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Lord Clinton-Davis: My Lords, when did the Opposition become so concerned about civil liberties? I recall that when the Opposition of today were in government they showed not the slightest concern about these matters.

Baroness Anelay of St Johns: My Lords, every time I see an announcement by this Government, I am reminded that at the heart of the Conservative Party in

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the 19th century—a heart that has never stopped beating—was a care for civil liberties. We shall continue putting them forward now.

As to the sharing of information, we appreciate that the Schengen information system is a valuable resource. However, we wish to have safeguards built into it to ensure that information we would expect to remain confidential is not released. The Government have very properly made that point themselves in the past. We shall simply try to ensure that the right safeguards are in the Bill.

It is always a matter of public concern when governments concede the right to police here, let alone in other countries, to access our personal data for different and, perhaps, ill-defined reasons—even more so when access is gained without the knowledge of the person under investigation. Can the Minister confirm, for example, that it will be clear on the face of the Bill that United Kingdom immigration information will not be accessible by other countries in the EU?

The Minister referred to the intriguing section on driving disqualification. As someone who has driven for many years across the countries of our European partners, my immediate reaction on seeing these clauses is to say, "Why not?". We do not want dangerous drivers anywhere on the roads throughout the European Union. Certainly if serious driving offences are the subject of these provisions, that is easily welcomed.

But there may be sensitivities about different regulations in different countries. We shall need to ensure that someone from this country will not face disqualification abroad for a driving offence which would not be subject to disqualification here—or, indeed, a disqualification issued for a non-driving fault. As we are aware, in this country the Government are considering introducing driving disqualification for non-payment of fines which have nothing to do with driving. So there could be some sensitivities in that area.

When we study the Bill in Committee, our main effort will be directed towards ensuring that there are proper safeguards throughout and that the issues which need to be addressed are on the face of the Bill. We believe that at the moment too much is being left to the order-making power of the Secretary of State.

The Government must have already decided that the Bill is less than perfect in its current form because they have presented us with yet another objectionable catch-all clause. Under Clause 91, the "Supplementary and consequential provision" clause, the Secretary of State can do just about anything he likes to amend not only this Bill when it becomes an Act but other enactments, and he can do so by order subject only to the negative resolution. That is not good enough. I was concerned about this issue when I tabled an amendment to the Nationality, Immigration and Asylum Bill and I remain concerned about it now.

I listened with interest to the noble Lord, Lord Dahrendorf, when he stated that,

    "The Delegated Powers and Regulatory Reform Committee will shortly put to the House a report on experience with such clauses".—[Official Report, 21/11/02; col. 488.]

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and that there will be time for debate. I welcome that. I hope that our debate on Clause 91, which we shall have during the Committee stage in January, will both inform and assist the Committee's wider debate.

We have agreed to the Government's request that the Bill should be taken off the Floor of the House in Grand Committee as the usual channels are co-operating as far as possible with the Government to help them to get through their heavy legislative programme this Session. But, when we have a Bill of such a serious and important nature in Grand Committee, where we cannot vote for improvements, it is more important than ever for the Government to listen and respond effectively to constructive amendments put forward by the Opposition Benches. If they fail to do so, we shall simply end up with a re-run of the Committee stage on Report, and that is in no one's interest.

We believe that it is in the interests of the public here and across the EU that we co-operate effectively in judicial and police matters in the fight against crime and terrorism. Criminals have no care about what is right. We do, and so we fight them with the restrictions imposed upon us by our commitment to democracy, freedom and human rights. We abandon those commitments at our peril.

3.36 p.m.

Lord Dholakia: My Lords, I thank the Minister for arranging a briefing last week. It was very much appreciated.

The Bill implements several outstanding European Union commitments in the areas of police and judicial systems. In the parliamentary Session 1997–98, the Select Committee on the European Communities reported on enhancing parliamentary scrutiny of the third pillar. It stated:

    "The Maastricht Treaty heralded a new era in the co-operation between member states in the fields of justice and home affairs. It placed such co-operation on a formal treaty basis in substitution for the informal arrangements that had operated previously".

Since the publication of the Select Committee report, it has become clear that each member state has the right to initiate proposals under the third pillar. In certain cases, the Commission also has a right to initiate proposals.

I served as a member of the European Communities Committee (Sub-committee F). In 1998 the Home Office reported that, overall, the domestic legislation agenda had not been heavily determined by commitments given as a result of third pillar co-operation. This was because at that time much of the third pillar work reflected the existing position. Many third pillar improvements had been implemented without overall changes in domestic legislation. An example of this was the NCIS and ACPO, which provided a list of third pillar measures which were in the process of being implemented in the United Kingdom.

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We were then one of only two member states which had ratified the Customs Information System Convention. At the time we took evidence in Sub-committee F, no third pillar measures in the civil judicial field had been implemented because no such measures had yet been adopted.

The Crime (International Co-operation) Bill implements several outstanding EU commitments in the area of police and judicial co-operation—that is, the Convention on Mutual Assistance in Criminal Matters 2000 and its 2001 protocol, the mutual legal assistance provisions of the Schengen Convention and the evidence-freezing provisions of the framework decision on the execution in the EU of orders freezing property and evidence.

The United Kingdom Government state that,

    "this Bill demonstrates our commitment to effective co-operation against serious crime in Europe and beyond".

Indeed, the provisions of the Bill transpose the key instruments in enhancing EU-wide co-operation between police forces and judicial authorities which aim to make the area of freedom, security and justice a reality.

I accept that in a world in which criminal activity and terrorism respect no frontiers, so too must law enforcement be cross-border. Indeed, the measures here and the instruments they are based upon should be welcome developments as, while not necessarily new concepts, they are designed to streamline and improve measures for "international" justice.

Mutual recognition is deemed to be the cornerstone of judicial co-operation and fundamental to the area of freedom, security and justice. Indeed, the question of why a criminal should be able to flee justice just because he or she has crossed the border is the basis for such co-operation. Such mutual recognition of freezing orders is introduced in Part 2 of the Bill.

However, having said that about the positive approach to justice on a European level, I have significant reservations about democratic scrutiny, lack of transparency and openness, safeguards for defendants and the guaranteeing of civil liberties. This is not a contradiction in terms, as I believe we can support measures for EU justice without compromising fundamental rights. After all, we are aiming to provide security, freedom and justice. I question not what is being introduced, but how it is being done.

The Bill reflects a more structured framework and a significant improvement on the ad hoc co-operation that existed between member states previously. In principle, we welcome the Bill, allowing Parliament the scrutiny of certain aspects of the third pillar. There are, of course, matters of concern, which I shall identify later. Suffice to say at this stage that co-operation at international level on crime and justice is important, and domestic parliaments should continue to have scrutiny over such matters. The legislative measures before us are new but they were integrated in the framework of the 1997 Treaty of Amsterdam.

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There are three significant factors of which we should be aware. The first is that the United Kingdom has partial participation in the Schengen Convention. We have retained our border controls, thus we do not participate in the free movement of persons within the Schengen countries. I do not believe that today's debate has direct relevance to this matter, but I am sure that the Statement that is to follow will have a bearing on that.

The 1997 Treaty of Amsterdam expressly recognises the UK's right to maintain controls at the frontiers with other member states, while also preserving its common travel area with Ireland. However, the UK Government's position in relation to the compensatory measures in the Schengen system is becoming increasingly clear. It is about increased police co-operation, a common immigration, visa and asylum policy, and judicial co-operation. The Bill demonstrates some aspects of that.

The Government are in favour of participation in police co-operation, as reflected in Part 1 of the Bill dealing with mutual assistance in criminal matters. It is in favour of participation in the Schengen information system, as reflected in Part 4 of the Bill. We supported the opinion of the Select Committee on European matters that it is strongly in the United Kingdom's interest to participate in the Schengen information system. We cannot influence future developments if we are not part of the Schengen system, but we must exercise caution. While lending our broad support to Part 4 of the Bill, we must not underestimate genuine civil liberties concerns relating to data protection and identity checks in the present Schengen arrangements.

On that point, I emphasise that as regards the implementation of EU justice measures into UK legislation, such as we are dealing with here, there is an unacceptably low level of democratic scrutiny. Our colleagues in the European Parliament are merely consulted on such measures, and the EU Justice and Home Affairs Council is made up of both justice and interior Ministers with often clashing political agendas. Transparency and openness are significant by their absence in the decisions of the Council of Ministers. There is no access for European parliamentarians or MPs, other than the relevant Secretaries of State, about what is done in secret. While both Houses of this Parliament debate legislation such as this Bill, there is perhaps a semblance of democratic oversight, but as the Government are obliged under EU law to transpose these measures within a certain framework, there is perhaps little that we can do about it.

Democratic oversight and judicial review of a new generation of European policy in the field of justice and home affairs is vital to ensure both the protection of the rights of EU citizens and the openness essential to maintaining public confidence in supranational competence. The solution is not to denounce measures for EU justice, but to insist on proper interventions and involvement at an earlier, more appropriate stage. One of the key components in EU justice and home affairs policy development must be the commitment to give equal regard to freedom and justice as to security.

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EU justice measures are fast becoming a reality, not as is so often stated because of September 11th, but because of a commitment made upon agreement of the Amsterdam Treaty 1997 and the Tampere council in 1999. Indeed, much inconclusive discussion took place until the atrocities of September 11th brought into harsh reality the need to tackle international organised crime together. Thus decisions and agreements were achieved in unprecedented time.

In addition to these measures, we must have an accompanying, parallel system of safeguards. Governments must commit to upholding the principles of the European Convention on Human Rights and allow those rights to be enforced. We shall probe these matters at the Committee stage.

Police co-operation is based on mutual assistance between police authorities to prevent and detect criminal offences. There is evidence that it is already operational in character. There are detailed rules on cross-border surveillance and hot pursuit, enabling police officers from one Schengen state to cross the border into another to continue their operations. Will the Minister confirm that the present practice in Schengen states is that, in urgent cases, it can be done without prior authorisation? If so, what implication does that have in relation to policing in the United Kingdom?

It is on that point that we wish to reflect the concern expressed by Justice, whose prime concern with the Bill

    "is the absence of sufficient procedural safeguards combined with a failure to address the rights of the defence. While it is important for countries to be able to co-operate to combat crime, it is equally important that defence rights are maintained in such circumstances in order to protect the rights of the individual in an increasingly international environment".

There are matters in Part 1 of the Bill that require clarification. Will the Minister confirm that overseas freezing orders should be restricted to a judicial authority and that that body alone should have the power to make such orders? I said earlier that we need much more information about the Schengen information system, the Europol information system and the Customs information system.

The present system provides that data entered in one of the national systems is automatically transmitted to other sections. This means that all Schengen states have access to a common pool of data via their own national system. The SIS is designed to exchange data in order to maintain public policy and security, including national security. Are we satisfied that there will he no compromise in matters of our own national security and that its disclosure on SIS will safeguard our own security?

I am aware that SIS must not include personal data revealing racial origin, political opinions or religious or other beliefs, as well as personal data concerning health or sexual life. We need to be satisfied that data protection rules cover most of those areas. Will the Minister confirm that that is so? Who is responsible for the accuracy of data and liability for damage caused by the transmission and use of inaccurate data? It would

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be helpful to know if there is transparency and effective legal remedies with regard to SIS and data protection.

Let me cite the 1996 Court of Audit report on the Dutch SIS.

    "Whilst acknowledging that SIS data is potentially of great value, it emphasises that the system depends on the integrity of those who use it. More than 7,000 people are authorised to access the system in the Netherlands; around 500 of those are also authorised to change the data. The potential risk of unauthorised access, unlawful disclosure and/or inaccurate information being entered into the database is therefore great".

We certainly welcome Clause 82 of the Bill, which extends the functions of the Information Commissioner under Part V1 of the Data Protection Act 1998. It allows the Information Commissioner to inspect personal data recorded in the UK section of the three European information systems without a warrant. There is concern that the system has not kept pace with the modern method of data storage and exchange. It goes against the rule of natural justice that citizens face an almost impossible task in having access to information held about them. Will the commissioner have the right to allow individuals to have access to information held and will the commissioner be responsible for monitoring the entry of information on to computer systems?

Two years ago it was estimated that SIS had 49,000 terminals. How is it possible to guarantee total security? Will the Minister give an undertaking that security of these networks is being given a high priority? Framework decisions agreed by the Amsterdam treaty are binding on member states but the forms and methods are left to the national authorities.

Of course we accept that crime sees no boundaries. Money laundering, terrorism, drugs and trafficking in human beings have global dimensions. Any measures designed to tackle such criminal activities are welcome.

In addition to stressing the need for compliance with the principles of the European Convention on Human Rights and Fundamental Freedoms, it is also essential to harmonise the existing discrepancies between the respective legal systems of the 15 member states, with a view, for example, to initiating a process of bringing all member states' legal systems into line with those offering the strongest safeguards in respect of the rights of the defence. This process of upward harmonisation will not only avoid creating disparities in the treatment accorded to nationals and residents of the European Union, but will also mark a step forward in the development of the EU's judicial culture.

The first point that I should like to make as regards the UK's participation in certain parts of the Schengen convention is this. While successive UK governments have been unwilling to commit to making EU-wide free movement a reality, they have been willing to sign up to the enhanced police and judicial co-operation measures—the so-called "compensatory measures" for enhancing "internal security" to compensate for the lifting of controls.

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I cannot stress enough that any threats to the fundamental right to privacy must be legitimate, proportionate and necessary. In the event of any breach of those principles, recompense must be made available.

In conclusion, perhaps I may draw the Minister's attention to the report on the operation in 2001 by my noble friend Lord Carlile of Berriew. He said:

    "Throughout my travels, reading and discussing in connection with the Terrorism Act 2000, I have been fully conscious of the delicate nature of the balance between political freedoms and the protection of the public from politically driven violence and disorder".

I trust that the Minister has that balance in mind in relation to Part 2 of the Bill.

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