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Lord Peyton of Yeovil: I begin with something of an apology for not having been in my place at the start of this debate. I shall trim my remarks accordingly. I have tabled a modest amendment, which at least has the merit that its meaning can be understood at first reading. That is quite a rare feature of amendments.

The noble Lord, Lord Stoddart, raised the interesting notion of what the reaction would have been had the present Opposition been in government and produced legislation of this kind. I believe that

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there would have been a volcanic reaction against it. Compared with that, what is being said very reasonably from this side of the Chamber is most restrained.

I have come to believe, first, that all governments increasingly tend to identify their own convenience with the national interest. Secondly, governments, although not themselves intrinsically stupid, tend to find it easier to do stupid rather than sensible things. It is in the power of Ministers this afternoon to rebut both those propositions. They can accept one or more of the amendments that have been tabled; they can announce that they have decided to reject both these objectionable clauses; or, alternatively, they can come forward with something better of their own. If they do not, I believe that they will be admitting the reasonableness of the two propositions which I have put forward, and I hope that they will decorate themselves with them.

We are exceedingly fortunate to have the guidance of the Select Committee on Delegated Powers and Regulatory Reform. On the off-chance—the awful possibility—that not all Ministers or their advisers have read every word of what is an extremely weighty report, I venture to quote a number of sentences from it.

First, on page 4, there is a clear statement that,

Xthe power is still a dramatically wide power to rewrite the Statute Book in the criminal justice context".

I cannot help feeling that, however devoted the Government may be to every line of the Bill—I include in particular the Home Secretary, who is disappointingly inflexible in some of the statements that he has made—they cannot be entirely happy to have a committee such as the Delegated Powers Select Committee making that type of comment about legislation for which the Home Secretary is personally responsible.

There is a quotation from page 5 of the report which I believe should be written into the record of this debate:

XSuch measures"—

that is, measures now in contemplation at the European Union level—

Xwould obviously go much wider than the ambit of anti-terrorism legislation . . . But there is no precedent for the grant of powers to amend United Kingdom law by order in such important and sensitive areas, and the seeking of such powers in an emergency bill which is expected to pass through all its stages in both Houses of Parliament within some three weeks is truly innovative".

Again, that is a statement which I believe Ministers will ignore at their peril. If they do not observe its meaning and withdraw in the face of it, I believe that they will be left with a great deal of which they will be thoroughly ashamed in the future.

The committee's conclusion in paragraph 13 is that it is,

Xof the view that the powers to implement by secondary legislation proposals under the third pillar should not be granted except to allow the implementation of a measure which the Government can demonstrate is a key element in its emergency proposals and yet not of such importance as to warrant primary legislation".

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I hope that Ministers have already read those quotations and have them in mind. If they do not, I have at least refreshed their memories. If they do, I hope that they will apply their minds to giving a lucid, clear and potent answer to what the Select Committee has said. To my mind, it is totally and wholly unanswerable.

In conclusion, I welcome something which does not always happen to me; that is, to have an opportunity to echo with warm agreement what was said by the Leader of my own party in another place. I also agree very warmly with what was said recently by my honourable friend Mr Oliver Letwin. He stated:

XWe have a case, therefore, against including clauses 109 and 110—at least as they are currently drafted—in emergency legislation, and a material case against them in any event. The whole point of the third pillar of the EU is that it gives member states an opportunity to continue to control the vital question of how they are governed from the point of view of their criminal law . . . we want these clauses to be restricted to the very narrow extradition proceedings to which the UK is already committed, and thereafter to lapse, so that we can return, as we believe that we should, to implementing EU third-pillar decisions in primary legislation".—[Official Report, Commons, 19/11/01; cols. 42-43.]

The Government asked Parliament and the nation to pass this measure with quite exceptional speed. On the whole, most of us went along with that very willingly. I believe that it would be intolerable, and those of us who were perfectly happy to do so would feel badly let down, if the Government, in the name of convenience only, were simply to extend slightly the boundaries of their previous intention because of some definition difficulties or whatever. It would be monstrous. Any trust which other parties may have in them currently would be very seriously diminished.

4 p.m.

Lord Chalfont: I shall be brief because having listened to the debate this afternoon, I find that I have nothing new to say. However, it is worth making a few remarks, if only to bring home to the Government the almost universal strength of feeling about Clauses 110 and 111.

Generally speaking, I am in favour of the proposed legislation and want to see the Bill on the statute book as quickly as possible. The Government are right to introduce emergency legislation to deal with terrorism, but I am not persuaded that these clauses are necessary to prosecute the fight against international terrorism, as the noble Lord, Lord Moran, said. On the contrary, I believe that they carry with them grave dangers to our constitution, as the noble Earl, Lord Onslow, said, although I would not attempt to emulate his celebrated impression of Sir Laurence Olivier in putting forward that proposal.

Shorn of its formal drafting language, the Bill is asking us to approve a situation in which it will be possible for the government of the day, of whichever political persuasion, to implement without primary legislation decisions on matters of British law, together with any consequential criminal penalties, which have been arrived at in negotiation between Ministers in

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Brussels. As other Members of the Committee have said, that would place an unacceptable instrument of power in the hands of the executive.

It is not just a matter of crime and terrorism. The proposal means that any measure agreed under the so-called third pillar by European Ministers can become the law of this country without any of the checks and balances by which Parliament can call the executive to account. Parliament has already been dangerously marginalised and emasculated. Day after day one sees evidence of the fact that Parliament is no longer taken seriously by the executive. It is ignored and is often placed second in the considerations of the executive in putting forward and seeking agreement to it policies.

The implications of these two clauses need to be studied at great length and depth by both Houses of Parliament before they can be contemplated. I want to make the point forcefully that it is not acceptable that a constitutional change of this magnitude should be slipped into a Bill that is supposed to be an emergency measure designed to fight international terrorism. It is a sleight of hand and one that the Minister will now realise has no support in this Chamber and almost universal opposition elsewhere. If the amendment is pressed to a Division, I shall support it, but in the long run, the best thing for the sake of Parliament and the country as a whole would be to remove the clause altogether.

Lord Kingsland: I am in the happy position of agreeing with everything that every Member of the Committee has said, so I can be exceedingly telegraphic.

Intergovernmentalism is an admirable principle, but in practice it works very badly. The legislature under the third pillar consists of three ingredients. First, there are the senior officials who prepare measures; secondly, there are the ambassadors who convene to discuss them; and, finally, there are the Ministers in the Council of Ministers who determine them. All three layers meet in secret. There is no involvement of the European institutions, including the European Parliament, on the one hand, or of national parliaments on the other.

In Clauses 110 and 111, the Government could be described as approaching the implementation of these measures in two ways. The first is to say that they are guilty of a disingenuous act of cynicism in trying to evade parliamentary scrutiny. That has been the theme and tenor of so many speeches this afternoon. The second reason may be that the Government have concluded that whether decisions made by the Council of Ministers at the third pillar are implemented by delegated or primary legislation matters not a jot. Once the framework decision is taken, the nature of the obligation on the member state is so strict and severe that the room for national parliamentary manoeuvre is zero.

Rather than, for example, providing for the European arrest warrant under Clauses 110 and 111, the Government have offered the option of having the matter scrutinised with the full panoply of a Bill. But

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what difference will that make? Once a third pillar decision has been taken in secret by the Council of Ministers, what difference will it make if the matter is dealt with by primary rather than delegated legislation?

My noble friend Lord Garel-Jones, in his interesting intervention, said that the original idea behind inter-governmentalism was to replace the European institutions with the national Parliaments. But what has happened is that the European institutions have been displaced but the national parliaments have no role whatsoever. The only meaningful role that the national parliament can have in this matter must be before the decision is taken by those three layers. What role have your Lordships or those in the other place had in that decision? We have had virtually none.

Your Lordships' House should be involved much earlier in the scrutiny of third pillar matters—much earlier than at the Committee stage of a Bill. We should devise a procedure whereby we send a Minister to negotiate only when he is absolutely clear about the limits of his or her discretion. Those limits will determine the limits of our ability to make changes to what has been decided in Brussels when we implement the law.

That matter goes beyond the specifics of the Bill into the formidable territory of the relationship between our Parliament and the European institutions in the years to come. I shall be interested in the Minister's reply.

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