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Lord Elton: The noble Viscount has referred to the restriction in subsection (5). Has his eye been drawn to subjection (6), which limits even that narrow restriction that he has just referred to?

Viscount Bledisloe: The noble Lord is right. There are two powers: one to deal with certain specific offences that are related to terrorism and have the

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potential to attract large criminal sentences; and a more general provision in relation to anything that the European Union wants under the third pillar, unless in general it attracts a sentence of more than two years or, in a magistrates' court, more than three months. What on earth have offences that attract such sentences to do with terrorism?

This is a serious invasion. The European warrant is a good example. If it is passed, it will change the entire principle of extradition. Some aspects of it may be very good, but changes to our centuries-old system of extradition to allow anyone to be removed to any country on the mere say-so of a judge of that court should not be made by subordinate legislation. Such proposals need to be thought through carefully.

The Government may say that it is all right because everything goes to the European Union Committee for scrutiny before any decision is taken by Parliament. The arrest warrant is a good example of what really happens. The proposal came from Europe so rapidly that the Select Committee had the opportunity for only one meeting. It put in a lot of reservations. We shall see in the next three days whether any of those will have any effect. The whole thing has been rushed through. Scrutiny committees cannot be an alternative to proper legislative debate and amendment.

The Government may also say that there is no advantage in having primary legislation because once we have signed up to a proposal in Europe we are stuck with it anyhow and we have to enact it. The answer to that is twofold. First, when it is enacted, even after it has been blessed in Brussels—if that is the right verb—we still have a chance to see how it is going to be implemented and to put in such controls as we can. Secondly, and much more importantly, if the Government know that they have to come to Parliament with proper legislation, they will be much more cautious about what they agree to in Brussels.

In my view, the right thing to do would be to strike out the clause completely, but I would be perfectly happy with Amendment No. 126D if the Government were prepared to accept it.

Lord Waddington: I want to draw attention to an intervention by the noble Earl, Lord Russell, during my Second Reading speech. The Committee will be relieved to hear that I do not have the slightest intention of repeating all that I said then, although I have fundamental objections to the clause. The noble Earl took me somewhat by surprise when he rightly pointed out that if, as a result of second stage reform, your Lordships' House were to lose the right to reject an affirmative order that came before us, we could be in the absurd position of being unable to stop a regulation that created a new criminal offence carrying unlimited imprisonment.

That shows the potency of the powers that the Government are seeking. It is extraordinary that they should be seeking the power to create new criminal offences, which may have nothing to do with terrorism, with unlimited imprisonment. I do not

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believe that the Minister, who is a reasonable enough chap, would insist on the Government taking such powers in a Bill that is supposed to be a proper reaction to the terrible events of 11th September. I see that the noble Lord, Lord Brennan, is in his place. I hope that he may intervene this afternoon. He made the telling point the other day that, by this clause, the Government are taking power to remake our criminal law. Article 31(1) of Title 6 says:

XCommon action on judicial co-operation in criminal matters shall include . . .

progressively adopting measures establishing minimal rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking".

I cannot believe that the Government really wish to take power to change our criminal laws in that way by delegated legislation and to do so in a Bill against terrorism. Those powers go much further than can possibly be argued to be necessary to meet the threat with which we have been faced since September 11th. I support the amendment, although I feel that the only correct approach is to remove from the Bill a clause that cannot seriously be said to be a necessary reaction to the threat from international terrorism.

3.30 p.m.

Lord Stoddart of Swindon: Like the previous speakers, I would like Clauses 110 and 111 removed from the Bill. That would be the only satisfactory safeguard. Nevertheless, the noble Lord, Lord Wallace, is to be congratulated on giving us an alternative to discuss.

It is surely a disgrace that such provisions should reach this House without having had any scrutiny in the elected House. We should begin to wonder what the House of Commons is about when it allows such serious provisions to be put into an emergency powers Bill without scrutiny in Committee, on Report or at Third Reading. The Commons should have discussed these matters properly.

If these provisions had been brought forward by a Tory government, there would have been hell to pay from the very people who are now proposing this legislation. For example, they would have been described as being Right-wing extremists, or even as fascists. Nevertheless, the Bill is proposed by a Labour Government.

The provision goes extremely wide. The noble Lord, Lord Waddington, has just mentioned some of the problems that will arise and some of the powers which will be given to government to agree, behind closed doors in Europe—powers given to Ministers other than have been elected by the British people. When those proposals come back to Parliament, it will not be possible to amend them in either House because our power of amendment is to be removed. They will therefore have to go through exactly as negotiated by British Ministers with other Ministers who, I repeat, have not been elected by the British people. That is quite unprecedented in matters of this kind.

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The Government say, XWe have done this on the environment and in other areas". But we are talking about people's rights and freedoms, which have to be protected through the law. We are here giving powers to Ministers to alter the law without primary legislation having gone through both Houses. It simply cannot be accepted.

The Daily Telegraph summed up the position reasonably well in a leading article on 30th November. It stated:

XThe proposed law allowing EU justice and crime measures to be put through Parliament by ministerial order, rather than by primary legislation, should be fought tooth and nail. It is hard to know the possible consequences, but they could certainly include a Greek court, for example, being empowered to demand that a British subject living in Britain should be arrested and brought before it, without any chance to resist the demand in a British court. It is proposed, too, that police should be able to obtain information about any suspected criminal—not only terrorists—from public bodies such as the NHS or the BBC. The possibilities for abuse of such powers are extremely worrying".

That sums up the position extremely well. I hope that the amendments will be put to the vote and, if they are, that the Committee will support them unreservedly.

Lord Garel-Jones: I do not know whether I qualify for the description of the noble Earl, Lord Onslow, of a Euro-creep. Certainly those of us who have put in some hours in the salt mines are well cured of Euro enthusiasm.

I should like to make two general points, which I believe focus specifically on the clause before us. First, we should remind ourselves that in the European Union we are slightly making it up as we go along. It is a unique constitutional experiment and we will make mistakes. One of the areas where we are lagging behind, if we believe in intergovernmentalism, as I believe most Members of your Lordships' House do, is in ensuring that national parliaments are grafted into the procedure. At the moment that is an astonishing weakness in the structures, and one which I hope the British Government will address at the next intergovernmental council.

Secondly, we still stick to the arcane Ponsonby rules and pretend that many of the items issuing from the European Union are of foreign treaty, whereas in effect they are a kind of hybrid. They are not a foreign treaty; they are regulations which produce laws in this country. My view is that the provision the Government are seeking to bring forward is deeply damaging to those of us who hope and seek to make the European Union work. It is simply not presentable.

I am prepared to argue to most of my fellow citizens that British sovereignty does not hinge on the whitefish regime and indeed that British sovereignty is better exercised in trade matters, in co-operation with our partners in the European Union. I do not think that I, or many of my fellow citizens, believe that matters like foreign policy, home affairs and defence are not matters of national sovereignty. I have been happy to argue to Euro-sceptics anywhere in the United

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Kingdom that intergovernmental matters are matters which are decided in Parliament by the British Parliament.

What this clause damagingly seeks to do is bring to Parliament by secondary legislation measures which, as my noble friend Lord Waddington pointed out, go to the heart of our criminal procedure in Britain, without any proper debate in the British Parliament. That could be deeply damaging to those of us who seek to promote the European cause.

I very much hope that the noble Lord, Lord Rooker—who is indeed a reasonable man—will take these concerns, expressed by Euro-enthusiasts and Euro-sceptics alike, to heart and withdraw the clause. That would be my preference. If not, I shall have no hesitation in supporting the amendment that has been proposed.

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