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Lord Moynihan: I preface my opening remarks on this amendment by saying that, although there is no doubt that the measures contained in Title VI address issues of high domestic political sensitivity, including the operations of police and customs authorities and the criminal justice system, the Official Opposition are supportive of some of the general principles behind this part of the treaty which concern police and judicial co-operation in criminal matters. My right honourable friend the former Home Secretary, Michael Howard, had a significant hand in the genesis of some of these measures a number of years ago.

We on these Benches support any reasonable measure that is intended to search out, combat and remove the malignancy of international and organised crime. One of the great challenges that we face today is the fight against terrorism, organised crime, drugs and arms trafficking and illegal immigration. These activities respect no national boundaries, border controls and checks or customs laws. If they are to be effectively addressed it must be done on a multinational basis. Over the past five years we have seen greatly increased co-operation between the law enforcement agencies of member states thanks to number of specific agreements. The convention establishing Europol is one example. Europol was set up to provide a sophisticated facility for exchange and analysis of criminal intelligence. The Customs Information System Convention is another example by which a pooled database of anti-trafficking intelligence has been set up to make it harder for criminals to exploit differences in the legal systems of member states.

While I am in agreement with my noble friend and a number of noble Lords who have spoken so far this evening, in particular my noble friend Lord Renton, there cannot be and should not be any question of supra-national solutions being imposed on member states in these areas--hence the third pillar originally introduced by Title VI of the Maastricht Treaty, which is subject to unanimity, where member states co-operate on an intergovernmental basis within a single institutional framework. Under this title the role of the Commission, the European Parliament and the European Court of Justice was strictly limited.

The creation of a new Community title that we are considering this evening for the free moment of persons, asylum and immigration, as I have described, has necessitated this debate because it constitutes a major overhaul of the justice and home affairs pillar. Four of the areas dealt with under that title will be transferred to the new title and therefore to Community competence. Although this pillar retains its intergovernmental character, it is of great concern that it moves closer to

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Community arrangements and that the difference between the pillars is slowly but surely, and ever more, significantly being eroded. Such changes in the nature of the third pillar involving a much greater role for Community institutions raises real difficulties of principle.

That is why I have tabled Amendment No. 8 to highlight my main concerns on Article K.7, which is new Article 35 of the Treaty of the European Union. That explicitly involves the European Court of Justice in the third pillar, undermining the valuable intergovernmental structure agreed at Maastricht and Article K.2, which empowers Europol personnel to join national policing operations in a support capacity. Potentially that could represent a step in the direction of a European police force in a country which, as my noble friend has pointed out, does not even have a British police force but a number of regional ones.

I turn, first, to the important question of the ECJ. I have tabled new Clause 44, which provides for delay to the Bill's enactment until the Attorney-General is able to give specific legal advice on the extent to which provisions in Title VI of the treaty of the EU on police and judicial co-operation in criminal matters extend the jurisdiction of the European Court, to highlight our concerns about the extension of the jurisdiction of the ECJ.

The new clause provides also for a report based on the Attorney-General's advice, which will be laid before, and, indeed, approved by a resolution of, each House of Parliament. I have already raised the concern that the Amsterdam Treaty does much to undermine the pillared structure agreed at Maastricht as Article K.7 explicitly involves the ECJ in the justice and home affairs, or third, pillar. I shall not repeat the arguments that I have used in defence of the valuable distinction achieved between super-national and intergovernmental sections. Suffice it to say that Article K.7 encroaches upon the intergovernmental structure agreed at Maastricht under which the question of the jurisdiction of the ECJ was to be left open.

As I understand it, Article K.7 provides for the ECJ to have jurisdiction; to give preliminary rulings on the validity and interpretation of decisions and on the interpretation of the conventions established under Title VI on police and judicial co-operation in criminal matters and on the validity and interpretation of the measures implementing them. Those will apply to each member state only if and when that state has accepted the jurisdiction of the ECJ and has made a formal declaration to that effect.

In making such a declaration of acceptance of the Court's jurisdiction, the member state must specify that it applies to courts or tribunals where in that country there is no further judicial appeal and where such a court, in coming to its judgment, considers that it needs the ECJ's ruling, or that it applies to all courts which invite the ECJ's ruling in that way.

Although the ECJ does not have jurisdiction to review police operations, nor does it have jurisdiction over the action of member states in the maintenance of their law and order systems and in the safeguarding of internal

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security, it will have jurisdiction over the legality of member states' actions or decisions on grounds such as lack of competence, infringement of an essential procedural requirement, infringement of the treaty or of any ruling of law relating to its application, and the misuse of powers. It also has jurisdiction to rule on a dispute between member states if such a dispute is not settled within the Council within six months and to rule on a dispute between member states and the European Commission.

The changes that I have described represent a significant extension of the ECJ's jurisdiction. In another place the Government have described such extensions as modest. I should welcome the Minister's comments on the criticism that the modesty of this measure will depend upon the extent to which conventions, rather than framework decisions, are used in the future and the extent to which member states are willing to opt in to ECJ competence in framework decisions.

Furthermore, in the area of police and judicial co-operation I should like to establish who is the final arbiter in any dispute over the interpretation of that area of the treaty. According to Article K.7, it appears that the ECJ's decisions will now override those of the Home Secretary and the British courts. Will the Minister give details of the extension of the Court's jurisdiction, and will he say how they will affect our law, both civil and criminal?

Lord Renton: Perhaps my noble friend will allow me: his argument would be strengthened immensely if one were to bear in mind that for years the ECJ has had to incur great delay in making its decisions because of the volume of work put upon it. With the large increase in its jurisdiction which is now proposed, the delays will be even greater.

Lord Moynihan: As always when my noble friend intervenes, he strengthens the point that I am making, and has done so considerably on this occasion. I shall come to certain examples which bear testimony to the point that my noble friend has made. In the context of the point that I am making, which, as I have said, is admirably reinforced, it is important that we have details from the Minister as to the extensions of the Court's jurisdiction as they impact directly on our civil and criminal law, and an assurance that it is intended that the Government's view that the pillared approach at Maastricht--this is the important point behind my argument--is worth defending and that the ECJ's jurisdiction will not be extended into other pillared areas.

I accept that some Members of the Committee may find that the present encroachment of jurisdiction appears to be marginal. Nevertheless, many Members of the Committee fear that that represents not just something that is substantial but something which is potentially the thin end of the wedge. I seek the Minister's assurance that the Government are cautious about the implications of that extension of the role and

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powers of the ECJ and that the Government will oppose any attempts to extend its jurisdiction further into other pillared areas.

Lord Lester of Herne Hill: I am grateful to the noble Lord for giving way. I am not following the arguments, and that must be my fault. Will he indicate whether his position is that some body other than the ECJ should settle disputes about what the treaty means when there is a clash of arguments? If so, what is that body to be? It was his government in 1971, when we were negotiating entry, who signed the Rome Treaty that gave the ECJ the jurisdiction to decide what the treaty means so far as concerns this country. Is he suggesting that when there is a conflict of jurisdiction or interpretation there is some body other than the ECJ which should decide?

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