant issues, leads to unjustifiable delay, and is wasteful of resources".
In my view and experience, the operation of the Act does not fulfil those criteria. The first issue is practicability. The whole paraphernalia of investigators and disclosure officers listing everything is unnecessary, as is the provision of reams of bundles of unused material in almost every case. Straightforward inspection of all the disclosable material at a suitable police station by a defence team—by a solicitor or junior counsel—is all that is required.
Secondly, I find that applications are made in the most trivial of cases for the ruling of the judge on obvious things—names of informants, observation posts, police methods, makes of cars and so on—when a word to the defence would suffice. The procedure is over-used.
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Thirdly, an atmosphere of secrecy is created. The matters that are ultimately disclosed from these lengthy PII applications tend to be highly disappointing to the defence and rather trivial. As a prosecutor—a position that I hold from time to time—I find myself making applications that in my view are unnecessary.
The counsel-to-counsel systems are described in the Attorney-General's guidelines as,
"inconsistent with the requirement of transparency in the prosecution process".
Professionals ought to be able to exchange information on a confidential basis. The present situation—that the defence counsel does not know and cannot object to documents because there is a suggestion that he has an overriding duty to tell his client everything—could easily be overridden by an appropriate code of professional procedure that would allow us to return to the sensible counsel-to-counsel disclosures that we had in the past.
Finally, on principle, where there are serious issues in a serious case, there should be another route. PII applications should be limited to serious cases. I can see that the right to full disclosure is not absolute and can, in pursuit of a legitimate aim such as the protection of national security or of vulnerable witnesses—for example, medical records in a sexual abuse case or sources of information—be subject to limitations. But the accused's interests are not adequately protected under the present proceedings. A special counsel should be appointed to assist the court, as we have special counsel under the Special Immigration Appeals Commission Act 1997, the Anti-terrorism, Crime and Security Act 2001 and the Youth Justice and Criminal Evidence Act 1999—your Lordships will recall the issue of cross-examination when a defendant wishes to represent himself.
The special counsel is not responsible to the person whose interests he is appointed to represent and he is therefore entitled and obliged to keep confidential any information that cannot be disclosed. However, he can obtain instructions from the defence team. He can represent the defendant's interests and argue whether the criteria for withholding a specific form of information have been met. Rule 7 of the procedure rules under the SIAC Act is relevant. Obviously, such a procedure would be used only in the most serious of cases. I would welcome confirmation from the noble and learned Lord the Attorney-General that at least the current problems, difficulties, extra expense and wasted time in our courts will be looked at.
8.14 p.m.
Baroness Blatch: My Lords, I am unashamedly being an opportunist, and I intervene in the debate to speak on one aspect of public interest immunity alone, about which I have concerns. That aspect is the enforcement of sustaining the confidentiality of information subject to public interest immunity, when it has been determined by the courts.

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The context of my remarks is an incident when a policeman called Christopher Sherwood fired a weapon in the course of his duties, in what he believed was self-defence. A person called James Ashley died. I must declare an interest as a friend of the policeman's family. I am prompted to speak in the debate out of a deep sense of frustration about how the case was dealt with and the effect on Christopher Sherwood and his family of mishandling documents that were the subject of public interest immunity.
The background is as follows. On a day in January 1998, at four in the morning, 25 armed policemen 'were sent to raid a number of flats in a building in Hastings, in search of members of a group of people who 'were believed to be involved in drug dealing and were expected to put up considerable resistance against arrest. As the raid was under way, a crashing noise was heard that subsequently turned out to be an ironing board falling on a bare floor. A dog barked and, quite reasonably, Christopher Sherwood checked that they were to continue with the raid. The reply from a senior officer was. "Yes". Christopher Sherwood, together with a colleague, entered a flat and in the darkened room saw a person coming towards him with hands moving upwards and outwards as though he was about to shoot. In what must have been a split second, Mr Sherwood fired a single shot. Mr Ashley fell to the floor; Mr Sherwood tried to stem the wound; an ambulance was called and, sadly, Mr Ashley died as a result of the shooting.
A number of policemen, including Christopher Sherwood, were suspended. Two inquiries were put in hand. One dealt with Mr Sherwood and the shooting incident and the other with the role of senior officers in the planning of the incident.
It is almost beyond belief that an incident of which most of the facts were known should have taken four years to come to court. The venue, the date and time of the incident, who was there and why they were there, who shot who and the weapon used—all was known to the police and to everybody, including the lawyers and courts. All that was left to determine was the motive for the killing. Was it wilful, careless, incompetent or genuinely controlled in self-defence? It was also necessary to investigate the soundness of the planning that led to the raid in the first place.
This is not the debate to go into more detail, although such is my concern that I intend to initiate a debate when time allows. There is much to be discussed about what I believe amounted to abuse of procedure.
Suffice it to say in this debate that, after four years of waiting and having been charged with murder, Mr Sherwood was acquitted. The case fell because the prosecution did not and, I would argue, could not provide the evidence to underpin its case—because that evidence did not exist. All charges against the other policemen involved in the incident were also unfounded. That process took over five years to be completed—indeed, I do not believe that it has been completed yet.
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The Hoddinot and Wilding reports were both made subject to public interest immunity certificates determined by the court. Those reports were knowingly leaked to the press. Indeed, the reports and associated documents were stated to be subject to PII in a letter from the Crown Prosecutor to the then defendants' solicitors when he warned against leaking on pain of prosecution under the Criminal Procedure and Investigations Act 1996—an Act that I took through this House.
When such a leak happens, surely there is an obligation on the part of the state to investigate whether a leak has occurred, and thereby the interests of the state in maintaining PII are undermined. Am I correct in my view? I do not enjoin the noble Lord, Lord Thomas of Gresford, who made a powerful case for his particular aspect of the matter. He spoke about whether a PII certificate should have been given in the first place. I am talking about when the certificates have been determined by the courts, and their treatment thereafter.
The Home Office, Sussex Police—who own the documents—the then Attorney-General and others refused to investigate that breach of law. Kent Police Authority, which was involved in overseeing the Sussex shooting, unilaterally decided to hold an investigation following much pressure from myself and others. However, the Chief Constable ruled out any question of criminality or illegality from the outset, before knowing who leaked or how the leak occurred.
The investigation was solely directed at the civilians, not the uniformed members of the Kent Police Authority. No reason was given for such a narrow remit. The person responsible for leaking the documents was established, and he is to be dealt 'with as a purely internal disciplinary matter. That is not the first time that the Kent Police Authority has been found wanting in that respect.
The police reports on internal and criminal investigations are generally regarded as attracting public interest immunity. That is, I believe, because they contain the reporting officer's opinions which may or may not withstand legal challenge. No evidence was produced to support the content of the report. Therefore, to release those reports or leak them as statements of public interest when there has been no challenge whatever to their content is wrong and, I believe, against the law. Again, am I correct in my understanding of the law in this respect? I must ask the noble and learned Lord about the status of such documents. While subject to PII, is it unlawful to leak them to the media?
The press, especially the tabloids, exploited the case and the information in the reports, much of which was inaccurate in a lurid and extremely biased fashion. Apart from the distress caused to all concerned, especially Christopher Sherwood's family, the character of Christopher Sherwood and other

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policemen involved in the incident has been badly defamed. I believe that that is extremely serious. What remedy is there in law for such wilful and damaging actions, which have been admitted by the Kent police?
PII should be established only for good and defensible reasons. However, when a certificate is signed, immunity from public interest should be enforced. If any review is to be undertaken as a result of the request that initiated this debate, I would ask that this aspect of PII is taken into account.
8.21 p.m.
Lord Carlisle of Bucklow: My Lords, I cannot but reflect on the fact that it is more than 21 years since I last spoke at the Dispatch Box in another place. I briefly do so tonight in place of my noble friend Lord Kingsland. I know that he would have wished to be present for this debate and to take part in it. Sadly, he is unable to do so. I am sure that all noble Lords in the Chamber will join me in wishing him a speedy return to full health, to his active participation in the functions of this House, and above all to his ever effective and succinct interventions.
The operation of public interest immunity in criminal cases is not a matter of party politics, but it is a matter of great of importance. I think that the noble Lord, Lord Thomas of Gresford, has chosen an appropriate time to raise the issue. He has called for a review of the overall working of the system. Whether such a review is justified and necessary is of course a matter for the Attorney-General. What I think is indisputable is that, as the noble Lord said, the public interest immunity procedure is a matter of continuing and considerable controversy at the Bar. It is certainly an aspect of the working of the criminal law that continues to attract widespread public interest.
As has been mentioned, there was an enormous amount of speculation following the end of the Burrell trial as to whether public interest immunity had played a part. As I am following the noble Lord, Lord Thomas, and have seen his notebook, I should perhaps mention that the Lord Carlile to whom he referred in that case was the noble Lord, Lord Carlile of Berriew, and not myself.
The noble Lord, Lord Thomas, asked whether public interest immunity played any part in that decision. I am bound to say in fairness that I had thought that the Government had fully answered that in another place. The Prime Minister himself said:
"There was no application for a public interest immunity certificate. Obviously, when such a case arises there are all sorts of wild theories about what might or might not have happened, but that is not why the case collapsed. I assure my hon Friend that the issue of public interest immunity certificates is not relevant to either the case or why it folded".—[Official Report, Commons, 6/11/02; col. 282.]
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I accept that explanation but I should be grateful to hear confirmation from the noble and learned Lord the Attorney-General that that is an accurate assessment of what happened.
It is clear that as well as being an area of concern this is certainly an area of the law which requires continual careful scrutiny, as was pointed out in a recent article, which the Attorney-General may have seen, by, I believe, Mr Richard Glover in the bulletin of the JSB. In that article Mr Glover mentions the danger of the procedure being in conflict, and being found to be in conflict, with Article 6 of the European Convention on Human Rights.
The practice and procedure surrounding PII applications in criminal cases have grown enormously. As the noble Lord, Lord Thomas, stated in a letter to The Times in the latter part of last year, the first case involving such a certificate was in 1989. Yet over the past 15 years matters of disclosure and non-disclosure of evidence in criminal cases often relating to PII have constituted a great growth area—the applications are becoming an industry in themselves—and seem to take up more and more of the time of the courts in criminal trials. If what one hears from current members of the judiciary is true, they are often a cause of substantial delay in serious cases.
I start from the proposition in the Criminal Procedure and Investigations Act 1996 that in a criminal case there is clearly a fundamental duty on the prosecution to disclose to the defence anything that they consider to be relevant or which in any way could be seen to undermine the case for the prosecution or to assist the defence. That disclosure is necessary for the bringing of a fair trial. And yet at the same time they have an interest and responsibility to protect their sources of information which, if not protected, may lead either to a drying up of vital channels of information to the police—which are so important for the protection of this country as a whole—or, indeed, to the disclosure of the identity of an informant which leads to genuine fear on that man's part for his life or at least to fear of physical assault. That interest—the general public interest—is one which the prosecution share as it relates to the volume of future crime and to the degree of information which the police will be able to secure in their intelligence work.
We must never forget that we are dealing in these cases with serious crime and that, whether in the fields of terrorism or of dangerous drugs, the stakes are high and those involved are very dangerous people. This is the conflict of interest inherent in many criminal cases that has to be faced. At present it is resolved by the trial judge. He does so on the basis of the matters which are put before him. It is his duty to decide where the balance is to be struck.
The judge has the onerous responsibility of deciding on an ex parte application whether the evidence is such that its non-disclosure will negate the defendant's right

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to a fair trial and could lead to his wrongful conviction. If he considers that it does, he will refuse to gram the immunity and direct its disclosure despite the submissions of the prosecution. The prosecution will then be left to decide whether it should disclose the evidence and proceed, or choose to abandon the case.
We have to ask ourselves whether that is the best way to resolve that conflict. Is there, as the noble Lord, Lord Thomas, said, too great an atmosphere of secrecy surrounding the whole proceedings? Is too great a role given to the trial judge, who inevitably will come to see evidence which otherwise he would not have seen and which in some ways may affect his own outlook, certainly on matters of sentence?
The noble Lord, Lord Thomas, suggested that too much had been placed before the judge, taking up unnecessary time, and that the prosecution should be prepared and trusted to decide such issues for itself. It should decide those cases where it considers that public interest is clearly overruled by the need to disclose, and should place something before the judge only when it might reasonably consider that the evidence is clearly capable of undermining the prosecution or assisting the defence, but that the public interest for immunity is such that it is unwilling to disclose it.
In such decisions, the prosecution clearly has the responsibility to disclose material that it does not consider undermines the case for the prosecution or assists the defence. If it does so, it has an ongoing duty to review that decision in the light of the defence statement and any further evidence that may emerge during the course of the trial.
Like the noble Lord, I have absolutely no doubt that in past years more decisions were finally taken by the prosecution on such matters, subject always to judicial review or appeal. One has to ask whether it would be acceptable if that burden was put back on the prosecution and taken away from the court today. I cannot answer that, other than to say that it was criticism by the Court of Appeal and others about the failure of the prosecution to disclose evidence, which itself led to a wrongful conviction, that has led to the present proceedings.
If the decision is to rest on the shoulders of counsel, it is essential that counsel themselves should have before them all the necessary evidence held by the police. That should be handed to them in full by the CPS.
As the noble Lord asked, is there a role for a special advocate who can review the evidence intended to be put before the court in the light of the case for the defence, and yet without contact with the defendant? He can make submissions to the judge on the defendant's behalf, as to both the relevance of that evidence to the defence case and the vital importance of that disclosure.
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At the moment, of course, the judge has only one side of the evidence and submissions on which to proceed, with also the defendant's statement of the case. As the noble Lord said, one of the fundamental grievances is that the defence often does not even know what is going on. The suggestion of a special advocate would be one way to deal with what appears on the face of it to be a system that could be said to be unfair to the defendant. Certainly, that may well be worth looking at, although whether it would add greatly to an enhanced role of the prosecution counsel, I am not sure.
Finally, should the defence at least be told whenever a PII application is to be made to the judge so that, even if it was unaware of its nature and the evidence involved, it would at least have some idea of what was going on and be given the opportunity to make any submission in writing which it might wish the judge to take into account when coming to his decision?
This is a difficult area with no easy solution. Some would argue that PII has no place whatever in a criminal trial and that, despite the strength of public interest in its immunity, everything must be disclosed, with the prosecution's only recourse being to abandon the trial. The trouble is that that might lead to a considerable increase in the number of trials that are already abandoned.
Clearly, as I said, this remains an area to be kept under review, remembering that, while the public rightly has an interest in the conviction of the guilty, it is even more important to protect the acquittal of the innocent.
8.36 p.m.
The Attorney-General (Lord Goldsmith): My Lords, this has been an interesting, if short, debate on an area of law and practice which all who have spoken recognise to be important and of interest to the public. Therefore, I thank the noble Lord, Lord Thomas of Gresford, for having initiated the debate and I also thank the noble Baroness, Lady Blatch, and the noble Lord, Lord Carlisle of Bucklow, for their contributions.
If I may, I shall welcome the noble Lord, Lord Carlisle, back to the Dispatch Box after 21 years. On the last occasion that we discussed public interest immunity in this House in the context of the Burrell case, the noble Lord, Lord Carlisle, suggested that he might be getting a second career as a result of the confusion with another Lord Carlile. If this is a second career at the Dispatch Box, all noble Lords will be pleased to see him, while entirely endorsing the best wishes that he sends to the noble Lord, Lord Kingsland, and the comments that he made about him.
I am grateful to the noble Lord, Lord Thomas of Gresford, for his historical survey of the law relating to PII. However, given that we are now in a particular place in relation to PII, it may be helpful if I sketch that out because much has happened since the old days of so-called "Crown privilege"—itself a term which is no longer used.

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The starting point is, as the noble Lord, Lord Carlisle, said, the following proposition. The prosecution has a legal duty to disclose any material not already disclosed that might undermine its case against the accused or might reasonably assist the case for the accused. That is a very important proposition which is necessary in order to avoid miscarriages of justice and is in the interests of justice.
The law and practice on that is now found in the Criminal Procedure and Investigations Act, taken through this House by the noble Baroness, Lady Blatch, the accompanying code of practice, statutory rules and regulations, and the Attorney-General's guidelines on disclosure for the year 2000. In addition—I shall return to this point—joint operational instructions have been agreed between the police and the Crown Prosecution Service.
Some might say that if any industry has grown up, it is not the industry of PII but the industry of disclosure, which is necessary in order that the interests of justice are met. I noted that the noble Lord, Lord Thomas, referred to disclosure schedules, lists of documents which are produced and a volume of unused material. It is in order to meet that, in my view, necessary requirement of disclosure in the interests of the defence that those procedures have grown up, and rightly so.
But, against that, there will be cases where material is of such a sensitive nature that there will be a public interest in it not being disclosed. It is in that context that public interest immunity arises. Here, the basic system now is that it is for a judge to consider whether the public interest in non-disclosure outweighs the undoubted public interest that in the administration of justice the court should have the fullest possible access to all relevant material.
During the course of this short debate examples have been given of where public interest will indicate that certain pieces of information should be kept confidential. Typical examples are, as has been said, to preserve the anonymity of informers. It is well established that the police need informers, or "covert human intelligence sources", as we now call them, to assist them in the detection and prevention of crime in the interests of the public. But the courts also recognise the need to protect the identity of informers for their own safety and to ensure that sources of information do not dry up. Equally, the courts are well aware that criminals will often have a considerable interest in finding out the identity of informers for reasons that have nothing to do with establishing their innocence. Sometimes it may be to attempt to force the prosecution to drop the case. Sometimes the identity of an informer may be very relevant to a defence; sometimes it may not.
Other examples would be where householders have allowed their premises to be used for surveillance or where organisations such as social services have been keeping confidential candid records in relation to particular people, which may have some relevance to a criminal case, but again where the disclosure would create serious problems.
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As I have said, the exercise which the court has to do is to balance on the one hand the public interest in the absence of disclosure against the interests of justice in disclosure. In practice, that balancing exercise requires the judge to consider the degree to which the material in question assists the defence. As the noble and learned Lord, Lord Taylor, the then Lord Chief Justice, said in the important case of Keane decided in 1996, if the disputed material may prove the defendant's innocence or avoid a miscarriage of justice, then the balance comes down resoundingly in favour of disclosing it. As the noble Lord, Lord Carlisle, stated, the consequence of that on some occasions is that the prosecution takes the view that it cannot disclose that information and therefore the prosecution has to be abandoned. That is something which happens and gives rise inevitably to the concerns to which the noble Lord, Lord Carlisle, referred. The public has an interest in seeing criminality brought to justice and determined and not abandoned unnecessarily.
The question then is how does one deal with the assessment of that balance. The system that we now operate is one which has been developed by the common law through statutory and extra-statutory rules and in my view contains sufficient safeguards to counterbalance any prejudice. Perhaps I may identify certain features of the basic system.
As I have said, public interest immunity procedures were developed independently by the courts considering what was the best way to preserve the interests of the public and the very important interest of the administration of justice in ensuring that miscarriages of justice did not take place and that material information was disclosed. It has been formalised in rules of court. It has been upheld as a system by the European Court of Human Rights.
I have not had the benefit of reading the article of Mr Glover, to which the noble Lord, Lord Carlisle, referred, but these are matters which it is always possible for courts to review. If the courts at any stage in Strasbourg were to take the view, having once decided that the system was satisfactory that they saw a need for change, that is something that the Government would carefully and immediately consider. However, in the cases of Jasper and Fitt particularly, the European Court of Human Rights upheld the system as giving rise still to a fair trial. That is the fundamental point.
The system works on this basis: first, disclosure is to be withheld only where it is strictly necessary in the public interest. That means—this is what was established and stated as policy by the Government after the Scott inquiry in 1996–97—where there would be "real harm" from disclosing particular documents. I can certainly assure the noble Lord, Lord Thomas of Gresford, that that is based not on concern about embarrassment to any figure, however important or eminent, but on real harm of disclosing particular documents.
Secondly, even so, the document will be ordered to be disclosed if disclosure might prove innocence or avoid miscarriages of justice—or, as I said, the case may have

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to be dropped. Thirdly, it is clearly stated in the guidance given to prosecutors and the Attorney-General's guidelines that the maximum information should be given to defendants and their advisers and the maximum opportunity to make submissions to the court—without jeopardising the important confidentiality, which it is necessary to maintain.
So there are three types of PII application, as rules of court recognise. There is the first category, under which it is possible, having regard to the nature of the material, to notify the defence of the application and the general category of material in respect of which immunity is sought. The defence is then entitled to attend the application and to be heard inter partes. So the defence there take a full part in the application.
The second type is private applications where the defence is notified of an application but is told nothing about the nature of the material. That is justified only where even to reveal to the defence the category of material that the court is being asked to consider would reveal that which it is not in the public interest to disclose.
The third and most exceptional category is the secret application where the defence is not even notified of the fact of the application. That would be justified, for example, in a case where there is material relating to an informer that where even to inform the defence that an application is being made would alert it to the likely means of the suspect's arrest and enable that person or others to infer the existence and identity of the source.
But in each of those cases, it is for the judge hearing the application to be satisfied that it is appropriate for the matter to be dealt with in that way. Prosecutors are also informed of the importance of providing as much information as possible by redacting documents and summarising material.
The question of present practice on PH has been carefully considered—and recently. As I want to deal with one or two other matters, I shall summarise what has taken place. First, the Crown Prosecution Service Inspectorate conducted a thematic review of disclosure in 2000. That identified certain procedural failures or absences of good practice by the inspectors on which the Crown Prosecution Service and its counsel could improve. In December 2001, a Home Office report identified other issues about how the system operated across the criminal justice system as a whole.
Those two reports led to a joint project between the police and the Crown Prosecution Service considering the procedures in detail that will cover how the documents are identified, how they are scheduled, what logs are kept and how close is the examination of the documents. The proposed solutions are reflected in a new set of joint operational instructions on the disclosure of unused material, known as a JOPI. It contains extensive revisions from the previous version and will be published later this year. There will be a comprehensive programme of training which will support those new instructions. I very much hope and believe that that will enable us to put in place an effective PII system based upon the propositions that I have identified.
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Noble Lords raised additional matters. The noble Lord, Lord Carlisle, raised the question of the application made in the Burrell case. I am grateful to the noble Lord for saying that he thought that the issue had been resolved—so did I. I had the benefit of a meeting with Mr Simon Hughes and Mr John Burnett of the noble Lord's party, at which we discussed the matter in detail. I understood that perhaps they had passed it on to him that they saw no further problem in that regard. I refer to the answer that I gave in this House on the occasion of a Question on the issue. Given what the noble Lord has said, I shall emphasise the point:
"The judge agreed to postpone the disclosure of information until further inquiries had been carried out and a fuller picture obtained so as to enable properly informed decisions to be made, in particular, as to the future conduct of the trial".—[Official Report, 6/11/02; col. 715.]
As I said then, there was never any question in my mind of withholding disclosure of the information yet continuing with the prosecution, and no attempt was made to do so.
In response to the question raised by the noble Baroness, Lady Blatch, who sits patiently waiting for what I shall say, sadly I am not able to give her very much information. I do not say this as criticism but merely to explain what I say: the noble Baroness did not give me notice of the particular case to which she was going to refer. I shall happily write to her with what I can say on that case. Of course I know something about the case.
Baroness Blatch: My Lords, I would not expect the noble and learned Lord even to write to me about the particular case. I raise the general question of whether a leak of information and documents subject to PII constitutes a criminal offence.
Lord Goldsmith: My Lords, I believe that there is no law that derives from the PII status that makes it of itself an offence to disclose PII material. There may be other reasons in law why that material should not be disclosed. It may be a breach of confidence or even a breach of copyright. But the fact that it is subject to PII is a statement by the judge that the nature of the material is such that it need not be disclosed, even though the prosecution otherwise would disclose it as relevant to the case in front of it. If I can add to that answer, I shall write to the noble Baroness.
I shall make my final point, if noble Lords will permit me to do so. A question was raised about special advocates which I wish briefly to answer. As I said, the European Court accepted that the present procedures are fair and provide sufficient safeguards. We believe that the Criminal Justice Bill will improve the procedures further—that is a matter that the House will see in due course. There have been suggestions, including by Lord Justice Auld, to use special advocates in those applications. Stakeholders gave a mixed response to that. That gives rise to real practical problems in the context of criminal applications, which are different from those that apply in immigration cases. For example, in immigration cases where that arises the person involved

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knows that there is a question of secret information that cannot be shown to him. That is not always so in criminal cases, as I indicated.
The Government, having carefully considered the matter, have the view that the objections to the use of special advocates in criminal procedure indicate that it is not a road that we should go down. I agree entirely
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with noble Lords who asked whether overall we should keep the area closely under review. Plainly, we should. The whole topic of public interest immunity is important. I am, therefore, grateful for the opportunity to set out in short what we have been doing on it in recent months and years.
House adjourned at five minutes before nine o'clock.