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Lord Bruce of Donington: Is the noble Baroness aware that in any one financial year covered by the European budget, the European Commission submits on average between 100 and 120 transfers between one budget title and another, virtually without any query or explanation, and without any interest by both Houses of Parliament here? That has opened up the immediate opportunity--I can assure the noble Baroness that it is taken advantage of virtually every time--to transfer expenditure between titles exactly as the Commission wishes without giving any indication as to what those transfers are really for.

Baroness Ludford: As I indicated earlier, we on these Benches are not defenders of poor practice. I urge the European Parliament, which has the major scrutiny role on the European Community's budget, to do a better job. It is by pushing for high standards all the time in democratic and judicial scrutiny that we can improve matters, not by refusing to make progress.

Finally, on the matter of Europol, it was the previous government who signed the Europol convention which declined to give the European Court of Justice any jurisdiction. As my noble friend pointed out, the Official Opposition did not support the Liberal Democrats' amendment in the other place to counter the immunities for Europol. I believe that the way forward is to strengthen judicial and democratic scrutiny and not to resile from important progress in combating crime, the illegal importation of drugs, terrorism, and other matters, where it will be the citizens of the European Union who will benefit.

Lord McIntosh of Haringey: This has been, quite properly, a wide-ranging debate. I say "quite properly" because of the very large number of amendments that have been considered during the course of this lengthy debate. The focus has been on the changes made within

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the third pillar. It used to be called the Justice and Home Affairs Pillar, and has now been renamed by Amsterdam, under new Title VI, as,


    "Provisions on police and judicial cooperation in criminal matters",

to reflect its revised and more focused content.

It is important that we emphasise from the very beginning the word "co-operation". This is not, as the noble Lord, Lord Moynihan, said, a pillar which could justifiably invoke the words, "supra-national" or "imposed", or any words of that kind. There is no extension of Community competence involved in this pillar. Where we come to the issues raised by my noble friend Lord Shore--and I shall certainly answer those--they are under freedom of movement; they are under the parts of the old justice and home affairs pillar which are specifically transferred to the first pillar. My understanding is that our agreement is that we shall deal with that when we deal with the group of amendments starting with Amendment No. 14. I shall answer my noble friend at length when we come to that amendment. The scope of the interventions has quite properly gone wider. I therefore want to address in turn the distinct issues involved.

First, I turn to the broad question of the changes to the scope and objectives of the pillar as well as the new decision-making procedures which Amsterdam introduces. Perhaps I may say again to my noble friend Lord Shore that he is anticipating further changes that may come after Amsterdam rather than the changes that are actually introduced by Amsterdam.

Psychologically, I have a great deal of sympathy with my noble friend. I would draw the analogy of a planning application. The applicant wants to do something to which you object. You object, and it is turned down. But once it is turned down, that is not the end of the matter. The applicant comes back with a slightly modified application. He goes on, until he obtains something which may still be objectionable to you but which actually gets past the planning authorities--and it all seems to be one-way. As I say, psychologically, I understand what my noble friend is saying. I know that he fears, as do many noble Lords who have taken part in the debate, not what is on the face of the Amsterdam agreement but what they believe may follow from it. I think much of what they fear is what they believe to be on the face of the Amsterdam agreement and is not. However, I hope that I shall be able to deal with that during the course of my remarks. What I cannot do is deal with their fears as to what might follow in future. That is not properly the subject of this Bill or of these amendments.

I wish to start by making two key points. First, the UK is committed to improving co-operation among EU member states in the fight against drugs, crime and racism. I believe, from listening to the remarks made, that that interest is widely recognised in this House. The fight against crime and drugs is a key element in the whole programme of the UK presidency of the European Union. The noble Baroness, Lady Williams of Crosby, was quite right to give a practical up-to-date example of the discovery of uranium rods in Italy as

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showing the necessity for increased vigilance and increased enforcement activities on crime, which inevitably crosses national boundaries. Equally important--

Lord Pearson of Rannoch: Will the noble Lord give way? He touched on a point that I made and no doubt the whole Committee is in agreement with what the noble Lord said. The question is: do we need the Treaty of Rome to pursue that collaboration?

9.30 p.m.

Lord McIntosh of Haringey: I hope to show that although the changes proposed here are limited, as has been said, they are valuable and worthwhile changes. I would not leave that point without returning to it later in my remarks.

The second point I wish to make is that the main forum for the co-operation is and will remain the third pillar and the distinctive nature of the pillar is unchanged. Governments will co-operate with each other on the basis of unanimity and outside the Community framework. In other words, although the Community institutions will have a role which is carefully defined in each case, those fields will remain intergovernmental.

Within that framework, some useful changes have been made and I should like to set them out as briefly as I can. Although the scope of the third pillar is reduced by the transfer of immigration, asylum and civil judicial co-operation to the Community pillar--and we will come back to that when we debate Amendment No. 14--it will, for the first time, provide a framework for common European Union action against racism. The Government welcome that.

I have been asked to define "xenophobia", as if it were an appropriate thing for a spokesman in your Lordships' House to do. I have no difficulty in defining "xenophobia". It is hatred of people from other countries. But I do not think that would go down well in legal terms. The point is--and I say this to my noble friend Lord Stoddart and the noble Lord, Lord Swinfen--it is not necessary for me to define "xenophobia". First, there has to be a unanimous decision by the Council--perhaps I may finish my sentence.

Lord Swinfen: In regard to xenophobia, is the Minister telling the House that the Government have signed a treaty of which they do not know the meaning?

Lord McIntosh of Haringey: I thought I was giving way to a serious intervention. I am trying to explain, as seriously as I can, on a serious issue, that action on xenophobia requires, first, a unanimous decision by the Council; and, secondly, United Kingdom legislation. Therefore, any definition of xenophobia which is to be used in this country will be defined in United Kingdom legislation. It will be arrived at by parliamentary counsel and debated by Parliament. It is not appropriate for a definition to come from me now.

Lord Monson: I thank the noble Lord, Lord McIntosh, for giving way. I hope that he will agree that

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this intervention is a wholly serious one. Both racism and xenophobia are emotions, not actions. How can legislation be framed against emotions like fear, suspicion or whatever?

Lord McIntosh of Haringey: The legislation will, of course, be framed as is legislation on racism in this country already under the Race Relations Act. It will be framed in terms of offences which fall under the heading of racism or xenophobia.

Lord Swinfen: I was about to rise at the same time as the noble Lord on the Cross-Benches. The Minister said that xenophobia would be defined by Act of Parliament in this country. That was quite clear. What happens if it gets a different definition under laws made in other countries of the European Community? Then we do not have an agreement on the treaty. It is quite possible that there could be differences of opinion as to the meaning.

Lord McIntosh of Haringey: The law of this country will apply in this country and only the law of this country will apply in this country. Another improvement is that a wider range of legal instruments will be available. A new instrument, the framework decision, will be able to enter into force much more quickly than conventions. That will mean that the people of this country will be able to benefit from the effect of third pillar co-operation much more quickly than before. Framework decisions will not have direct effect and must be agreed by unanimity. That brings me to the whole raft of points raised by the noble Lords, Lord Renton and Lord Pearson, and others.

The point about framework decisions is that they are decisions of the Council and not decisions of the courts of this country. The European Court of Justice has no jurisdiction over the courts in this country. When the noble Lord, Lord Renton, refers in horror--I believe I am right in describing his reaction--to the phrase, "approximation of laws and regulations", I can assure him that unanimity is required; that the procedural questions to which he referred--or it may have been the noble Lord, Lord Pearson of Rannoch--are really procedural questions. They are concerned only with the procedures within the Council; for example, the order on the agenda or how the closure is to be taken. On these substantive issues there must be unanimity. Changes in the United Kingdom law--I say this in capital letters--can only be made by this Parliament. That is my answer fundamentally to the noble Earl, Lord Clanwilliam, though I shall return to his other points if I have another opportunity.

A third change is the limited extension of the role of the institutions. The European Court of Justice's jurisdiction will extend automatically to dispute resolution and an optional preliminary rulings jurisdiction for those that want it--and only those who want it. The Commission, as well as member states, will have the right of initiative and the European Parliament will be consulted as a matter of course before measures are adopted, as well as being kept regularly informed of discussions.

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In case anybody's hackles rise in regard to the European Parliament, I shall say something about the role of this Parliament before I sit down. But I cannot leave that point without referring to the point made by the noble Lord, Lord Swinfen, in his references to Article F.1. He asked whether we would be obliged to change our judicial system by means of Article F.l. The answer is a straight no. The article deals with persistent and serious breaches of fundamental rights set out in Article F. There is no question of that being applied to a judicial system and any decision under Article F.1--the so-called sanctions clause--can be taken only by unanimity less the member state concerned. I can therefore assure the noble Lord, Lord Swinfen, that his fears about Article F.1 are unfounded.

These changes are modest. I know that in some ways the Liberal Democrats feel that they are too modest. But they are welcome. They will increase transparency, consistency and accountability within the third pillar, yet without prejudice to its intergovernmental character and the need for member states to retain their national freedom in the area.

I turn to criminal judicial co-operation--an issue which greatly exercised the noble Lord, Lord Renton. As under Maastricht, criminal judicial co-operation in the framework of the Treaty of Amsterdam will take place on the basis of unanimity. European Union measures affecting the way that the criminal justice systems of member states operate and the way that they co-operate with each other will not be able to be adopted unless all member states agree. That, as I hope noble Lords will agree, is as it should be. Indeed, if the United Kingdom wanted to adopt such measures, it would need primary legislation. They would not be covered by the 1972 European Communities Act.

The Amsterdam provisions on criminal judicial co-operation illustrate the areas in which member states are expected to co-operate within the criminal judicial sphere. That is an advance on Maastricht and a welcome one. The Government are committed to close co-operation with our EU partners in the fight against crime. The common agenda which the treaty sets out to that end will give focus and impetus to the efforts of member states.

Useful work is already being carried out in the third pillar on criminal judicial co-operation. Important new conventions have been signed which, on entry into force, will help member states work together to fight fraud and corruption. A major new convention on mutual legal assistance, which will help our law enforcement and prosecuting agencies overcome existing obstacles to taking evidence in other member states, is under negotiation. It is important that this work should be able to continue in an intergovernmental framework. Amsterdam provides for this.

My noble friend Lord Stoddart queried the co-ordinating committee which is referred to in Article K.8. The committee is not a committee of chief police officers; it is Home Office officials and their equivalents in justice departments in other member states. But in any case, even if it had been chief police officers, its duties--because it already exists--are quite

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limited. It produces opinions for the attention of the Council and it helps in the preparation of Council discussions. But it has no decision-making powers.

I turn now to civil judicial co-operation. Under the Amsterdam arrangements, certain forms of civil judicial co-operation considered necessary for the proper functioning of the internal market will move into the Community pillar--we shall therefore discuss them later on--while all forms of criminal judicial co-operation remain in the intergovernmental third pillar. Under the terms of Protocol No. 4 we will not be bound by any new Community measures on civil judicial co-operation except where we choose to be so bound. We have in the past co-operated effectively with our EU partners in both the first and third pillars in the area of civil judicial co-operation--for instance, in the area of mutual recognition of judgments--and we want to continue to be able to do so whenever this is in our interests.


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