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Lord Bruce of Donington: My Lords, the noble Lord must not misrepresent me in this matter. I said at the beginning and at the conclusion of my speech, which I now reiterate, that I entirely support the proposal of the convention. I would have thought that that would have been assimilated by the noble Lord through both his ears.

Lord Hooson: My Lords, I am grateful. I appreciate the knowledge that I gain about the noble Lord's attitude over the years, but I find it difficult to distinguish between one contribution and the generality.

I turn to the final issue of jurisdiction over disputes. In order to ensure a coherent structure and uniformity in the standards of control, it is obvious that the European Court should determine all issues of interpretation. Perhaps I may quote from the evidence given to the committee by the Home Secretary, which I thought was highly unsatisfactory. I quote from page 94, paragraph 507, of the report. The noble and learned chairman asked the Home Secretary:

Mr. Howard replied:

    "I do not think it is ... It does not seem to me terribly likely that you would get wildly different interpretations".

Perhaps we may stop there for one moment. If one had not wildly different interpretations but interpretations which were sufficiently serious to cause great problems—a different interpretation in Greece from that in the UK and a different interpretation in Portugal—why on earth should we set up a new convention and not provide for that?

At the end of his answer the Home Secretary said:

    "If it is suggested that the desirability of uniformity should outweigh other considerations then it would be possible to set up some kind of ad hoc tribunal that might deal with these matters on a more consistent basis".

There he is resiling on the issue. He is objecting to the European Court and then saying, "Oh, well, if there is a dispute we will have an ad hoc tribunal". What kind of decision shall we have from an ad hoc tribunal?

The noble Lord, Lord Hacking, then asked Mr. Howard:

    "What is the objection to the European Court of Justice being involved in the adjudication?".

Mr. Howard replied:

    "If there is no need for the European Court of Justice to be involved then it is undesirable for it to be involved".

Why is it undesirable for the European Court of Justice to be involved? It is the supreme judicial body in the Europe that has been formed, and whatever form Europe eventually takes it will be the supreme judicial body. If there is to be a problem of interpretation, it should be decided by the European Court.

The noble and learned Lord, Lord Wilberforce, intervened at paragraph 517 with an interesting qualification. In the second part of his question in paragraph 518 he asked:

    "Would it be so strong"

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that is, the Home Secretary's objection—

    "if the European Court of Justice were limited simply to interpretation and nothing else, simply this is what the Convention means?".

Mr. Howard replied:

    "It would be just as strong because the question is what kind of interpretation would the Court of Justice adopt. Would the European Court of Justice tend to adopt an expansive interpretation in most cases or not?".

That is asking a question by way of reply.

What is happening is quite clear. The Government are taking the view through the Home Secretary that it is better to have an ad hoc tribunal than to leave the question of interpretations to the European Court of Justice. He obviously believes that there is a possibility of different interpretations in different countries, which would obviously be undesirable. I believe that common sense, pragmatism and everything else points in the direction of the majority recommendation of the committee. I hope the Government pay close heed to that.

7.45 p.m.

Baroness Hilton of Eggardon: My Lords, I too congratulate the committee on this interesting report and its sensible conclusions. As was said by the noble and learned Lord, Lord Slynn, it is essential to have cross-border arrangements in Europe to deal with crime. Even my noble friend Lord Bruce applauded the purpose of the convention. However, the proposal has already been under discussion for several years and, despite the urgency mentioned by several noble Lords, it will probably be several more years before Europol is up and running effectively. Clearly frustration at the lack of progress led to the setting up of the Europol Drugs Unit at the beginning of last year. I understand that there is no formal international agreement or legal basis for the Europol Drugs Unit. It appears that Europol as a whole may continue of necessity to evolve in that way.

The apparently successful first year, which was mentioned by the noble and learned Lord, Lord Slynn, inevitably occurs when one sets up what in the police service we used to call a "squad". To begin with information is floating about and there are various loose ends to which one applies new resources. To begin with there are always great successes. However, I wonder whether there is a danger that in future not only the drugs unit but Europol as a whole will run into the kinds of problems experienced by other squads. Those problems are that one becomes overburdened with information and needs increasing resources and increasingly elaborate data systems. The noble Lord, Lord Hooson, referred to the need for an information super-highway to underpin its activities. More analysis is needed and tight controls must be placed on what could develop into a monster without any legal basis. My noble friend Lord Bruce referred to the possible costs. They will need to be kept under strict control.

A further anxiety is the lack of public debate not only about the setting up of the Europol Drugs Unit but about the draft convention on Europol. I do not believe that the issue of accountability has been fully resolved. Quite clearly, the question of data protection for individuals is an essential aspect of the setting up of Europol.

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It is extremely important that there is transparency in anything to do with crime. Some of the stories related by the noble Lord, Lord Hacking, could apply also to the activities of Europol unless it is set up under strict regulations and the terms under which information is passed between police forces is very clear. Mistakes easily occur even within local policing, but they occur more so on an international scene when one is dealing with different systems of crime, policing and judicial systems. There may be mistakes in translation and so forth.

Often the police service is secretive about what it is doing and there is confusion between the need for secrecy in relation to operational intelligence and secrecy about structures, methods, systems and so on. It is essential that the public are able to scrutinise structures, methods, systems and powers even though for security reasons they may not have access to crime intelligence.

That problem would be even more compounded if terrorism became part of the remit of Europol. The secrecy that tends to surround anything to do with the security services could then apply to more mundane types of police matters and crime and could create problems in that way. The whole matter might become shrouded in secrecy. Therefore, the assumption that two years after the setting up of Europol terrorism will become part of its remit could be extremely dangerous. There appears to me to be a clear link between the responsibility for dealing with crime relating to nuclear and radioactive substances and terrorism. I wonder why those crimes were included in the initial suggested remit for Europol. I suggest also that there is another international crime—the smuggling and stealing of arts and antiques—which might more properly be included in Europol's remit. That has not so far been mentioned.

Therefore, there are a number of problems which I feel are unresolved in relation to Europol. There is the lack of accountability, which was mentioned throughout the report; all the problems of definitions of crime in different judicial systems, and problems of interpretation which have been referred to already in relation to the European Court of Justice.

There is also a major practical problem in the setting up of Europol, which is that at present only Britain and Holland have national crime bureaux of the type envisaged by the draft convention. Indeed, it may be many years before such effective crime databases are set up within the other countries of Europe. Therefore, that will be an additional complication in addition to the need for national ratification, even if the convention is approved in Paris this year. As I understand it, it must be ratified by the individual countries thereafter. If each country has to set up on a national basis a crime intelligence bureau on the scale which we have in this country, which has over 100 staff, it seems to me that it will take several years rather than weeks or months for Europol to be up and running and to be really effective. Several noble Lords have spoken about the urgency of setting up Europol, but I wonder whether that sense of urgency is shared by the other member countries of Europe.

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My noble friend Lord Bruce raised the question of Interpol and has asked the Minister to explain the relationship between Europol and Interpol. I apologise for not having given to the Minister notice of this question, but I wonder what is the relationship between the United Nations drugs unit in Vienna and Europol. As I understand it, that is also an arena for the exchange of information about drug smuggling throughout the world, and I wonder whether there is a possibility of duplication and overlap.

Like the noble Lord, Lord Knights, and other noble Lords, I too oppose giving operational powers to Europol. I should certainly oppose the suggestion of the noble Lord, Lord Bethell, that it should be immersed in the quagmire of European agricultural fraud. That could become a totally all-consuming task. That would deflect it from more proper aspects of crime intelligence. Like all those who have spoken, I welcome this interesting report and its sound conclusions.

7.52 p.m.

The Minister of State, Home Office (Baroness Blatch): My Lords, I very much welcome this debate and the report of the European Communities Committee which underpins it. It really is testimony to the effectiveness of the scrutiny arrangements that we have put in place for third pillar business. The report represents diligent and painstaking work on the part of the committee under the impressive chairmanship of the noble and learned Lord, Lord Slynn. I know from what has been said already this evening that the House will wish to record its deepest appreciation for that important report.

I am glad to recognise the consensus, not only within the committee but in this House tonight, as to the importance of concerted action to combat the threat of organised crime. Criminal activity is not constrained by national boundaries. Sophisticated techniques and effective joint action are needed to deal with it. That is the opportunity which Europol provides.

But I am equally glad to record and to share emphatically the view that the benefits which can come of those forms of co-operation in tackling serious transnational crime must be balanced by real protection of the rights of the individual and proper democratic accountability. We have sought to emphasise throughout the negotiations the need to have avenues for effective redress through national courts where the innocent individual has suffered injury.

Maintaining that balance between operational effectiveness and the protection of the individual is a proud tradition of our British criminal justice system. I very much welcome this debate as a contribution this evening to maintaining and promoting that tradition in the important work that we are undertaking, with our European colleagues, to promote more effective police co-operation to defeat international crime.

The Government will take full account of the views of the committee and of this House in pursuing that work, both in negotiations to finalise the Europol convention and in subsequent supervision and regulation of the activities and development of Europol itself. My

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colleagues and I will answer to this House for the activities of Europol as we do for our own national criminal intelligence and police services.

The committee undertook a great deal of detailed work in a very short time and we have had a very full debate this evening. The issues addressed were wide ranging and complex. I should like to address points in the order in which they were raised in the committee's report. I shall do my best to ensure that in doing so, I also respond to specific points that have been raised in the course of this debate.

The committee began—and the noble and learned Lord, Lord Slynn, referred to this—by expressing concern that the Europol Drugs Unit (the EDU) had been permitted to begin and extend its activities without a legally binding agreement as to the regulatory framework. That point was made by the noble Baroness, Lady Hilton. I am therefore able to confirm the Government's response to that by providing a reassurance, not only that the Government took full account of that dimension in agreeing to extend the unit's activities in the Justice and Home Affairs Council but that we shall continue to do so in scrutinising the unit's activities.

The Europol drug unit's activities are strictly limited by the joint action adopted by the Justice and Home Affairs Ministers on 10th March. Like the ministerial agreement it superseded, the text of the joint action regulating the operation of the EDU is clear as to the commitment which member states have made and the rules that will apply. The Government are satisfied that the EDU and member states are acting strictly in accordance with its provisions.

The EDU's activities are limited compared with those envisaged for Europol. The unit acts mainly as an information exchange. Data is only exchanged in accordance with national data protection legislation. But the EDU is also the precursor to Europol itself. It is important to prepare the way for the new organisation as we near agreement on the convention. The types of crime included in the limited expansion of the unit's remit mirror the initial remit of Europol.

Your Lordships have underlined the importance of ensuring that Parliament can make a proper input to the work we undertake under the justice and home affairs pillar of the treaty. That includes ensuring that an input can be made at a time when there is a real opportunity to influence the outcome of discussions. The Government wholeheartedly agree. That is why, as your Lordships know, we have made arrangements to table the texts of documents and to provide memoranda of evidence in advance of the meetings of the Justice and Home Affairs Council. There are, however, occasions when the pace of negotiations is such that documents are issued very shortly before the meetings at which they will be considered. Some presidencies prefer to conduct negotiations by way of separate discussion documents and working papers. They do not provide a full revised text until very late in the day.

Therefore, there are difficulties to be overcome. But I hope that your Lordships will agree that the committee's report and this evening's debate both illustrate ways in which Parliament can and does exercise influence over matters being considered under the third pillar.

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I shall now turn to the provisions of the draft convention itself, beginning with Europol's remit. I am given to understand that at one stage there were proposals for a sort of European FBI. But that was not what we, or the majority of member states, wanted. These proposals have not been returned to in negotiations. These have confirmed that Europol staff will have no operational powers.

The organisation will provide, through intelligence exchange and analysis, a sophisticated means of aiding law enforcement throughout Europe and thus an invaluable aid to action to tackle serious, transnational crime. In saying that, I note the exhortation of the noble Lord, Lord Hooson, when he talked about state of the art technology to underpin the speedy exchange of that kind of information and providing it when it is necessary. The list of crimes for which Europol may be given competence is sufficiently comprehensive to ensure there is scope to meet developments in crime patterns. This is important. So are provisions which allow the Council of Ministers to control and manage the expansion of the organisation's remit and the priorities chosen for it.

There is, very rightly, a great deal of emphasis on data protection in your Lordships' report as stressed by the noble and learned Lord, Lord Slynn. The committee stressed the need for rapid but controlled access to sensitive analysis data; effective protection of individuals by application of national legislation and the Council of Europe Convention as well as suitable arrangements for subject access. Reference was also made to the exchange of data with third parties such as non-member states and the role of the national as well as the Joint Supervisory Body.

National legislation in the United Kingdom already meets the requirements of the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data. The Government are determined to ensure that United Kingdom citizens will have adequate rights and protection in relation to data held by Europol. Adequate training and procedures must and will be adopted. The "need to know" principle must and will be rigorously applied in respect of dissemination of analysis and other data both within Europol and between Europol and national units.

Noble Lords will be aware that many of the provisions of the draft convention relating to data protection are still to be settled. These are also amongst the most difficult aspects of the convention to agree, not least because of the variation that exists in the detail of legislative arrangements and traditions as between member states. However, progress is being made.

There will be arrangements for providing adequate safeguards where the dissemination and use of sensitive data is concerned. Access to sensitive data will be strictly controlled on a "need to know" basis.

Difficult negotiations over subject access are now favouring a position which would base an individual's access to data held by Europol on the national law of the country in which the request for subject access is made. Therefore, our citizens would continue to benefit from the provisions of our own data protection law. There will be national data authorities responsible for checking

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exchanges of data between the national unit and Europol. In the United Kingdom the data protection registrar will probably carry out that task.

We shall continue to take account of the committee's recommendations in the course of negotiations as well as in settling subsequent arrangements for handling such matters as the exchange of data with third parties. This evening's debate has provided a further invaluable opportunity to explore, in a balanced way, the important issues which arise as regards both the rights of the individual and the importance of effective law enforcement. The final issue which both the committee's report and your Lordships have raised is the involvement of the European institutions. Again, this is an aspect of the convention which remains to be settled.

The Government believe that a very strong practical justification would be needed to override their basic presumption against involving the community institutions in an intergovernmental agreement such as this. The Government of the United Kingdom are not alone in taking that view. The current presidency proposals envisage no role for the European Court of Justice. There is substantial support for those proposals amongst the 15 member states.

Reference has been made to disputes between member states. The Government note the views that have been expressed by the committee but see no role for the European Court of Justice. We consider that the Council is the right place for handling any interstate and state Europol disputes. It is common in treaties in other international agreements for there to be no final settlement procedure and for obligations not to be accompanied by any means of enforcement. The good faith of the contracting parties is generally considered sufficient and the member states would resolve among themselves any problem which arose. We see no need for individual grievances against Europol to be taken beyond national courts.

With regard to the national supervisory body, our concerns are with the detailed drafting of this article, rather than its substance. We entirely agree that national supervisory bodies acting under national law will have an important part to play in overseeing the work of national units and liaison officers. It is not necessary to give new formal powers to national supervisory bodies. We wish to ensure that the convention does not give any contrary impression.

Under United Kingdom data protection law there is already provision to require the national criminal intelligence service as a data user to assist relevant inquiries, and therefore no new powers of access are necessary.

The power for the United Kingdom data protection registrar to enter Europol premises in the Hague would be unnecessary and impractical. It would be preferable to emphasise the duties of member states and Europol to assist relevant inquiries.

The noble Lord, Lord Bruce of Donington, raised the point about documents that are placed in the Library. I have the same understanding of that issue as the noble Lord, but he will forgive me if I take this matter back to my department and then correspond with him. If other

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noble Lords are interested in a reply I shall ensure that it is placed in the Library and that it can be accessed by everybody.

Several noble Lords raised the issue of costs. It is difficult to say what Europol will cost. The Europol Drugs Unit costs the United Kingdom approximately half a million pounds a year. We pay 15 per cent. of the total EDU budget which is a small sum for the added value that the EDU provides.

The noble Lord, Lord Bruce, and other noble Lords referred to Interpol. Full account will be taken of the role of the European branch of Interpol. The two organisations are already under discussion to minimise any duplication of effort but they are very different bodies: Interpol covers the whole of the world; Europol focuses on 15 states and allows a much more intensive pooling and analysis of the most sensitive intelligence.

My noble friend Lord Bethell asked a specific question of which he was kind enough to give me notice, in regard to the UK staff and their status in relation to their representative bodies. It is too early to say what the arrangements will be for centrally recruited Europol staff; that will be a matter for Europol's director and the management board, and will be covered by the staff regulations. All United Kingdom staff on secondment to Europol, both police and customs officers, will retain their existing rights to federation for union representation.

I can confirm that the assumption of the noble Lord, Lord Knights, is correct, that the budget for the United Kingdom contribution to Interpol is held by the criminal intelligence services. They also hold the budget for the United Kingdom contribution to the European Drugs Unit. We believe that they will be well placed to judge the value for money that we obtain from these different complementary organisations. I have noted the points made by the noble Baroness, Lady Hilton, and other noble Lords about the importance of keeping a downward pressure on what could be spiralling costs.

There are no plans to fuse the criminal intelligence service and the security service, as the noble Lord, Lord Knights, suggested. The diversity of responsibility for tackling terrorism in different member states was one of the reasons why the United Kingdom resisted the inclusion of terrorism in Europol's initial remit. We need time to ensure that satisfactory arrangements can be made with all the organisations concerned to ensure that sensitive intelligence can be handled properly without damaging existing channels.

As the noble Lord, Lord Knights, stated, the National Criminal Intelligence Service is accountable to the Home Secretary, and he is accountable to Parliament. However, the intelligence service is not a police force, as the noble Lord knows. Its purpose is to gather, to develop and to disseminate intelligence. It supports the activity of individual forces, and chief constables are fully involved in a user's committee which meets regularly to look at the services that the NCIS provides.

My noble friend Lord Hacking referred to individual data protection rights. Although the draft article that provides for individual access to data held by Europol is still under consideration, I am able to provide reassurance to all noble Lords on one point that has been raised by the noble and learned Lord, Lord Slynn, and my noble friend

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Lord Hacking. They referred to a provision by which Europol could refuse to provide data if disproportionate cost was entailed. That provision has been deleted from the latest working document.

This is not, as has been suggested by the noble Lord, Lord Hooson, a question of dragging feet. This is an important issue. Whilst I understand the need for a resolution, the process of getting agreement between member states and the reconciliation of sensible issues, for example, the protection of the right of the individual, is painstaking work. I agree with my noble friend Lord Aldington that the signing of the convention would be desirable sooner rather than later. We are working to that end. However, there is no wilful dragging of feet.

I have listened to the varied opinions that have been expressed this evening. I have also noted the points made in the report. We shall take the latter into account; as, indeed, we were exhorted to do by my noble friend Lord Hacking. However, I realise that I have missed one point regarding Interpol. It concerns its relationship with the United Nations and was a matter raised by the noble Baroness, Lady Hilton. The two organisations are different. The United Nations unit in Vienna does not look at specific drug offences; it looks at patterns of trafficking. There is no real overlap. However, the point made by the noble Baroness regarding possible duplication is something that we need to watch out for both with Interpol and as regards the relationship with United Nations' organisations.

Perhaps I may conclude by thanking your Lordships for the welcome and constructive contribution which both the report and this evening's debate have made to our work on the convention. We are fully committed to the task of defeating international organised crime. Europol can make an enormous contribution in regard to that task. The Government are equally committed to the protection of the rights of the individual. That aspect must not be ignored in such debates. However, those commitments are ones which we share with other member states, whatever the variations of our national laws and whatever the differences in our traditions. I therefore have every hope and expectation of a successful and fruitful outcome to the present negotiations. Once again, I should like to express our sincere thanks to the noble and learned Lord, Lord Slynn, and to his committee for their report, which has made a very important contribution to the subject.

8.11 p.m.

Lord Slynn of Hadley: My Lords, I thank the Minister for her detailed reply and especially for her undertaking that the rights of British subjects in regard to data protection and the importance of maintaining the need-to-know principle will be persevered in by the Government. I should also like to thank noble Lords for participating in tonight's debate and for the very warm welcome which has been given to the report. However, in view of the hour, I hope that I will not be thought discourteous if I comment on only a small number of points.

The noble Lords, Lord Bruce of Donington and Lord Knights, rightly stressed the importance of the draft convention. I am only sorry that the noble Lord, Lord

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Bruce of Donington, apparently thought our report somewhat academic. He appeared to propound the extraordinary notion that lawyers are not practical people. I find that quite a remarkable attitude for any Member of this House to adopt. However, the noble Lord will take comfort from the fact that, in the Select Committee, those voting in favour of the sub-committee's report included only one obvious candidate in that respect, as the others were not lawyers. Therefore, the others must be tarred with the same impractical brush.

I was very sad to note that the noble Lord, Lord Aldington, was not able to concur with the majority in the recommendation made about seeking to achieve uniformity in the interpretation of the convention. But, as a result of his disagreement, I have learnt that the delights of disagreeing with the noble Lord and debating against him are almost as great as the delights of agreeing with him in the committee. The same goes for the noble Lord, Lord Bruce of Donington, outside the committee.

On the question of the European Court of Justice, I should like to make three brief points. If discussion about it and the acceptance of the majority's recommendation were to be the cause of delay, it would be highly regrettable. When we considered the draft convention, there was a provision that the European Court of Justice should have jurisdiction to decide matters of interpretation. Therefore, if there is any delay, it is those who seek to remove that provision who might be the cause of the delay.

There is already a division. I accept the Minister's statement that many states now go along with a proposal to exclude the European Court of Justice. I do not know about that; the Minister knows the details involved, whereas I do not. My information is that a substantial number of member states are still in favour of including a provision giving the European Court of Justice some jurisdiction. However, it is essential for noble Lords to bear in mind the fact that what is being proposed is very limited. In the first place, it is that national judges throughout the member states should have the opportunity—in rare cases, no doubt—to refer to a central court questions regarding the interpretation of the treaty. Like the noble Lord, Lord Hooson, I find it quite extraordinary that the Home Secretary should regard it as not in the least disturbing that the convention should be interpreted in various ways, especially in regard to British subjects, in different states which are party to the convention.

Of course, the intention is that that most of those disputes will be decided without any reference. It would also be hoped that disputes between states could be decided in the Council. But the Minister will not be offended if I say that, if that always happened in all treaties, there would be no need for the International Court of Justice or for the many international tribunals which, over the centuries, have been established. I find it very Utopian to suggest that all such disputes will be decided with equanimity and ease by member states in the Council.

I desire to say something that I did not stress before. I believe that all our witnesses, except those from the Home Office, were in favour of the European Court having jurisdiction. Certainly, Justice, Liberty and the Meijers

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Committee from the Netherlands, which gave evidence, and others, were in favour of it. It is not just a lawyer's paradise; it is something which people practically engage in in important spheres, especially those underlined by the noble Lord, Lord Hacking. They really need to be dealt with.

I, perhaps, made the mistake of saying that I was comforted by the final sentence in the reply of the Home Office stating that it would continue to have regard to the committee's opinion when negotiations were taking place on the question of jurisdiction either of the European Court or of an independent tribunal. From what the Minister said this afternoon, it sounded to me very much as if the door was very firmly closed against any such suggestion. However, I ask the Minister to bear in mind the fact that the primary question is not which tribunal; the primary question is whether there should be uniformity.

Finally, in relation to Interpol, I, too, would accept that the latter is very different from the proposed Europol. The kind of data that it considers and its involvement with data protection are very different; it does not engage in the same form of analysis; and, indeed, it is not accountable. I can tell the noble Lord, Lord Bruce of Donington, that we went into the matter but came to the view that the case for having a separate Europol was fully made out.

At the end of the day there is only one matter between us; namely, the question of a uniform interpretation. I hope that the Minister will stick to what was said in the Government's written response and that she will keep our paragraph 109 firmly in front of her when the discussions take place. I am most grateful to all speakers for tonight's most interesting and valuable debate.

On Question, Motion agreed to.

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