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Europol seems to be an organisation that has a useful role in the fight against crime and I am happy for it to be involved in investigation and operational matters. We always have the protocol to fall back on.

I do not think that any of these amendments is necessary. All of them are likely to make the possibility of achieving effective legal action against misbehaviour in European countries harder to achieve.



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Baroness Ashton of Upholland: I thought that the noble Lord, Lord Pearson of Rannoch, might want to say something about Amendment No. 55.

Lord Pearson of Rannoch: I will try to stick to my part of the deal, which was that we should finish by 11 o’clock.

Baroness Ashton of Upholland: I am very grateful to the noble Lord. Given that the noble Lord, Lord Kingsland, has grouped together two groups of amendments, I shall try to do what the noble Lord, Lord Goodhart, did and deal with these issues one by one and, perhaps, address the concerns that noble Lords have raised. I recognise the importance of the moves that have been made in the areas of justice and home affairs. I declare my interest in that I was a Minister who sat on the Justice and Home Affairs Council for just under three years and I have some experience of the opting-in process that noble Lords have referred to.

The noble Lord, Lord Kingsland, took us on a journey through Maastricht to Amsterdam on the way that justice and home affairs have evolved. Indeed, one can look back to the beginnings in the 1970s of the Trevi group and see the moves within Europe to recognise the importance of co-operation in matters of justice and home affairs to achieve common ends—particularly on issues such as serious and organised crime. Those moves tried to make sure, as the noble Lord, Lord Goodhart, said, that in areas of civil justice, where people live, work, study, travel, buy or sell across the European Union, they have the benefit of knowing that they can rely on the EU to work together to resolve any problems that may arise.

Put simply, if you are a tourist who buys something in a shop in any part of the European Union and it is faulty or breaks, you know you can be recompensed. Equally, it makes it easier to have debts repaid to you because of transactions that you have undertaken. These are issues that I worked on personally across the European Union in my time as a Justice Minister and I know the importance of the potential benefit to UK citizens. It is in that context that I want to talk about these matters.

I think it is important when we look at the area of justice and home affairs, particularly in terms of judicial co-operation, that we look at what is within Article 81 of the consolidated treaties. When I was a Justice Minister I spent a huge amount of time on Article 65, trying to make sure that we considered it in the context of cross-border implications. I was very pleased to see that the treaty helpfully makes clear that measures in that field must be based on the principle of mutual recognition. From a UK perspective, that is an improvement on what went before. It is very important to me that we are recognising each other’s legal systems and not seeking any form of harmonisation. That is an important principle that is much clearer within this treaty than what went before.

As noble Lords have said, family law remains subject to unanimity and the consultation procedure with the European Parliament. There is a passerelle clause that allows family law measures to move from

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unanimity to qualified majority voting. It has appeared in every treaty from Amsterdam onwards but, under the Lisbon treaty, national parliaments have the right to veto its use.

Going back to the amendments that the noble Lord, Lord Taylor of Holbeach, who is not in his place, was concerned about and that my noble friend Lord Bach discussed on recognising the importance of the role of and strengthening the control of national parliaments, here we have an example. I am not sure whether the noble Lord, Lord Kingsland, spoke to Amendment No. 55. No? I will not deal with it because I thought he was going to. I will leave it for another time.

I will speak to Amendment No. 56, which is next on my list and deals with Article 82 in the consolidated version of the treaty on the function of the European Union. It talks about judicial co-operation in criminal matters, which is currently under Article 31 of the treaty of the European Union. Again, I think that that is an improvement on the existing treaties in a number of respects, which was implicitly acknowledged in the report of the Select Committee. It said that Article 31 was of “uncertain and controversial width” and replaced it with an exhaustive list of areas of criminal procedure where the adoption of minimum rules could be proposed. It concluded that what it described as that “clarification and definition” was,

The new provision expressly limits activity in this area to,

and to police and judicial co-operation in criminal matters,

Again, these are important areas of clarification. It also explicitly requires that rules created under this provision should take into account the differences between the legal traditions and systems of the member states. All these requirements are welcome and I would have thought that the noble Lord, Lord Pearson of Rannoch, might welcome them as well because of the importance of mutual recognition of traditions and legal systems of individual member states.

In moving the provisions on judicial co-operation from a system of unanimity and consultation to qualified majority voting and codecision, we have extended, as the noble Lord, Lord Kingsland, rightly said, our opt-in to apply to these provisions. That means that we choose whether we participate in them. We cannot be obliged to participate in such measures where we deem that they are not in our interests. Of course, as the noble Lord, Lord Goodhart, made clear, there will be many occasions when it is in our interests to co-operate with our European Union partners. Criminals and organised gangs do not respect borders, and therefore we need to work with our partners in pursuing cross-border prosecutions.

The existing provisions on judicial co-operation in Article 31 of the European Union treaty provided the means to create the European arrest warrant, which is now working successfully in combating those who

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seek to evade justice by crossing borders. It enables the UK to bring to justice those who have fled the country. As noble Lords will know, one of those suspected of the 21 July 2005 attempted bombings in London was swiftly returned to the UK from Italy using the European arrest warrant and has subsequently been convicted.

Amendment No. 57 relates to the inclusion of “organised crime” in the list of crimes where the EU, by qualified majority voting and codecision with the European Parliament, can establish minimum rules concerning the definition of criminal offences and sanctions. As I indicated, Article 31 of the current treaty provides for the adoption of measures establishing minimum rules. On that basis, the JHA Council has already agreed a framework decision which requires member states to have in their domestic laws offences and penalties relating to participation in a criminal organisation. That decision is wholly consistent with the Criminal Law Act 1977, which is the relevant UK legislation on conspiracy and defines “organised crime”. The framework decision provides for member states to opt either for offences of participating in a criminal organisation or for offences founded on national conspiracy laws. Therefore, we are able to support the framework decision on the basis of the laws that we already have in place. It is an important element in ensuring that there are no safe havens for criminals across the European Union. Through collaboration and through the lists that we have put forward, which the committee says are a step towards an exhaustive list, the minimum and possibly the maximum rules are set out. Criminals will therefore know what will happen to them in any state in the European Union, rather than being able to evade justice. That is particularly important in the area of terrorism.

Amendment No. 58 concerns the provisions relating to Eurojust’s ability to initiate criminal investigations. The Lisbon treaty—

Lord Lamont of Lerwick: The Minister talked about mutual recognition of judicial systems but Article 83 goes much further than that. It talks about minimum rules, and rules include sanctions, which I assume means minimum sentences. Does she really believe that this is necessary? When she talks about safe havens, does she believe that for an offence such as terrorism there is a safe haven within the European Union? Most people would accept that we should respect the judicial systems of other countries. We have the arrest warrant. Do we really need to go so far as minimum sentences for these offences? Is she suggesting that countries within the European Union have penalties that are so lax that we need to alter them at a supranational level?

Baroness Ludford: Before the noble Baroness responds, perhaps I may venture to answer that. I do not know whether the noble Lord is aware that before the 2002 framework decision on terrorist offences, many EU member states did not have a specific offence of terrorism or any penalties. Presumably they dealt with such incidents under laws of murder or grievous bodily harm. It was necessary to have the ability to facilitate cross-border investigations and

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prosecutions, and therefore coherence and consistency were important so that every member state in the EU had offences of terrorism and incitement to terrorism. The noble Lord expresses amazement that that was the case but I am afraid that, until six years ago, it was.

10.45 pm

Baroness Ashton of Upholland: The noble Baroness has answered the question. I hope that the noble Lord, Lord Lamont, will accept that a number of states in the European Union did not have an offence of terrorism. Although I struggle to remember the exact number, certainly many did not. It was important in the light of what happened, not only in London but, before that, in Madrid and further afield, to decide that member states needed to make sure that they had that offence covered properly. That was one example, but there are others.

When I talk about mutual recognition, when working within the European Union I am looking to make sure that there is recognition of the system operating within a member state—particularly as we are a common law country, while many countries with whom we are working are not—so that we do not get a different legal system imported instead. Looking at cross-border questions, then, one is looking for mutual recognition linked to a system by which one can ensure that jurisdictions operate across the two.

I shall give an example. The idea of the small claims procedure was that it operated in each member state and that procedure could be used across borders. Yet that did not affect the functioning of the individual member state; rather, the system was built on recognising that systems might be different but the outcome should be that a claim could be made to get money back that was owed across the border. That is what mutual recognition is about.

In the context of the lists that were described in the procedure, safe havens may not be a phrase liked by the noble Lord, but is precisely to ensure that in areas where we understand what we mean by criminality—for example, in terrorism—there is absolute clarity on what will happen within each member state, and we work together both to bring criminals to justice and to ensure that that justice matches across member states. I do not believe that is contradictory to making sure that individual judicial systems work effectively, not least because of what I have said about mutual recognition. However, it is important to ensure—and we had this example—that if something as grave as terrorism is not recognised within member states then it should be, as part of the great co-operation that should exist between member states in the European Union.

Lord Blackwell: Most of us would accept that states should co-operate to assist each other in many areas, for example in combating terrorism or money-laundering; the Minister mentioned a number of other areas. What has not yet been justified is why those areas of co-operation—which are obviously beneficial to all those states involved—cannot continue to be achieved by intergovernmental co-operation, as they have been under the old Pillar 3 provisions.



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Why is it necessary to have EU legislation, with things introduced by qualified majority voting and a codecision of the European Parliament, as opposed to states agreeing that they want to co-operate on these sensible areas? Those matters do not start and end at the European Union borders. We have to co-operate with the United States and with other countries; why do we need to move away from the intergovernmental process in this fundamental area?

Baroness Ashton of Upholland: Well, one argument used against the intergovernmental process is the length of time that it can take to reach a decision, particularly when 27 member states are trying to find a way through an issue. Secondly, there is always a danger—and, if my memory serves me well, my right honourable friend Jack Straw mentioned this in discussion with the European Union Committee—of the lowest common denominator applying.

I can think of circumstances on the Justice and Home Affairs Council, where I sat, where one looked for ways through particular questions but, because of one or two member states having particular issues—which I am not saying were unimportant or irrelevant, but they could none the less have been surmounted—we spent a huge amount of time trying to do that. We did not, in the end, necessarily solve the problems as effectively as we might have.

For example, we have been looking at the recognition of people who have had driving bans. That took place many years ago but it has still not yet come into force. One question, then, in looking within an amending treaty on how to make a union of 27 member states work most effectively is whether there are better ways to do that. Now, from a UK perspective, we have clearly been sure to build into our position that we will not come into a measure on justice and home affairs unless we believe it is in our national interest. Many times, it will be; on occasion, it will not. I did not opt in to every measure. It is important that we retain that power, because we need to ensure that our national interest is always covered, but that is within the context that one’s ambition is that where measures are advanced, they are for the mutual benefit of all member states, so we would want to participate as fully as possible.

Lord Lamont of Lerwick: I am grateful to the noble Baroness; she saw me looking puzzled. Reverting to my question, given that we have the European arrest warrant, which provides for near automaticity of extradition from country A to country B, and given that the European arrest warrant has abolished the requirement that an offence for which a person is being extradited had to be—at least in British law, it used to have to be—an offence in this country, and you can be extradited for an offence that is only an offence in the country to which you are being extradited, why do we need this precise harmonisation of the definition of criminal offences?

The noble Baroness kindly answered—not entirely to my satisfaction, but she gave me a very interesting answer—my previous question. As she said, although a country does not have an offence called precisely terrorism, there are other offences: murder, grievous

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bodily harm and intending to harm people. Why is it necessary to have this European-wide imposition of a common definition of offence when we have an extradition procedure that provides that people would be extradited for those offences anyway?

Baroness Ashton of Upholland: If we read the exhaustive list being put forward, my perspective is that it is very important, as a European Union collaborating on judicial and police matters, to look for areas where the best proposition to put to those who would perpetrate those crimes is that within all the member states, there is a commonality of what the tariffs—the minimum standards, if you like—could be, rather than relying on X person moving to country Y, where there is not such an offence or where the tariff is much lower and having to seek, through the European arrest warrant, a solution.

The noble Lord is right to say that the European arrest warrant is a useful and helpful tool—it has certainly been extraordinarily helpful to the UK—but I do not believe that that is the only solution. As crimes become more international in their nature and as serious and organised crime operates across borders—for example, people trafficking and drug trafficking can occur throughout the European Union, and serious crimes can operate in more than one nation state—having a commonality of the minimum tariff, and so on, can be a huge benefit.

The advantage of the Lisbon treaty in that is that it puts that list forward more clearly. That should give some comfort and assurance to the noble Lord that this is not inexhaustive but, rather, is exhaustive and can be added to only under the procedures proposed.

Baroness Ludford: Does the noble Baroness agree that it is astonishing that when the experts are warning us that we are not getting to grips with the Mafia and serious organised crime and there is a real challenge with this, those on the Conservative Benches and in UKIP are complacent and do not want the EU to have the capacity to get to grips with those extremely serious problems? One would understand that if it were about health or education, where there are obviously issues about domestic competence, but on serious organised crime I cannot understand why there is resistance to the EU giving itself competence to grapple with those incredibly serious threats.

Lord Pearson of Rannoch: Before the Minister answers that question, can she enlighten us on how those new powers over justice and criminal procedures will deal with the problem of the European Commission itself and the enormous amounts of money that go walkabout every year under the Commission’s control?

The Court of Auditors estimated in its last report that 57 per cent of the overall budget, or €43 million, received an adverse opinion. The court said:

of the European Communities. I would be interested to know if this brave new world of EU legislature is going to be able to deal with that.



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Baroness Ashton of Upholland: I understand the noble Lord’s concern about budgetary issues, which we have already discussed twice in Committee, but I take issue with him on whether this is the appropriate moment to raise it. We are discussing issues of people trafficking, drug trafficking, terrorism and whether that should be tackled on an EU-wide basis. Issues to do with the budget, important though they are, are outwith this group of amendments and I will not respond at this point.

Lord Pearson of Rannoch: I accept what the Minister is saying, provided that we can come back to the point and reach a satisfactory answer. But in response to the points made by my noble friend Lord Lamont on the arrest warrant, would she care to take the opportunity to confirm—she has already done so in a Written Answer—that the crime of xenophobia will not be applied in this country and that people found guilty of it, or alleged to have committed it, will not be extradited under these new powers under the European arrest warrant? That would be helpful and encouraging for those of us who fear that, if we continue to speak against the European Union when it acquires legal personality and has in effect become a state, we will be committing the crime of xenophobia. If it is so ridiculous then it would be good to have her confirmation that that will never happen. I would feel somewhat more comfortable.

Baroness Ashton of Upholland: The noble Lord may be guilty of many things, but I do not think he need fear—not least because xenophobia is not on the list of crimes that have been referred to this evening—

Lord Pearson of Rannoch: Xenophobia is on the list of arrest warrant crimes, and it is not a crime in the United Kingdom.

Baroness Ashton of Upholland: The noble Lord has an amendment much later on in our deliberations and I do not want to pre-empt what will no doubt be an interesting discussion in which other noble Lords may wish to participate. I have had enough problems with collapsed groups of amendments for one night and would like to try to get through this. I am not worried about the noble Lord being arrested. He is quite safe. He might be worried but he worries needlessly, not least because he is sitting in your Lordships’ House. He is perfectly entitled to make his views known and he does so with great gusto, even if he did refer to himself earlier as the fluffy end of the lollipop.


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