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I take the two examples which the noble Lord has given so far. First, in relation to the Factortame fishing case, the European court was doing no more than deciding that there was discrimination based on nationality contrary to the clear words of the Treaty of Rome in discriminating between British and Spanish vessel owners.
The second example was in relation to limiting the temporal effect of the court's judgments. Is the noble Lord aware that the Luxembourg court has developed an extremely fair and careful doctrine which is that it will limit the temporal effect of its judgments of its own motion where to do otherwise would damage the legitimate expectations of those concerned? Therefore, for example, in the Barber case, because no one expected the court to decide that there was unlawful sexual discrimination in the pensions field, the court was careful to limit the temporal effect of its judgment and provide that it would apply only prospectively. It does not do that in cases where the member state has been at fault and knowingly at fault and has failed properly to implement Community law. Therefore, it is quite right that the temporal effect should not be limited.
Is the noble Lord aware that the court itself developed those careful principles and the IGC committee of this House found that entire approach to be fair and not to be criticised on any reasonable basis?
Lord Moynihan: I should be more than prepared to enter into a debate with the noble Lord on the two cases which I raised. I have learnt very early in my career in this Chamber that one does not give examples without undertaking a sufficient degree of research in order to debate on a reasonable basis points which are likely to be made during interventions in Committee.
But that is not the point I am making. I do not seek that anyone should make a contribution in this debate on behalf of the European Court of Justice. I am seeking to question the Government as to why the proposals which we put forward prior to the last election (about which there is widespread agreement in this Chamber) to reform the European Court of Justice, were ignored, were not tabled and were not debated.
I used my examples not to become involved in a detailed consideration of individual cases but as examples of the problems which exist, which need to be confronted and which should have been addressed by the Government when it came to their consideration of this treaty.
As I mentioned to the Committee, the Government's view was that they would never have achieved agreement on those issues so they did not debate them. That is not a satisfactory explanation when every single one of the proposals that I have mentioned this evening--an internal appeals procedure, a procedure for the rapid amendment of EC legislation and a national time limit--was abandoned at Amsterdam. We have never heard from the Government why they did not press for reforms to deal with significant flaws in the working of the European Court of Justice.
I believe that it demonstrates a very serious weakness on the part of the Government that none of the arguments for reform was advanced. If the Government thought that the reforms were sensible measures, I should have hoped that they would give due consideration to supporting them. But if they did not think that they were sensible measures, then it is important for it to be clear to this Committee why that was so. They really should not use the excuse that there was little support for such reform at the IGC.
That may give rise to grave criticism--and it is not the first time in Committee that I have raised this issue--that they are attempting to mask a fear of isolation in Europe; that they are only too ready to pursue the line of least resistance; and that they are unwilling to stand up for our interests and win round our partners by advocacy and argument. That is particularly unedifying in a Government who are only too happy to reap the rewards of a previous government's preparedness to be isolated when the occasion demanded--as indeed as it did demand, for how else did they secure the opt-out from the single currency?--but lack the courage and conviction to do likewise. That is the point and that is the thrust behind the amendment which I have tabled and the important issues which Members of the Committee have raised during the debate.
I have attempted to answer some of the interventions and I am conscious that we have all too little time this evening to focus on the harmonisation of judicial procedures and Europol. Therefore, I crave the indulgence of the Committee for two minutes to touch on the critically important question of the powers of Europol.
They are covered in Article K.2. This article provides for common action in the field of police co-operation and judicial co-operation in criminal matters and sets a series of targets to be achieved within five years to facilitate the work of Europol. Again, although it is fair to say that from these Benches, we are broadly supportive of some of the general principles behind this part of the treaty and as our record demonstrates, we support any reasonable measures intended to crack down on crime, there are some questions which must be asked on that issue and which I hope the Minister will be able to answer.
The previous government were proud to have agreed measures on common action against international terrorism; on proposals for fighting drug addiction and drug abuse, as well as joint surveillance operations which resulted in major drugs seizures; we were proud to have signed the fraud convention on measures to combat fraud against the financial interests of the Community; and we were proud to have played a key role in the establishment of Europol. At a time when Germany and France held completely different views about Europol's nature and were at an impasse, the former Home Secretary helped to bridge those differences and brought the two countries together.
However, there are fears, which have been expressed by Members of the Committee that Article K.2 may be a step in the direction towards the creation of a European police force, and I would like a reassurance from the Minister that this is not the case.
Article K.2 empowers Europol personnel to join in national policing operations in a support capacity. This is certainly a significant change, which introduces the concept of granting legal immunity to a whole new class of people from overseas who are operating here. It is hardly surprising therefore, that there is concern over the precise legal ramifications of this change.
What will be the status of those Europol personnel who join in national policing operations in a support capacity? How, and to whom, will they be accountable? Could the Minister give a clearer idea of the type of activities in which such Europol officers will be involved? Will they have diplomatic immunity and will that cover all those activities, and in what circumstances is it likely to be waived? What should a British individual do if he has a complaint about the activities of a Europol officer? Is it the case, as Article 38 of the convention states, that the remedy would lie,
It provides that if damage is caused to an individual as a result of incorrect data processing by Europol--for example, if false information by Europol led to a British force detaining a person in London--the legal redress would be through action against the member state in which the damage occurred, in the national courts.
Therefore, if I were a British citizen whose reputation had been damaged or who had been arrested or falsely imprisoned as a result of a mistake or a misunderstanding or because someone erroneously gave the police the wrong information, is it the case that I would have to sue the member state,
I very much hope that the Minister will be able to give a satisfactory response to the question about the legal redress for citizens who are aggrieved. I hope that he will also be able to provide some clarity about the scope and status of the operations of Europol officers. From these Benches, we would welcome more details on the limits of the scope of activity over the next five years; we would welcome more information on legal immunity; and, finally, we would welcome more details on the legal implications and ramifications of Article K.2. Indeed, we would welcome more details about how the process will work in practice.
Lord Swinfen: My Lords, many noble Lords have already mentioned the fact that there are already different judicial systems in various countries of the EC. However, we also heard from my noble friend Lord Pearson of Rannoch that there is a corpus juris, albeit limited in effect to start with, which is already being prepared or, indeed, has been prepared. When responding to the debate, can the Minister confirm my impression that, under Article F.1, we could be forced to change our judicial system to a new system suggested by either one third of member states or by the Commission? I believe that to be an extremely important point. Although there may be close similarities between the judicial systems of the majority of the other states within the EC, it is only the Republic of Ireland and England and Wales that have a totally different system of law; indeed, that also applies to Scotland to some extent.
I have attached my name to Amendment No. 53. While I support in general all the amendments in the group, I should like especially to speak to Amendment No. 53 because it deals with Europol, which has already been mentioned several times this evening. It is possible, therefore, that I shall repeat some of the arguments that have been put forward, but I hope not to bore your Lordships in that respect.
Article 10 of Title III of the European convention gives authority for the European Police Office--in my parlance, the EC police force--to open files on victims of crime, on witnesses and on anyone that it thinks may be able to provide information; and to keep those files, with no suggestion that they will ever be closed. It is a very wide power--indeed, almost like those of a police state.
As I understand it, Europol officers will not be compelled to testify in court, so their evidence may not be tested by cross examination. I also understand that they will be immune from prosecution for,
This means that their co-ordinator can protect his staff if they abuse their powers or leak classified information, possibly for political purposes. Europol appears to be turning into a European federal bureau of investigation, with undefined powers to participate in police operations and launch investigations. It will operate in an institutional twilight zone beyond full control of democratic forces--possibly out of any real control. It seems to have great powers with little or no accountability.
At present, Europol officers cannot make an arrest, search a house or confiscate property. However, under the Amsterdam Treaty, that power is given to them after a five-year transition period. They will then be able to take part in joint operations which, as I understand it, will include armed assaults. Will they need licences for their weapons in this country? Will they need licences to import them? I ask those questions because those officers are not members of any of our police forces, or of our Armed Forces.
This appears to me to be the first step towards a European police force. Is that the Government's intention? After all, they have entered into the Amsterdam Treaty and they want it ratified. What will Europol's powers be after the five-year period? For example, will its officers be able to tap telephones? Further, will they need a court order to do so? Will they have the same powers as a constable in this country?
I understand that the director of Europol will answer in camera to a management board under the Council of Ministers and that the general oversight will be an internal matter. That hardly strikes me as satisfactory. Will Europol be subject to judicial review? Where is our parliamentary control over this body which in five years, if not sooner, will operate without proper control in the United Kingdom?
Finally, I turn to a point that has already been raised. Will the Minister please define xenophobia, as mentioned in Article 29? Given the European Union's propensity to call all its opponents "xenophobes", should I look forward to a late night visit at some time from Europol officers?
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