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Lord Elton: Before the noble Baroness sits downI am sorry to test her patience furtherperhaps I may point out that in paragraph 7 of Select Committee report it is put forward, as I understand it, that at present on the agenda, or already under consideration for the procedure which we are now discussing, is a measure for the,
Lord Pearson of Rannoch: While the noble Baroness is reflecting on that point, she has just said that all matters under police and judicial co-operation in criminal matters will be subject to some form of unanimity. The amendments passed at Nice under Article 24 of the TEU make it clear that they apply also to the provisions under Title 6. What the noble Baroness has said may not be factually accurate if the Nice provisions come into force.
Baroness Symons of Vernham Dean: I shall write to the noble Lord. I understood that it was civil judicial co-operation that would be subject to qualified majority voting. If I have misunderstood I shall write to the noble Lord. I thank the noble Lord, Lord Elton, for the way in which he put his points about paragraph 7 of the report. We shall certainly look very closely at the points the noble Lord has raised.
Lord Kingsland: The noble Baroness said that once decisions had been taken under the third pillar council by unanimity, the room for maneouvre for a member state would be very narrow and confined to technical matters. I therefore understood that the noble
Baroness meant that, further, it did not really matter whether implementation took place by affirmative resolution or by primary legislation. Would that be a right conclusion to draw?
Baroness Symons of Vernham Dean: I was quoting and I am sorry if that was not clear. I was quoting what was said during the debate on the European arrest warrant on 19th November by the noble and learned Lord, Lord Scott of Foscote. I understand that affirmative procedures are very different from primary procedures and that is the purport of much of the concern that has emanated from the Committee today. They are very different matters and I would not seek in any way to pretend otherwise.
Lord Wallace of Saltaire: I was criticised in this debate for the moderation of my speech in moving the amendment. I plead in mitigation that I arrived by plane from Washington this morning and that I was not entirely wide awake.
Perhaps I may add that one of the points that most cheered me in the United States was the vigour of the debate there on how far the United States should compromise its civil liberties in the war on terrorism. Many supporters of the current Republican administration are themselves questioning the proposals that the administration are putting forward. I was most struck by two articles by William Safire, Ronald Reagan's speechwriter, vigorously attacking the powers which the Bush administration now wish to take. I note the silence on the Government's Back Benches on this clause. That speaks volumes in itself for the lack of enthusiasm on those Benches for these powers.
Yesterday lunchtime I was taken to the new memorial to F D Roosevelt, which has some wonderful quotations from his wartime speeches on the importance of maintaining one's commitment to civil liberties when one is defending civilisation. That is part of the context which we are now discussing.
Perhaps I may make three points about this clause. First, the Tampere European Council, in November 1999, agreed on a very ambitious five-year programme of measures in justice and home affairs to create an area of freedom, security and justice. As the noble Lord, Lord Waddington, and others have pointed out, that covers a very wide range of issues. Some of them are certainly to do with terrorism. Others concern immigration, asylum-seeking and a whole host of other matters. Some of them are terrorism-related, but not all crime falls into that category and not all serious crime is related to terrorism. Some of it is simply serious crime.
So far the Government have been inadequate in explaining to the Committee and to the public how important is this five-year programme. We are being asked to accept that we shall be taken further down this road, again without adequate explanation of its full implications.
Secondly, the noble Baroness says that this is no different from what has happened in the first pillar. But the whole point about there being a second and a
third pillar is that there is a great difference. Indeed, both the previous and the present government have insisted on maintaining that difference. Part of the difference is that at European level there should be no parliamentary scrutiny and no judicial review of the second and third pillar. Therefore, in compensation for that, it is all the more important that there should be adequate parliamentary scrutiny and judicial review at the national level.Should the Government propose to move these things to the first pillar, some scrutiny would be achieved. Matters of civil liberties, which are sufficiently close to the heart of democratic government and to the rule of law, are, as a noble Lord from the Conservative Benches said, slightly more important than the white fish authority.
That is indeed my third point. These issues are peculiarly sensitive to democratic governments. Therefore, they merit more, not less, thorough consideration than the regulation of economic transactions, which is the stuff of first pillar legislation.
I am unaware of any national parliament within the EU being asked to consider that such general powers are necessary to the current legislation. It is wholly inappropriate to take this occasion to ask for general powers in the third pillar. At most, we should be willing to grant a carefully circumscribed and time-limited power.
We do not intend to press the amendment to a vote at this stage. However, if the Government refuse to accept its substance, we on these Benches will decide whether to press it again on Report or to vote for the removal of the whole of Clause 110. From what we have heard today it is clear that the Government will lose that clause unless they are willing to make substantial concessions. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 126C to 126E not moved.]
Lord Pearson of Rannoch moved Amendment No. 126EA:
The noble Lord said: I start by apologising to Members of the Committee that this is a manuscript amendment, which was tabled only this morning. However, I hope that I shall be able to persuade the Committee that the situation surrounding the proposed framework decision on the European arrest warrant has become so serious as to justify what might otherwise be judged to be somewhat precipitate action.
Most Members of the Committee will be aware that the noble and learned Lord, Lord Scott of Foscote, chairman of your Lordships' Sub-committee E, led an important debate on the proposed EU arrest warrant on 19th November after the sub-committee had been forced to consider it in unacceptable haste. As I
Indeed, I think that it is fair to say that universal concern was expressed at the proposal, which the Minister was unable to allay. I also understand that your Lordships' Select Committee has not lifted the scrutiny reserve on this proposal. Until it is lifted, the Government should not agree it in Brussels. That is still the nature of the agreement between the Government and both Houses of Parliament.
Notwithstanding that, I understand that the Government support the proposal. They appear to be preparing to vote in favour of it on 6th and 7th December in Brussels; that is to say, on Thursday and Friday of this very week. This is therefore the last chance that your Lordships' House will have to express an opinion on the proposal; hence the urgency of the situation.
I know that the Government have said that they will bring the decision for primary legislation in January. As we heard in the previous debate, and as the Minister admitted on 19th November, the Government's room for manoeuvre in that primary legislation will be so limited as to be non-existent once they have agreed the framework decision in Brussels on Thursday and Friday of this week.
It is, alas, also true that the Government do not have to listen to your Lordships' House today. They can also ignore your Lordships' scrutiny reserve. They can just proceed to agree to the proposal in Brussels under their treaty-making powers. But let us hope that your Lordships' deliberations today may have some effect on their actions later this week.
Any noble Lord who wants to appreciate the full gravity of what is proposed should read the debate on 19th November in the name of the noble and learned Lord, Lord Scott of Foscote. Many noble Lords, far better qualified than I to decide such weighty legal matters, contributed to that debate.
Perhaps I may remind Members of the Committee of the salient features of the proposed European arrest warrant. It is a proposal which has been maturing in Brussels for years but was somehow accepted by the Council of Ministers in the wake of the events of 11th September when presumably it was posed as an anti-terrorist measures. However, as the noble and learned Lord, Lord Scott of Foscote, said, it is hard to see that it has much or anything to do with terrorism. The warrant could be served for any offence punishable in the issuing member state by a prison sentence of at least 12 months.
Article 2 of the framework decision also contains a list of 24 crimes which do not have to be a crime in the country where the arrested person lives. Most of these crimes are already crimes here, but some are not, or at least require much clearer definition. For instance, there is the crime of Xswindling" or the crime of
But perhaps the crime in this category which has attracted the most public disquiet is the crime of Xracism and xenophobia". In our debate on 19th November the Minister was unable to define the crime of xenophobia. He has since told me a Written Answer that the crime of Xxenophobia" will be what the member state which issues the arrest warrant decides it is. That situation will in fact apply to all the crimes listed in Article 2 of the framework decision.
During our debate on 19th November my noble friend Lord Lamont asked whether one could be arrested on an EU arrest warrant for a crime which one was alleged to have committed in this country, as defined by the issuing member state, even if the crime was not one in this country. That question took even the noble and learned Lord, Lord Scott, somewhat by surprise. It clearly floored the Minister. However, it has become clear from careful study of Article 2 paragraph 3 of the framework decision that my noble friend Lord Lamont had put his finger on one of the worst aspects of this proposal. British subjects and residents will indeed be able to be arrested and extradited for interrogation and trial on the say so of a magistrate in any of the other member states for doing something which is not necessarily a crime here.
I fear that that is not all. British subjects extradited for interrogation and trial in another member state will not be protected by the ancient safeguards of habeas corpus and trial by jury because they will come under the Napoleonic code with its system of instructing and visiting judges and so on.
Furthermore, the three other normal safeguards, which at the moment protect British subjects and others on our soil from inappropriate extradition, are to be swept away by European arrest warrants. They will not apply when a European arrest warrant is made. Those safeguards are, first, that a British court will no longer have to be satisfied that there is Xsufficient proof" against a person to justify his extradition; secondly, no longer will he have to be guilty of what we in this country regard as a crime; and, thirdly, the Home Secretary will no longer be able to exercise his discretion as to whether extradition is appropriate in all the circumstances of the case. None of the three existing safeguards will exist under the proposed arrest warrant procedure. The say-so of the other member states' magistrates will be enough and the person will have to be extradited within 30 days.
I apologise once again to the Committee that it should be someone of my limited legal knowledge who introduces the amendment today. I hope that my well-known Euroscepticism will not detract from your Lordships' objective consideration of the amendment. I believe that the situation is as I have represented it.
The Government still have time to refuse to agree to the proposal. It must be agreed by unanimity on Thursday and Friday of this week in Brussels. I should be most interested to hear the views of other Members of the Committee and to know whether they support the amendment. I hope that they will join me in asking the Government to resist this frightening proposal in Brussels this week.
X( ) The powers conferred by subsection (1) do not include power to make any provision about the European Council Framework Decision on the European arrest warrant."
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