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Lord Shore of Stepney: In this area of civil judicial co-operation, I well understand that parts of the treaty and the protocols that relate to free movement of people and border controls are brought within the treaty except in so far as we have protocols exempting us. But can my noble friend explain why the references are made under Article 73m, which is about judicial co-operation, referring directly to Article 73o, which is where the Community procedures take place? It seems to me that all those matters of judicial co-operation, quite apart from matters relating to free movement of people, immigration and so on, are brought within the scope of the first pillar.
Lord McIntosh of Haringey: I can certainly confirm that there are proposals in the Amsterdam Treaty which transfer certain forms of civil judicial co-operation to the first pillar and to what is now called Title IV. But is it not better if we keep to the division that we have deliberately made of the subject matter of amendments and try to deal with the third pillar now and then deal with my noble friend's questions properly at the appropriate time when we are considering all the issues of freedom of movement under the heading of Amendment No. 14?
I turn now to Europol and it is appropriate that I should do so as the noble Lord, Lord Moynihan, is with us again. I can certainly confirm what he said and what the noble Baroness, Lady Williams of Crosby, said, that the Europol Convention, which was ratified in the UK in December last year, was agreed by the previous government. I can indeed pay tribute to Mr. Michael Howard for his involvement in that process. Europol has not yet been fully established but its forerunner, the Europol drugs unit, which is up and running and is based in The Hague, already provides useful assistance to national police forces. Let me make it clear that Europol is not irresponsible. It is responsible to the Council of Ministers.
The Government attach great importance to Europol which will be able, for the reasons that have been made clear, to play a key role in helping European law enforcement agencies to work together more effectively
Although I am unable to enter into full debate on the Budget with my noble friend Lord Bruce because there are no amendments in this group which refer to it--anyway, there was a fire at the Treasury this afternoon which prevented us getting up-to-date information from it--it seems to me at any rate that the likelihood is that the total cost of criminal investigation in Europe will be less as a result of co-operation between police forces than it would have been if we had been forced to rely on ad hoc arrangements case-by-case between national police forces.
I come now to the issue which has raised a great deal of concern this afternoon and this evening. Once it is up and running, Europol will not have any operational powers. I say that, first, to my noble friend Lord Stoddart. Europol staff will not have powers to arrest people or to initiate investigations independently. I say to the noble Lord, Lord Swinfen, that it will not carry firearms. It will not engage in phone tapping. It will only operate on the territory of a member state with the agreement of that member state and in a support capacity. As a result, the accountability of Europol will be through the accountability which already exists for the police forces of member states.
It is true that some people would like Europol to take a more operational role in future. They would like it to be what the noble Lord, Lord Moynihan, calls a European police force. That is not the view of the British Government. Such a role could only be granted to Europol if all members states, including this country, were content. The Amsterdam Treaty does not confer any new powers on Europol. Its provisions in Article K2(2) in particular envisage a developing role for Europol in support of the law enforcement agencies in member states, but one which will develop within the scope of the convention and on the basis of unanimous agreement at every stage.
Naturally, member states, if they chose at some future point to conclude a new Europol convention, could confer powers on Europol which go beyond the scope of the existing convention. But as with any new convention it would need to be agreed unanimously by the Council and subsequently be ratified by the member states. I realise that I did not spell out the extent to which Europol in its support role would be accountable through the national police force. In response to specific questions that means that these operations would be subject to the authority of the Police Complaints Authority and ultimately judicial review.
Lord McIntosh of Haringey: Clearly, because we have not signed up to the Schengen acquis, the information that will be provided as a result of that will not be available to us. So there must be a significant diminution. But we have to balance that against the fact that it is universally recognised across all political parties that this country wants to keep its border controls. We are in a peculiar geographical position which enables us to keep our border controls in a way which Continental European countries would find difficult. That is the trade-off that we have to make.
I move now to the privileges and immunities protocol, because that is part of the Europol debate. The privileges and immunities of Europol staff are set out in a protocol to the convention which was signed in June 1977. It provides that if Europol's role were ever extended beyond the scope of the Europol convention, to which I have already referred, the question of privileges and immunities would necessarily have to be reviewed. The protocol was debated on a Motion in the name of my noble friend Lord Whitty at the end of last year. As the protocol was debated in both Houses, Parliament has had an opportunity to debate the status of Europol staff. If it is any consolation to the noble Lord, Lord Moynihan, I advise him that those privileges and immunities are no different from those of employees in any other international organisation.
I turn now to the European Court of Justice. The Treaty of Amsterdam provides for certain extensions in the jurisdiction of the ECJ. They are limited extensions. Indeed, for the noble Baroness, Lady Williams, they are extensions which are too limited. I recognise and respect that. Article K.7 gives the Court preliminary rulings jurisdiction for those member states which choose to accept it. It gives the Court jurisdiction over certain disputes between member states and between member states and the Commission. Where the Court already has jurisdiction in the third pillar, the treaty gives additional jurisdiction to ensure that the actions of the institutions respect fundamental human rights. It gives jurisdiction to review the legality of collective acts of the Council--I stress "of the Council"--in the third pillar. Finally, the Court is given a role in ensuring the proper operation of third pillar flexibility.
The noble Lord, Lord Moynihan, asked whether Article K.7 overrides the Home Secretary or the UK courts in police and judicial matters. Several other noble Lords made the same point. First, Article K.7(5) makes it clear that the ECJ has no role to review the validity or proportionality of operations carried out by the police or other law enforcement services or the responsibility of member states to maintain law and order. So that is a whole raft of worries that can be unequivocally put on one side.
Secondly, Article K.7 allows national courts to refer to the ECJ for a preliminary ruling, but only when a member state accepts that process. I must make it clear that the United Kingdom will not accept that process.
The remaining extensions are limited in scope. They relate to resolutions of the sort to which the previous government agreed. I refer, for example, to the 1995 Customs information system convention. They relate also to determining the validity of framework decisions and decisions taken by the Council. Again, I stress "not by member states" and only in the case of actions brought by a member state or the Commission. That seems a very unlikely contingency.
The noble Lord, Lord Moynihan, asked us to be cautious in all our considerations on this main objective. From what I have said, I think that he will agree that we have been extremely cautious. Some would say that we have been excessively cautious. I stress again that our main objective at Amsterdam regarding the Court was to ensure that it will have no right to rule on cases brought in UK courts on third pillar issues. We successfully achieved that. There is no such right. The preliminary rulings jurisdiction in justice and home affairs will apply only to those members states which choose to accept it--and the United Kingdom has no intention of doing so.
I cannot leave this subject without referring to the point made by the noble Lord, Lord Pearson of Rannoch, about corpus juris. That report was produced by a group of academics. It has never even been considered by the institutions of the European Union, let alone approved by them, and I have no indication that it will be.
It is true that the introduction of a free movement title will entail a new role for the court in this area. It will have a full role to play as in other areas of Community policy, except that references can be made only from courts of final appeal. The court's jurisdiction will not affect the United Kingdom except in areas where we have chosen to opt in. In the rest of the pillar the jurisdiction of the court is automatically extended in so far as all extensions of EC treaty provisions involve an extension of the role of the court. In total, these are not massive changes. They reflect developments made in European Community policies and provide various sensible mechanisms for a limited role for the court in the third pillar. The UK will not be bound by the preliminary rulings jurisdiction nor by jurisdiction under the free movement title unless we choose to be so bound.
The noble Lord, Lord Moynihan, referred at length to Amendment No. 48. That amendment was also spoken to by the noble Lord, Lord Lester of Herne Hill. That amendment has four aspects: first, the limitation of retrospective application of judgments of the European Court of Justice. On all of these aspects the United Kingdom went to Amsterdam prepared to argue the case if it was necessary. However, we encountered two matters: first, a substantial amount of disagreement with us on that subject. That would not be enough by itself. Secondly and much more importantly, we found that the European Court of Justice was already acting on almost all of these points. Certainly, retrospective judgments which potentially could cost large amounts of money might stretch back several years. No such power needed to be written into the treaty because the European Court
The second question was one of an internal appeals procedure which would have involved a chamber of the European Court of Justice comprising three or five judges dealing with matters with a right of appeal to the full court of 15 judges. That would have been a substantial increase in the judicial procedures of the court and would have caused additional delay. As the noble Lord, Lord Renton, has rightly said, cases before the European Court of Justice are already delayed. It already takes 18 to 24 months to go through. On reflection, we thought that to have a subordinate court with a right of appeal could only extend that period.
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