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Lord Pearson of Rannoch: Before the noble Baroness moves on to her second point, perhaps I can say that I do not think that I did poke fun either at racism or xenophobia. I thought that I made it clear that I took racism extremely seriously, but that I thought that the crime of racism was adequately covered by our own Race Relations Act. I suppose, in the background, I do not really see the point of European interference in British race relations legislation.

As to the alleged problem of xenophobia, I merely asked the Minister to tell us what it is, and how we are to combat it, and what the penalty might be for perpetrating it. I await, with great interest, the noble Lord's reply. I really would not like to be accused of not taking these problems seriously when they exist.

8.45 p.m.

Baroness Williams of Crosby: I fully accept what the noble Lord has said. It is interesting that he and I see this in opposite ways. I see this outcome, which was supported by Her Majesty's Government, as precisely a way in which our own practices might be extended more widely within the EU. The noble Lord sees it as a way in which the EU might interfere with us.

If one looks at the treaty and the way in which the articles are expressed, it is clear that it is unlikely to apply in any negative way to us. It will be the basis of extending non-discrimination to those places where there still is discrimination--and, alas, that remains the case.

I turn, secondly, to what I thought was one of the flaws in some, at least, of the amendments in the group, although I acquit the noble Lord, Lord Moynihan, of it because he made it plain that the Conservative Opposition believe that there has to be closer co-operation to deal with organised crime, smuggling, the drug trade, terrorism, and a whole range of new challenges which would have been unfamiliar a generation or two ago.

I shall give just one example. To save time, I will limit myself to one example. It is the recent discovery by the Italian police, on a tip-off from part of the Mafia which had broken away from the Mafia, of radioactive uranium rods being smuggled into the EU. That is as serious, in its way, as the warning we have been given about the possibility of anthrax entering countries not well disposed towards Iraq. It shows the scale of what organised crime will now engage in, and how reluctant it is to accept any limitations to the areas in which it is willing to make money, and the extent to which that is now reaching global levels.

Indeed, Members of the Committee will remember that only two days ago the British Government agreed with the Thai Government to take steps to limit sex tourism, which indicates the areas in which we are now living and working. That is why close co-operation is essential. Her Majesty's Government are right to say that there must be close co-operation--all the more

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given that the Schengen Agreement has removed internal borders from the bulk of European member states.

We are just living in the past if we believe that we do not need close co-operation of that kind. Within the scope of that close co-operation, Her Majesty's Government have gone a long way to ensure that virtually every framework agreement and operational agreement is based upon unanimity. That is further than we on these Benches believe it probably appropriate to go, given the scale of the challenge; but no one can challenge the Government in terms of their protection of the UK Government's position in a situation where, I repeat, it is crucial that there can be joint operations, as criminals move people and goods rapidly from one country to another.

The third point concerns the extension of the ECJ's powers. They are limited powers. I do not believe that there has so far been any satisfactory answer to the question posed by my noble friend Lord Lester to the noble Lord, Lord Moynihan: "Well then, who else is supposed to resolve disputes between member states and the Commission and member states? Who else is supposed to rule on the legal standing of framework agreements as, by the nature of a framework agreement, although it is unanimous, one cannot expect member states to accept the jurisdiction of any one of their courts?" They will only accept the jurisdiction of a court that includes them all within the EU.

It is merely to live in a world of unreality to suppose that one can do without an interpretation of whether such framework agreements fall within the terms of the title itself, and, beyond that, of the treaty. I can see no other jurisdiction that will be appropriate. Indeed, again from these Benches we should say that Her Majesty's Government have given the most limited extension of European Court of Justice powers that would be compatible with any kind of title of intergovernmental co-operation.

I have one question which I should like to ask the Government. I ask them to confirm what I believe to be correct; namely, that the European Court of Justice cannot go beyond those two issues which I have described--framework agreement interpretation and the resolution of disputes--to the area of preliminary rulings unless the Government specifically ask it to do so in a declaration.

From these Benches, we believe that that is a mistake and that it will involve more time and a greater use of resources than is really necessary if the courts seek a preliminary ruling. But I must say on behalf of the Government that they have leaned over backwards in the direction of sovereignty of the nation by saying that we shall not even seek preliminary rulings which would, therefore, be guidance to our own courts. Our own courts would have to resolve those matters on their own.

I turn now to Europe. With great respect to the noble Lord, Lord Moynihan, much of what he said I found to be thoroughly logical and sensible, but at one point I broke away completely from what he said. The noble Lord and one or two of his noble friends, indeed, in somewhat troubling terms, raised the issue of Europol's

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powers. We have every sympathy with people who are concerned to set against the powers that Europol may have and develop once the convention is fully in force a desire to protect the liberties of individuals. But let us be direct about that. It was the previous government who accepted Europol; who accepted Europol complete with its immunities and privileges. It was the present official Opposition who, in the House of Commons on 19th January, voted against a specific Liberal Democrat amendment calling for those immunities to be limited to the same position as that of the British police. The official Opposition voted against that amendment which was intended to provide the very protection about which the noble Lord, Lord Moynihan, has spoken.

Finally--and one must put this clearly on the record--the official Opposition, at the time they were in government, deliberately made a decision to allow no appeal by an individual to the European Court of Justice against an action by Europol which was believed to go beyond the proper powers of Europol. I presume that they did that with their eyes open.

In other words, they were so much more concerned about extending in any way the powers of the European Court of Justice that they chose quite deliberately to put at risk the rights of the individual. I give one example. If an individual found himself beaten up by Greek policemen and he, being a British citizen, then sought redress, there would be no redress through the British courts, nor through the European Court of Justice, which has been specifically barred from that role by the former government. The redress would have to be sought in the Greek courts.

For the life of me, I cannot see that that is a more effective protection of the rights of the individual than to allow the European Court of Justice to protect that individual by extending its powers in limited ways in relation to human rights and Europol. I do not expect the Government to agree with me, but I expect the official Opposition to recognise that their position is illogical, inconsistent and simply does not hold together on that issue.

Finally, I turn to the position which has been taken with regard to Amendments Nos. 44 and 48 in particular. We can see a strong argument for there to be detailed reports to the British Parliament on issues concerning that title. But the longest step towards some kind of more effective form of national parliamentary scrutiny has been taken in the past few weeks by the Government.

In particular, I refer to the memorandum from the Home Office to the Modernisation Committee of another place which indicates that it will accept the idea of the so-called scrutiny bar to agreements, decisions and so on arising under Title VI. That is a long step in the right direction. It does not go as far as we on these Benches would like it to go because we should like to see a more extensive system of national parliamentary control with regard to both the so-called intergovernmental pillars. But it is essential to say--and we commend the Government on that--that they have taken steps which have not been taken for many years past to strengthen the system of parliamentary scrutiny within this Parliament.

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At the bottom of the whole argument about that title of the European Treaty of Amsterdam lies the issue of how to make accountable intergovernmental agreements. It is absolutely crucial, in an area where civil liberties are very much at risk, that we should do so.

Lord Shore of Stepney: I believe that I am the 11th Peer to rise to address the Committee on this group of amendments. I should say straight away that of the 10 or so contributions that we have had so far, I find myself in considerable agreement with at least eight, but not wholly persuaded at all by the contributions which have come from the Liberal Democrat Benches.

In particular, I congratulate my noble friend who opened the debate on the scope of his remarks which have laid out the territory. I congratulate him also on the many interesting questions that he has raised. I am certainly greatly impressed by the contributions which have come from all sides of the Committee. They have probed and worried, very properly, and have raised questions which were not properly answered in the other place. Those questions will come to haunt governments and the people of this country if they are not dealt with adequately at this stage.

In particular, I should say to the noble Earl that I agreed so much with what he said about the wider matters--the common law, habeas corpus and the unwritten constitution. Those are great treasures which we have inherited. When I hear people talk about the rebranding of Britain as though all of that did not matter a damn I feel nothing but rage.

We have some reason to be protective of what we have and what we have inherited. To a great extent, it underlies this debate and, indeed, many other debates as well. There are those who do not share that view about our achievements or our inheritance. There are those who are anxious to give up, to merge, to surrender and to abandon--in the belief that they are doing what? They are creating not a European nation but a European state. It is not the ever-closer union of the peoples of Europe but the ever-closer union of the classe politique. That is what it is. The sooner we wake up to that reality, the better it will be.

I do not have a great deal to say because so much has been said so well already. But I believe that a little bit of background would be helpful to those who seem to me to have treated part of this discussion as though it were entirely a matter of the juridical business of interpreting the law and so on. A little bit of background would be helpful and I hope to supply it very briefly.

We are discussing the future of the third pillar. The noble Lord, Lord Moynihan, pointed out, rightly, that it is the erosion of the third pillar which really underlies so much of this debate.

Perhaps I may remind noble Lords that the Amsterdam Treaty brought for the first time the European Union into the areas of home affairs and justice and into foreign and security policy, to which we may turn later. It was deliberately constructed as a separate pillar outside the purview of the main structure of the Rome Treaty as

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amended by the Single European Act and so forth. It was to be outside; it was to be inter-governmental; implementation was to be by co-operation between member states, which would at most reach conventions. I am not certain who adjudicates the conventions, but that is not the essence of the issue. There are many conventions in international law and we find ways of arbitrating them when disputes arise.

The purpose was to be quite separate. I recall the then Prime Minister, John Major, returning from the long negotiations at Maastricht and proclaiming that it was game, set and match because Britain had secured an acceptance that the important areas of home affairs, civil and criminal law, and so forth, should remain outside the normal treaty arrangements. By that, we mean outside the procedures of the Commission proposing, the Council of Ministers voting and the European Court of Justice in the end adjudicating. That was not to be part of the issues which affected Pillars 2 or 3.

The then Prime Minister claimed that victory because during the course of the Maastricht negotiations he had met very strong pressures from the federalist enthusiasts on the European continent who had been constantly trying to extend the scope of the Community, the Union, to cover ever larger areas of the affairs of the member states. I am afraid that that is a fact of life. Of course, the fact that they did not win at Maastricht did not mean that they abandoned the project; they simply prepared for the next round. They had already written into the Maastricht Treaty that there would be a revision, a further go, of their Articles n and b of the treaty. And so it came about.

We then had a further IGC, which concluded with the Amsterdam Treaty. In that treaty they tried--and their fingerprints are all over it--to erode the separateness of Pillars 2 and 3 and to nudge them, to push them, to trundle them into the coverage of Pillar 1 and the main Rome Treaty.

Unless we begin to understand that, we shall not have a sensible debate, nor will we have a sensible response. However, I am sure that my noble friend who is to reply from the Front Bench is fully aware of what it is all about, and of the history of the treaties, and needs no instruction on the matter. I am sure that he will therefore choose his words carefully because he knows very well what the intent has been. What is still somewhat uncertain is how far the Eurofederalists and Europhiles succeeded at Amsterdam. That requires a great deal of serious thought and probing of the words of the treaty. Much of it has already taken place. My noble friend already has an enormous number of questions to answer precisely because of the uncertainties as to how far the pillar has been eroded.

I have two queries to put to my noble friend. I am aware that we are dealing with the proposals for common action in judicial co-operation in both criminal and civil matters. The two are included. There is an interesting reference in the treaty which I must bring to your Lordships' attention. Some noble Lords referred to articles by their revised treaty numbers. I shall refer to articles in the unrevised treaty numbers. Whereas

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some noble Lords quoted Articles 100 and so forth, I am afraid that I shall quote Article 73 from m to z, or whatever, as well as other related matters.

Article 73m begins with the words:

    "Measures in the field of judicial co-operation in civil matters having cross-border implications, to be taken in accordance with Article 73o and insofar as necessary for the proper functioning of the internal market, shall include".

There is then a whole list of issues, including improving and simplifying and promoting the compatibility of the rules applicable in member states concerning the conflicts of laws and jurisdictions. That long list of issues is most important but ill defined, as noble Lords have pointed out.

The governing words in the article are:

    "Measures in this field ... having cross-border implications, to be taken in accordance with Article 73o".

I am surprised that Article 73o has not featured a little more in the debate so far.

Article 73o is a bit of a mystery. Article 73o, paragraph 1, begins by stating:

    "During the transitional period of five years following the entry into force of the Treaty of Amsterdam, the Council shall act unanimously on a proposal from the Commission or on the initiative of the Member State and after consulting the European Parliament".

That is the language and institutions of Pillar 1. Yet we had the list of subjects in Pillar 3--the judicial civil co-operation with cross-border implications--without a word or apology brought back into Pillar 1. That is in the first five years--

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