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9 Jun 2008 : Column 453

Baroness Thornton: My Lords, I beg to move that the House do now adjourn for two minutes.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 8.40 to 8.42 pm.]

European Union (Amendment) Bill

Further consideration of amendments on Report resumed.

[Amendments Nos. 28A and 28B not moved.]

Lord Hunt of Wirral moved Amendment No. 28C:

(a) Article 86(1) of the Treaty on the Functioning of the European Union permitting the creation of a European Public Prosecutor,(b) Article 86(4) of the Treaty on the Functioning of the European Union permitting the extension of the powers of the European Public Prosecutor.(a) in each House of Parliament a Minister of the Crown moves a motion that the House approves Her Majesty’s Government’s intention to vote in favour of, or otherwise support, the decision, and(b) each House agrees to the motion without amendment.

The noble Lord said: My Lords, proposals for a European Public Prosecutor are not new but, as our European Union Committee stated in its report at paragraph 6.209, this is the first time the structure for implementing this idea has been included in the treaties, and the inclusion of the relevant article makes it more likely that this post will one day be created. We have raised this question from time to time because it causes concern.

This amendment seeks to ensure that Parliament has the opportunity to scrutinise and vote on any proposal to set up the role of a European Public Prosecutor, or to extend his or her role. As with so many other amendments that we on these Benches have tabled, this will not in any way tie the hands of the noble Baroness the Leader of the House or force her or any of her colleagues to take action that they have not already indicated they wish to take. Along with most of the provisions that we have attempted to scrutinise, these two were utterly opposed by the Government originally. Some Labour Back-Benchers in the other place expressed their opposition to them and others in the Liberal Democrat and Labour Parties have admitted that these provisions might be a cause for concern.

I am fully aware that there is a lock on these provisions. It would be necessary for the United Kingdom to opt in to this area before there was any possibility of the public prosecutor having the right to operate here. I am also aware that Ministers say that it is very

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unlikely that we will ever opt in. Unfortunately, we have come to accept that we can take little comfort from such ministerial assurances. I hope I am right in saying that there can be very few remaining in this Chamber who do not accept that a parliamentary vote is a necessary and valuable safeguard to protect against any change in policy on the part of the Government or, indeed, any ministerial U-turn on a subject as important as this. Nor is it just a matter of holding the Government to their stated policy: it is also a matter of protecting the United Kingdom against the negotiating triumph that the Secretary of State claimed in the other place when 38 out of 40 amendments that the Government proposed to the treaty were not accepted.

Many of us have from time to time been troubled by the idea of the public prosecutor. These provisions are therefore worrying and their implementation will always be controversial. I very much hope that I shall be able to persuade the Minister that she ought to give an undertaking to this House that a measure such as this will never be implemented without the profound and meaningful involvement of Parliament. If she is so persuaded, this amendment would be a fast track to bring about that objective. I beg to move.

8.45 pm

Lord Goodhart: My Lords, this is, frankly, a rather strange little amendment. It assumes that we will have already opted in to Article 86 under the protocol on the position of the United Kingdom and Ireland. That is because if we had not opted in by that stage, the Minister would, of necessity, have no part in the adoption of the regulations under Article 86. Frankly, it is very unlikely that any Government of the United Kingdom will wish to opt in to Article 86 in the foreseeable future. Setting up an office of the European Public Prosecutor in the United Kingdom is in my view, and I think that of a large majority of Members of your Lordships’ House, neither necessary nor desirable. The European Public Prosecutor may well have a role to play in some other countries, as suggested by the witness mentioned in chapter six, paragraph 200, of the EU Committee’s report. The simplest way of excluding the European Public Prosecutor from operating in the United Kingdom is simply not to opt in.

If the Government wanted to opt in, the best way to provide for parliamentary procedure would have been to require parliamentary consent to the opt-in rather than at the point at which the United Kingdom has to vote on the proposal. But your Lordships’ House has decided today not to require a parliamentary procedure in the Bill for opt-ins under Article 3 of the protocol, which covers opt-ins under Article 86 of the Treaty on the Functioning of the European Union

For the reasons given by several speakers in the debate on Amendment No. 25, which I will not repeat, I think that that decision was correct. I therefore see no justification for treating the opt-in to the European Public Prosecutor as requiring any different treatment by imposing a parliamentary process at a subsequent stage.

The Lord President of the Council (Baroness Ashton of Upholland): My Lords, I am grateful to the noble Lord, Lord Goodhart, for setting out so clearly what was agreed earlier today, which applies to this, too. I agree with everything that he said. We have secured

9 Jun 2008 : Column 455

legally watertight safeguards in the treaty against any move towards a European public prosecutor or subsequently, and just as important, towards extending that prosecutor’s role. It is what we would call a double lock. We do not see any need to do anything different from what we have already achieved.

Lock number one, as the noble Lord, Lord Goodhart, said, is that we apply the UK opt-in. That means that the procedure that I outlined earlier today for your Lordships’ House and another place would apply. The proposal would go to the committee and it would be part of the discussions that noble Lords would have in the annual report if we were aware that it was coming. There would be discussions in the committee, which could refer the matter to your Lordships and a vote could be taken, of which the Government would take note.

I agree with the noble Lord, Lord Goodhart, that it would be extremely unlikely that we would choose to opt in to such a proposal in any event. However, if we did opt in, if the matter went through that scrutiny-plus procedure, as noble Lords have referred to it, and if we did end up finding ourselves discussing the possibility of establishing the European public prosecutor, we would still have unanimity, which is retained for any decision to establish a prosecutor and to extend the powers of such a prosecutor. So there is a double lock. The opt-in procedure applies, Parliament will let its views be known and the Government will put forward their proposals. The Government would then, if they so chose, which is highly unlikely, have the discussions and could determine by unanimity if they did not wish to participate. That would be the end of that.

As noble Lords will know, under enhanced co-operation, if at least nine other states wish to proceed, they can. That does not affect the United Kingdom in any way, shape or form. It is quite right that the Lisbon treaty gives member states the flexibility to proceed if they choose, but, even if they did, the European public prosecutor would have no role in the UK. On that basis, I hope that the noble Lord will feel that there are enough safeguards clearly written into the treaty and the procedure to feel comfortable to withdraw his amendment without fear that this is something that would happen by the back door or in any way that he would not be aware of.

Lord Hunt of Wirral: My Lords, this is very much a front-door amendment because it seeks to introduce a test and a third lock, to use the Minister’s terminology, of parliamentary approval. I do not want to go back over previous debates, although they have been referred to by the noble Lord, Lord Goodhart, and by the Minister, but I really ought to correct what the noble Baroness said about noble Lords describing the procedure that she outlined earlier as “scrutiny-plus”. I thought that the most effective description of that procedure came from my noble friend Lord Jopling, who pointed out that it is very much a second-tier, or second-class, system. What can be better than requiring parliamentary approval?

The Minister seeks to persuade me that this is never going to happen. She is saying, “Please don’t concern yourself with seeking to entrench parliamentary approval first, because it will never be required. This will never

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trouble Parliament, because it is not something that will ever happen”. I recall that, when the noble Lord, Lord Goodhart, and I sat on a sub-committee of the European Union Committee, we used to hear evidence from time to time about the efficiency that would be introduced by some form of cross-border justice system. Both he and I had a healthy scepticism of any such move in that direction. I suppose what I am seeking to do here is to say that there are a number of other situations where parliamentary approval would be required. After all, all this amendment does is to say that—

Baroness Ludford: My Lords, my apologies for interrupting the noble Lord, Lord Hunt. I do not wish to second-guess the Minister, but I do not think that she said that a proposal for the European public prosecutor would never happen and would never come forward. She was talking about the safeguards if it ever did. Does the noble Lord accept that the fact that Eurojust is being strengthened under Article 5 of the treaty shows that there is a strong need to enhance the capacity for cross-border investigations and prosecutions in the EU? The fact that Eurojust is being strengthened should weaken the argument for a European public prosecutor. If we can get Eurojust to work as an EU institution—the legislation is going through now to make it an EU body as opposed to just an intergovernmental one—that should, if not obviate, at least weaken the argument for a European public prosecutor. Eurojust has been led by a British official for some years. I am not saying that no one will ever put forward a proposal for an EPP, but that is less likely with Eurojust being strengthened, enhanced and made more effective.

Lord Hunt of Wirral: My Lords, I find myself very much in agreement with the noble Baroness, Lady Ludford. Eurojust’s mission is to support and strengthen co-ordination and co-operation between national investigating and prosecuting authorities in relation to serious crime affecting two or more member states, or requiring prosecution on common bases—on the basis of operations conducted and information supplied by the member states’ authorities and Europol. Of course, the European Parliament and the Council are empowered to adopt regulations to determine Eurojust’s structure, operation, field of action and tasks. Those tasks include the co-ordination of such investigations and prosecutions and—the noble Baroness is absolutely right—strengthening judicial co-operation.

There are still moves to establish this office of European public prosecutor, of which we are all aware. The Minister may be right in saying that they will never come to fruition with regard to the United Kingdom and that there are double locks. However, I go back to our earlier debates and say that there is nothing quite as good as requiring parliamentary approval. That is why I seek to test the opinion of the House.

8.58 pm

On Question, Whether the said amendment (No. 28C) shall be agreed to?

Their Lordships divided: Contents, 63; Not-Contents, 132.



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Division No. 3


CONTENTS

Anelay of St Johns, B. [Teller]
Astor of Hever, L.
Attlee, E.
Blackwell, L.
Blaker, L.
Bridgeman, V.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Burnett, L.
Carnegy of Lour, B.
Cathcart, E.
Craigavon, V.
Crathorne, L.
Crickhowell, L.
De Mauley, L.
Dean of Harptree, L.
Dear, L.
Ferrers, E.
Fookes, B.
Fowler, L.
Fraser of Carmyllie, L.
Freeman, L.
Gardner of Parkes, B.
Gilbert, L.
Glenarthur, L.
Glentoran, L.
Greenway, L.
Henley, L.
Hodgson of Astley Abbotts, L.
Hooper, B.
Howard of Rising, L.
Howell of Guildford, L.
Hunt of Wirral, L.
Kalms, L.
Kilclooney, L.
Kimball, L.
King of Bridgwater, L.
Lamont of Lerwick, L.
Lawson of Blaby, L.
Lindsay, E.
Liverpool, E.
Luke, L.
Lyell, L.
MacGregor of Pulham Market, L.
Morris of Bolton, B.
Northbrook, L.
Norton of Louth, L.
O'Cathain, B.
Palmer, L.
Parkinson, L.
Rawlings, B.
Rogan, L.
Saatchi, L.
Sanderson of Bowden, L.
Seccombe, B. [Teller]
Selsdon, L.
Sheikh, L.
Skelmersdale, L.
Trenchard, V.
Ullswater, V.
Vinson, L.
Waddington, L.
Wolfson, L.

NOT CONTENTS

Adams of Craigielea, B.
Addington, L.
Adonis, L.
Amos, B.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B. [Lord President.]
Bach, L.
Barker, B.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Best, L.
Billingham, B.
Bilston, L.
Blackstone, B.
Bradley, L.
Brett, L.
Brookman, L.
Campbell-Savours, L.
Carter of Coles, L.
Chandos, V.
Chidgey, L.
Clark of Windermere, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corston, B.
Darzi of Denham, L.
Davidson of Glen Clova, L.
Davies of Oldham, L. [Teller]
D'Souza, B.
Dubs, L.
Dykes, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Finlay of Llandaff, B.
Foster of Bishop Auckland, L.
Gale, B.
Gibson of Market Rasen, B.
Giddens, L.
Golding, B.
Goodhart, L.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Griffiths of Burry Port, L.
Grocott, L.
Hamwee, B.
Hannay of Chiswick, L.
Harris of Haringey, L.
Hart of Chilton, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howe of Idlicote, B.
Hoyle, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Jay of Ewelme, L.
Jay of Paddington, B.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
Layard, L.
Lea of Crondall, L.
Lee of Trafford, L.
Livsey of Talgarth, L.
Lofthouse of Pontefract, L.
Ludford, B.
McDonagh, B.
Macdonald of Tradeston, L.


9 Jun 2008 : Column 458

McIntosh of Haringey, L.
McKenzie of Luton, L.
McNally, L.
Maddock, B.
Masham of Ilton, B.
Maxton, L.
Meacher, B.
Miller of Chilthorne Domer, B.
Mitchell, L.
Moonie, L.
Morgan, L.
Morgan of Drefelin, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Yardley, B.
Oakeshott of Seagrove Bay, L.
O'Neill of Clackmannan, L.
Patel, L.
Pitkeathley, B.
Prosser, B.
Quin, B.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Rennard, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rooker, L.
Roper, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B. [Teller]
St. John of Bletso, L.
Sawyer, L.
Sewel, L.
Simon, V.
Slynn of Hadley, L.
Soley, L.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Teverson, L.
Thomas of Walliswood, B.
Thornton, B.
Tomlinson, L.
Tonge, B.
Tunnicliffe, L.
Turnberg, L.
Tyler, L.
Wallace of Saltaire, L.
Walpole, L.
Warner, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Watson of Richmond, L.
West of Spithead, L.
Whitaker, B.
Williams of Crosby, B.
Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

9.08 pm

Lord Howell of Guildford moved Amendment No. 28D:

(a) in each House of Parliament a Minister of the Crown moves a motion that the House approves Her Majesty’s Government’s intention to vote in favour of, or otherwise support, the decision, and(b) each House agrees to the motion without amendment.(a) “the Treaty on the European Union” means the Treaty establishing the European Union, signed at Lisbon on 7th February 1992 (as amended by the Treaty of Lisbon), and(b) “the Treaty on the Functioning of the European Union” means the Treaty establishing (what was then called) the European Economic Community, signed at Rome on 25th March 1957 (as amended and renamed by the Treaty of Lisbon).”

The noble Lord said: My Lords, this subject was to some extent covered in Committee in a rather dismissive debate. It is the question of the new presidency roles that are being created, a matter about which the noble Lord, Lord Wedderburn, who is not in his place because he has not been very well, warned us to be very careful when it came to agreeing to Bills creating new presidential posts, particularly those where the job specification remains gloriously uncompleted. The

9 Jun 2008 : Column 459

debate in Committee confirmed that it is yet to be decided exactly how these roles will be fulfilled and how they will work. There are some sketchy propositions in the treaty, but that is all.

In Committee it was asserted that the unity of the two posts was unthinkable, that no one was advocating it, that it could not happen under the treaty and so on. It is not quite like that, and we need some more reassurance because it would be sad if—looking back on this time, should some of the predictions that there will be a merger of the two come to fruition—we in this Parliament were criticised for failing to be on our guard. The much quoted Valéry Giscard d’Estaing said:

implying that it would be completed. The Italian Prime Minister said:

The idea is around, and it is not true to say that there is no question of it. We need to be reassured on it.

This amendment simply urges that we should have one more addition to the famous list of passerelle-guarding provisions in Clause 6. We shall come to a good many more of the passerelle issues that somehow got left out of Clause 6. We tried one earlier this evening and, as the noble Lord, Lord Goodhart, reminded us, this House voted the other way, so those provisions, which were more strictly defined as opt-in provisions rather than as passerelles, were excluded. However, this would be a good one to have in the Bill. It is puzzling to know who decided which of the many provisions and passerelles in earlier treaties that are included in the Lisbon treaty should be listed in Clause 6 and which should be left out. That is a puzzling issue, and I shall share some thoughts about that matter with your Lordships in the next amendment. In the mean time, this amendment would be useful and reassuring, and when it eventually happens, if it does, or when the pressure comes up for it, it would prevent future commentators turning round and criticising us for not being on our guard and at least seeking some reassurance that Parliament will be fully involved when and if it occurs. I beg to move.

Lord Anderson of Swansea: My Lords, the good book talks about making bricks without straw. I remain wholly puzzled about the proposition the noble Lord has put forward. I well understand the need for probing—it is the job of any opposition, and the Opposition are doing it thoroughly—where there are uncertainties, lacunae, matters to be uncovered or potential dangers foreseen, but this is not one of those matters. In no way can the treaty be clearer about the proposition. The treaty was quoted in Committee. The president of the Council cannot also be President of the European Commission. The treaty makes clear that:

and that they,


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