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House of Lords: Appointments

Baroness Amos: My right honourable friend the Prime Minister has made the following Written Ministerial Statement.

The House of Lords Appointments Commission is responsible for recommending non-party-political appointments to the House of Lords. However, I continue to nominate direct to Her Majesty the Queen a limited number of distinguished public servants on retirement. I have decided that the number of appointments covered under this arrangement will not exceed 10 in any one Parliament.

EU Constitutional Treaty

The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My right honourable friend the Secretary of State for Foreign and Commonwealth Affairs (Mr Jack Straw) is making available today a commentary on the treaty establishing a constitution for Europe. This commentary will be available in the Vote Office and the Library of the House. It will be published as a Command Paper in advance of Second Reading of the EU Bill. Copies of the Command Paper will be distributed to the media and key opinion formers, including academics, think tanks and business organisations. It will be available on the FCO website www.europe.gov.uk and will be distributed to central libraries across the UK.

The Government have already published a White Paper on the treaty establishing a constitution for Europe (Cm 6309) and a guide to the EU which, as well as providing general information about the EU, also explains in general terms what the Constitutional Treaty is about. This commentary has been produced to meet the Government's further commitment to Parliament, originally to the Lords European Scrutiny Committee to produce "an analysis of the draft Treaty against existing Treaty provisions". This commitment was reiterated by my right honourable friend the Prime Minister on 4 May 2004 when he agreed that "the Government will publish a range of material to accompany the Constitutional Treaty including . . . a comprehensive analysis and comparison of the existing Treaties and the new Constitutional Treaty" (Official Report, Commons, col. 1456W). The commentary, in analysing every article of the draft treaty, explains what each article does where this is not obvious from the text, explains where the treaty provision derives from if it is not new, and sets out where legislative procedures have changed.

The EU Constitutional Treaty is complex. It has to be, because it is not a law for governing a superstate, but a carefully drafted treaty regulating in detail the relations between European nations in a variety of areas. The treaty is also long. It consists of a preamble, 448 articles arranged in four parts, 36 protocols and two annexes and the 50 declarations, which were included in the official record of the signature
 
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ceremony. Much of it is a replication of the existing treaties.

The most important provisions of the treaty are all contained within the 60 short articles of Part I. These make it clearer than ever before that the EU is a union of sovereign states, which can only exercise those powers given to it by its members. Part II consists of the Charter of Fundamental Rights. Part III explains what the Union seeks to achieve in the various policy areas in which powers are conferred on it and what the limits on its powers are. It also sets out the detailed legislative procedures for exercising these powers, much of which is taken verbatim from existing treaties. Part IV sets out technical and supplementary provisions. It also sets out how the treaty may be amended, how it is to be ratified and when it will come into force.

If the new treaty is approved by all the member states and comes into force, it will replace all the old EU treaties (apart from the EURATOM Treaty) thus simplifying the legal framework of the Union and the communities.

The commentary on the treaty is designed to guide the reader through the treaty and explain its significance. It is in two parts. Part One acts as a general introduction and Part Two analyses each article of the treaty.

The introduction explains how the EU treaties have evolved over the past 50 years from the Economic Coal and Steel Community (1951) to the draft Constitutional Treaty. It sets out what the new Constitutional Treaty does and what it contains. The introduction also includes:

a section on the Charter of Fundamental Rights, explaining the origins and significance of the charter;

guidance on how to read the treaty and use the accompanying analysis; and

an appendix setting out the development of the competences of the European Union from the Treaty of Rome to the Constitutional Treaty.

Part Two of the commentary provides an article-by-article analysis of the Constitutional Treaty, following its structure and layout. Part Two contains an annexe, which sets out the areas in the new treaty which have moved to either qualified majority voting (QMV) or to co-decision or both. This annexe updates and supplements the answer given by my honourable friend the Minister for Europe (Mr Denis MacShane) on 5 July 2004 (Official Report, Commons, col. 593W) in order, inter alia, to take account of the procedural changes since that date in the existing treaty provisions. A list of abbreviations and a glossary of key terms used throughout the commentary is also provided.

This Constitutional Treaty can only come into force once it has been ratified in accordance with the constitutional arrangements of each member state. In the UK, this will require primary legislation amending the European Communities Act 1972 and then endorsement in a referendum.
 
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The Government believe that the commentary demonstrates the merit of reorganising the existing treaties into a single coherent document. It also shows clearly how little of the new Constitutional Treaty is in fact new: the bulk of its provisions are derived directly from and closely follow provisions in the existing treaties.

We hope that this commentary will help inform debate and discussion during the passage of the EU Bill.

Anti-terrorism, Crime and Security Act 2001: Intercept Material

The Minister of State, Home Office (Baroness Scotland of Asthal): We are announcing today the Government's conclusions on the review on the evidential use of intercept material in criminal proceedings. This accompanies the announcement my right honourable friend the Home Secretary made on counter-terrorism legislation following the House of Lords' ruling on the use of ATCSA Part 4 powers.

My right honourable friend the Prime Minister commissioned the review in July 2003. Its remit was to examine the benefits and risks of using intercept as evidence to secure more convictions of organised criminals and terrorists. In doing so, the review was tasked with considering how a legal model providing for the use of interception for evidential purposes, could be deployed in a way which is compatible with the ECHR, addresses the practical concerns of the intercepting agencies and takes account of developments in communications technology.

The review, which was the most thorough and far-reaching of five reviews on the subject in the last 10 years, reported last summer. It concluded that evidential use of intercept would be likely to help secure a modest increase in convictions of some serious criminals but not terrorists. The preferred legal model for evidential use of intercept would comprise three types of interception warrant—intelligence only, non-evidential and evidential, the latter requiring authorisation by a judge. Intelligence only and non-evidential warrants would continue to be authorised by the Secretary of State and would provide criteria-based protections against disclosure in court of the most sensitive interception capabilities and techniques. Set against the benefits that this approach might deliver, the review identified a number of serious risks that evidential use of intercept would entail for the intercepting agencies and their present capabilities in fighting serious crime and terrorism.

The review did not make agreed recommendations for or against lifting the prohibition on evidential use of intercept but invited Ministers to consider, in the light of the evidence presented on the balance of benefits and risks, whether or not to do so.

Further work on what might be done to mitigate the risks identified in the review report was completed shortly before Christmas. This showed that there was no immediate prospect of removing the main risks,
 
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partly because of the difficulty of assessing the impact of major changes expected in communications technologies over the next few years.

The Government have from the outset made it clear that they would change the law on evidential use of intercept only if they could be satisfied that the benefits of doing so clearly outweigh the risks. We have therefore concluded that it would not be right to legislate now to remove the existing prohibition. We will continue to keep these issues under review.

The review report is a classified document which cannot be published in the ordinary way. It will however be made available to the Intelligence and Security Committee to which my right honourable friend the Home Secretary will give further evidence if requested to do so. A summary of the report's main findings is set out below:

there is no easy or risk-free way of keeping what our "intelligence only" approach—with its uniquely close working relationships between law enforcement and intelligence agencies—delivers now and adding to this the benefits that evidential use of intercept could deliver. Evidential regimes in other countries provide useful pointers on the latter but are of little help on the first point;

the ideal of allowing intercepting agencies unfettered freedom to choose when to go evidential is not an option as it would be open to "cherry picking" and therefore fails to meet the requirements of ensuring fairness in criminal proceedings;

evidential use of intercept would be likely to help convict some serious criminals;

intercept evidence would be unlikely to assist in prosecuting terrorist targets and would not have made a critical difference in supporting criminal prosecution of those detained under ATCSA (Part 4) powers; and

a legal model providing for three types of interception warrant—intelligence only, non-evidential, and evidential—appears to offer the best basis for evidential use of intercept. Substantial further work would be needed on the details of the legal model before it could be introduced. Major changes expected in communications technologies over the next few years mean that the model potentially has only a very short shelf-life.

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