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As I was about to say, under the Maastricht treaty Home Office, justice and police matters were dealt with under what was then called the Third Pillar, and that pillar was intergovernmental in character. The treaty of Amsterdam, as many of your Lordships may recall, moved immigration, asylum, border control and civil and family law from the Third to the First Pillar, which operates, as every one of your Lordships participating in these debates over the past weeks must know, on the basis of co-decision by the European Parliament, qualified majority decision-making in the Council and subject to the ultimate jurisdiction of the European Court of Justice. As a consequence of this, the Third Pillar was renamed Police and Judicial Co-operation in Criminal Matters and has so remained for the past decade. The treaty of Lisbon brings all the remaining Third Pillar matters under Pillar 1 and that is the central issue that your Lordships have to consider tonight.

The great political philosophers tell us that fundamental to the creation of states is the need for individuals in societies to be secure. That security is achieved by the prohibitions of the criminal law

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enforced by the police. For the European Union to take upon its own institutions the responsibility of passing criminal legislation and ensuring that it is implemented in member states on the scale suggested in the Lisbon treaty will have a defining impact on the European Union’s ultimate political character. We therefore have to ask: what is motivating those who press for these radical changes?

The new provisions are set out in Articles 82 to 89 of the new treaty. It is simply not possible to deal with all of them without occupying your Lordships for several hours. I shall just draw your Lordships’ attention to a few of the more alarming proposals.

Article 83(1) provides for the adoption of European Union legislation to establish minimum rules concerning the definition of criminal offences in areas of particularly serious crime with a cross-border dimension. The list includes terrorism, trafficking in human beings, the sexual exploitation of women and children, drug trafficking, arms trafficking, money laundering, corruption, counterfeiting, computer crime and organised crime. Moreover, the Council may, after obtaining the consent of the European Parliament, adopt a unanimous decision to include other areas of crime as well.

Article 83(2) provides for other criminal offences and sanctions where this proves, in the words of the new treaty,

The treaty goes on to specify that directives under this article are to be adopted by the same legislative procedures as are stipulated for the adoption of the harmonisation measures in question. So if a harmonisation measure were adopted by qualified majority voting, so would the related criminal offence and sanctions be.

Article 85 provides, inter alia, that Eurojust may be given the task, by the Council and the Parliament, of initiating criminal investigations as well as proposing the initiation of prosecutions and co-ordinating such investigations and prosecutions. Article 86(1) permits a European Public Prosecutor to be established in order to combat offences and acts against the financial interests of the Union. That decision would be taken by a unanimous vote in the Council. The related Article 86(2) provides that the European Public Prosecutor’s Office shall be responsible for investigating, prosecuting and bringing to judgment the perpetrators of offences against the Union’s financial interests. Article 86(4) allows the European Council, acting unanimously, to adopt a decision extending the powers of the EPP to include serious crimes having a cross-border dimension.

Lastly, Article 82 lists three aspects of criminal law that could be subject to harmonisation: the mutual admissibility of evidence, the rights of individuals and the rights of victims of crime. This latter category goes to the heart of individual liberties. It has a substantial overlap with the rights laid down in the ECHR and falls within an area where our own common law traditions differ substantially from the civil law provisions of our continental counterparts.

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All this represents a remarkable break with the Maastricht model. Why has the Community—or those who have been driving the policy behind the treaty—made this radical break with the past? Many people in the European Commission, I understand, argue that this expansion of criminal responsibilities in the Community is the logical corollary of the freedom of movement of people. Without Community measures in this area, they argue, people would be able to escape justice by exercising their power to move freely throughout the Community. However, surely that task is addressed by the European arrest warrant. Its admittedly unattractive and unnecessarily draconian provisions nevertheless ought to solve 99 per cent of this problem. There is no logical reason for any harmonising measures.

Not surprisingly, the scope of these provisions has made some of the member states—that is to say, member states other than ourselves—hesitate as well; hence the emergency brake provision. Measures proposed under certain articles in the Lisbon treaty, where decision-making is enacted by qualified majority voting, are subject to these brake provisions. In these circumstances, any member state can pull its emergency brake where it considers that the draft legislation would affect fundamental aspects of its criminal justice system. As a consequence, the matter is then referred to the European Council and the legislative procedure is meanwhile suspended. Where no agreement is reached in the Council, the legislative procedure remains suspended; but if at least nine member states wish to proceed, then after notifying the Commission, the Parliament and the Council, authorisation for enhanced co-operation is deemed to have been granted.

If these measures go ahead in their current form, we are likely to see the enhanced provisions used frequently. This will lead to many member states in the European Community operating a set of criminal justice rules that are different from the remainder. Would it not be much better to proceed, as indeed we did under the old Third Pillar arrangements in Maastricht, with negotiations going on until consensus is reached? In those circumstances the Community would have a level playing field in matters of criminal law.

The relevance of the emergency brake procedure is reduced in the case of the United Kingdom, because of the protocol negotiated, which gives us the right not to opt in to individual measures. At present, the unanimity requirement in criminal justice obviates the need for any opt-in in this area. Under the treaty of Lisbon, as noble Lords are aware, the United Kingdom and Ireland have secured the right to choose whether opting in to all proposed measures falling within the field of freedom, security and justice is an appropriate approach in any given set of circumstances.

The protocol also confirms the right of the United Kingdom to choose whether to participate in the proposed amending measures. Opt-in provisions will apply to amending measures, as well as the original measure itself. However, by Article 4a(2) of the protocol, when the Council determines that the United Kingdom’s non-participation in an amending measure makes the existing measure inoperable for other member states, it may, by qualified majority,

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require the United Kingdom to reconsider its decision not to participate. If the United Kingdom maintains its position, the existing measure shall cease to apply to the United Kingdom. But, by Article 4a(3) of the protocol, the Council may, again by qualified majority, determine that the UK shall bear the direct financial consequences necessarily and unavoidably incurred as a result of its exclusion from the existing measure. I should like to ask the Minister how we came to agree to this. Quite apart from the desirability of having a measure of this sort in the protocol, how on earth could we possibly know in advance what the likely scale of our liability could be? Can the Minister be confident that the scale would be small, if not derisory?

The other problem in relation to the opt-in which is extremely vexing is that we have to take the decision to opt in at a very early stage of the negotiations. The early negotiations in relation to a particular measure may make what is likely to be the end product desirable. We exercise the opt-in and then the whole character of the negotiations changes and we realise that, for one reason or another, it would be damaging to the interests of the United Kingdom to exercise our opt-in. By then it will be too late to think again. As a consequence of this aspect of the opt-in provisions we are likely to be exceedingly hesitant to get involved at all in most circumstances.

Your Lordships will be extremely relieved to hear that I am turning to the final matter, which is the protocol on transitional provisions. Article 9 of this protocol provides that the legal effects of the measures adopted under the old Third Pillar, such as the arrest warrant, shall be preserved until those Acts are repealed, annulled or amended. Following the coming into force of the Lisbon treaty—if that ever happens—it is likely that the Commission will move swiftly to convert many such measures into directives under Title V of the TFEU. The transitional arrangements upon which the UK Government have insisted—inexplicably in my view—will last for only five years. We have apparently negotiated these special arrangements to ensure that where measures have not already been converted from the Third to the First Pillar, the Government can exercise what they describe as a block opt-out with respect to the remaining unconverted measures. Under Article 10(4) of the protocol, the United Kingdom may, six months before the expiry of the transitional period, notify the Council that it does not accept the new extended competences of the EU institutions over any outstanding Third Pillar matters.

Once again, though, we are faced with a system of financial penalties in this area. I pose the same question to the noble Baroness as I did earlier in relation to the opt-out protocol. How can the Government be so confident that these financial requirements that will be imposed on us will not be extremely expensive?

I think I have said enough to indicate that the scale of these new provisions in comparison with what has gone before is immense. The new powers of the Community are of particular concern when it is taken into account that their ultimate character will be determined not by our own courts but by the European Court of Justice. It is for those reasons that we have tabled these amendments. I beg to move.

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10.15 pm

Lord Blackwell: I have no doubt that the measures that my noble friend has just explained are some of the most far-reaching and chilling proposals in the whole treaty. As they are understood by the population at large, they will cause outrage. What my noble friend described was, as he said, the abolition of the intergovernmental nature of these justice and home affairs measures and their incorporation into the main treaty in a way which will bring in QMV, the jurisdiction of the European Court of Justice and co-decision by the European Parliament.

Matters of criminal justice and policing are matters for a nation where the electorate can elect or de-elect the Government who are responsible for those matters. The electorate can hold that Government to account. They can elect or de-elect the parliament that makes those laws on their behalf. I do not believe that a European council voting by majority is democratic representation of a nation. Nor do I believe that a European Parliament, however much language is used about it directly representing European citizens, represents a national voice on these matters or is an appropriate forum to decide the national laws that apply in this country.

The European Union is not a nation. The United Kingdom is a nation. Its Parliament is the place where criminal laws, policing laws and the role of justice in this nation are decided until such time as the Government tell us that we are no longer a nation and the European Union has become that nation—a proposition which, thankfully, they continue to deny. The fact that this treaty moves us away from a nation having control over its own laws in this area is a hugely significant matter. In support I quote a much-quoted report from the European Committee of this House, which has made some salient points on the matter. It said:

The European Union has not brought in these measures in this treaty to sit on the sidelines; it has brought them in to legislate in these areas. That is what it intends to do. The report continues:

I will return to that point in a minute. In respect of the power of the ECJ, the report continues:

In other words, even if this Parliament were to vote for a measure that reflected the will of the people of this country, this Government could be taken to court in Europe for not implementing a different measure that had been voted in by QMV in Europe. That is what we are considering.

I am sure that the Government will say, “That is all very well, but we negotiated opt-ins”. There are two

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problems with the opt-in, which my noble friend on the Front Bench has mentioned. The first is the matter of existing measures which we have already agreed under the previous arrangements where we will not have the choice of retaining the status quo. We will have either to agree to those measures being brought in to the new area, where the Court of Justice and QMV applies, or to opt out of those measures and bear whatever costs are imposed. Again, the report makes it clear that,

There is a whole set of measures where we would be forced either to comply or to opt out and bear the cost. There would be many other areas where, at first blush—the Government are trying to be friendly and co-operate within Europe—we will agree to areas that are then amended. The problem is that once we have agreed to an area, any amendment that follows will be by QMV and will bring us under the jurisdiction of the ECJ. Again, I quote from the report:

We are entering territory where a fundamental shift is happening in the criminal justice and legal system, which is moving from an area that is under national control of a national parliament and national Government, elected by the citizens of the country, to a territory where it can be imposed on us by qualified majority voting or parliamentary decisions in Europe, even where this nation has a different view. We should not do so without having that fully explained to the people of this country.

Lord Goodhart: We are looking at new provisions in the Lisbon treaty that will augment co-operation in civil and criminal proceedings. I recognise that the changes made in this area by the Lisbon treaty are very important and are among the most important of all the changes made by the treaty. It has to be recognised at the same time that the United Kingdom and Ireland are affected by those changes far less than other member states, because we are not bound by future changes unless we choose to opt in, and that is a very important provision indeed.

There is much to gain from co-operation in both civil and criminal matters. For example, the recognition of foreign judgments in both civil and criminal cases is important to prevent unreasonable delays. If judgment in one country needs to be enforced in another, non-recognition in the latter of that judgment basically means that the whole issue has to be retried, which creates injustice and unnecessary expense. We need further EU legislation on a number of issues. I will

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give one or two examples from my experience as a member of Sub-Committee E of the EU Committee.

We need an agreement in civil cases for a common small claims procedure without the EU so that, for example, a tourist from the United Kingdom who has booked and paid for hotel accommodation in Spain can sue the hotel for failure to honour that obligation. It is more or less impossible for that to happen now, because the costs and difficulties would far exceed the amount of money that could be recovered. We need a simple process that is the same across the EU, which minimises the language difficulties and enables someone to recover damages suffered under a small claim at minimum cost and expense.

Another problem, which I have very much seen in action during my time as a trustee of Fair Trials International, is the absence of proper legal assistance and interpretation in criminal trials in many countries. All countries in the EU already have an obligation under Article 6 of the European Convention on Human Rights to provide legal assistance where the defendant cannot afford it, and to provide interpretation. However, this is simply not observed in many countries. Fair Trials International had great difficulty when people from this country were arrested and tried in Greece for plane spotting. That had a happy ending, largely because of the intervention of FTI. However, it showed the legal defects very clearly.

The EU has been considering introducing laws on small claims, and on support in criminal trials, but there has been no agreement. I believe that the United Kingdom would support warmly both of these, but no agreement is likely to be reached under the Third-Pillar procedure, which needs unanimity. Some smaller countries in the EU are not willing to join up. Any agreement on the recognition of judgements would need safeguards against judgments obtained by fraud or corruption. However, limitations on recognition should be confined to those matters that are necessary to avoid injustice.

We also need, among other things, an agreement about the proper forum for trials, to prevent conflict and abuse. Another method of co-operation that would be helpful, particularly over smaller claims, would be to limit the need for witnesses to travel to countries where trials are being held, by allowing them to give evidence by video link. In the past, this has been difficult to achieve, because it was expensive. However, IT developments in recent years are making it much more viable and it is now likely that if this was proposed by the EU, we would get qualified majority support for the video links—but, again, we would be unlikely to get unanimity.

The problem for the United Kingdom and Ireland is that whereas we have a common law system, most other EU countries have a code-based system. However, we are protected—and this is perhaps the main justification for our protection—by our right not to be bound by new legislation unless we have opted in. However, we should not assume, without looking at it on a case by case basis, that our procedure is always better and must always be defended.

The exchange of information and evidence by ports and the police, and by police forces of different

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countries, is very important when countries face cross-border and organised crime and terrorism. It should not be excluded by minor technical differences in procedure. We have agreements on procedure that have been obtained under the Third Pillar—for example, the European arrest warrant. However, the framework agreement for the EAW may need amendment in the future. Under the Third Pillar, amendments would also need unanimity. This would likely lead to existing agreements becoming out of date, and either ineffective or too restrictive.

The noble Lord, Lord Kingsland, recognises that we have the right not to opt in. However, why should we insist, as he suggested, that new EU legislation, which will often be something that we ourselves welcome, can be blocked by the objection of, let us say, Slovakia? One small member state of the EU will be able to block what everybody else wants.

10.30 pm

We also need to look at Amendment No. 58, which aims to prevent Eurojust from carrying out criminal investigations. Investigation by Eurojust may well be useful in cases where internal investigation into misuse of EU money would not be pursued with enthusiasm in a particular member state. That is unlikely to be a problem in the United Kingdom, where we can be confident that this problem does not arise; but it arises in some other countries. It may well be, therefore, that the intervention of Eurojust would mean a greater likelihood that fraud against the EU—which we are all deeply concerned about—would, perhaps for the first time, be brought under control.

There is also the question of Amendment No. 59, on the European Public Prosecutor’s Office. I am somewhat sceptical about that. It is doubtful that it is desirable to set up an entirely new system of prosecutions for fraud against the EU that would operate independently of national courts. But under the Lisbon treaty the introduction of the Public Prosecutor’s Office requires unanimity. It is unlikely to get that from the United Kingdom. That would of course leave the possibility of nine or more states setting up arrangements for the operation of the Public Prosecutor’s Office under enhanced co-operation. I see no reason why we would wish to prevent that happening. While it may be unlikely to succeed, it could do so, and if it were to be successful that would justify a wider use of the EPPO.

Police co-operation is extremely important for dealing with cross-border crimes. Incompatible systems for collection and storage of data make work for police much harder. We should not start with the assumption that other countries want to force on us measures that we would not want to have. If that turns out to be the case, we can always fall out on not opting in.

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