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Lord Moran: I warmly support the Government in bringing forward emergency legislation on international terrorism at this time. As was pointed out earlier by this House, it should apply to all international terrorism, not merely with the IRA and the Loyalist terrorists exempted. However, I think that Clauses 110 and 111 have no place in this Bill.
When I first looked at this matter, I was very struck by the seventh report of the Select Committee on Delegated Powers and Regulatory Reform, to which my noble friend Lord Bledisloe referred. It is a very sober and judicial committee. It does not become excited and get carried away, as some of us may do. I noted that what it said, however, was very strong. The Select Committee pointed out that the Bill conferred a very wide power to implement, by secondary legislation, measures adopted under the third pillar. It said that it is,
- Xstill a dramatically wide power to rewrite the Statute Book in the criminal justice context",
- XThe fundamental issue is whether this procedure, which currently applies to economic and regulatory measures, should also apply to the most sensitive areas of policing and criminal justice, with the potential to impinge on individual rights and liberties".
So strongly did the Select Committee feel that, over the page, it said it all again: that this was,
- Xby far the most sweeping general provision for the creation of offences by secondary legislation that we know of",
- XWe view with concern the broad power to implement justice and home affairs measures under the third pillar of the Treaty of European Union—whether concerned with terrorism or not—by means of secondary rather than primary legislation".
The whole case against the inclusion of Clauses 110 and 111 was made in a notable speech at Second Reading by the noble Lord, Lord Waddington. The case that he put then was overwhelming. We in this Chamber are being asked to agree a procedure under which not only the measures agreed in the European Union after September 11th, but all that went before and all that will happen in the future, will be settled by secondary legislation by the executive without any scrutiny by either House of Parliament except the affirmative procedure which, of course, is very much weaker than proper discussion. Neither this Chamber nor the other place will have any opportunity to discuss and consider properly these measures which will have great consequences for individuals who may find themselves hauled off abroad in connection with offences which are not offences in this country. I very much hope that the Government will think again and either accept the Liberal Democrat amendment or, even better, strike out the two clauses altogether.
Baroness Carnegy of Lour: The noble Lord, Lord Moran, reminded the Committee of what the Delegated Powers Committee said. I am a member of that committee, and I am glad that he has done so. I refer to page 24 of our seventh report where an extract from a memorandum by Justice is printed which reminds us that the power we are talking about,
- Xwill apply even where the measures implemented are contrary to existing primary legislation: Ministers will be able to repeal existing primary legislation by means of secondary legislation".
I was interested to note that the noble Lord, Lord Wallace, introduced the amendment we are discussing. He is the chairman of the committee which has the job of scrutinising third pillar recommendations. When I served on that committee—I expect that a number of Members of the Committee are present or past members—I remember the difficulty involved in carrying out any scrutiny at all of these issues. It has been explained that that is due to recommendations arrived at by negotiation. Ministers negotiate intergovernmentally and, as they are all answerable to their own parliaments, what they decide goes straight back to their own parliaments in the relevant member states. I think that the noble Lord will agree that very often the committee is, as it were, chasing the issue which is under discussion at the Council of Ministers. Before it has time to catch up, suddenly it is a fait accompli and will simply whistle through both Houses as an order. That is completely undemocratic. There is no scrutiny at all. It is, in fact, a constitutional monstrosity and simply cannot be allowed.
At Second Reading the noble Lord, Lord Rooker, made extremely friendly noises about the committee's recommendations. I had expected to hear before today's debate that he had accepted what the committee said. I am disappointed that that has not occurred. If he intends to accept what the committee said, we shall have wasted our time. But if that does not happen, I hope that we shall vote on the matter, either today or certainly on Report.
Lord Condon: I thank the Government for bringing forward this important Bill, but I share the reservations raised in connection with Clause 110. As a relatively new Member here, I should find it difficult to persuade colleagues and members of the public how Clause 110 as currently drafted takes forward the fight against terrorism. I hope that the Minister will concede that the clause could be better drafted. Like other speakers, I support the amendment proposed by the noble Lord, Lord Wallace.
Lord Maclennan of Rogart: The absence of necessity for Clause 110 must lead one to hope that the Government will not press it. Unlike the noble Baroness, Lady Carnegy, I am glad that the Minister has not intervened too early for it has allowed a wide spectrum of views to be expressed and many arguments to be deployed which have wisely pointed to the exceedingly large number of disadvantages in what is proposed.
There is one issue that I have not heard explicitly raised; that is, the position of Scotland. The Executive of Scotland is responsible for some of the matters that are covered by the issues in Clause 110. I should be interested to know whether conversations have taken place on that matter between the Minister for Justice and Deputy First Minster, Mr Jim Wallace, and Home Office Ministers. I find it hard to believe that Scotland, which has cherished the independence of its legislative process for criminal law, should have conceded the acceptability of this measure. In 200 years of close union it has not been thought necessary to provide for a measure of this kind in Scotland.
Although we are moving—some of us are happy to see this—towards ever-closer union within the European Union, that does not underwrite a mode of democratic procedure in the slightest degree comparable with what is proposed here. There is no analogy between the third pillar and matters handled under the first pillar by a wholly different legislative process. The very fact that this is a third pillar matter underwrites the wisdom of making these distinctions at earlier Heads of Government conferences. I hope that the Minister will not force the Committee to rely upon my noble friend's excellent amendment but will simply indicate that this is a misconception and one which either now or at a later date the Government will withdraw.
3.45 p.m.
Baroness Carnegy of Lour: Will the noble Lord, Lord Rooker, who undertook continually to discuss the Bill with the Scots Parliament, indicate whether he
is discussing this particular issue? I intended to comment on that matter as the Scots Parliament will have to implement all this by secondary legislation, as will Westminster if the Bill is passed, and I am perfectly certain that it will not want to do that.
Baroness Strange: I support the Bill almost entirely, but in this instance I agree with the noble Lord, Lord Wallace, and my noble friends Lord Williamson, Lord Bledisloe and Lord Moran, that the whole Bill is a bit like the man boarding an aeroplane who is having his heavy luggage weighed and is asked by the staff, XHave you left this luggage unattended? Have you packed it all yourself? Have you packed anything that was given to you by anyone else?" The man replies, perfectly truthfully, XNo". However, he then proceeds to take a whole lot of hand luggage with him about which he has said nothing. It seems to me that these clauses constitute part of the hand luggage.
Lord Elton: I like that analogy. I am tempted to intervene in a debate in which the case has conclusively been made for one reason only; namely, that I was the Minister who took the then Police and Criminal Evidence Bill through the Chamber in, I think, 1984. I remained interested and closely concerned with criminal justice thereafter. I am aware of the immensely intricate structure of which our criminal justice system consists and of the difficulty of amending it in one place without affecting it deleteriously in another.
Members of the Committee are well aware of what the third pillar is and they understand the difference between primary and secondary legislation. However, for those who are following this matter from outside, I believe it is worth saying that primary legislation is debated in both Houses, and in this House every part of it is discussed and can be altered. Secondary legislation can be discussed in both Houses but cannot be altered at all; it can only be accepted or refused.
The possibility of something being generated in negotiation with our European partners into a shape which can amend our criminal justice system in one place without having deleterious effects in another and of our being aware of any deleterious effects that there might be without extensive debate in this House of the type to which we are accustomed seems to me remote in the extreme. I regard this proposal as exceedingly dangerous. I greatly support the Liberal Democrat Front Bench on this occasion and, indeed, shall support my noble friends when we come to debate the Question of whether this clause should stand part.
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