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Lord Stoddart of Swindon: My Lords, I am obliged to the Minister for giving way. I would have mentioned it but, of course, we were limited to 14 minutes. I mentioned most things but I could not mention everything. I am pleased that national parliaments are at least mentioned in the convention.

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Baroness Symons of Vernham Dean: My Lords, thank you very much. I regard it as something of a success to have obtained that admission from the noble Lord. But I believe that it is groundbreaking because it signals for the first time in the history of European Union co-operation that national parliaments, such as ours, have a formal role at EU level. That is very important; it is a significant achievement. I hope that your Lordships take the opportunity that the new mechanism will provide to demonstrate your extensive knowledge and, indeed, interest in European affairs.

The noble Lords, Lord Blackwell and Lord Shaw of Northstead, and the noble and learned Lord, Lord Howe of Aberavon, spoke extensively about subsidiarity. As I indicated, we have made good ground in obtaining support for the principle of subsidiarity to be more vigorously enforced. However, it is disappointing that there is not as much interest in the partner principle of proportionality, a point many of your Lordships did not mention. This refers to how detailed and intrusive legislation may be, and, like subsidiarity, it was introduced by the Maastricht Treaty.

Of course, both principles—that of subsidiarity and proportionality—are essentially political. They certainly do not raise technical issues on which a court could be asked to rule. Given that natural linkage between the two, we are trying to generate support for proportionality to be considered by national parliamentarians in the same way as was envisaged for subsidiarity.

I turn to the question that exercised many of your Lordships about CFSP. The noble and learned Lord, Lord Howe of Aberavon, and the noble Lords, Lord Maclennan, Lord Pearson of Rannoch and Lord Astor of Hever, concentrated much of their remarks on this matter. Let us be clear: we said from the start of the convention that we must focus on making CFSP and EU external action more coherent and more effective. Inevitably, that involves some discussion of institutional issues. But it is not just about institutions. Much of the discussion in the External Action Working Group was about practical ways to improve the effectiveness of CFSP.

I say emphatically to your Lordships that communitisation is not the answer for CFSP. I am sure that we can agree on that. We, and many other member states, such as France, Spain and Sweden, would not be prepared to accept communitisation of the CFSP. The intergovernmental nature of CFSP is the key to its success. ESDP is an integral part of CFSP. We, and many colleagues, firmly believe that only national governments can take the decision to pledge national troops to an ESDP operation. I believe that all your Lordships who spoke on that today could agree with that principle.

We should like to see better co-ordination between the high representative and the external relations commissioner. We have said that before. Our overriding objective is to improve the effectiveness of

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CFSP so that we would have to be satisfied that double-hatting would achieve that. It cannot be a way through the back door of communitising CFSP.

I know that there are concerns about extending QMV in CFSP. But, of course, we should note that although it is hardly ever used we already have QMV for any decision which implements joint actions or common positions and any decisions on the basis of common strategy. We would accept nothing that would threaten our national interests. That includes any challenge to a British seat as a permanent member of the United Nations Security Council.

Lord Howell of Guildford: My Lords, the Minister has not mentioned the fact that CFSP, like everything else, is to be brought within a single treaty. Does that mean that it will fall within the jurisdiction of the ECJ, or will we somehow devise a treaty that is partly governed by the ECJ?

Baroness Symons of Vernham Dean: My Lords, in these respects, we would be looking at some extension of the European Court of Justice. I know what is worrying the noble Lord: it is the way in which the ECJ might then impinge on the ways in which our own troops operate. We have discussed these issues previously.

I still believe that we have a good deal of work to do on these issues, but I assure the noble Lord that we will not agree to anything we do not believe to be in the interests of this country, nor indeed of the commitment we have made that the disposition of British troops is a matter for the British Government, accountable to the British Parliament. I hope that that is a clear statement of where we stand at the moment on this issue, but I am sure that there will be much more to discuss on it.

Concern about the granting of legal personality was expressed by the noble Baroness, Lady Blatch. I believe that I responded to the point when I answered a Question from the noble Lord, Lord Pearson of Rannoch, on 20th March this year. I said that,

    "the explicit grant of legal personality to the Union would have the advantage of clarity and simplicity. But if the European Union were to have its legal personality recognised in the European treaties, it could only be on the basis that the distinct arrangements for the common foreign and security policy and aspects of justice and home affairs were fully safeguarded, along with the existing arrangements for representation at international bodies".—[Official Report, 20/3/03; col 375.]

I repeat that assurance to your Lordships and remind them that that stance was endorsed by our own Select Committee. I believe that your Lordships will find it at paragraph 27 of its initial report.

I turn to justice and home affairs. Organised crime and migration are international issues which require international solutions. We need to co-operate with our European partners to ensure our security in the UK and the security of our citizens abroad. The draft treaty articles need to spell out clearly which JHA issues are for Europe and which are not. Europe can help the fight against cross-border crime, but it is not

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for Europe to tell us how we should be policing our streets, for example, or what our domestic criminal justice system should look like.

Where the proposed new treaty achieves that clarity, we will support it. Where it gets the balance wrong, we will argue hard for changes. In this, as in other matters, we are not in the business of signing up to anything which is against our national interest—a point I thought was implicit in the arguments put forward by the noble Lord, Lord Williamson of Horton, on the JHA aspects.

I am not persuaded of the need to create a European public prosecutor, for example. I hope that the noble Lord, Lord Norton of Louth, will again be pleased on that point. And we are not alone. Ireland, Sweden, Denmark, Finland and Austria are also very firmly opposed. Her Majesty's Government believe that there are better ways to fight fraud. Prosecution should essentially be a national responsibility. Our national prosecutors are accountable to our courts and ultimately to our national parliaments and a European public prosecutor simply would not be.

In response to the point raised by the noble Lord, Lord Williamson of Horton, the proposals on criminal procedures do not respect the diversity of our legal system. We believe that they are too far-ranging and not sufficiently focused on cross-border crime. Our concern is that the proposals will potentially allow Europe to get into the workings of our national criminal justice system and we simply do not want that to happen.

Perhaps I may tell the noble Lord, Lord Pearson of Rannoch, that he will be able to continue to speak with his customary gusto on all matters European, without any hint of sedition or treachery, and that we would all wish to protect his rights to free speech, which he enjoys with such colourful enthusiasm in your Lordships' House. I assure the noble Lord, Lord Williamson of Horton, that the proposals on police and co-operation are directed at fighting cross-border crime. There would be no question of the EU deciding how we police our own streets, as I have already indicated.

I agree with the points made by the noble Lord, Lord Wallace of Saltaire, about welcoming a Union of 25. In a Union of 25, it makes sense that some things should be decided by majority voting if we are to co-operate effectively. We support majority voting for asylum and illegal immigration, for mutual recognition and for most substantive criminal issues. However, there are some areas where unanimity remains essential to us; for example, on criminal procedural law. We do not agree to anything which would allow new EU institutions or bodies to be set up without our agreement.

I wanted to make some points to the noble Lord, Lord Harris of High Cross, about regional issues because some of his concerns ranged around them. However, as he was the only noble Lord who raised those points, I shall write to him about them.

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The noble Lord, Lord Shaw of Northstead, made some telling points about the relationship between the Council and the Commission. Our proposals for a full-time chair of the European Council are designed to give greater continuity and strategic coherence to the EU. In a Union of 25, a Council with a constantly changing chairman cannot be an effective partner for the Commission and Parliament. Just like those institutions, the European Council needs the continuity of the strategic drive of a long-term chairman if it is to play its full role in the dynamic new enlarged EU.

But let me be clear with the noble Lord, Lord Stevens of Ludgate: this is not about creating a president of Europe, as he implied. We do not want that. The creation of a full-time Council chair would not involve giving the Council extra powers or creating an new institution. But we need a chair of the Council working in partnership with the president of the Commission. The chair could, for example, be responsible for getting sectoral councils to deliver on the EU strategic agenda and would report jointly, with the Commission president, on progress. In our view, that would lead to better co-operation between the EU institutions and the kind of balance which I thought the noble Lord, Lord Cobbold, was supporting.

I want to say a couple of words on the question of the European Court of Justice because of the points raised by the noble and learned Lord, Lord Howe of Aberavon, and the noble Lord, Lord Hooson. Our key aim here with reforming the ECJ is to improve its effectiveness. There were discussions in the convention on how best to improve the enforcement of EC law and to facilitate the Court's work. My noble friend Lady Scotland and the noble Lord, Lord Maclennan of Rogart, have been active members on the discussion group that was set up to look at the ECJ in more depth. The final report supports more effective appointment of judges and QMV for procedural matters, including the set-up of judicial panels. We warmly welcome that. We also support the moves afoot to improve the systems of penalties.

The noble Lord, Lord Maclennan, spoke about extending access to justice. I understand from my noble friend Lady Scotland that in the discussion group on the issue there was a vigorous exchange of views but, sadly, no agreement on that point. The Government are not convinced of the change needed to the current system; nor is the president of the ECJ.

I cannot close the debate without commenting on the referendum, as so many of your Lordships have raised it. The noble Lord, Lord Blackwell, and the noble Baronesses, Lady Blatch and Lady Seccombe, spoke at length on the referendum. As your Lordships know, the final recommendations to the convention will form the basis of discussions by leaders at the intergovernmental conference. It is at the IGC where the decisions will really be taken; not here, not now and not on these proposals in front of us. They will be taken at the IGC and on the basis of unanimity. So, in a sense, the noble Lords, Lord Blackwell and Lord Pearson of Rannoch, were right when they said that I

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would point out that these were only drafts and proposals and that we have negotiations ahead of us. I point it out because it is true.

The final decisions of the IGC will most likely take the form of the new treaty, as we all know. As is the norm for ratifying treaties, the Government intend to ensure that this Parliament scrutinises the treaty properly. This was the way in which we dealt with the Treaty of Nice; it was the way in which we dealt with the Treaty of Amsterdam; and, if I may say so, it was the way in which the Conservative government dealt with the Treaty of Maastricht and the Single European Act. The constitutional treaty for the EU would embed and clarify what already exists; that is, it would deal with a great deal of what has already been agreed, as the noble Lord, Lord Grenfell, pointed out.

There would of course be some new elements—that is self-evident—such as the early warning mechanism for national parliaments which reflects consensus in the convention and across member states. But that does not amount to the significant change in the crucial area of the relationship between the EU and its citizens, nor does it alter the position of EU member states as the fundamental basis for the Union.

Some of your Lordships have sought to draw comparisons with issues where referenda do or may take place. The convention's outcome will not create a new tier of government, as would the introduction of the regional assemblies in England, nor does the convention offer a once-in-a-lifetime choice such as whether or not to go into the euro. I say to the noble Baroness, Lady Blatch, that she should go back and look carefully at the Maastricht Treaty because, quite honestly, the changes in it are more far-reaching than those proposed in this treaty. It is slightly quirky to argue that—

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