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Baroness Symons of Vernham Dean: I do not believe that that is so. I believe that it is important to try to close the loopholes in the definition of Xterrorism". We want to take these powers in order to frustrate the terrorist. We are listening carefully to what is being said, but at the moment I hope that I am doing my duty

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to the Committee by explaining why the Bill is framed as it is. Your Lordships may disagree with that but we shall consider what has been said.

From all sides of the Committee, the arguments have been put carefully, but now I have to try to explain why the Bill is framed as it is. Your Lordships believe—at least the noble Lord, Lord Peyton, does—that it is right for terrorism to be dealt with separately. The Government's belief is that that is not a practical option because of the close links, acknowledged by your Lordships, between some kinds of criminal activity and terrorism.

Lord Peyton of Yeovil: I would never join in any accusation of the noble Baroness failing to do her best to help your Lordships' House. I tabled my simple amendment confident in the knowledge that the Government, in introducing an anti-terrorism Bill, knew what they were talking about. If we need a definition of Xterrorism" before any amendment similar to my amendment becomes acceptable, I cannot believe that it is beyond the power of the Government to take the matter away and say that they will introduce a new amendment on terrorism that will include those activities that can be taken as within the curtilage of terrorism. If they produced something like that I would be content. However, I find it difficult to accept that the Government are incapable of defining a word that is in the title of the Bill.

Lord Marsh: On a slightly different point, many noble Lords are now familiar with the issues that those who moved the amendment genuinely want decided and to which they would like answers. The generosity of the Minister in giving way is producing a strong desire in some noble Lords for her to take the opportunity to divulge at least five or six paragraphs of answer to the questions that are now familiar to many of us.

Lord Garel-Jones: Before the Minister replies, perhaps I may add to what the noble Lord, Lord Peyton, said. By definition, a terrorist is willing to commit any criminal offence. Therefore, we are being asked to allow a system whereby, through the European Union, the whole of our criminal law will be subject to change by secondary legislation, which is simply not acceptable. I am trying to be helpful to the Minister. The only way to answer this matter is for a British government—this problem has faced successive governments—to bring forward proposals that will graft national parliaments on to these secret discussions, as they are now described. That is the point raised by my noble friend Lord Kingsland. That and nothing but that will satisfy Parliament.

Baroness Symons of Vernham Dean: I look forward to dealing with the matters in relation to Parliament, which I shall do once I have had an opportunity to answer the points raised by the noble Lord, Lord Peyton. I hope that I shall not trespass much longer on the patience of the noble Lord, Lord Marsh.

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The Government always believe that they are putting forward the best legislation to meet their purposes at the time. Sometimes governments are accused of arrogance and of not listening to what is said. I hope that I have not displayed such arrogance; I hope that I have listened carefully, as has my noble friend Lord Rooker, to what has been said. I shall take on board the remarks that have been made in Committee. I do not believe that I can say fairer than that.

I remind noble Lords that the situation is difficult. Terrorists have rewritten the rule book and we have to consider how to respond. I hesitate to return to the amendment, but it would restrict the regulations under the new clause to dealing with the orders freezing international terrorist drug money. In practice it is not particularly easy—in fact it is almost impossible—to distinguish such drug money from other forms of drug money and the result will be confusion and delay. I recognise that that is not necessarily the view of the noble Lord, Lord Peyton. My noble friend and I shall reflect upon what has been said, although most of the arguments of your Lordships have concerned the powers and the role of Parliament. I shall now turn to that subject.

Considerable concerns have been expressed in Committee about the assault, as some noble Lords see it, on Parliament by the executive. This power is no different from the power that has existed for the past 30 years under Section 2(2) of the European Communities Act 1972 relating to the implementation of European Community obligations. As your Lordships know, that power allows for the implementation of agreement in areas of great importance; for example, in employment and social policy, in agriculture, and in competition issues. It also allows for the creation of new criminal offences and has done so on over 100 occasions.

In framing the legislation as the Government have in the Bill we have deliberately sought to allow the maximum parliamentary oversight by stating that all the secondary legislation under the enabling power will be subject to affirmative resolution. There will be an opportunity for parliamentary debate on every occasion. Many of the changes will be small, technical tweaks, if I may so describe them, to existing legislation, although others will naturally be much more substantial.

That is in contrast to Section 2(2) of the European Communities Act which allows the Government to choose to use negative or affirmative resolutions. As your Lordships know, the JHA Council can agree police and judicial co-operation measures only by unanimity. Therefore, a United Kingdom Minister must agree the policy or the framework. All measures agreed by the JHA Council are then subject to the full scrutiny of both Houses while they are negotiated. Effective parliamentary oversight of JHA Council measures is dealt with through that scrutiny process, as I believe was acknowledged during the debate on the European arrest warrant.

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4.30 p.m.

Lord Pearson of Rannoch: I am most grateful to the noble Baroness for giving way. She may wish to reconsider the statement that all matters under the JHA Council are decided by unanimity. We shall come to this in the next group of amendments. If what has been agreed at Nice comes to pass, whether it is ratified or not, the requirement for unanimity will be deleted from nearly all of Article 24 of the treaty on European union. I put it to the noble Baroness that these are difficult areas. What she has said may no longer be the case under the Nice agreement.

Baroness Symons of Vernham Dean: We still have to complete our consideration of the Nice Bill, and ratification, as the noble Lord knows. I am sorry if there was a slip. I meant to say that as regards framework and policy arrangements there is unanimity. I apologise for that slip.

Perhaps I may return to the point I was making. During the debate on the European arrest warrant on 19th November, the noble and learned Lord, Lord Scott of Foscote, commented that,

    Xthe Government will be under an obligation . . . to bring into effect legislation which corresponds to the decision which they will . . . have agreed [and] scope for manoeuvre will not be broad".—[Official Report, 19/11/01; col. 950.]

One or two Members of the Committee made some reference to what I might describe as the quality of justice in other member states, particularly those reflected in some recent newspaper articles. All EU members are mature democracies and if we are to work together effectively to tackle serious cross-border crime, we have to have confidence in the legal systems of our partners. But where necessary, minimum standards or conditions for mutual recognition will be specified. That is something which can be addressed, we believe, in the implementation stage of the relevant instrument.

There was a discussion about an alternative which might have been corpus juris, a body of harmonised EU law. But I do not believe that that would in any way attract the support of your Lordships' House.

There are a number of issues surrounding the concept of dual criminality. The fact is that that does allow for a degree of delay, obfuscation and confusion, which can be of crucial benefit to a terrorist. It allows those who wish to do harm to our societies more time to carry out their intentions. More importantly, it denies justice to the victims of terrorism. It is for that reason that we do not believe that it is any longer appropriate.

Perhaps I may answer the point raised by the noble Baroness, Lady Carnegy of Lour, as regards Scotland. We have discussed the matter with the Scottish Executive at official level. The Home Secretary has also discussed the matter with Mr Jim Wallace. The Bill allows for the Scottish Executive to pass its own regulations under this power in relation to devolved issues.

I believe that the Committee wishes to be in a position to toughen up EU-level action against terrorism. I do not believe that there is any difference

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in the Committee on that issue. We all believe that we need to take action against serious crime that is inextricably linked to terrorism, however we define that linkage. The Government have pushed forward the most effective measures possible in what are, I agree, very tight deadlines. But I assure the Committee that it is not the Government trying to attack the powers and privileges of Parliament, but recognising the realities of terrorism and crime in the 21st century. All police and judicial co-operation will be under some unanimity even post-Nice.

We have to reflect very carefully on what has been said this afternoon. I opened my remarks by reflecting on what my noble friend said at Second Reading. I am neither in a position now to withdraw the clause nor to accept the amendment. But my noble friend and I are in a position, as I have said, to reflect not only on what has been said today but to reflect as well on what was said in the Select Committee. On that basis I hope that the Committee will be content not to press this matter to a Division today.

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