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Lord Alexander of Weedon: My Lords, my interest in the amendment is as chair of the Select Committee on Delegated Powers and Regulatory Reform. It had immense reservations about the original proposals; in fact, reservations as strong as it had on any issue in the almost seven years during which I have chaired it. I welcome the amendments, particularly in so far as they limit considerably the scope of the application to introduce third pillar measures by secondary legislation and have a tight sunset clause.

However, in welcoming them, perhaps I may say a few words about the principles. They are important and they will be important when the issue is considered again, as the Minister has said it will be, in a comparatively short time-scale. Furthermore, the committee was, as always, assisted by the careful and open memorandum put forward by the Government and their response to our report. That enables me to say with some confidence that with the help of the memorandum I hope that there is total agreement that the third pillar powers are potentially wide-ranging enabling powers, many of which have still to be exercised in ways of which we in the House are totally uncertain.

Secondly, they cover the extremely sensitive areas of policing and criminal justice. They create the potential for new offences to be introduced into our domestic law by agreement at ministerial level and punishable by very significant terms of imprisonment. That would

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be a novelty in our law where serious criminal offences have always been introduced by primary legislation. The Government memorandum very fairly makes clear that such regulations to implement third pillar measures would often require the amendment of existing primary legislation. In other words, there would be frequent use of Henry VIII powers across a potentially broad front. If at some stage in the future we adopted what we were initially invited to adopt, the only limit would be that we were accepting whatever fell within the broad perimeters of the third pillar.

The Government's justification, which they set out for us, was the principal one; that the European Communities Act 1972 provided a similar method of legislation in regard to directives introduced within what was then the European Community. It was, in other words, by secondary legislation. The Select Committee's report pointed out that there were very significant points of difference. The first was that the 1972 Act considered social and economic measures. It did not concern itself with policing and criminal justice which are often critically concerned with the liberties of individuals.

The second point of difference was that the European Communities Act deliberately limited itself to permitting the introduction of offences in the areas in which it was operating punishable by imprisonment of up to two years. Not so the scope of the present proposals, which provide for a potentially lengthy term of imprisonment.

The third point of distinction is that there is less democratic control over third pillar measures. European Union measures under the first pillar go to the European Parliament, with co-decision powers with the Council of Ministers, and so have a measure of democratic control. By contrast, the third pillar is simply an agreement between Ministers and there is no such control.

The Select Committee on Delegated Powers and Regulatory Reform recognised that some measures introduced under the third pillar might be of less importance than others. We suggested that in properly drafted legislation there would be included a schedule of those measures, principally procedurally, which could be incorporated into our law by secondary legislation, and a clear exclusion of other more important measures. In his response to the Committee's report the Minister fairly recognised that point. He said:

    XThe Government is satisfied, therefore, that the enabling power can be justified as part of the Government's emergency proposals. We recognise that it will be used to implement important measures and that if the Government was bringing them forward as purely national measures this would be effected by primary legislation. These measures are not, however, purely national measures. Third Pillar measures are EU level measures that are binding on the UK and have to be implemented".

That appeared to be the case in principle for implementation by secondary legislation. I do not follow that. If such matters are important enough to require parliamentary scrutiny, surely they are

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important enough to require the same level of parliamentary scrutiny as is given to other important measures in our domestic law.

I accept that this point will not call for further discussion on the amendment before us today, but as we shall have to return to it at a later stage, I alert the Government and the House to what I believe will be fundamental issues of principle. I would like to see pre-legislative scrutiny so that the measures can be thought through properly.

With that comment on the original proposals and hoping to be constructive for the future, I welcome the way in which the Government have responded to the Committee's report and the concerns of the House, and the way in which they have brought forward these amendments.

Lord Waddington: My Lords, I am glad that the Government have gone a considerable way towards meeting the concerns expressed by so many noble Lords. My noble friend Lord Alexander of Weedon referred to the fact that the European Communities Act 1972 allowed the creation of new offences, but new offences that carry a term of imprisonment of not more than two years. Noble Lords were concerned that Clause 111 or Clause 112 allowed the creation of offences carrying unlimited terms of imprisonment.

I would like elucidation on one outstanding matter. Amendment No. 78A (1A)(c) makes reference to measures Xcombating terrorism". Even after the Government's amendments and after the considerable distance that they have gone to meet the concerns expressed, Amendment No. 78A would still allow, in theory, the creation by secondary legislation of new offences that would carry unlimited terms of imprisonment. If that is so, will my fears be allayed by the Government telling me that, although that is the case under Amendment No. 78A, there is nothing in the roadmap that will result in the creation of new offences carrying unlimited terms of imprisonment before next June?

It is extremely important that that matter is cleared up. If this amendment allows, and if the roadmap still allows, the creation of offences carrying unlimited terms of imprisonment, the point made by my noble friend Lord Alexander of Weedon is underlined. We are treading on dangerous territory and creating dangerous precedents—we may say that we have moved on from the 1972 Act—if we now seriously consider that it is correct for a government to create new offences that carry unlimited terms of imprisonment by delegated legislation. I believe that that would be a serious departure from the way in which we have always made law in this Parliament.

3.45 p.m.

The Earl of Onslow: My Lords, I genuinely thank the Government for moving a long way towards understanding the concerns raised by noble Lords on all sides of the House. I know that it was a hard decision for Mr Blunkett. He made noises about an

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unelected House and he was especially rude about people like myself whom he has recently allowed to continue to be Members of this House.

What offences do the Government have in mind to bring in under these powers? We produced a terrorism Act after Omagh; we produced a terrorism Act in 2000 and we are dashing through a terrorism Act now. Against our will we are giving the Government powers to bring in new offences under the European aegis. What offences do the Government intend to introduce? Can the House be given some indication what new offences will be produced under this plan?

Baroness Park of Monmouth: My Lords, perhaps the Minister can clarify a point about which I have asked a question before. I welcome the concession of a sunset clause that allows us to review our position in six months' time, but what will be the status of whatever we agree at Laeken. Suppose at Laeken we say, XWe agree with this, but we would like to think about it again in six months' time", but the EU says, XNo, this is an EU decision that is reached jointly and it cannot be rescinded". My understanding is that we cannot rescind EU legislation once it has been agreed.

I refer the Minister to Clause 18(4) which allows the Secretary of State not to disclose information to a public authority abroad. He is restricted in his powers to this extent:

    XA direction under this section shall not have the effect of prohibiting . . . the making of any disclosure in pursuance of a Community obligation".

Shall we be undertaking obligations which cannot be rescinded even though, after six months' experience, we decide we do not want to go along with them? I cannot believe that we are free to make a community decision and to go back on it six months later. I shall be delighted to be reassured that my concerns are baseless.

Can the Minister also tell the House whether methods of combating terrorism, as listed by the noble Baroness, include the proposals for Europol, about which I have inquired several times?

Lord Brennan: My Lords, I am sure that I speak for many noble Lords on this side of the House in welcoming these amendments put forward by the Minister. They seek to meet a genuine concern, which is a simple one to express. Our tradition of democracy in this country is that serious criminal law is enacted by the people's elected representatives through primary legislation. Clauses 110 and 111, as they were, sought to introduce on their face an apparent extension of government powers at the cost of that tradition. I say Xapparent" because it is clear from the government amendments tabled today that they recognise the concern and have chosen to act to remedy it. The concern will not go away. As the noble Lord, Lord Alexander of Weedon, made clear, this is a constitutional matter of great importance on which I can reflect simply.

A decision by the Council of Ministers on serious criminal law affecting the Community may be the result of unanimity. That is numerically impressive but

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it is not thereby endowed with democratic virtue. The virtue of criminal law enacted by the people's representatives is that it commands the respect of the people. I am sure we shall return to that debate; today is not the occasion for it.

I welcome the refocusing of this use of European law to combat terrorism in its four objectives. I said at Second Reading that the freezing of assets was a critically important method of combating terrorism. Secondly, the framework decision which the Council of Ministers has been agreeing seeks to implement that to which we as a nation have already committed ourselves, in spirit if not in letter, in the various conventions of the United Nations to combat terrorism. Thirdly, on extradition, it is, to put it mildly, totally unsatisfactory that an extradition hearing in our country can drag on for three or four years before the person is extradited. Lastly, and perhaps most importantly, there is the need to have the investigative forces liaising in this campaign.

My congratulations on the good sense of these amendments are coupled with a practical question. We have debated the constitutional significance of these clauses. We were told that they were being implemented because action was necessary. With regard to each of those four objectives, when can we expect secondary legislation—I am sure we shall readily endorse it—to aid in the fight against terrorism?

I close by noting again—I did so at Second Reading—the good sense of the opinion expressed by the noble Lord, Lord Jenkins of Hillhead, that the passing of legislation of this kind in an emergency meets the objective of the security of the people but must also meet the objective of protecting democracy. The public will forget quickly the political spats about these amendments. What they will want to remember is whether Parliament passed legislation that commanded the confidence of the country. It is by accepting concerns and putting forward these amendments that they command that confidence. I heartily endorse the amendments.

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