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The Earl of Clanwilliam: In speaking to Amendment No. 4, I should like to speak also to Amendment No. 54 standing in my name. I speak also to the judicial and political elements and the extension of the ECJ into our common law, in particular how the ECJ affects the UK's common law. My contribution may be something of a curate's egg. I have received some advice from an eminent QC. No doubt those parts of my speech that are good will be those provided by that eminent QC, but I assure the Committee that most of this contribution is my own. Article 33 (formerly Article K.5) was not to affect the exercise of responsibilities of member states regarding the maintenance of law and order and internal security. Now under Article 32 (the revised K.4) the Council shall lay down conditions under which competent authorities may operate in the territory of another member state. Who are they? Under Articles 30 and 31 (formerly K.2 and K.3) they are the police, customs and specialised law enforcement services. Under Article 30(2)--the noble Lord, Lord Lester of Herne Hill, may be aware of this--Europol will have the right to interfere in the investigative actions of the competent authorities of member states. That will not be subject to judicial
Additionally, the new and rewritten articles of Title VI place more emphasis on the leadership, guiding role and activities of the Community and less on the initiative of member states. This is intended to strengthen the powers of the Community in operating and developing common action. The role of Europol in co-ordinating and co-operating among the member states has been formalised in the treaty. We do not want that. Under Article 34 (originally K.6 or K.3(1)), we were to collaborate in informing and consulting. What is wrong with that? Now we have Article 34(2), (3) and (4), all of which conspire to interfere by adopting framework decisions. We are to have judicial co-operation and harmonisation. How are we to harmonise Greek law with UK law? It just is not on. Neither of them can be harmonised with ECJ law, so the whole matter is a farce. It is for the Commission and the ECJ to decide on these points, but how can they? Title VI omits the opening words which include a reference to home affairs. Is this not indicative of the presumption that home affairs are the province of the European nation and its government-to-be--that is, the Commission? The omission removes what might have been an inhibition, in the opinion of the eminent QC to whom I have already referred, on the inclination of the ECJ to construct interpretations of the Rome treaties in a progressively integrationist manner, as has already been suggested.
These changes mark another step towards treating the Court as the supreme court and what Commissioner Fischler described as a new nation that would be born when EMU and the single currency were in place. He was reported in The Times on 27th February as saying that the Euro would then set the scene for the Commission to take on the role of a national government. This is a threat to our own legal system. We do not want the Commission to take on the role of government, having stolen the powers and attributes of national governments and transferred them to institutions that are answerable to the Commission.
In contrast, at Amsterdam there should have been a reduction of the powers and functions of the Court. Instead, the treaty is developing the Community's character as a state rather than as a partnership of nations. Article 35 gives the ECJ the right to make preliminary rulings on the validity and interpretation of framework decisions by virtue of a declaration in the Treaty of Amsterdam. Here we have the long arm of ever-deeper unionisation working away to eliminate the nation state. Perhaps the use of the word "unionisation" here is remarkable. We are returning to the 19th century system of Napoleonic edicts which translated themselves into the republican diktat and the dictatorships of the 20th century. It has all happened before and we see it developing again before our eyes with an awful sense of inevitability.
The vast mass of the British people are sublimely unconscious of what is happening to them. They cannot tell without unravelling the drawstrings. Indeed, the ECJ's control of our legal system is an ever-tightening knot, and the whole of Article 35(1) to (7) pulls the strings ever tighter.
To whom is the ECJ responsible? There is no authority except the Council, who are bound on all occasions to consult an unelected band of bureaucrats whose sole objective is to preserve their authority over member states and deny their national identity. Your Lordships ask in their prayers to put behind them their partial affections and conduct their business under the authority of the Sovereign to whom they have sworn allegiance. But we are not the elected body of Parliament. We can only refer legislation back to the elected House of Parliament. It is they who should decide our laws and preserve our basic rights under the common law of the land. By contrast, the Commissioners are equally sworn to deny all partial affections to their home countries but are required simply to press for ever deeper and wider union with no responsibility to anyone and no recourse to national governments, elected or otherwise.
It is a truism that we are an island race on the edge of Europe. We differ from its other nations in the institutions, laws and practices that we have developed and spread throughout the world and which have been tested over hundreds of years and not found to be wanting. They are in place today throughout the great commonwealth of nations of which we are such a proud member. How can we rationalise or harmonise our legal system with that of the Greeks? Their legal system is not one that has any sense of democracy about it. In contrast, Continental governments and their peoples in general do not have our inherited attitudes towards the importance of government in Parliament and the role of the national Parliament as the true and only lawmaker. It is the common law that grants us our freedom without the restriction of a written constitution that dictates what we may do and places upon us the onus of proof of our innocence when denounced. That is the opposite of our freedoms under common law. Are we to lose that precious jewel that has been handed down to us and developed since Magna Carta?
The British public is unaware of the import of all that is in the Amsterdam legislation which is the fruit of the IGC, appointed to confirm the Maastricht Treaty. It does more than that: it goes ever deeper into our lifestyle. There has been no clear explanation of the extent of the constitutional revolution that is taking place within the framework of the Treaty of Rome, the Single European Act, the Maastricht Treaty, and the Treaty of Amsterdam.
It is for that reason that I have tabled the amendment calling on the Government to report the extent of the loss of rights that the British public is suffering from its common law and will suffer in the future when it finds that our immemorial rights have been traduced by a bunch of unelected bureaucrats.
Baroness Williams of Crosby: I congratulate the noble Earl, Lord Clanwilliam, at his quickness in seizing the moment. I apologise to him for having leapt up before him out of order. I welcome the fact that he spoke to his amendment, but that is about as far as I can follow him, as he will understand.
I shall return to the broad thesis of this whole group of amendments, and say a few words about some of the main issues that we are discussing. I shall keep my remarks brief, because there has already been-- I welcome it--a detailed and long debate. One response to the noble Earl is that common law is one of the traditions that the ECJ takes into account. There is specific reference to common law as one of the parts of the traditions upon which European democracy is based.
The Greek Government might be rather resentful about being described as not a democracy, given that they are normally regarded, in the Athenian Republic, as being the very cradle of democracy, although there have admittedly been some lapses from that situation over many centuries.
The Earl of Clanwilliam: The noble Baroness is kind to give way to me. Their current law has nothing to do with Athenian law which originated 2,000 years ago. They are a totally different bunch of bureaucrats.
Baroness Williams of Crosby: I am grateful to the noble Earl. I shall not pursue the matter much further, except to say that Greece has a recognised system of elections and of passing power from one party to another, although we may not find it perfect in all respects.
First, I was sad to hear the noble Lord, Lord Pearson of Rannoch, and some other Peers, make some fun of the references to racism and xenophobia in Title 6 of the Treaty of Amsterdam. Article 6A, for which Her Majesty's Government fought hard in the negotiations, extends one of the areas where the Treaty of Rome was singularly successful; that is to say, action against discrimination on gender grounds to discrimination on religious, racial and other grounds. That is right and proper, and should be part of the basic principles of the EU.
I, for one, greatly welcome what the noble Lord, Lord Whitty, said, and what Her Majesty's Government did in ensuring that that article found its way into the new treaty. There is a great deal of work to be done. The British Government can give some good examples. The noble Lord, Lord Stoddart, perhaps with something else in mind, referred to our anti-discrimination legislation. That is a useful model which can be extended to other parts of Europe, not forgetting that we are looking at a Europe which will be enlarged shortly, where problems of racism and xenophobia are real, and where it is very important indeed to establish exactly what the principles upon which the EU is based happen to be.