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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

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

House in Committee accordingly.

[The LORD SPEAKER in the Chair.]

Clause 28 agreed to.

Clause 29 [Power to confer additional functions on Chief Inspector]:

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Baroness Henig (Labour)

Amendment No. 40 is a probing amendment. Clause 29 provides Ministers with wide-ranging powers to confer additional functions of inspection on the chief inspector by order. I will be interested to hear from my noble friend what additional functions it is envisaged might be conferred in that way. Of more concern are the provisions of Clause 29(3) which would enable Ministers to amend any piece of primary or subordinate legislation as part of such an order. That seems to be a very wide-ranging prospect indeed. It would be helpful to know in what kind of instances the power to amend legislation by order might be used.

Amendments Nos. 141, 142 and 145 simply seek to ensure that the bodies subject to inspection are consulted by Ministers. That would apply if an order were to be made or to the directions given to the chief inspector by Ministers. The key point about inspection is that it should drive improvements in performance; it should not be about catching people out or creating unnecessary burdens. It is important that those subject to inspection—police forces, authorities and others—have a chance to work with Ministers and others to ensure that we have an inspection regime that is, to coin a common phrase, fit for purpose. In that constructive spirit, I beg to move.

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Baroness Harris of Richmond (Spokesperson in the Lords, Northern Ireland Affairs, Spokesperson in the Lords (Police), Home Affairs, Whip; Liberal Democrat)

I support the amendments tabled by the noble Baroness, Lady Henig. As she has so clearly outlined, the amendments all relate to including in the prescribed list of consultees the bodies being inspected. They cover consultations about additional functions to be conferred on the chief inspector, ministerial directions to the chief inspector to conduct particular inspections and the formulation by the chief inspector of inspecting programmes and frameworks respectively.

The preambles to the subsections amended by Amendments Nos. 141 and 142 contain provisions that the Secretary of State needs to consult only those organisations that appear to be appropriate, but the last amendment, relating to consultation by the chief inspector on inspection programmes and frameworks, contains no such condition and would be mandatory. It seems to these Benches entirely reasonable that the organisations that are subject to inspection should have an opportunity to express a view on those key provisions.

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Baroness Anelay of St Johns (Shadow Minister, Home Affairs; Conservative)

I support the amendments tabled by the noble Baronesses, Lady Henig and Lady Harris of Richmond. I share their concern about the order-making power in Clause 29. I referred to it very briefly last week when we debated the large group of amendments in the name ofthe noble Lord, Lord Ramsbotham. It gives the Government a wide power under which the inspectorate could be directed in ways that would be difficult for anyone to foresee at this stage.

When, on 28 March at col. 244, my honourable friend Nick Herbert raised objections in another place to this provision, the Minister, Fiona Mactaggart, argued, at col. 247, that at the moment the Government have the power to confer additional functions on many of the criminal justice inspectors by fiat. She said that one reason that the Government are seeking to include the provisions in the Bill is to obtain parliamentary scrutiny by consideration of any order that comes before either House. I agree with my honourable friend that we should be concerned about such a power being relegated to an order-making power, especially one that currently uses the negative procedure.

My brevity in speaking today should not be taken as any lack of support. I strongly support the noble Baronesses.

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

I fully understand that concern has previously been expressed about the apparent breadth of the consequential amending power in Clause 29(3)—in particular that it might be used to alter the nature of the chief inspector's inspection functions. I want to make clear that that has never been our intention. The clause relates only to any additional non-inspection functions that Ministers might wish to confer on the chief inspector in future. In another place, we amended the wording of subsection (1) to make that clear.

In the context of such hypothetical non-inspection functions, we consider it sensible to allow maximum flexibility to accommodate adoption by the inspectorate of new functions in the future. Such functions might relate to activities referred to in other legislation. For example, Schedule 1l(11) amends the Police Act 1996 to enable the new inspectorate to continue to contribute to the membership of police appeals tribunals. Consequential amendments to the present provision might also be needed—for example, to make further arrangements under Schedule 9 in respect of staffing or expenditure consequent on additional functions.

The power to make such consequential amendments, in so far as it is used to amend primary legislation, will be subject to the affirmative procedure, as stated in Clause 47(5)(b), so parliamentary scrutiny of its use in that respect is guaranteed. As the power relates only to non-inspection functions, we do not consider it appropriate to add a consultation requirement relating to bodies which are to be inspected.

Amendment No. 142 seeks to add the body or bodies which are to be inspected by the chief inspector to the list of bodies that must be consulted before Ministers direct the chief inspector to carry out an inspection. Such a direction may be in respect of any specific part or aspect of the courts, criminal justice or immigration enforcement systems, or any specific matter falling within the scope of the chief inspector's duties.

That power is intended for use in particular in situations where significant under-performance by a part of one of the inspected systems is causing ministerial and public disquiet or concern, or to commission an investigation by the chief inspector of a serious incident relating to the areas of work inspected—such as that recently carried out by the Chief Inspector of Probation in the case of Rice. We do not consider that it would be appropriate for Ministers to be required formally to consult the body which was to be subject to such an inspection or investigation. In practice, Ministers are likely to take the advice of senior officials, including the chief of the body concerned, when deciding what action to take. To go further than that would risk damaging the flexibility and independence which are crucial in such interventions.

Amendment No. 145 adds the body or bodies which are to be inspected by the chief inspector to the list of bodies that must be consulted by the chief inspector on his proposed inspection programme and inspection framework.

We indeed intend that the chief inspector shall consult the inspected bodies on the inspection programme. Accordingly—I am sure that this will bring some cheer—I am happy to accept Amendment No. 145 in principle. We would envisage a provision whereby the chief inspector was under a duty to consult on the inspection programme with the bodies that he proposes to include in that programme and we will bring forward such an amendment at Report.

I trust that, having heard that, the noble Baroness will feel able to withdraw her amendment and that Members of the Committee will work with us to achieve what we jointly want in the spirit of Amendment No. 145.

3:45 pm
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Lord Dholakia (Deputy Leader, House of Lords, Spokesperson in the Lords, Home Affairs; Liberal Democrat)

I have a particular interest in this matter because, when HMI used to carry out inspections, it was very keen on consulting bodies such as the Commission for Racial Equality on the impact on racial equality. Can the Minister confirm that the provision is in no way intended to inhibit the consultation of bodies such as the Commission for Racial Equality, so that the racial element in inspection is fully aired and examined?

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

I cannot immediately envisage circumstances that would disturb the arrangement which the noble Lord describes, so I am happy to give that assurance.

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Baroness Henig (Labour)

I thank my noble friend for his explanation and for the move that he has made on Amendment No. 145. There is not entirely a meeting of minds on the other amendments. None the less, at this point we are very happy with what has been said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 141 not moved.]

Clause 29 agreed to.

[Amendment No. 142 not moved.]

Clause 30 agreed to.

Clauses 31 and 32 agreed to.

[Amendment No. 142A not moved.]

Clause 33 agreed to.

Schedule 9 [Her Majesty's Chief Inspector for Justice, Community Safety and Custody]:

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Baroness Henig (Labour)

moved Amendment No. 143:

Page 104, line 4, at end insert-

"( ) In exercising his functions to inspect police authorities, the Chief Inspector will involve individuals nominated by persons he considers to represent the interests of police authorities to assist in conducting such inspections."

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Baroness Henig (Labour)

I very much hope that the Government will accept Amendment No. 143, although I hope I am not pushing my luck too far. The amendment relates to the inspection of police authorities, because the Bill provides for police authorities to be subject to inspection by the new inspectorate. This is something of a departure, because currently police authorities can be inspected only in respect of their best-value duties. I strongly welcome the principle of this, as I know do my colleagues in the Association of Police Authorities, because it is right that police authorities should, like other public bodies, be subject to open and transparent inspection.

Clearly, the new single inspectorate will be a different creature from the existing bodies, but equally, as now, I am sure the inspectors willinclude among their ranks existing practitioners, ex-practitioners and professionals. Her Majesty's Inspectorate of Constabulary is very much made of former and serving police officers. Although there has been some recent diversification, involving a number of lay inspectors, it still mostly comprises ex-police officers. Although I have the greatest respect for Her Majesty's Inspectorate of Constabulary—indeed, I always found it to be an invaluable source of advice and expertise when I was a public authority chairman—I am sure the Committee will agree that it would be inappropriate for the public authority, whose job it is to oversee and scrutinise police forces, to be inspected by a body made up mostly of persons who were, or are, members of those forces.

I had the interesting experience last year of being involved in a prototype inspection of a public authority. I know that HMIC colleagues, who had been rather dubious about including public-authority input, quickly realised during that exercise that such involvement was essential. My amendment therefore aims simply to ensure that, in any inspection of a public authority, the inspection team should include individuals with knowledge, expertise and experience of public authority issues. This is a sensible and essential step, and I commend the amendment to the Committee. I beg to move.

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Baroness Harris of Richmond (Spokesperson in the Lords, Northern Ireland Affairs, Spokesperson in the Lords (Police), Home Affairs, Whip; Liberal Democrat)

I warmly support the amendment proposed by the noble Baroness, Lady Henig. As she said, it is absolutely right that we should have open and transparent inspection for police authorities, which we have long wanted, with the means to the end being how we achieve it. Many police authority members have gained expert knowledge over the years since the Association of Police Authorities was formed. I would warmly welcome long-serving police authority members being specially trained to undertake peer review. It is, after all, in their and everyone's interest that police authorities perform at optimum level.

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Baroness Anelay of St Johns (Shadow Minister, Home Affairs; Conservative)

I add my voice in support of the amendment. The noble Baroness, Lady Henig, has made a very practical proposal. These people have very broad experience of police matters through their service on police authorities. It would bring an extra dimension to inspections, without in any way undermining their independence and integrity. I hope that the Government are prepared to look kindly on this proposal.

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Lord Dholakia (Deputy Leader, House of Lords, Spokesperson in the Lords, Home Affairs; Liberal Democrat)

I, too, support the amendment. The noble Baroness, Lady Henig, and my noble friend Lady Harris of Richmond, with their vast police authority experience, can give an insight into how helpful this proposal would be to inspectors when local matters are investigated. At one time, I was a member of a police authority in Sussex, the county from which the Minister comes. In any inspections the inspectors always made sure that local members of the police authority were present and they were able to assist him on issues which would be of paramount importance to that party. I very much hope that the Minister will take on board this very important point.

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

I shall prefigure my comments by saying that there may be some warmth in them, but, ultimately, I am afraid that there has to be rejection. However, I hope that that will not entirely colour Committee Members' expectations of what I shall say. The paragraph to which this amendment has been tabled already imposes a general duty on the chief inspector to secure that there is available to him sufficient expertise and experience—which is the relevant part—relating to the systems and organisations falling within the scope of his duties.

In imposing that duty, the Government fully recognise that inspection not only of police authorities but also of police operations, prisons, courts and offender management all involve specialist knowledge and an in-depth understanding of quite distinct cultures and working environments. In addition, they may require the importation of professional judgments and expertise from areas outside the criminal justice system—for example, healthcare in prisons or work with young offenders. That may be achieved by maintaining and developing expertise in the inspectorate's staff through the use of professional advisers and perhaps by working jointly with other inspectorates, such as the healthcare inspectorate, wherever necessary or required.

Paragraphs 8, 11 and 12 of Schedule 9 strengthen the abilities and requirements for such joint working. In particular, paragraph 12(2) provides that inspections of police authorities must be carried out jointly with the Audit Commission. It would be at best an unnecessary encumbrance to make it a statutory requirement to involve in an inspection individuals representing the interests of particular inspected bodies. At worst, to require such persons to be part of the inspection team and regime could undermine the independence of the inspection process. I do not think that anyone wants to interfere with that independence; after all, it has been a much-hallowed value during our debates about the future of the inspectorate.

We expect that the managers of inspected bodies will continue to be engaged with closely by the inspectorate about emerging inspection findingsand be able to comment on inspection reports before they are published. But, ultimately, it must be for the chief inspector to decide the nature and degree of involvement of those inspected in the inspection.

We understand entirely the sentiments behind the amendment and recognise the need for expert and professional advice to be available to the inspectorate, but we do not want to fetter or interfere with the important independence that it must have in order to retain public credibility and for inspectorate reports to enjoy the respect they currently have. There is probably scope for further discussion outside the parameters of the debate on this amendment, but ultimately we have to resist it.

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Lord Dholakia (Deputy Leader, House of Lords, Spokesperson in the Lords, Home Affairs; Liberal Democrat)

The Minister talked about warmth at the start of his response to this amendment. If the inspectorate is independent, what is wrong with the inspector determining who would be the most useful people to assist it? Why should not members of a police authority with particular expertise assist in the process? What is the problem here?

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

I agree with the noble Lord. There is nothing wrong with the inspectorate taking advice from a wide range of professionals and looking at other views, but to prescribe in the Bill that the inspector:

"In exercising his functions...involve individuals nominated by persons he considers to represent the interests of police authorities",

is unnecessarily inflexible and could, in certain circumstances, interfere with the independence of the inspectorate. As I explained, we do not rule out the involvement of those with knowledge and expertise of the work of police authorities—

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Baroness Harris of Richmond (Spokesperson in the Lords, Northern Ireland Affairs, Spokesperson in the Lords (Police), Home Affairs, Whip; Liberal Democrat)

I am most grateful to the Minister for giving way. Where are the special people who know about police authorities to come from within the police inspectorate? The inspectorate will not know about police authorities; that is the whole point. Police authorities know best how to inspect themselves, and as I said earlier in supporting the amendment of the noble Baroness, Lady Henig, that can be achieved with a certain amount of training.

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

At the outset I made the point that the inspectorate may require the importation of professional judgments from areas outside the criminal justice system. Police authorities are outside the criminal justice system as they are formed from a mix of elected councillors and appointees. I do not rule out those with knowledge providing advice to the inspectorate, should it think it appropriate during an inspection.

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Baroness Henig (Labour)

My noble friend will understand when I say that I am a little disappointed by some of what he has said. In inspections of local government there is an element of peer review. Indeed, when the Audit Commission undertakes inspections, the peer review is invaluable. I do not understand why it is not the same here.

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

I do not rule out the involvement of an element of peer review. I sought to make clear that we do not feel it is appropriate to prescribe it in the Bill.

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Baroness Henig (Labour)

I thank my noble friend for that elucidation. No doubt we will want to discuss the issue in a more informal way because there may be some misapprehensions about what can be achieved through guidance or in a way other than on the face of the Bill. I understand that. I am not sure whether I go along with him on the undermining of independence. What he says is clear, but having taken part in an inspection last year I do not think that in any sense I undermined anyone's independence. None the less, I think I understand the message here; at this stage I shall withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 144 and 145 not moved.]

4:00 pm
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Baroness Harris of Richmond (Spokesperson in the Lords, Northern Ireland Affairs, Spokesperson in the Lords (Police), Home Affairs, Whip; Liberal Democrat)

moved Amendment No. 146:

Page 107, line 1, leave out paragraph (a).

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Baroness Harris of Richmond (Spokesperson in the Lords, Northern Ireland Affairs, Spokesperson in the Lords (Police), Home Affairs, Whip; Liberal Democrat)

These amendmentsto page 107 would remove references to police authorities being subject to joint inspection with the Audit Commission so that they would be subject to inspection only by the new CJS Inspectorate. I argued the other day that the Audit Commission does not have the necessary skills or experience to inspect police authorities; it is the auditor of police authorities, and rightly expert in that role, which it does very well. We regard this, though, as a distinctly separate function and an essential safeguard on financial probity; we would not want these separate functions blurred.

As we have said, we do not believe that Her Majesty's Inspectorate of Constabulary or the elements which will transfer to the new CJS Inspectorate have all the requisite expert knowledge to conduct police authority inspections either, as we have just been discussing, but they have a great deal more experience in this area than the Audit Commission. They have engaged in joint work with the APA and police authorities to develop and improve inspection frameworks, which have been extremely helpful. We agree that the audit activities of the Audit Commission could and should be better joined up with inspection activities to reduce duplication, but we do not think that joint inspection will necessarily achieve this. It could have the opposite effect if different sets of inspectors have different ideas about what should be inspected and how. That quite often happens.

Once again, the Audit Commission should have no locus whatever in the inspection of police authorities. It is not competent to do this work. I beg to move.

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

The amendment would remove the requirement for the Audit Commission and the Auditor General for Wales to work jointly with the new inspectorate to inspect police authorities.

The involvement of the Audit Commission in this area is nothing new; it has a long history of playing a valuable role in the inspection of police authorities. The Audit Commission can be rightly proud of its record in the inspection of the quality and cost-effectiveness of a wide range of local services, including local government and criminal justice bodies. We take the view that it is right that it should continue to be involved once the new inspectorate is established. Furthermore, as we discussed during our debate on the amendments to the best value regime in respect of police authorities in Part 1 of the Bill, the Audit Commission will still retain the duty toensure that police authorities secure continuous improvement under the best value regime.

The joint action provisions in the Bill are designed to ensure that the various bodies are inspected in a joined-up way where more than one body has a role to play in inspecting them. The new inspectorate's remit will overlap with that of the Audit Commission. Given the importance of the role and the duties of the commission, it is important that the two bodies act as one to ensure efficiency and that inspected bodies are not burdened with repeated inspections by one organisation and then another. On that basis, it is sensible to leave this duty in the Bill to ensure consistency in joint inspections.

In the light of my assurances, I hope that the noble Baroness will feel able to withdraw the amendment.

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Baroness Harris of Richmond (Spokesperson in the Lords, Northern Ireland Affairs, Spokesperson in the Lords (Police), Home Affairs, Whip; Liberal Democrat)

I thank the Minister for his response but not for what was going on behind it. In no way has he taken account of what I said the other day about where the Audit Commission should sit in the inspection of police authorities. I should point out that I have written to the Minister.

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

Perhaps I may confirm to the noble Baroness that I have received the correspondence and just this day I have invited our officials to give it further consideration.

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Baroness Harris of Richmond (Spokesperson in the Lords, Northern Ireland Affairs, Spokesperson in the Lords (Police), Home Affairs, Whip; Liberal Democrat)

I am most grateful to the noble Lord. I hope that he and his officials will understand more clearly what I am getting at, because it did not seem to make much sense earlier on.

As the noble Lord said, the Audit Commission plays a very valuable role in the inspection of police authorities on the financial side. It has no other remit in police authority inspection. I hope that when the officials eventually look at this more closely, they will agree that the Audit Commission should not be inspecting police authorities. The commission does an excellent job on the financial side, and we are very happy for it to continue doing that. But the inspection of the work of police authorities is not for the Audit Commission; it is charged with seeing continuous improvement. As I said last week, that has not taken place anywhere, in any of the Audit Commission's work. There must be continuous improvement. Taking away from police authorities the tools that ensure continuous improvement means that we are not going anywhere.

I ask the noble Lord and his officials to look at what I have said. Best value is far too important to leave out of the Bill. I will gracefully retire from this amendment but I will definitely come back to it on Report.

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Earl Ferrers (Conservative)

The Minister said that the Audit Commission would look at this in a joined-up way. What did he mean by that?

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

With his long experience as a Home Office Minister, I am sure that the noble Earl, Lord Ferrers, understands entirely what working in a joined-up way means. I take it to mean that the Audit Commission will work very closely with the inspectorate to ensure that the police authority is performing its duties as it should.

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Baroness Harris of Richmond (Spokesperson in the Lords, Northern Ireland Affairs, Spokesperson in the Lords (Police), Home Affairs, Whip; Liberal Democrat)

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 147 not moved.]

Schedule 9 agreed to.

Clause 34 [Abolition of existing inspectorates]:

[Amendment No. 148 not moved.]

Clause 34 agreed to.

Clause 35 agreed to.

Schedule 10 [Transfer of staff and property etc to the Chief Inspector]:

[Amendment No. 149 not moved.]

Schedule 10 agreed to.

Clause 36 agreed to.

Schedule 11 [The Chief Inspector: consequential amendments]:

[Amendments Nos. 150 to 171 not moved.]

Schedule 11 agreed to.

Clause 37 [Interpretation]:

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

moved AmendmentNo. 171A:

Page 31, line 4, at end insert-

""the Audit Commission" means the Audit Commission for Local Authorities and the National Health Service in England and Wales;"

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

This is a purely technical amendment to clarify the references to "the Audit Commission" in Clause 29(6)(e) and paragraph 10(2)(e) of Schedule 9 by inserting in Clause 37(1) a definition referring to its full name, the Audit Commission for Local Authorities and the National Health Service in England and Wales. I beg to move.

On Question, amendment agreed to.

Clause 37, as amended, agreed to.

Clause 38 agreed to.

Clause 39 [Increased penalty etc for offence of unauthorised access to computer material]:

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

moved AmendmentNo. 171B:

Page 32, line 10, leave out from beginning to "subsection" in line 11 and insert-

"(1) In the Computer Misuse Act 1990 (c. 18) ("the 1990 Act"), section 1 is amended as follows.

(2) In subsection (1)-

(a) in paragraph (a), after "any computer" there is inserted ", or to enable any such access to be secured"; (b) in paragraph (b), after "secure" there is inserted ", or to enable to be secured,".

(3) For"

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

Before I get into the body of my comments, I should like to say that I welcome that the noble Earl, Lord Northesk, has tabled Amendments Nos. 172, 174 and 176 to reflect the fact that further changes need to be made to the Computer Misuse Act 1990, to ensure that all forms of computer hacking are outlawed. We have been informally consulting on making changes almost identical to the ones that he has identified. He may tell me otherwise, but I understand that his Amendments Nos. 172 and 174 contain slight drafting errors. We have therefore decided to table separate versions of his amendments, Amendments Nos. 171B and 173A.

Section 1 of the 1990 Act makes it an offenceto access a computer without authority. The amendments would extend this to include enabling access to be gained without authority. We share the noble Earl's belief that the proposed amendments are important because there is a ready criminal market in software tools to gain unauthorised access to others' computers. The intent is therefore to ensure thatan offence would be committed where the person's intention is merely to enable someone else to secure unauthorised access—or, for that matter, to enable the person himself to secure unauthorised access at some later time.

The proposed amendments to Section 3 of the Act would clarify that a person can commit a Section 3 offence by being reckless as to whether, for example, a computer will be impaired, although impairment was not his intent. The amendments will also make it an offence for a person to commit an unauthorised act in relation to a computer with the intent of enabling a person to commit a Section 3 offence.

We must make it absolutely clear that it will not be a defence to suggest that the intention was not to impair the operation of a computer. It is enough that the act was unauthorised and that, by committing such an act, there was recklessness as to whether the act could have caused impairment to the operation of a computer. We must also ensure that it is understood that enabling a person to commit a Section 3 offence is an offence in its own right.

Government Amendments Nos. 178A, 178B and 178C make transitional provisions to ensure that the proposed changes to the Computer Misuse Act do not impact on offences committed before this Bill comes into force. We have also made amendments to Schedule 15 with Amendments Nos. 193A, 193B and 193C, which are consequential to amendments made to Clause 39. I look forward to hearing what the noble Earl has to say about his amendments. I trust that he will feel able to withdraw them and that he will be content to support those that stand in the name of the Government. I beg to move.

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The Earl of Northesk (Conservative)

With the leave of the Committee and at the invitation of the noble Lord, Lord Bassam, I shall speak to my amendments in this group. At the outset, I should offer my guarded congratulations and thanks to the Government on bringing forward these changes to the CMA. As the Minister is only too aware, I and others, not least the Internet All-Party Group, have been calling for some time for the legislation to be updated to make it clear that DoS attacks—denial of service attacks—are unlawful. As they stand, Clauses 39 and 40 go some way towards achieving that in a rather more coherent way than my somewhat ham-fisted Private Member's Bill of four years ago. Nevertheless, as the Minister has explained, gaps remain in the provision. In particular, the current drafting does not deal with the problems caused by botnets, zombie infections and the like.

I need not dwell too much on the nature of the problem because the Minister has explained that well enough, but it might be helpful to put this into some sort of context. For example, in 2005 the Federal Trade Commission estimated that something of the order of 150,000 computers were hijacked daily as a means of launching a criminally motivated DoS, spamming and fishing attacks. In a similar vein, Gartner, the analysts firm, estimated recently that up to 70 per cent of all spam is generated by zombie machines. In monetary terms, it is estimated that these categories of DoS attack cost internet service providers $500 million every year in excess trafficand customer churn alone. Clearly, therefore, they constitute a serious threat for which adequate provision should be made in law.

Having tabled my amendments ahead of the Government's, I can only express my gratitude that the Government have seen fit to endorse my proposition. I am indifferent as to which version finds favour with the Committee; if mine are defective, I am quite content to accept that. Be that as it may, I confess to a certain amount of embarrassment. Although drafted to deal with a specific and palpable problem, I had intended them merely to be probing in character, because I have residual and serious concerns about how effective the provisions will be in practice.

Access to IT systems can be denied for awhole host of reasons. Notwithstanding the scale of maliciously motivated attacks to which I have already referred, the bulk of such denials are attributable to wholly natural or, dare I say it, innocent causes. At the most basic level, connections to the internet can be rendered unreliable or inoperable by pure weight of traffic, as occurred with the 1901 census site when it went online. By analogy, congestion on our roadsis a considerable irritant, but it is not—so far asI am aware—criminal. By the same token, pooror inadequate server or website architecture is commonplace and gives rise to serious access problems. To state the obvious, internet and website performance is dependent on appropriate and adequate levels of quality of service, the apparent absence of which seems to be a persistent feature of government IT projects.

In passing, I cannot resist mentioning today's media reports of significant problems with the Passport Office's online systems. Some might even be tempted to argue that this is a particular feature of the PDVN, on which we all rely. Moreover, it is inevitable that these systemic weaknesses are exploited, deliberately or not, by the perpetrators of DoS attacks. The difficulty is that the Bill makes no distinction between those occasions when IT systems slow down and crash as a result of criminal or malicious interference and when they fail for entirely natural reasons. Indeed, that is compounded by the fact that proper analysis of any particular system crash is a profoundly technical matter, more often than not beyond the technical expertise of law enforcement and the judicial process.

An even greyer area is the status of cyber protest, or online lobbying, numerous examples of which exist, such as the pro-Zapatista group, Electronic Disturbance Theatre, or the French group, Federation of Random Action. At its most fundamental, the internet is a means of communication—a hugely powerful one, but a means of communication none the less. As such, it has enormous potential to empower, enrich and liberate the individualcitizen. To that extent, it is crucially important that internet law be drafted, so far as is possible, not to constrain freedom of expression and of association unnecessarily or disproportionately. By its very nature, cyber protest, although of course not criminally motivated, will often mimic the effects of a DoS attack. Occurrences of it will therefore be potentially prosecutable under the Bill, particularly if one considers the full implications of Clause 40(5)(b).

By way of another example, blogging, particularly in the political sphere, is becoming increasingly popular. We should welcome that, especially in terms of public engagement with politics. But if a particularly successful blog generated so much traffic that it crashed the server on which it was hosted—an equivalent of a DoS attack—would its author and those accessing the site have committed an offence under these provisions? As I interpret it, the drafting is unclear on the point. If the answer is yes, that cannot be right. Nor do I believe, given the technical complexities involved in this whole area and the breadth of the existing provision, that it is appropriate to fall back on the interpretation of the courts. As legislators, we should be capable of stating our intent with much greater clarity than this.

I have a number of other, wider concerns which, conscious of time, I will merely list. First, there are huge problems associated with definitions of "legitimate authorisation" in so far as they relate to the online world. Secondly, there are palpable concerns about how enforceable the provisions will be. After all, prosecutions under the CMA are rarer than those for murder. Thirdly, huge question marks hang over the capacity of law enforcement and the judicial process to attend to the issue in terms of both resources and training. It is worth noting that there is no mention of the word "computer" in SOCA's recently published annual plan, notwithstanding that the NHTCU has been subsumed into it. The Bill does not attend to any of those matters.

I apologise to the Committee for having spoken at such length. As I say, I welcome the Government's attempt to bring DoS attacks within the scope of the CMA. It is a small step in the right direction. That said, I am unconvinced that the insertion of these odd few confused clauses at the tail end of a portmanteau Bill demonstrates either adequate understanding of the complexities of the issues or firm resolve to attend to the whole corpus of internet crime. Rather, they are a desultory attempt to use no more than a sticking plaster to mend a broken leg. What is needed above all else is a wholesale rewrite of the CMA, not only to take account of how far technology has moved on since it was enacted, but also to weave in the intricacies of associated civil liberty issues. To be blunt, I fear that ultimately these clauses will create more problems than they solve.

4:15 pm
Photo of The Earl of Erroll

The Earl of Erroll (Crossbench)

I have had a certain amount of e-mails and discussions about these clauses. In general I think they are a good idea, so they should go through. There is very little difference between the Government's amendments and those of the noble Earl, Lord Northesk. The only thing I would add is that it has always worried me how you define the difference between a denial-of-service attack where it comes from one point or a set of netbots, and someone demanding that everyone lobby their MP on a particular issue so that suddenly 100,000 e-mails are sent from different single points to one central server. Actually, maybe the latter case should be made illegal, although I cannot think how it could. I apologise for hesitating; I had not thought this out very hard. There are problems around it that probably need to be addressed, as the noble Earl was saying. With the general proviso that we need to think further about the issue, I welcome these amendments.

Photo of Lord Bassam of Brighton

Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

I have heard what both noble Earls have had to say on this subject. The noble Earl, Lord Northesk, is well regarded in your Lordships' House for his knowledge and interest in, and dedicated consideration of, these issues. I have great respect for him for the work he does.

I shall respond to a couple of points that the noble Earl raised. Just to clarify this point: the Bill distinguishes systems interference due to criminal action from that due to accidental action by whether the access modification is unauthorised and whether or not the person has the necessary mens rea. It will ultimately be for the courts to decide on the facts whether an individual protest crosses over into unauthorised and hence criminal activity.

The noble Earl raised the prospect of a rewrite of the Computer Misuse Act 1990. We have consulted the industry, including the APIG, which the noble Earl mentioned, and others on this issue over two years. We concluded that the consultation did not highlight the need for a complete rewrite of the Act, but these changes reflect the issues that were raised as fruit of that consultation. I know that legislation in this field is an art of perfection for the noble Earl but we seek, as ever, to keep the industry well informed and well briefed on our thinking. We consult regularly, take on board the results of those consultations and try to reflect them where relevant in any necessary changes to legislation. I am very grateful for the noble Earl's work on this. I accept that he will never be entirely happy and satisfied with what we are attempting to do, but I hope that he will feel reasonably content and that he will not press his amendment.

On Question, amendment agreed to.

[Amendment No. 172 not moved.]

Photo of Baroness Anelay of St Johns

Baroness Anelay of St Johns (Shadow Minister, Home Affairs; Conservative)

moved Amendment No. 173:

Page 32, line 13, after "person" insert "aged 18 years or over"

Photo of Baroness Anelay of St Johns

Baroness Anelay of St Johns (Shadow Minister, Home Affairs; Conservative)

I wish to speak to Amendments Nos. 173, 175 and 177. These are probing amendments that reflect concerns raised by the All-Party Children's Group in its child impact statement.

Clause 39 amends Section 1 of the Computer Misuse Act 1990, and introduces new penalties for unauthorised access to computer material. Clause 40 amends Section 3 of the same Act and again introduces new penalties for an unauthorised act with intent to impair the operation of a computer. Clause 41 amends the same Act, introducing new penalties for making, supplying or obtaining articles for use under the previous sections.

The problem is that it is unclear whether these offences can apply to young people under 18; if so, they would not appear in the Crown Court. Therefore, the maximum penalty available in the youth court would be a two-year detention and training order. We have tabled this amendment because we and the all-party group would be grateful if the Minister could clarify the Government's intentions on this matter. I beg to move.

Photo of The Earl of Erroll

The Earl of Erroll (Crossbench)

When I saw the amendment I wondered what its purpose was since a lot of the relevant damage is done by under 18 year-olds who regularly try to disrupt computer systems for fun. They may start at the age of 10 or 12 playing around, then they learn a bit more, and then they learn a bit more at school. The thought that none of this would apply to under-18s was greeted with horror in some circles. I have discovered that it is a probing amendment on exactly how the matter will be dealt with in the courts, but I should like to make it clear that under-18s should not be exempted from responsibility for some highly destructive actions, because they are very often the perpetrators.

Photo of Lord Bassam of Brighton

Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

I am grateful to the noble Baroness for speaking to the amendments, but ultimately we cannot commend them to the Committee. We believe that criminal responsibility should apply as much online as it does in the physical world—I almost said the metaphysical world—but we do not believe that there is a need to treat Computer Misuse Act offences differently from other offences. Under-18s are capable of understanding the consequences of their online actions in the same way as they do their offline actions. I often think that they understand online consequences far more clearly than people of our generation. I ought to put in a disclaimer of sorts there, but having noticed my teenage children working online, that certainly is the case.

That said, any under-18s who commit an offence under these provisions would be eligible for a fine or warning if they admitted their guilt and it was their first or second offence, in which case the young person can be assessed to determine the causes of their offending behaviour and to identify a programme of activities to address them.

I hope that, having heard that explanation, the noble Baroness will withdraw the amendment.

Photo of Baroness Anelay of St Johns

Baroness Anelay of St Johns (Shadow Minister, Home Affairs; Conservative)

As I made clear, this is a probing amendment to meet the requirements of the all-party group, to which the noble Lord's comments will not come as a surprise.

The difficulty is that all of us have noted the Government's split personality. On some occasions 16 to 18 year-olds are treated as adults but on other occasions they are treated as juveniles. On occasions such as this we are not sure exactly how they will be treated. I accept that those under 18 have every bit as much of a facility to use computers in an unwelcome way as anyone over 18. They know a heck of a lot more about it than I would do; not that I would want to learn how to misuse information technology—I leave that to the Government and their plans for ID cards. On that note, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 39, as amended, agreed to.

Clause 40 [Unauthorised acts with intent to impair operation of computer, etc]:

4:30 pm
Photo of Lord Geddes

Lord Geddes (Conservative)

Before calling Amendment No. 173A, I must advise the Committee that if it or Amendment No. 174 is agreed to, I cannot call Amendment No. 175, due to pre-emption.

Photo of Lord Bassam of Brighton

Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

moved AmendmentNo. 173A:

Page 32, line 25, leave out from beginning to end of line 2 on page 33 and insert-

"3 UNAUTHORISED ACTS WITH INTENT TO IMPAIR, OR WITH RECKLESSNESS AS TO IMPAIRING, OPERATION OF COMPUTER, ETC.

(1) A person is guilty of an offence if-

(a) he does any unauthorised act in relation to a computer; (b) at the time when he does the act he knows that it is unauthorised; and (c) either subsection (2) or subsection (3) below applies.

(2) This subsection applies if the person intends by doing the act-

(a) to impair the operation of any computer; (b) to prevent or hinder access to any program or data held in any computer; (c) to impair the operation of any such program or the reliability of any such data; or (d) to enable any of the things mentioned in paragraphs (a) to (c) above to be done.

(3) This subsection applies if the person is reckless as to whether the act will do any of the things mentioned in paragraphs (a) to (d) of subsection (2) above.

(4) The intention referred to in subsection (2) above, or the recklessness referred to in subsection (3) above, need not relate to-

(a) any particular computer; (b) any particular program or data; or (c) a program or data of any particular kind."

On Question, amendment agreed to.

[Amendments Nos. 174 and 175 not moved.]

Photo of Lord Bassam of Brighton

Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My understanding is that our amendments cover the same ground, and as I advised the Committee, we had a suspicion that the amendment proposed by the noble Earl, Lord Northesk, was technically deficient. We would prefer our amendment to his, and I thought that the noble Earl was going to withdraw his.

Photo of The Earl of Northesk

The Earl of Northesk (Conservative)

The noble Lord, Lord Bassam, has failed to perceive that we are on Amendment No. 176, which is in my name and the Minister's. If he does not want me to move it, I am quite content not to.

Photo of Lord Bassam of Brighton

Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

The embarrassment is mine, and I apologise fulsomely to the Committee and to the noble Earl. I do have an excuse, but it would not be worthy of your Lordships' Committee.

Photo of The Earl of Northesk

The Earl of Northesk (Conservative)

moved Amendment No. 176:

Page 33, line 6, at end insert-

"( ) a reference to impairing, preventing or hindering something includes a reference to doing so temporarily"

On Question, amendment agreed to.

[Amendment No. 177 not moved.]

Clause 40, as amended, agreed to.

Clause 41 [Making, supplying or obtaining articles for use in computer misuse offences ]:

Photo of Lord Geddes

Lord Geddes (Conservative)

Before calling Amendment No. 178, I must advise the Committee that if it is agreed to, I will not be able to call Amendment No. 178ZA, due to pre-emption.

Photo of The Earl of Northesk

The Earl of Northesk (Conservative)

This subsection was introduced as a government amendment in Committee in another place. Moreover, although some concerns were raised at that time, I acknowledge that there was consensus across the political divide that it should be inserted. In that sense, I draw no comfort whatever from the possibility of being a minority in objecting vehemently to the provision. It is profoundly flawed and coulddo untold damage to the IT community in the UK and conceivably even that beyond our shores. I shallendeavour to explain why.

Before so doing, as with the previous amendments on DoS attacks, I willingly, although again guardedly, endorse and support the Government's intention with the clause as a whole. We all know that, whatever its form, online hacking of IT systems with criminal or malicious intent is a modern scourge. Manifestly, therefore, due provision should be made to proscribe making, adapting, supplying or offering to supply so-called "hacker tools". I therefore find paragraph (a) eminently sensible and desirable. That said, I am fiercely of the opinion that the test that someone is guilty of an offence under the clause if he merely believes,

"that it is likely to be...used...in the commission of an offence"

is unnecessarily and dangerously broad, the more so because it is not in any way constrained by the expressions of intent contained in paragraph (a).

As the Committee will be aware, the use and effectiveness of online activity is highly dependent on the work of anti-virus and IT security companies. Of necessity, they employ a variety of so-called "hacking tools", such as Nmap, which is used to probe for insecure machines online to see whether they respond, or the scripting language Perl, simply to test IT systems for vulnerabilities that could be exploited by those with criminal or malicious intent. In so doing, they can address discovered weaknesses, hopefully, before hackers can take advantage of them. Indeed, the patches and updates issued by the likes of Microsoft—of which I am sure Members of the Committee are only too aware—are a culmination of this process.

Here, it is not a case of whether system administrators believe that such tools are "likely" to be used in the commission of an offence; they know full well that they will be—and, indeed, already are. Accordingly, in any interpretation of the paragraph, they lay themselves open to possible prosecution simply by doing their job. As an IT acquaintance has pointed out to me, this is akin to legislating to make use of a crowbar illegal on the basis that an individual would believe that it was "likely" to be used in the commission of burglaries.

I do not doubt that that is not the Government's intent; nevertheless, it is the implication of the drafting. I know of a number of IT professionals, some of whom are among the best in the country at what they do, who are sufficiently worried by the implications of the clause that they are actively considering abandoning their work in IT security or moving overseas. That would be disastrous, not only for our reputation for IT but economically.

Consider, too, forensic hacking. Of necessity, law enforcement agencies use hacking tools to investigate crime; for example, to gain access to encrypted data. Again, it is not a case of "belief" that such tools could be used by a hacker, it is absolute certainty. Do we, therefore, conclude that an IT security company supplying hacking software to the police should be deemed to be committing an offence? Or, perhaps, the Government imagine that an individual constable hacking into encrypted data on a criminal's computer could fall foul of paragraph (b). Patently, such situations would be absurd.

I wonder, too, whether the Government have thought through this matter in the context of higher education. As the Committee will be aware, the syllabuses of many undergraduate computing degrees include hacking. In fact, in response to demand from the IT sector, the University of Abertay in Dundee has recently announced its intention to run, from the start of the next academic year in October, a BSc (Hons) undergraduate course in ethical hacking and countermeasures. But what would be the status of such educational opportunities if paragraph (b) were enacted? On the face of it they would be illegal, because students and professors would know, not merely believe, that the subject matter of their courses is "likely" to be used in the commission of an offence. Again, this would be perverse.

I am of course aware of the Home Office's view that the key to the provision is how the courts might interpret "likely". Indeed, it has circulated a letterto interested parties which makes this observation. It states that it,

"boils down to the court deciding whether it is more likely than not each individual instance of the article will be used to commit an offence, i.e. the offence is only committed if it will be used criminally more than legally".

I apologise, but I deem that to be just gobbledygook. What happens where a tool is determined as being used legally and criminally in equal measure? How, in fact, would a court measure accurately such percentages of usage? Quite apart from that, and as with my criticisms in the previous grouping, is it not incumbent upon us as legislators, and indeed the Government, to imbue the law with as much clarity as possible?

I could say much more, but I will not weary the Committee any further. I merely observe in conclusion that, in contrast to their efforts on DoS attacks, with paragraph (b) the Government are attempting major surgery where a sticking plaster will do. They are using a sledgehammer to crack a nut, the more so because paragraph (a) of itself bears down adequately, if not entirely, upon the activity that the Government wish to and should proscribe. In so far as that suggests incoherence in their approach to legislating on IT, I repeat my conviction that a wholesale re-write of the CMA is needed. In the mean time, I beg to move.

Photo of The Earl of Erroll

The Earl of Erroll (Crossbench)

I shall also speak to Amendment No. 178ZA in this group. To be honest, Amendment No. 178, deleting the paragraph altogether, may be the best course of action, because the provision causes serious problems. I have had long conversations about this with several people from companies that will be directly affected by it. I thought that the Home Office might not be willing to remove the paragraph, so I tabled my slightly less extreme amendment; nevertheless, it may have its own problems, and it may be wiser to delete the paragraph altogether. This small but important amendment will have a serious impact on quite a lot of companies that currently write software that is perfectly legal and is extremely useful because it allows computers to be managed remotely. To give you a feel of the technology, the Parliamentary ICT helpdesk uses such software. If you have a problem, you can allow one of the helpdesk people to take control of your computer or to watch what you are doing on it and give you helpful advice. That would be a typical application where someone is remotely accessing your computer using the same tools as hackers would use.

People developing websites will have software that can download and install itself to monitor the mouse's movements around the screen to see how people use the websites, where they hover and what they click on. These things, which sit in the background, are used by academics and developers to make websites more usable. We all know of websites—possibly even the parliamentary website—which could do with a little research in this direction. Such tools will almost certainly be made illegal by the proposal because they are exactly the sort of tools that hackers can use. Even if such tools were not principally designed for a hacker in the first place, hackers could easily modify bits of them, or use them, and it is extremely likely that they will do so; it is highly unlikely that they would not do so.

It is very likely that hackers will use these things. It is highly improbable that they will not. Unless my definition of "likely" is very different from that of the lawyers at the Home Office, I would prefer the dictionary definitions that I find to the ones that they may be trying to use.

The real trouble is how the courts will interpretthe word "likely". In our courts, some very clever barristers will use very clever verbal gymnastics to twist the meaning of "likely" to suit their case. The case may be brought not against a large company that can afford very expensive barristers to defend it but against a small, one-man band, who may have written some software. For some reason someone who may be trying to gain commercial advantage reports him, or has a contact that can do something, and he may be unable to defend himself against a clever barrister in court.

I do not know whether "likely" implies that more people will use such tools for legal purposes than for illegal purposes such as hacking. How dothe courts establish that? As a result, after some discussion with people, I suggest "primarily", which would be better. I am open to other ideas, such as that of our assiduous and articulate assistant to the Convenor of the Cross Benches, Julian Dee, who suggests "largely intended for". A journalist on the train with whom I was discussing it this morning suggested "principally". All these words have much to recommend them instead of "likely".

The important thing is that they should convey the intention of Parliament better than "likely" in the mind of the lawyers. I support this approach because of the possibility that this might persuade the lawyers in the Minister's department to change their minds, but I do not know whether this is likely or unlikely.

It has been suggested to me in discussions with the people behind "likely"—the Home Office—that the courts can use Pepper v Hart to look at the Minister's response to these amendments to find out the intention behind Parliament's inclusion of this word. The trouble is that the courts have to decide that it is ambiguous and I am not sure that it is at all ambiguous. I believe that it is highly likely that any of these tools will be used by hackers unambiguously.

Another approach would be to use a very ambiguous word. I will leave it to noble Lords' imagination how you might make this phrase so ambiguous that the courts had to read the Minister's statements. That would be an alternative, but is that likely to happen? Anyway, it is a bad way to make law.

I turn to a matter that I feel strongly about. In Roman law, I believe, one makes laws slightly general and the courts and the state decide how the law is to be interpreted and fill in the blanks later. But under common law—we are a common law country—basically you are allowed to do anything that is not expressly forbidden. Therefore, we define much more closely what is forbidden because it is important to make clear what companies are and are not permitted to do and not leave it to the courts to interpret later.

I have also spoken to someone who has close ties with the Commission and they do not like this at all either. Should we pass the measure in this form, there may be moves from Europe later in the yearto get it changed. International companies are sufficiently worried about this for lobbying to take place. With that, I look forward to hearing the Minister's reply.

4:45 pm
Photo of Baroness Harris of Richmond

Baroness Harris of Richmond (Spokesperson in the Lords, Northern Ireland Affairs, Spokesperson in the Lords (Police), Home Affairs, Whip; Liberal Democrat)

We agree with this amendment. As I understand it, under paragraph (b) a software developer will need only to intend his software to be used or believe it likely to be used as a hacking tool. I very much welcomed the fact that the noble Earl, Lord Erroll, explained his concerns about "likely"—a point with which we also agree.

Those in software development are fully aware of the capabilities of software. Many tools traditionally used by hackers are also used by security consultants when checking a system to make it safe from those doing the hacking. The noble Earl, Lord Northesk, put across far more effectively and succinctly than I ever could the import of his amendment.

Photo of Lord Bassam of Brighton

Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

I listened with interest to the noble Earls, Lord Northesk and Lord Erroll, as I always do when they speak on these subjects, and I certainly understand the thinking behind their amendments. I also understand that they reflect a concern about how subsection (1)(b) of the new Section 3A offence will be interpreted. The noble Earls explained carefully and very well that the concern rests on how paragraph (b) deals with dual-use tools. Obviously it is not the article that is at issue but how it is likely to be used, and that takes us to the heart of the matter.

The noble Earl, Lord Northesk, is proposing to remove subsection (1)(b), which provides that an offence is committed if a person does any of the listed acts believing that the article is likely to be used to commit a relevant offence. Removing the paragraph would limit the use of the subsection to instances where the prosecution could prove that the article was intended to be used to commit computer misuse offences. We consider it important that the offence covers those who believe it is likely that the article will be used to commit offences, irrespective of intent. Further, the clause as drafted sets a high test to protect those with legitimate intentions. The supplying offence that we are talking about here is very narrowly drawn, and the high threshold that we require to prove the offence underlines that.

The noble Earl, Lord Erroll, has proposed something slightly different. I am extremely impressed by his extensive consultation arrangements on the 9.19 am from Surbiton, or wherever his train was from. It seems a novel way of carrying out consultation on computer misuse; nevertheless, it is valuable for the potential thesaurus that it supplies us with.

We do not believe that his proposed alternative—that of exchanging "likely" with "primarily"—differs significantly from the current draft. Asking whether a person believes that the primary use of an article is to commit offences seems to be the same as asking whether he believes that an article is likely to be used to commit offences. Also, the proposed formulation would not deal adequately with a case where the primary purpose could be said to be legitimate but the article in question was supplied by a person who believed that it would be likely to be used to commit offences. The noble Earl, Lord Erroll, might like to consider that nuance further. The burden on the prosecution of showing that the accused believed that the article was likely to be used in the commission of an offence under Sections 1 or 3 of the Act will not, as I said earlier, be an easy one to discharge.

It would not be sufficient for the producer of the article to show that it had been used for such a purpose on some occasions because that does not show a belief that the article in question will be so used. On the contrary, the producer will be taken to believe that the article would be used honestly, as it is in the majority of cases. The prosecution may need to prove that the supplier knew something about the person to whom he supplied the article on which to base a belief of dishonest use. Obviously, that will not be an easy task.

We recognise the concerns of legitimate product manufacturers, the IT security industry and the research community about the need for clarity on how these provisions will apply to them. We have carefully considered the standard to be applied and we are satisfied that we have struck the right balancebetween protecting those who develop or supply tools for legitimate use and criminalising those who deliberately or recklessly develop or supply them for criminal use. I hope that what I have said provides that clarity. I express my gratitude again to both noble Earls for providing the Government with the opportunity to clarify our intentions. I invite them to withdraw their separate but distinctive amendments.

Photo of The Earl of Northesk

The Earl of Northesk (Conservative)

I thank the Minister for that reply and I thank the noble Earl, Lord Erroll, and the noble Baroness, Lady Harris, for their contributions and their support for the amendments. Regrettably, I am none the wiser. The Minister has not clarified the issue for me one iota. My understanding is that at the heart of this lies the legal definition of "likely". It is a sad fact that vast swathes of the IT sector remain, to this day, confused about how "likely" will be interpreted by the courts. They simply will not take the risk of falling foul of this provision. I do not mind whether the noble Lord wishes to dismiss that, but that happens to be true.

I have very serious difficulties about how the courts will interpret the Government's intent vis-à-vis "likely". How will the courts measure it, and against which yardstick will they measure it? There is absolutely nothing in the Bill to suggest that they can so do. I will read what the Minister has said extremely carefully, but, on first hearing, it does not clarify matters at all. With certainty, I shall return to this matter on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of The Earl of Erroll

The Earl of Erroll (Crossbench)

had given notice of his intention to move Amendment No. 178ZA:

Page 33, line 24, leave out "likely" and insert "primarily"

Photo of The Earl of Erroll

The Earl of Erroll (Crossbench)

I have listened to the Minister with great interest. He has clarified for me a confusing point about the production and the supply of these tools. One is trying to criminalise people who advertise on the internet saying, "Great hacker tool available, derived from such and such, best thing ever, why don't you buy it for X?". I have no problem with criminalising the sale or the supply of a tool because one knows that that is likely to be used by hackers. Separating out the development and, therefore, the supply of legally developed tools to educational establishments or authorised computer users might well solve part of the problem.

The second point that occurred to me while listening to the noble Earl, Lord Northesk, is that we need a definition for "likely". Perhaps we should put in an entire legal definition of what we think "likely" is likely to mean when it gets to the courts. That would be another way around the matter. With those caveats and knowing that we shall definitely returnto this subject on Report, I shall not move my amendment.

[Amendment No. 178ZA not moved.]

Clause 41 agreed to.

Clause 42 [Transitional and saving provision]:

Photo of Baroness Scotland of Asthal

Baroness Scotland of Asthal (Minister of State (Criminal Justice and Offender Management), Home Office; Labour)

moved Amendments Nos. 178A to 178C:

Page 33, line 39, at end insert-

"( ) The amendments made by subsection (2) of section 39 apply only where every act or other event proof of which is required for conviction of an offence under section 1 of the 1990 Act takes place after that subsection comes into force."

Page 33, line 41, at beginning insert "subsection (3) of"

Page 33, line 43, leave out "section" and insert "subsection"

On Question, amendments agreed to.

Clause 42, as amended, agreed to.

Photo of Baroness Anelay of St Johns

Baroness Anelay of St Johns (Shadow Minister, Home Affairs; Conservative)

moved Amendment No. 179:

After Clause 42, insert the following new clause-

"ENCRYPTED DATA AND INDECENT PHOTOGRAPHS OF A CHILD

(1) The Regulation of Investigatory Powers Act 2000 (c. 23) is amended as follows.

(2) In section 53 (failure to comply with a notice)-

(a) after paragraph (a) of subsection (5A) there is inserted-

(aa) in a case to which subsection (6) applies, seven years;";

(b) after subsection (5B) there is inserted- "(6) This subsection applies where- (a) a person has been previously convicted of an offence contrary to section 1 of the Protection of Children Act 1978 or section 160 of the Criminal Justice Act 1988; (b) the apparatus or data storage device containingthe protected information contains an indecent photograph or pseudo-photograph of a child; (c) the apparatus or data storage device containing the protected information has come into the possession of any person together with other apparatus or a data storage device which contains an indecent photograph or pseudo-photograph of a child; or (d) the court is satisfied that the protected information is likely to contain an indecent photograph or pseudo-photograph of a child. (7) This subsection will not apply where the person to whom the notice is given can show that the protected information does not contain an indecent photograph or pseudo-photograph of a child. (8) "Indecent photograph or pseudo-photograph of a child" shall have the same meaning as in the Protection of Children Act 1978."

(3) After paragraph 36 of Schedule 3 to the Sexual Offences Act 2003 (c. 42) there is inserted-

"36A An offence under section 53 of the Regulation of Investigatory Powers Act 2000 if subsection (6) of that section applies.""

Photo of Baroness Anelay of St Johns

Baroness Anelay of St Johns (Shadow Minister, Home Affairs; Conservative)

I shall speak also to Amendments Nos. 180 and 196, which also stand in my name. The two new clauses would strengthen the law dealing with sex offenders, especially those who offend against children. The issues covered by the amendments were also debated during the passageof the Sexual Offences Act 2003. At that time, the Government asked that they should have the opportunity to consider the proposals further. We are pleased that some progress has been made, but it has not been enough. It is in the vein of probing how much further we may be able to go and when that the amendments have been tabled.

In another place, the Government accepted another amendment that inserts a new clause giving the police extra powers to enter and examine the relevant offenders' home address. The new clause, although rejected by the Government for this Bill, was, with the agreement of the whole of thisHouse, inserted in Committee on the ViolentCrime Reduction Bill in May. Unfortunately, the Government did not give such a positive and speedy response to the amendments before us today and I hope that we can now make more progress with them.

Amendment No. 196 simply amends the Long Title so that the matter of child pornography would come within the scope of the Bill. As, later, we shall come to government amendments that would amend the Long Title, I hope that amending the Long Title is no longer an anathema to the Government.

Amendment No. 179 deals with encrypted data. It is well known that paedophiles collect pornographic images of children that most certainly constitute child abuse. Some of the images are real; some are digitally manufactured. One must at all times remember that every photograph of a real event is a record of a real act of abusing a child. Many of the images are in the form of videos or DVDs or on computers. Increasingly, they are kept on remote storage. Some computers that the police collect have no hard drives at all. They are driven or initiated by a disk and the information is stored remotely. Increasingly, the information is hidden by encryption. We used to have simple encryption, but we have now moved to 128 bit and 256 bit encryption. I understand that the software is freely available on the internet and is relatively easy to use. Essentially, it is unbreakable.

I am advised that matters are likely to become worse from the point of view of breaking security systems when Vista, the replacement for the Windows operating system, is due out during the course of next year. Once that system is up and running, the security is such that when the computer is turned off, it automatically encrypts all the information on it so that when the police collect the computer and turn it on, they cannot break through the encryption. Some information can be destroyed, preventing access by the police.

Clearly, the police need access. They need to seek evidence against individuals and, because offenders sometimes work in groups, they need to find evidence against the wider group as well. It is vital for the police to be able to identify the children involved. That is crucial not only in detecting the abusers but making it possible to offer some hope that the children may be rehabilitated and suffer as little long-term damage as possible.

The new clause deals with encrypted data found on computers and storage in cases where the police believe that the encrypted data contains abusive images of children. It does not create any new offence or scheme, but amends the sentencing regime under Section 53 of the Regulation of Investigatory Powers Act 2000. Part 3 requires a person to comply with a notice issued by the police to hand over the encryption key for protected data. The penalty for a breach is two years. That seems low, given that the alternative penalty, if the information were turned over, would often be five years or more. Frequently, offenders also have to go on to the sex offenders list.

Accordingly, it is unlikely that a defender who has indecent and abusive photographs of children on his or her computer would comply with the notice. We need to step up the penalty to achieve that compliance, so I suggest that such offenders should be liable for up to 10 years' imprisonment, which is the penalty for contravening Section 1 of the Protection of Children Act 1978. I have no firm view on that; the amendment was tabled to probe the Government's intentions.

The proposed new clause would simply raise the sentence if a court was satisfied that it was more than likely—we return to "likely", to which the noble Earl, Lord Erroll, referred—that most of the encrypted data consisted of indecent photographs of children. We suggest the use of the civil burden of proof because the offence would be not the possession of photographs of children, which would be punished separately, but the failure to hand over the encryption key. The higher sentence would apply only when one of two thresholds was passed: the computer had non-encrypted indecent photos of a child or children on it; or the person had previously been convicted of an offence contrary to Section 1 of the Protection of Children Act 1978 or Section 160 of the Criminal Justice Act 1988.

Amendment No. 180 would insert a new clause relating to offences requiring notification. Sections 48 to 50 of the Sexual Offences Act 2003, which make provision for the offences of recruiting or controlling a child involved in pornography or prostitution, are not prescribed for the purposes of notification requirements under Part 2 of that Act. I confess that my noble friends and I, and my Front-Bench colleagues in another place, quite simply missed that point during the passage of the Act. Those sections are not being used by the police and prosecutors because they do not have the notification that applies to most of, if not all, the other provisions relating to the abuse of children.

I hope the Minister will agree that there is no valid reason why people convicted of such an offence should not be required to notify the police of their details, because they are directly involved in the abuse and exploitation of children and need monitoring and risk assessment. Time was somewhat limited when these matters were debated on Report in another place, but the Government made some encouraging noises, which were welcome, about consulting on them. I would be grateful if the Minister would say what the Government's current thinking is on the proposals that I have outlined, whether any consultation has commenced on either or both of the proposals, what the time scale is, who is being consulted, and whether they see any particular difficulty with any part of the proposed new clauses, because we would certainly be happy to work with the Government to improve the drafting of them until they become acceptable, I hope, in the near future. I beg to move.

5:00 pm
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Lord Hylton (Crossbench)

I welcome the intention behind the amendments because they would tighten up the law, which would benefit the protection of children not only in this country but overseas; for example, in the Philippines. It is quite certain that children have been abused and exploited for the purpose of making pornographic films, videos, disks and other computer material, and anything that can be done to reduce that will surely be to the good.

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

It is the case that those developing this area of criminal law have had to work hard in the past decade to keep pace with developments in technology and our emerging and developing understanding of the activities of those who are involved in paedophile activity. I am very grateful to the noble Baroness for tabling the amendments, as they enable the Government to set out how we intend to approach these matters. I am also grateful to the noble Lord, Lord Hylton, for his intervention, because he touches on a very important point; this is a global phenomenon, and anything that we can do in this country to tackle these issues, which will have a beneficial effect elsewhere, should be done with enthusiasm and an international spirit.

Amendment No. 179 is designed to increase the maximum penalty for the offence, in Section 53 of the Regulation of Investigatory Powers Act 2000, of failing to comply with the requirement to disclose protected information or the key to it. We had long arguments at the time about those offences. The increase in the maximum penalty would apply in the circumstance set out in new subsection (6) of Section 53 of RIPA, including where the offender has a previous conviction for possession of an indecent image of a child.

The use of information technology by terrorists and criminals to facilitate and conceal evidence of their unlawful conduct in order to evade detectionor prosecution is increasing. Consequently, the Government have concluded that it is now timely to implement the provisions of Part 3 of the Regulation of Investigatory Powers Act 2000, including Section 53, which are not presently in force. The threat to public safety posed by terrorist use of encryption technologies was recognised by the House in Section 15 of the Terrorism Act 2006, which increased the maximum penalty for the Section 53 offence to five years in a national security case. On 7 June, the Government published for consultation a draft statutory code of practice for the investigation of protected electronic data and the exercise of powersin Part 3 of RIPA. This consultation also invites comments on proposals to amend Section 53 of the Act in line with this new clause.

The Government remain very sympathetic to what the noble Baroness seeks to achieve by way of her amendment. However, first, we want to allow further opportunity for public consideration and comment on the proposals, and to consider what legislative changes to bring before the House in the light of current consultation. I am sure that the noble Baroness will feel able to assist us in that by withdrawing her amendment.

I now turn to Amendment No. 180. Schedule 3 to the Sexual Offences Act 2003 lists the offences for which a conviction, finding or caution will, subject to certain sentencing thresholds being met, result in the offender being made subject to the notification requirements of Part 2 of the 2003 Act. These requirements are colloquially known as the sex offenders register. When Schedule 3 was drawn up, we decided that the offences under Sections 48 to 50 of the 2003 Act—"Causing or inciting child prostitution or pornography", "Controlling a child prostitute or a child involved in pornography", and "Arranging or facilitating child prostitution or pornography"—should not be included. That decision was taken because we believed that these offences, while undoubtedly abhorrent, were not strictly sexual offences, unlike, say, rape, but could be motivated by factors such as simple greed.

We did however include the offences in Schedule 5 to the 2003 Act. By doing so, we could ensure that if an offender demonstrates that they pose a risk of serious sexual harm, courts can make a sexual offences prevention order either when dealing with such an offence or on subsequent application from the police. Being made subject to such an order leads to the offender going on the sex offenders register as well as being subject to prohibitions imposed by the order. However, while it may be true that these offences need not necessarily be strictly sexual in their nature, their perpetrators demonstrate at the very least a callous disregard of the sexual well-being of children and may pose a threat, and so may require the monitoring that being made subject to the register will bring.

Officials already intend reviewing the content of Schedules 3 and 5, which will take place over the summer. I assure the noble Baroness that her suggestions, as set out in her amendment, will receive sympathetic consideration during that review, including her comments about using the civil measure of guilt. As part of our review, we will be more than happy to meet and discuss with the noble Baroness her concerns and to listen to her other ideas about these offences. Any changes to Schedules 3 and 5 will not require primary legislation. They can be made by affirmative order, which means that Parliament will have the opportunity to debate the proposal. I am sure that the noble Baroness will appreciate that, rather than making piecemeal changes, we take the view that we should await the results of the review, which we will conduct in an entirely open way with the organisations, charities, voluntary sector bodies and so on with which we usually consult in these matters. We hope to make all the necessary changes through an order which will be laid in the autumn.

Again, I am grateful to the noble Baroness for her concern and care in this matter. If we can proceed in this way, I think we can achieve jointly our objectives which I am sure are not totally dissimilar.

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Baroness Anelay of St Johns (Shadow Minister, Home Affairs; Conservative)

I am grateful to the Minister for that sympathetic reply and I think that progress is being made here. I am also grateful to the noble Lord, Lord Hylton, for his support. He is absolutely right to point out that, when we talk about offences in these terms, we are also trying to protect children overseas who may be abused through the use of internet pornography. It would not be right to go into more detail on the Minister's response except to say that I welcome his proposal for a meeting. I put it on the record that I would be grateful if the Home Office invited my honourable friend in another place, Sir Paul Beresford, to take part. I know that the Home Office has involved him in previous discussions and that he would value any continued participation.

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

I am sure that that can be arranged.

Amendment, by leave, withdrawn.

[Amendment No. 180 not moved.]

[Amendment No. 181 had been withdrawn from the Marshalled List.]

Clause 43 agreed to.

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Baroness Linklater of Butterstone (Spokesperson in the Lords (Penal Reform), Home Affairs; Liberal Democrat)

had given notice of her intention to move Amendment No. 182:

After Clause 43, insert the following new clause-

"Penal custody for children

PENAL CUSTODY FOR CHILDREN

(1) No child shall be detained in a young offender institution or a secure training centre.

(2) "Child" means a person under the age of eighteen."

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Baroness Linklater of Butterstone (Spokesperson in the Lords (Penal Reform), Home Affairs; Liberal Democrat)

I shall not move this amendment for the time being. However, we attach great importance to this subject and we will return to it on Report.

[Amendment No. 182 not moved.]

Schedule 12 [Schedule to be inserted into the Protection of Children Act 1978]:

[Amendment No. 183 not moved.]

Schedule 12 agreed to.

Clause 44 agreed to.

Schedule 13 [Schedule to be inserted into the Protection of Children (Northern Ireland) Order 1978]:

[Amendment No. 184 not moved.]

Clause 45 [Immigration and asylum enforcement functions: complaints and misconduct]:

[Amendment No. 185 not moved.]

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Baroness Anelay of St Johns (Shadow Minister, Home Affairs; Conservative)

moved Amendment No. 185A:

Page 36, line 12, at end insert-

"( ) Nothing in this section shall authorise the disclosure of documents or information subject to legal privilege."

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Baroness Anelay of St Johns (Shadow Minister, Home Affairs; Conservative)

I rise briefly to movethis amendment only because it was originally not grouped with Amendment No. 185 and because I think, without being rude to the Law Society of Scotland, that it may be disposed of by the Government with some assurances. Clause 45 provides that the reference to "enforcement functions" includes reference to powers of entry, powers to search persons or property, powers to seize or detain property, powers of arrest and detention, powers of examination and powers in connection with the removal of persons from the UK. This amendment would insert a new subsection to ensure that the documents and information subject to legal privilege cannot be recovered by virtue of a search warrant granted under subsection (2).

This probing amendment follows concerns specifically raised by the Scottish Law Society, which states:

"Article 8 of the European Convention on Human Rights enshrines the right to privacy. The law society is eager to protect the relationship between a solicitor and his or her client and has made provision for the doctrine of legal professional privilege".

The society goes on to argue:

"To preserve this relationship and ensure that such information and communications are privileged, provision should be made on the face of the Bill to the effect that a search warrant or powers to seize or detain property granted under clause 45 will not extend to the disclosure of information subject to legal privilege".

I hope that the Minister can clarify the situation under this clause with regard to information subject to legal privilege and offer some assurance in response. I beg to move.

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Lord Dholakia (Deputy Leader, House of Lords, Spokesperson in the Lords, Home Affairs; Liberal Democrat)

I support the amendment for the reasons identified by the noble Baroness, Lady Anelay. It would be helpful if the Minister could give us an explanation about documents that have legal privilege.

5:15 pm
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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

I will go carefully over my speaking note. I can see that the amendment has three possible consequences, which I shall go through because I want to test them back to the noble Baroness. She will then, no doubt, tell me whether I have addressed the issues and satisfied the intent of the amendment and the probing nature of her comments.

First, if the amendment is intended to safeguard members of the public from the seizure of legally privileged documents belonging to them by immigration officers or officials of the Secretary of State exercising immigration and asylum enforcement functions, we argue that sufficient safeguards already exist in the current legislation. In this clause, enforcement functions exercised by immigration officers and certain other officials are defined as including the types of powers already exercised by those officers under the existing provisions of the immigration Acts. These include, for example, powers of arrest or powers of search and seizure. Thisis to enable the Independent Police Complaints Commission under future regulations to have oversight of these types of powers where they are exercised by immigration officers or certain other officials in the enforcement and removals context.

Clause 45 does not create new powers for immigration officers or other immigration officials. Where powers for such officers and officials to search and retain documents exist in the current law, provision is already made in the legislation for the protection of legally privileged documents. For example, Section 28E(6) of the Immigration Act 1971 qualifies the power that an immigration officer has to enter and search premises following the arrest of a suspect to ensure that legally privileged items cannot be seized. Policy instructions to immigration officers also make it clear that legally privileged material should not be seized.

If the amendment is concerned that the Independent Police Complaints Commission under future regulations will obtain legally privileged information belonging to a private individual, I can again reassure the noble Baroness. If the IPCC obtains such material in the course of one of its investigations, it would be obliged to return it unopened or unread unless the owner of the privilege had waived that privilege. IPCC investigators carrying out investigations have the same powers under the Police Reform Act 2002 as a constable in England and Wales. Therefore, the only warrants that they could seek are those under PACE or terrorism legislation. Legally privileged information will be outside the scope of these warrants, as provided for by Sections 8 and 10 of PACE.

The position where the Immigration and Nationality Directorate is the holder of the legal privilege will be different, however. Section 17 of the Police Reform Act 2002 currently enables the IPCC to require the disclosure of information, including legally privileged information held by the police, by Her Majesty's Revenue and Customs or by SOCA, under equivalent provisions, where disclosure is required for the carrying out of an IPCC function. The intention of Clause 45 is to ensure independent scrutiny of immigration officers and officials exercising police-like powers within the community under future regulations similar to the scrutiny that is in place for the police. To require different practices for the disclosure of legally privileged information where IND is the holder of the privilege would be anomalous.

If the third interpretation is the intention of the amendment, the amendment could prevent the disclosure of legally privileged information between the IPCC and the Parliamentary Commissioner for Administration. We take the view that that would be undesirable. The IPCC and the PCA may wish to disclose legally privileged information under the gateway created by Clause 45(5) as part of their functions or for the purposes of a joint investigation under Clause 45(6).

I trust that I have dealt to the noble Baroness's satisfaction with all the potential interpretations that might arise from the amendment. I hope that I have reassured her that the concerns that were quite properly raised by the Law Society of Scotland—it is very good at this—have been addressed and that she will feel able to withdraw the amendment.

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Baroness Anelay of St Johns (Shadow Minister, Home Affairs; Conservative)

After that comprehensive reply, it would be churlish to do other than say that I will make sure that the Law Society of Scotland has a good look at this. I agree with the noble Lord that, with regard to the third interpretation of the potential consequences, it would be wrong to prevent information going to the commissioner. I shall seek the advice of the Law Society of Scotland and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 45 agreed to.

Clause 46 agreed to.

[Amendments Nos. 185B to 185R had been retabled as Amendments Nos. 191B to 191R.]

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Lord Kingsland (Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament; Conservative)

moved Amendment No. 186:

After Clause 46, insert the following new clause-

"DESIGNATION OF PART 2 TERRITORIES: OMISSION OF UNITED STATES OF AMERICA

In the list of territories in paragraph 3(2) of the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003(S.I. 2003/3334) "the United States of America" is omitted."

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Lord Kingsland (Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament; Conservative)

In moving AmendmentNo. 186, I shall speak to the other amendments in the group. I shall speak also to Amendments Nos. 187 to 190 because, although they deal with a distinct matter, in a sense the two groups of amendments run together.

The issues raised by the amendments deal with two matters. The first is treaty ratification; the second is reciprocity—that is, the fairness of the test contained within the treaty itself. I shall begin by dealing with ratification, although necessarily, as I seek to develop my argument, I shall make some reference to reciprocity.

Our starting point is the existing international law between ourselves and the United States—the extradition treaty of 1972. That treaty still defines the international law obligations between the two countries. It is, broadly speaking, a treaty which contains tests which are balanced. If the United States wishes to extradite someone from the United Kingdom, it has to meet what is known as a prima facie case to succeed. Equally, when we apply to extradite somebody from the United States, we have to meet the test of probable cause. There is much debate in international law about the extent to which these two categories are balanced; but, broadly speaking, I think it is accepted that they are.

On 31 March 2003, Mr David Blunkett andMr John Ashcroft, respectively at that time, the Home Secretary of the United Kingdom and the Attorney General of the United States, signed a new extradition treaty. I say in passing that no prior notice was given to Parliament of the terms of this treaty before it was signed. Indeed, as far as I am able to determine, no one, outside Government, appears to have got wind of what was going on.

The whole question of parliamentary oversight of treaty negotiations was raised tantalisingly by the noble Lord, Lord Lester of Herne Hill, in his debate on prerogative powers earlier in the year. Although I shall not develop the arguments now, I believe that the manner in which that treaty was concluded deserves the closest attention of your Lordships' House.

From our point of view, the most important thing about this treaty is that it changed the reciprocity test. Although we have to continue to show probable cause to the United States Government when seeking somebody's extradition from the United States, the prima facie case no longer applies. That point was very fairly dealt with by the noble Baroness, Lady Scotland, during the debate on the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003. She said that,

"when we make extradition requests to the United States we shall need to submit sufficient evidence to establish 'probable cause'. That is a lower test than prima facie but a higher threshold than we ask of the United States, and I make no secret of that. The fact is that under the terms of its constitution the United States of America cannot set its evidential standard any lower than 'probable cause'".—[Hansard, 16/12/03; col. 1063.]

The treaty is what today's debate is fundamentally about. The treaty needs to be ratified by both parties to give it binding effect in international law. Until it is ratified by both parties, the 1972 treaty in international law prevails. We are still waiting for the 2003 treaty to be ratified by the United States.

Meanwhile, in November 2003, the Extradition Bill became law. I need to refer to two provisions of the Bill, though telegraphically. The relevant part of the Bill is Part 2; Part 1 deals with arrest warrants. Section 84 of Part 2 provides for extradition to territories other than those covered by the European arrest warrant. In particular, Section 84(1) states that, faced with an extradition request, a judge must decide whether there is sufficient evidence to make a case requiring an answer from the subject of the request. That is to say, Section 84(1) establishes and repeats the prima facie rule. However, under Section 84(7), the need for prima facie evidence is excluded if the Secretary of State makes a designation so saying.

That further designation was made under the Extradition Act by an order which came before your Lordships' House in December 2003. Under that order, the United States was one of a number of paragraph 2 countries, most of which were signatories to the European Convention on Extradition. The act of designation by that order—its approval by both Houses of Parliament—meant that from 1 January 2004, we were required to meet our side of the bargain struck by Mr Blunkett in that treaty even though there was no obligation on the United States to meet its.

That point was freely admitted by the noble Baroness, Lady Scotland, in the December debate, but she was optimistic. She said:

"We anticipate that the treaty will be put before the Senate formally early in the new year"—

the new year of 2004—

"and approved shortly thereafter. We do not anticipate that we shall encounter any difficulties in that regard".—[Hansard, 16/12/03; col. 1071.]

Yet, here we are, two and a half years later. The United States has done nothing about ratification, in breach of the rules of international comity. But we have been acting as though the United States had ratified that treaty, to the astonishment of a number of Americans, some of whom gave evidence to the relevant Senate committee in November last year. We have been acting on the basis of a treaty that, as yet, forms no part of international law. That explains the first of our amendments—Amendment No. 186—which would simply remove the United States from the designation of Part 2 territories until ratification takes place.

We believe that the time has come for your Lordships' House to act. The United States Senate is, after all, another upper House in an English speaking world; and we hope that a firm signal from your Lordships' House would be taken seriously by the United States Senate.

There are two other amendments in this group—Amendments Nos. 191 and 191A. We intend to withdraw Amendment No. 191 in favour of Amendment No. 191A tabled by the noble Lord, Lord Goodhart. We are able to support that amendment although we are not totally content with it as it stands. We do so to give the other place the chance to consider the underlying operation of the treaty, and we do so with one very significant reservation—that when it gets to the other place, it must be revised to remove its application to acts of terrorism so as to ensure that we can maintain quick and efficient extradition of terrorists, which is a principle that I know the whole of your Lordships' House supports.

I move on to the question of reciprocity. I shall make no observations about the substance of the case known colloquially, in all the newspapers, as the case of the NatWest Three. However, it is fair to say that their case has thrown up a number of weaknesses in the treaty negotiated by Mr Blunkett as well as in the Extradition Act 2003. I shall pay some attention to both of them.

First, there has been no attempt whatever by the Government to incorporate the forum rules contained in the 1957 European Convention on Terrorism to which we are parties, although the United States is not. Article 7.1 of the convention is reflected, in essence, in our Amendment No. 189, which says:

"If the conduct disclosed by the request was committed partly in the United Kingdom, the judge shall not order the extradition of the person unless it appears in the light of all the circumstances that it would be in the interests of justice that the person should be tried in the category 1 territory... In deciding whether extradition is in the interests of justice, the judge shall take into account whether the competent United Kingdom authorities have decided to refrain from prosecuting the person whose surrender is sought for the conduct constituting the offence for which extradition is requested".

That amendment in essence reflects terms to which we agreed in the 1957 treaty and the Council framework decision of 13 June 2004 on the European arrest warrant. It hands over to a judge the power to decide not whether there is a prima facie case but whether the nature of the offence, in all the circumstances, ought to be tried in the United Kingdom rather than the United States. In reaching that decision, the judge would take into account a number of factors—such as territoriality, the availability of witnesses, the nature of the evidence and the availability and admissibility of that evidence. This approach has been well established in Europe for many decades; and we see no reason why they should not apply to the extradition treaty and the Act applying to it between the United States and ourselves.

One interesting thing about the extradition treaty between Ireland and the United States is that it contains precisely that qualification. Like us, the Irish are no longer demanding prima facie evidence, even though the United States continues to demand probable cause. But the Irish Government have insisted that the courts apply a forum test. That is totally absent from the Extradition Act 2003, and we believe that it should be included.

The second matter to which I draw your Lordships' attention is the question of the relationship between the Extradition Act 2003 and the Human Rights Act 1998. Throughout the debates that we had on the Extradition Bill, the Minister was at pains to reassure us that the terms of the Human Rights Act would continue to apply to matters within the jurisdiction of the Extradition Act. That fact is in the Act in Section 87(1), where it says that judges considering these matters are expressly required to take into account the Human Rights Act when construing the Extradition Act.

There has recently been a series of cases in connection with the NatWest Three. They have gone as far as the Court of Appeal; it considered the relationship between the Extradition Act and the Human Rights Act and reached the conclusion that, in every case, the international treaty as reflected by the Extradition Act always trumped the Human Rights Act. On a true construction of the Act in relation to the Human Rights Act, I am sure that that judgment is sound; and nothing that I am about to say should in any way be read as a criticism of the Court of Appeal. However, if that is now the law, and the Human Rights Act is overridden in that total and complete way by the Extradition Act, then the Government should look at that relationship again.

In the deportation of non-British nationals cases, the courts spend years trawling over factual issues about what will happen to a non-British national when he or she is returned to the country to which he or she is to be deported. But it appears that in the context of the extradition treaty, the balance between what the Human Rights Act requires and the Extradition Act itself is different from normal deportation cases. At least, that is what I have concluded from the judgment of the Court of Appeal. If that is so, in my submission the Government should look at this balance again. That is the second reason why we have raised further amendments and will support the amendment tabled by the noble Lord, Lord Goodhart.

I do not need to say anything more, except this: I have watched, in the course of the past five years of the Government's time in office, an astonishing erosion of the rights of the criminally accused in a whole range of areas, which I am not going to repeat. The Minister has heard me saying this before; she knows what I am saying. I regard the manner in which a country treats its criminally accused as absolutely central to the way in which it is defined as an open, free and democratic society following the rule of law. That has been said by many great men; it is not an original observation. Quite frankly, the evidence that the Committee has before it today is that the circumstances surrounding the ratification of the treaty, and the degree of reciprocity within it, raises further serious question marks about whether we meet that free society test. I beg to move.

5:30 pm
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Lord Lloyd of Berwick (Crossbench)

If I can, I wish to speak before the Motion is moved. This is simply for clarification, because I do not understand the full extent of the argument. Is the noble Lord saying that the United States should be removed altogether from the Part 2 categories, or only from the designation under Section 84(7)? That is a critical point.

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Lord Kingsland (Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament; Conservative)

From the designation. Amendment No. 186 reverses the effect of the order of 16 December 2003. That is all we seek. Amendments Nos. 191 and 191A define the tests the United States should meet before a further order redesignating it.

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Lord Lloyd of Berwick (Crossbench)

I am going to press the noble Lord, because this is an important point. We understand that there is designation of the Part 2 categories, and the noble Lord is saying that the United States is included among them. It is also included in the extra designation in Section 84(7). Is he arguing that the United States should be removed altogether from Part 2 categories?

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Lord Kingsland (Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament; Conservative)

No.

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Lord Goodhart (Spokesperson in the Lords (Shadow Lord Chancellor), Constitutional Affairs, Advisory Team On Legal Matters, Cross-Portfolio and Non-Portfolio Responsibilities; Liberal Democrat)

We on these Benches have objected to the extradition arrangements with the USA ever since the text of the new treaty was published shortly after it had been signed on 31 March 2003. I have put my name to Amendment No. 186, which has just been spoken to by the noble Lord, Lord Kingsland, as well as to Amendment No. 191A, which stands in my name alone.

The purpose of these amendments is to prevent serious injustice for people who now face extradition to the USA or may do so in the future. That injustice arises from the absence of any need for the American Government to provide any evidence of possible guilt in support of the request; the lack of reciprocity, since requests for extradition from the United States have to be supported by evidence; and the aggressive American pursuit of extradition in cases that ought to be tried, if at all, in the United Kingdom.

I shall start by removing a smokescreen that has been put up by the Government. The smokescreen is the statement that there is no lack of reciprocity and that the tests for extradition in opposite directions are in fact equal. That is a view the Minister herself accepted in December 2003, when, in the course of the debate on the order, she made the statement that has been read to your Lordships by the noble Lord, Lord Kingsland. That is quite different from the Minister's answer to the question from the noble Lord, Lord Anderson, in your Lordships' House last Tuesday, when she said there was no such difference. That line was repeated by the Prime Minister in his reply to a question from my right honourable friend Sir Menzies Campbell last Wednesday, when he said:

"If I may again deal with the reciprocal arrangements, it is not true that the United States has a different evidential burden from this country. The probable cause, which is the burden that the United States places on countries that want to extradite from the United States, is analogous to what we now provide under the Extradition Act 2003. It is not correct to say that the United States has been given preferential treatment or that the arrangements in respect of evidence are not reciprocal".—[Hansard, Commons, 5/6/05; col. 807.]

That is simply and totally incorrect. To explain why that is so, we need to go into a little detail. The extradition treaty between the United Kingdom and the United States was signed in 1972 and came into force a few years later, and is still, at least nominally, in force. Under Article VII of that treaty a request for extradition in either direction must be accompanied,

"by such evidence as, according to the law of the requested Party, would justify his committal for trial if the offence had been committed in the territory of the requested Party".

Under that treaty, it was slightly easier to get extradition from the United States to the United Kingdom than the other way around. That was because in England—and, I understand, also in Scotland—committal for trial requires the prosecution to show a case to answer, or, to use the old Latin phrase, a prima facie case. That means the prosecution has to show evidence that, if not challenged or contradicted by evidence from the defendant, would be sufficient to justify conviction.

In the United States, a slightly lower standard is needed for committal: the standard of "probable cause", which was written into the fourth amendment to the American constitution. What is required to meet the standard of probable cause is evidence that would provide a reasonable basis to believe that the person in question committed the offence for which their committal is sought.

The American test is somewhat lower. The test to be satisfied is based on reasonable grounds for belief in guilt, rather than on evidence that, if not contradicted, is capable of proving guilt. I accept that that is a significant, but not enormous, difference. It is far smaller than the difference between having to show reasonable grounds for belief in guilt and having to provide no evidence of guilt at all. In spite of the Government's denial, that is a significant difference, and the Government are in fact misleading us.

I move on to the new treaty, signed on 31 March 2003 and not yet approved by the Senate. If and when that treaty comes into force, the need for evidence is covered by Article 8.3, which says:

"a request for extradition of a person who is sought for prosecution shall be supported by"—

then there are two paragraphs that are irrelevant, so I shall go straight to paragraph (c)—

"for requests to the United States, such information as would provide a reasonable basis to believe that the person sought committed the offense for which extradition is requested".

That applies the test of probable cause for extradition from the United States. No requirement for any corresponding information before extradition from the UK is provided for.

I have two comments on that. First, paragraph (c), which I have quoted, makes it plain, if any proof were necessary, that different standards apply to extradition from the United States and extradition to it. Secondly, reciprocity could be established by simply deleting the words "for requests to the United States" from that paragraph so it was made the same both ways.

I move on to the Extradition Act 2003 and the order made under it in December 2003, the order mentioned in Amendment No. 186. The Extradition Act, as the noble Lord, Lord Kingsland, explained, divides states into two categories: category 1, which consists of the European Union states and a few others where no evidence of guilt is required for extradition on, at least in the EU, a fully reciprocal basis; and category 2, the territories including the USA and many other states.

The noble Lord, Lord Kingsland, has explained that under the Act category 2 states are required to produce evidence that would be sufficient to make a case to answer—that is, the traditional British test—unless, under Section 84(7), the Home Secretary has designated category territories from which such evidence is not required. As we know, such an order was made in December 2003. That included the United States and many other countries, most of them parties to the Council of Europe Convention on Extradition, to which the United Kingdom subscribed in 1991 and under which evidence on reciprocal terms is not required. I should say that the Liberal Democrats were the only party which objected to the inclusion of the United States in the list designated under Section 84(7). That was debated in your Lordships' House on 16 December 2003, when we voted against the order and the Conservatives abstained.

Since that order came into force on 1 January 2004 no supporting evidence of guilt is needed for extradition to the USA, even though the 1972 treaty is still in force. In taking up this position, the Government have made two fundamental errors. First, they should never have agreed to the unequal treaty with the USA. I accept that there could have been no valid objection to lowering the standard for extradition to the USA to the American standard of probable cause. As pointed out already, this could have been achieved by the removal of six words from Article 8.3. There is no justification for the total removal of the need to show some evidence of guilt. Indeed, as again the noble Lord, Lord Kingsland, said, what has happened here shows absolutely the need for parliamentary scrutiny of draft treaties and parliamentary approval as part of the ratification process of treaties entered into by the Government of this country.

The second fundamental error was to designate the USA under Section 84(7) before the 2003 treaty had been ratified by the USA. That was a tactical error because it removed any incentive for the Senate to approve the treaty, which contains some provisions which are to the advantage of the United Kingdom. The treaty has, however, met with opposition in the USA, particularly from Irish-American groups, and those carry considerable weight with a good many senators. So there is no incentive, and I have no expectation that the Senate will approve this treaty in the remotely near future.

More importantly, the designation exposed residents of the United Kingdom to extradition under unequal arrangements at a time when there was no obligation under the treaty or otherwise to do so. The number of people against whom extradition to the USA is currently sought is fairly considerable: it is about 15 or 20. Except for the NatWest Three, these cases are still sub judice and cannot be referred to, but they include a number of senior businessmen and some people against whom extradition is sought on grounds relating to terrorism. Those people are entitled to the same protection from unjust extradition laws as are senior businessmen. That was shown quite clearly by the case of Lotfi Raissi, an Algerian pilot against whom extradition was sought under the 1977 treaty on terrorist grounds, but the supporting evidence totally failed to substantiate the case against him and he was released.

The Government must take action. First, they should recognise the force of opinion in both your Lordships' House and among the public and revoke the 2003 order immediately so far as it applies to the USA. I recognise that there is a time problem here. This Bill will not go back to the House of Commons until late October, so even if the House of Commons were to accept Amendment No. 186, it could not be effective for several months. By that time the NatWest Three and perhaps others will have been extradited to the USA, so immediate action is needed here.

It would be wrong to extradite people when your Lordships' House has agreed to—as I hope it will—amendments which would prevent their extradition and the House of Commons has not had a chance to consider those amendments. If this amendment is agreed to, the Government should at the very least put extradition on hold until the House of Commons has had time to consider it.

Next, the Government should renegotiate the 2003 treaty to remove the six offending words and make the extradition test reciprocal. Amendment No. 186, which would remove the designation of the United States under the 2003 order, is the key amendment. Amendment No. 191A, which stands in my name, is consequential on that because it would prevent any re-designation of the United States under Section 84(7) until a reciprocal treaty had been entered into. I recognise that at present the Extradition Act does not recognise any possibility of a halfway house between having to show a full case to answer and having to produce no evidence at all, so further amendmentsto the Extradition Act may be necessary. But that can be dealt with in due course if the principle is accepted.

I do not accept that the amendment should, asthe noble Lord, Lord Kingsland, suggested, exclude alleged terrorists. The ordeal faced by anyone extradited to the USA on the basis of unfounded allegations of terrorism would in all probability be far worse than the ordeal of people extradited on the basis of unfounded allegations of financial crime. The case of Lotfi Raissi shows that that is a real possibility. As I have already indicated, I would accept a general reduction in the standard of evidence required for extradition to the USA from a prima facie case to one of probable cause.

I agree with everything that the noble Lord, Lord Kingsland, said on the question of forum and have nothing further to say.

This group of amendments is an opportunity to correct a grave injustice which has caught the nation's attention. I ask the Government today to undertake the immediate revocation of the 2003 order and to enter into renegotiation of the 2003 treaty. If they fail to give those undertakings, I hope that the Committee will give an overwhelming endorsement of these amendments.

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Viscount Tenby (Crossbench)

I shall speak briefly and in general terms to support the amendment to which I have added my name.

The mounting concern in the country about the consequences of the Extradition Act will be apparent to anyone who reads the press, watches television or listens to the radio. The salient points have been made repeatedly today and, if I may say so, in a particularly masterly fashion, by the noble Lords, Lord Kingsland and Lord Goodhart. Accordingly, I do not intend to dwell on the technicalities or to refer to individual cases, however heartrending and disturbing they may be. In any event they have been, or will be, covered by more authoritative voices.

However, as I said at Second Reading, I, and I suspect many others, backed the main thrust of the proposals some two and a half years ago as a necessary tool in the fight against terrorism—a cause to which we would all gladly subscribe. Looking back, I freely admit that I may have been naïve, certainly unimaginative, about the possible consequences, particularly now in view of the fact that in the succeeding months the number of extradition requests involving so-called white-collar cases has greatly exceeded those of a terrorist nature.

Since the Bill was passed, some voices have been consistently raised against the way things were going, including that of the noble Baroness, Lady Anelayof St Johns, and, in particular—I apologise if I embarrass him; I am sure that he is not normally embarrassed by such comments—the noble Lord, Lord Goodhart, who has pursued this hare like the legal terrier that he is.

More recently, the Daily Telegraph has mounted an admirable campaign, highlighting the circumstances surrounding the so-called NatWest Three. All these have made an honourable contribution to the fight to right inept and ill thought-out legislation. The principle of reciprocity in extradition seems such a basic requirement that any Government conscious of their responsibility to their citizens would put it at the top of their wish list in any negotiations with another power, however friendly that power might be. Yet this Government have entered into a treaty with the United States where such reciprocity appears to be but a distant aspiration. This is recklessness and irresponsibility towards their citizens on a large scale and is in contrast to the safeguards in other European countries which as a matter of course extend protection to their citizens.

I wish the Minister Godspeed in her flight to Capitol Hill. I am sure that if charm and palpable decency were all, her task with the Senate would be as good as won; but I fear that American politics are not like that, especially in an election year. There seems to be general agreement on the two principal reasons standing in the way of US reciprocity. First, it is alleged that the Irish-American lobby is vigorously opposing implementation for fear that we shall seek the extradition of various IRA fugitives from justice, some of whom are thought to be responsible for very serious crimes indeed. Such a reason is contemptible and really not worthy of a great democracy.

I am more sympathetic to the second reason: that this country is at times dilatory in its prosecution of white-collar crimes, that the prosecutions and trials take too long, and that the sentences often do not reflect the seriousness of the offences. If that is so—and I do not suggest that it is necessarily the case—surely the answer lies in looking to our own arrangements and revising them if necessary, not in providing excuses for other countries, however friendly, to take unacceptable, unilateral steps of their own.

Perhaps the Committee will allow me to make two more observations. The recent trend of the United States becoming the universal nanny, with FBI agents having almost unlimited powers of arrest, seems to be a disturbing development and one which, in the context of this treaty, will have and is beginning to have the most serious implications for the British business community and British industry. I say that as a lifelong admirer and supporter of the USA. Finally, if I could be presumptuous enough to give some homely—one might almost say "good old boy"—advice to the Government, it would be this: I believe that Americans have long respected and admired independence of spirit and standing up for fairness and equality, and signing up to "I surrender; do what you like with me" legislation is not ultimately the way to their hearts.

6:00 pm
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Lord Mayhew of Twysden (Conservative)

I support Amendment No. 186, particularly in the context of the journey that the Minister is about to make to Washington— slightly humiliatingly, it seems to me—to plead for our rights. I do so more generally in real dismay atthe turn that events have taken concerning our arrangements for extradition with the United States. The result of those events is a thoroughly unbalanced, unfair and damaging mess which, to be fair to the Government, they did not intend, but which they certainly ought to have foreseen. The cases of the so-called NatWest Three are emblematic of that mess, but the mess does not originate with them.

The detailed and rather technical components that have created this mess have been very fully and clearly explained this evening, and I would do no one any service to try to put a gloss on them. I shall simply say that real damage is being done to relations with our American friends, even though we know that the Bush Administration have pushed hard for ratification. The trouble is that the Senate, particularly those members who have Irish-American votes in their states, sees no practical need now to proceed to ratify the 2003 treaty. The cases of the NatWest Three have rather luridly brought into prominence the unfairness of the situation that obtains, and comparisons are increasingly being made with other instances where American interests have obliterated any evidence of loyalty to a trusted ally. A pattern is being discerned, and it is not a flattering pattern for America. That can only do increasing harm.

Therefore, I was delighted to hear that the noble Baroness is being despatched to Washington by the Home Secretary. I agree with what has just been said about the assets that she can bring to any cause. We all have the highest regard for her advocacy, as well as for the charm that she rather unfailing and unfairly brings to bear with it. We wish her luck; I wish her luck at any rate. She will be strengthened and not weakened if this House has shown, at last, that the Brits are not patsies; that they have been taken for a long enough ride; and that they have done what the Americans themselves would have done, and a lot sooner: revoke the designation order. I urge the noble Baroness and those who sit behind her to accept that that is language that the Americans understand and respect. Let it therefore arm her for the fight.

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Lord Anderson of Swansea (Labour)

There appears to bea widespread sense of injustice throughout thisCommittee and in the country as a whole. The noble Lord, Lord Goodhart, has exploded the Government's suggestion that the test for the US and that for our own country is equal.

The key question is reciprocity. When the Government proposed the order, we were assured that there would be a fairly rapid ratification by the US Senate, but all those who know US politics know that the Executive propose and Congress disposes. The Senate has no incentive to comply, in spite, no doubt, of the very honeyed and persuasive words of the noble Baroness. When do the Government expect the Senate to ratify the order? It is hardly likely to happen before the mid-term elections, for all sorts of lobbying reasons. US foreign policy and US policy in relation to legal obligations are effectively a conflict of interests and, frankly, the US-Irish interest and the interest in re-election is mightier than anything that we might put to the US at this time. There is no reciprocity; there is no serious prospect, in my judgment, of the US Senate changing its mind, in spite of the noble Baroness's visit. Therefore, there will be no pressure, or at least no sufficient pressure, either from the Executive in a mid-term election year or from us.

The Senate has a constitutional position on treaty ratification. I know well from my previous position chairing the Foreign Affairs Committee in another place that we do not have that constitutional position, but there are constitutional obligations and responsibilities and there are political obligations. Our US friends are proud democrats and they will recognise the proud democracy that is here. There are political imperatives that they must understand when this House, and perhaps also the other place, recognise the injustice in this.

I leave it at that. It is very likely that this Committee will overwhelmingly say that we are dissatisfied with the current imbalance. The question remains what, if anything, the Government will do about it. There will be a clear expression from us. I hope that the Government will respond to the debate, or at least to the vote that will follow, and say that, given the pressure of public opinion, although we value our very close and warm relationship with the US, it must understand the democratic imperatives here and that sense of injustice. I hope that the Government will say firmly, after due reflection, that the matter should be put on hold and that there should not be extradition of those currently faced with that threat.

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Lord Lester of Herne Hill (Advisory Team On Legal Matters, Cross-Portfolio and Non-Portfolio Responsibilities; Liberal Democrat)

Like my noble friend Lord Goodhart, I had the privilege of learning much of my law at a great American law school, Harvard Law School, where I studied constitutional and international law. When the Minister visits that nation's capital, perhaps it might help her if she explained to our American friends—and I am a strong friend of the United States—that what we seek in this short debate is reciprocity in the following sense: that the "probable cause" requirement written into the Fourth Amendment to the United States Constitution be applied both ways, to our citizens and to theirs, so that there is equal constitutional protection for both.

Unfortunately, the Court of Appeal has decided that that protection cannot be provided by the Human Rights Act, which has been trumped in this case. We do not have in this country a constitutional bill of rights that covers the point. As has been said, we do not yet have the treaty scrutiny committee that the committee of the noble Lord, Lord Wakeham, recommended long ago. It might help, and I am sure that it would carry great conviction in the United States, if, armed with the vote from your Lordships' House this evening, that point were made to our American colleagues.

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Lord Rees-Mogg (Crossbench)

I support the amendment on grounds raised by the Prime Minister in the other place last week but which have not been raised here. It relates to whether extradition to the United States under present circumstances reasonably guarantees a fair trial in that country. The real difficulty arises partly out of the plea-bargaining system in the US. The vast majority of convictions are secured by plea bargaining rather than by open trial, which means that the prosecuting authority has an interest in putting pressure on defendants to agree to a plea bargain—to agree to plead guilty on a lesser offence. Many American defendants plead guilty believing themselves to be wholly innocent. We cannot be responsible for that problem with American law, but it should be a matter of concern.

The Prime Minister took the view in his replies to questions put to him on the case of the NatWest Three that there was grave concern about the bail conditions that might or might not be available to the three when they returned to the United States. Apparently, American law has taken it as a norm that if a defendant tries to avoid extradition by going to the courts in his own country to argue against it, that is evidence that the defendant is likely to be a fugitive from justice, given half a chance. As a result, most defendants who protest against extradition are not allowed bail. Alternatively, they may be allowed bail set at a high level, which they may not be able to afford.

The conditions in which remand prisoners are held—not in all states but in some, including Texas, where the three are to be sent—are not such that, in the long period of preparing for a trial, it is reasonably convenient and even possible for defendants to prepare the best defence. They do not have privacy or access to materials required, and, obviously, they do not have free access to witnesses.

Unless there is some provision, through a renegotiation of the treaty—and I can see no other way to get it—that normally, unless there are solid grounds for supposing that British defendants sent to the United States are likely to abscond, they would be given reasonable and proportionate bail during which to prepare their defence, particularly in complex cases, as are most of the present cases, we are only too likely to be extraditing our citizens in order that they should be deprived of the opportunity of preparing their defence in a fair trial. That is the main reason why I support the amendments.

6:15 pm
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Lord Hodgson of Astley Abbotts (Shadow Minister, Home Affairs, Shadow Minister, Trade & Industry; Conservative)

I support my noble friend's amendments. I have followed the issue of UK/US extradition policy with some interest since the difficulties of the current treaty and the arrangements surrounding it were first discussed during the Committee stage of what is now the Extradition Act 2003. Since then, the noble Lord, Lord Goodhart, tabled an Unstarred Question for debate on this subject on 6 December 2004, and I tabled a further Unstarred Question that was debated on 30 June 2005.

My concerns about the extradition arrangements and the reasons why I support my noble friend's amendments can be summarised under the three headings of fundamental imbalance, change of purpose and lack of reciprocity. As a subset of that, I, too, am concerned at how the Government sneaked the treaty through without proper parliamentary scrutiny. That did not reflect well on them at all.

Perhaps I may first consider the second heading, change of purpose, because it has been focused on less by other noble Lords. The treaty was signed inthe aftermath of the terrible events in New York on 11 September 2001, and the Government made it clear at the time that its main use would be to speed up and improve the process by which suspected terrorists would be extradited. In another place, the Government gave assurances that white-collarcrimes would not be the main focus of the treaty. On 15 December 2003, in a debate in the other place, Caroline Flint, speaking for the Government, responded to a Question by Mr Menzies Campbell, MP. She stated:

"We do not have such a range of offences involving financial crime. The cases mentioned by the Financial Times"—

there had been an article in that paper on that day—

"—such as price fixing—would not apply".—[Hansard, Commons, 15/12/03; col. 26.]

Yet, of the 46 extradition requests made by the US between 1 January 2004 and 28 April 2006, 19 related to financial crime and only three to terrorism. Either we have been misled by the Government about the real purpose of the treaty, or the Government have been misled by their US counterparts.

My second area of concern is the fundamental imbalance in the treaty. My noble friend Lord Kingsland, and the noble Lord, Lord Goodhart, have already explained this and I shall not weary the Committee by repeating much of what they have said, except to say that it is clear that the US Department of Justice is hell-bent on using this advantage as widely as possible. At a conference in Las Vegas on3 and 4 March 2005, the deputy assistant Attorney General of the Department of Justice's anti-trust division, Mr Scott Hammond, bragged that the US no longer had to make a prima facie case in support of extradition requests or even provide witness affidavits. He went on to say that hearsay affidavits by the prosecutor were enough and that appeal rights had been curtailed. I shall not detain the Committee by quoting from the speeches in Las Vegas, but I can summarise them by saying that they are testosterone-fuelled.

My third problem is with the lack of reciprocity, given the failure of the US to ratify. It is a scandal that, in the three years since the treaty was signed and brought into force in the UK, the US has failed, despite continued requests to ratify its half—or, perhaps, to be fair, I should say, its quarter—of the agreement. In her reply to the debate that I initiated on 30 June 2005, the noble Baroness stated:

"Nevertheless, the Government are not being complacent...I hope your Lordships will be pleased to learn that my right honourable friend the Home Secretary raised this very matter with the new US Attorney-General Alberto Gonzales, in the margins of the G8 meeting in Sheffield on 16 June. I hope noble Lords will be reassured to know that the Attorney-General had the misfortune to be sitting with me on a bus, from which he could not escape for some considerable time. So I too had the privilege and pleasure of explaining to him in quite graphic detail, why this matter was causing your Lordships acute anxiety".—[Official Report, 30.6/05; col. 410.]

No doubt, as my noble and learned friend Lord Mayhew has pointed out, the noble Baroness was as charming to Mr Gonzales as she always is to this House. Charming she may have been, but persuasive she most certainly was not. It is now 13 months since Sheffield and matters have not moved forward one jot.

The removal of the US from Part 2 of the Extradition Act 2003 would return requests to the same basis as that on which they were conducted under the 1972 treaty, and this will create the reciprocity that I seek. It will also perhaps provide some backbone to the Government's negotiations with the US, which now appears to be conspicuous by its absence.

Finally, I hope that when the noble Baroness comes to reply, she will not fall back on the argument she floated in the Financial Times earlier this week: that approving this amendment would be "an insult" to the US judicial system. Nothing could be further from the truth; it is the extradition treaty that is the insult. Only if the Government were today to state that they had given the six-month notice necessary for the revocation of the treaty under Article 24 would this amendment in any way become superfluous.

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Lord Monson (Crossbench)

In the article in the Financial Times yesterday mentioned by the noble Lord, Lord Hodgson—I say this much more in sorrow than in anger, because I share the general admiration for the noble Baroness expressed in this Committee today—the noble Baroness, Lady Scotland, accused those of us who oppose the Government in this matter and who support these amendments of trying,

"to score an anti-American party-political point".

I wonder if, on reflection, she might concede that this is a wholly unfair accusation and in 99.9 per cent of cases completely untrue. We may strongly disapprove of Guantanamo Bay and of certain aspects of the American penal system. Like my noble friend Lord Rees-Mogg, we may also be uneasy at the plea-bargaining system which is becoming more and more prevalent in the United States, which seems in practice to net some of the slower-witted small fry while letting the wily big fish off the hook. None of this makes us anti-American, not least because so many Americans feel exactly the same way.

In the same article in the Financial Times, the noble Baroness went on to refer quite reasonably and properly to the "alleged conspiracy" and the "alleged co-conspirators", speaking of the NatWest Three. However, in a BBC Radio 4 interview heard by millions two days earlier—on Saturday, 9 July—in arguing that the extradition of the NatWest Three was right and proper, she asserted: "There are"—note that word—"co-conspirators in America". No if's and but's here and no use of the qualifying words "alleged", "possible" or "suspected". Only those guilty of conspiracy can have co-conspirators. It stands to reason. So here we have a clear-cut, prejudicial presumption of guilt. In other words, a senior member of this Government—somebody renowned for her legal skills, talent, expertise and experience—has in effect publicly declared that those whom the Government are happy to have extradited are indeed guilty. How in such circumstances can they possibly receive a fair trial in the United States?

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Baroness Scotland of Asthal (Minister of State (Criminal Justice and Offender Management), Home Office; Labour)

I say straight away that the Government share the feeling of frustration, if not irritation, that the treaty has not been ratified. There are certain myths that I would like to put to rest. Before I attempt to do so, I thank all noble Lords who have showered me with compliments on my ability to persuade, having by the content of their remarks demonstrated my total lack of it.

I turn to the issues raised first by the noble Lord, Lord Kingsland, and then by the noble Lord, Lord Goodhart. I say straight away that both noble Lords have conflated two arguments—the first should properly relate to the Act and the second relates to the treaty. The first myth—I believe it is a myth—is that the Extradition Act 2003 was intended solely or primarily to deal with terrorism. That point was highlighted in today's debate by the noble Lord, Lord Hodgson of Astley Abbotts, among others. I say as gently as I can that that simply is not true. The Act covers all manner of crime that is serious enough to attract a maximum sentence of at least 12 months in prison.

I am sure that noble Lords will remember that we first started to consult comprehensively on this part in March 2001, prior to the 9/11 atrocity. Its origins lay partly in the early development of the European arrest warrant in 1999 and largely in the need to update an extradition system that dated from 1870, the time of Gladstone. It indicated that the old system was, if I may use the phrase, no longer fit for purpose at the advent of the 21st century, when crime had become ever more global. There are, even now, cases which have been going on for years under the old legislation. Many noble Lords remember the case of Ramda, in which it took over 10 years to extradite to France an individual alleged to have been a terrorist who blew up the St Michel metro station in Paris. Subsequently that individual has been dealt with.

The Home Office review published in 2001 set out the basics of what would become the new Act. Although much has been made of white-collar crime, your Lordships will remember that fraud cases, which are the majority of the cases under the new Act, are a much wider offence than the limited nature of offences to which the article in the Times referred. The cases range from murder, rape, drugs, money laundering, child pornography and robbery to sexual offences in relation to children and so on.

The second myth, implicit in the comments of the noble Lord, Lord Goodhart, is that the US needs to provide us with next to none or no information when making a request. That is not accurate either. To substantiate an application for extradition, the United States has to satisfy the provisions in Section 71 of the Act. I remind the Committee, just in case this has been expunged from noble Lords' memory, that Section 71 provides that:

"The judge may issue a warrant for the arrest of the person whose extradition is requested if the judge has reasonable grounds for believing...that the offence in respect of which extradition is requested is an extradition offence, and...there is evidence falling within subsection (3)".

Subsection (3) outlines the precise evidence, and that is,

"evidence that would justify the issue of a warrant for the arrest of a person accused of the offence within the judge's jurisdiction, if the person whose extradition is requested is accused of the commission of the offence...[or] evidence that would justify the issue of a warrant for the arrest of a person unlawfully at large after conviction of the offence within the judge's jurisdiction, if the person whose extradition is requested is alleged to be unlawfully at large after conviction of the offence".

That test is similar, although not identical, to probable cause. But it goes further: in order for the United States to make a request to us, they have to satisfy themselves that in accordance with their law, there is sufficient evidence to establish probable cause. So, before it is entitled to issue a warrant or make an application for the extradition, that test has to be made, and all the requests made of us by the US must satisfy its test of probable cause. That is the evidence that it sends to us.

6:30 pm
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Lord Goodhart (Spokesperson in the Lords (Shadow Lord Chancellor), Constitutional Affairs, Advisory Team On Legal Matters, Cross-Portfolio and Non-Portfolio Responsibilities; Liberal Democrat)

I am grateful to the noble Baroness for giving way. Is she suggesting that the view of an American judge on the existence of probable cause, which is one in which the Americans have a very clear interest, can be relied upon without being confirmed by a judge in the United Kingdom?

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Baroness Scotland of Asthal (Minister of State (Criminal Justice and Offender Management), Home Office; Labour)

I think that it can to the following extent. A process has to be gone through in the United States in order to allow the Americans to make the request within their rules. They will have to satisfy themselves that there is a case in relation to probable cause. They, and we, are content that Section 71 of the 2003 Act, which refers to evidence, can be read in relation to the information that is provided in a similar way. So there is no dissonance between the prosecution authorities in our country and the US on that matter.

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Lord Anderson of Swansea (Labour)

If, as my noble friend says, there is currently an equivalence of test, why all the fuss about ratification and why the visit to Senator Lugar? Why are we putting pressure on the Senate and on the US Administration?

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Baroness Scotland of Asthal (Minister of State (Criminal Justice and Offender Management), Home Office; Labour)

I can answer that very simply. As I tried to establish, there is a conflation of two issues. The first relates to the 2003 Act. When this matter was debated in 2003, we asked whether there should be a benchmark to apply to all the countries with which we were in comity and whether that should be the test, irrespective of the arrangement that we had with them or they had with us. We decided that that benchmark should be maintained. Some of the provisions in the 2003 Act are replicated in our treaty with the Americans. But we and the Americans will not be able to take advantage of certain provisions—for example, on temporary surrender—unless and until the treaty is ratified.

So there are provisions in the 2003 Act of which the United States can avail itself in the same way as can all the other countries listed in the same part of Part 2 of the order. There is a broad spectrum of countries in that category, from Algeria right the way down to New Zealand. It is a very broad spectrum in which the United States is but one country. We decided that there was no cogent reason why we should treat the US significantly differently from how we were minded to treat the other countries in the same schedule.

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Lord Tebbit (Conservative)

I hope that the noble Baroness can help me because, as she knows, I am not a lawyer and I do not understand these things very well. If the tests are the same on both sides of the ocean, can she say why we have rarely been successful—in fact, I think we have never been successful—in extraditing from the United States an IRA alleged fugitive from justice?

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Baroness Scotland of Asthal (Minister of State (Criminal Justice and Offender Management), Home Office; Labour)

The noble Lord will know that we have been successful in extraditing many people from the United States. Indeed, under the 2003 Act, so far we have had no refusals of whatever nature from the United States. All the applications that we have made have either been granted or are currently under consideration. So, in relation to the benefits of the 2003 Act, as opposed to what went on before, I can only reassure the noble Lord that that difficulty does not seem to be present now.

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Lord Lester of Herne Hill (Advisory Team On Legal Matters, Cross-Portfolio and Non-Portfolio Responsibilities; Liberal Democrat)

If all is as the Minister described, can she explain why Irish-Americans are opposing ratification?

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Baroness Scotland of Asthal (Minister of State (Criminal Justice and Offender Management), Home Office; Labour)

I cannot answer the noble Lord on the issue of Irish-Americans, but I can tell the Committee that this matter is being vigorously debated in the United States Senate and that people are taking different views. One issue raised is whether Irish-Americans are influencing that, but I think that it would be wrong for me to comment. I should correct myself: earlier I think that I said Algeriawhen I meant Albania. I was conflating the two inappropriately.

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Lord Thomas of Gresford (Spokesperson in the Lords (Shadow Attorney General), Home Affairs, Advisory Team On Legal Matters, Cross-Portfolio and Non-Portfolio Responsibilities; Liberal Democrat)

Does the Minister agree that all that has to be done now is for an American investigator, through a lawyer, to say that there is a case and we will send someone back to the United States? That is not the situation in the United States, where primary evidence is required to show that there is probable cause.

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Baroness Scotland of Asthal (Minister of State (Criminal Justice and Offender Management), Home Office; Labour)

That is not right. Section 71 sets out clearly that the evidence would have to be sufficient to justify the issue of a warrant for the arrest of a person accused of that offence.

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Lord Thomas of Gresford (Spokesperson in the Lords (Shadow Attorney General), Home Affairs, Advisory Team On Legal Matters, Cross-Portfolio and Non-Portfolio Responsibilities; Liberal Democrat)

I—

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Baroness Scotland of Asthal (Minister of State (Criminal Justice and Offender Management), Home Office; Labour)

I shall not give way just now. I had reached the second myth and there are still several to go. I am sure that I shall be able to respond but I invite the Committee to allow me to attempt to respond to the questions that noble Lords have already raised before I go on to deal with the rest.

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Lord Mayhew of Twysden (Conservative)

I may be able to save the noble Baroness from the risk of misleading the Committee. She referred us to Section 71 but she did not refer us to Section 71(4), which says that, if the requesting country is a category 2 territory which is designated for the purpose, you do not have to read that section as requiring evidence because information will do. That is a very different matter, as I am sure the noble Baroness will agree.

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Baroness Scotland of Asthal (Minister of State (Criminal Justice and Offender Management), Home Office; Labour)

I tried to correct myself. I said "evidence" and then "information", correcting myself on the second occasion. The noble and learned Lord, Lord Mayhew, is right. However, we say that the information sent is sufficient to justify the issue of the warrant. Noble Lords will know that the information sent in the Enron Three case involved affidavits and various other data. I say that because I have now had the benefit of reading Lord Justice Laws's full judgment. If the noble and learned Lord, Lord Mayhew, has looked at the content and identification of the evidence or information provided, as I am sure he has done, he will have seen that it appears to have been fairly comprehensive in the way in which it was referred to by the court.

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Lord Thomas of Gresford (Spokesperson in the Lords (Shadow Attorney General), Home Affairs, Advisory Team On Legal Matters, Cross-Portfolio and Non-Portfolio Responsibilities; Liberal Democrat)

Does the Minister agree that information is not evidence and that there is no basic evidence put before a court in this country upon which a judge can make a judicial decision?

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Baroness Scotland of Asthal (Minister of State (Criminal Justice and Offender Management), Home Office; Labour)

I do not agree. Prior to reading the decision of Lord Justice Laws andMr Justice Ouseley, I would have said that, on the basis of belief and assumption. However, having read the judgment, I can see very clearly that the evidence and information provided was of a very substantial nature. So information has to be provided, and I argue that it is clear that that information is of a fairly high or good quality.

We do not accept that there is such a lack of reciprocity as to justify removing the United States from the group in which it currently sits with many other countries. If we remove the US for white-collar crime—or fraud, to give it its proper title—and for everything save terror, we will disable ourselves and the United States in dealing expeditiously with a number of other pernicious offences: sexual offences, such as rape; capital offences in the US, such as murder; and many others, too. I do not believe that that will inure to our country's benefit or indeed to that of the United States.

I have dealt in part with the third myth, which is that there is no reciprocal arrangement or direct reciprocity. As I tried to explain, and I hope the Committee will accept—although there is not exact reciprocity, which is almost impossible between any two legal systems—when we have looked at the matter—and we have been asked to do so many times; it was first raised, as the noble Lord, Lord Goodhart, rightly said, in 2003—we have been content with the view that we arrived at a while ago: namely, that we have appropriate parity.

We have discussed this matter with the United States and are entirely satisfied that the way that they interpret the phrase that I have just used—

"such information as would provide a reasonable basis to believe that the person sought committed the offence for which extradition is requested"—

is broadly equivalent to the way in which they use the phrase "probable cause". There is no dissonance between us and them. That is broadly the information required to justify the issue of an arrest warrant in both countries. That is why I say that there is parity and there is not an issue regarding lack of reciprocity. Perhaps I can underline the point on reciprocity. When US prosecutors make a request to us—and this is the point we have had clarified for us—they have to justify just the same test, because they have to include their domestic arrest warrant in their request to us. As I said, that means that they have to satisfy their own magistrate on probable cause. We believe that that helps to demonstrate reciprocity.

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Lord Richard (Labour)

My noble friend says that there is broad parity and broad reciprocity. What, then, is she going to try to persuade the Senate to do? If the arrangements are already reciprocal, why is she being sent out to Washington with a brief to sit down and persuade the Senate that it should now ratify something that may not be as reciprocal as what they've got?

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Baroness Scotland of Asthal (Minister of State (Criminal Justice and Offender Management), Home Office; Labour)

The reason is that there has been an unfortunate conflation between the failure to ratify the treaty and the terms that exist between us and them as a result of the 2003 Act. In the public mind, as has been evidenced in this Committee today, there is an erroneous belief that we have to remove our citizens to America without any evidence at all—that is the import of what is suggested—while they are not obliged to do the same for us. As there is antipathy for the failure to ratify, there is a lack of confidence—a reduction in confidence—that we and many of our citizens enjoy with the United States. It is damaging to our relationship for this confusion to continue. For that reason, we believe that it may be helpful for me to make those points clear, on a face-to-face basis, in America.

The fourth myth is that the basis on which cases such as the Enron Three have been decided is fundamentally flawed and that these three people are to be extradited because of a failure to ratify the treaty. That is simply not correct. The treaty is not yet in force but, as I hope the Committee will now be aware, the arrangements under the Extradition Act 2003 which set the current procedures for extradition requests to the United Kingdom fromall extradition partners would have operated to allow the extradition of the three people accused of involvement in the Enron fraud. So although in making the arrangements we implemented the part of the treaty that allows that to happen, the information requirement remains.

The fifth myth is that the United Kingdom has insufficient safeguards for its citizens within the arrangements. That too is simply not true. I have set out the safeguards on many occasions but it may be appropriate if I quickly summarise them: identity, dual criminality, a request made for improper reasons, double jeopardy; injustice due to illness, ill health or passage of time, and the human rights provision. The human rights safeguard is important. I hear what the noble Lord, Lord Lester, says about the import of the case of the Enron Three, but that is not the full conclusion that one reaches when reading the decision. In this decision the court referred specifically to Article 8 of the convention and the comments were made in relation to that and not to the whole of the ECHR. At the end of the judgment, Lord Justice Laws said in terms that, in any event, for the reasons that I gave in dealing with the appeal against the judge, the defendants had and have no ECHR case. The court reached a general view that the defendants in the Enron Three case had no ECHR case. I know that the noble Lord, Lord Lester, will agree that Lord Justice Laws and Mr Justice Ouseley are nothing if not expert in the Human Rights Act and the ECHR. And that was their finding. I still believe that the Human Rights Act provides a very important safeguard regarding this treaty. The last two safeguards concern the death penalty and speciality.

The sixth and final myth—although there seem to have been so many myths that it is difficult to know when to stop—is that people may be extradited without a nexus being established with the jurisdiction requesting their extradition. That has arisen in the Enron Three case. In fact, the courts must find that a request is extraditable. In the Enron Three case, the courts found that the alleged conduct had taken place in the United States, and of course the money which the men are alleged to have made was in Enron dollars and Enron shares. Even if the extradition is sought by any other country for offences that are extra-territorial, then we must recognise those offences also as extra-territorial under the extradition principle of dual criminality enshrined in the Act. In the judgment in that case, the court specifically dealt with those matters. One myth which seems to have been promulgated is that this was a British case. The judges dealt with that very specifically in upholding the decision in the Enron Three case. In paragraph 47 they said:

"The losers were Enron and National Westminster Bank...

This is a case where the evidence is to be found in the United Kingdom, Cayman Islands and the United States of America. In particular the other participants in the alleged conspiracy—Kopper and Fastow—are to be dealt with in, and are available to give evidence in, the United States. In these circumstances I think it more likely to be in the interests of justice for your clients to be tried in the United States".

The issue of forum was dealt with comprehensively and looked at, and it was a proper matter to be dealt with by the courts here. It is therefore simply not right that cases with no nexus with our country can be dealt with in this way.

When the Act was in preparation, thought had to be given to the basis on which we differentiate between our extradition partners. We already had a large group of more than 40 countries from which we did not require prima facie evidence, consisting of most of the countries of continental Europe under arrangements set up by the Conservative Government in 1991, when they acceded to the Council of Europe's European Convention on Extradition. Israel and South Africa, as associate members of the Council of Europe, also participate in the ECE. We have had an international obligation ever since to every country that has joined the ECE. That includes countries such as Albania and Azerbaijan, to take just the beginning of the alphabet. I remind noble Lords who may be concerned about how such requests are dealt with that the Human Rights Act applies.

The question then arose of how to deal with non-Council of Europe countries with whom we have close relations. Those include not just the United States but also Australia, Canada and New Zealand. It is worth noting that those countries allow us to make requests not just on comparable terms but, in the case of New Zealand, on terms quite similar to those of the European arrest warrant; and for Canada simply on the basis of a statement of the case, which is probably rather less than probable cause. In sum, then, the removal of the prima facie requirement, although not appropriate for every country, is consistent with the faster and more flexible approach to extradition that is needed in the modern world. There is no benefit to anyone in our judges having to hold mini-trials on the facts in an extradition case when we can trust the requesting state to hold a fair trial of the evidence.

That leads me to what I respectfully but regretfully say to the noble Lord, Lord Rees-Mogg, was a caricature of the American system. The American system believes in fair trials, legal representation, the ability of individuals to appeal and just delivery. To caricature the United States as a country that operates differently from that is most regrettable.

6:45 pm
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Lord Rees-Mogg (Crossbench)

Would the Minister not agree that the standards of justice and the standards of prisons, which are very important in this case, vary enormously from state to state? Generalisations cannot safely be made about the quality of justice in the United States. Some of it is as good as justice anywhere in the world, and perhaps better; some of it is deeply unsatisfactory.

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Baroness Scotland of Asthal (Minister of State (Criminal Justice and Offender Management), Home Office; Labour)

I hear what the noble Lord says, but the United States of America is the United States of America. It would be as invidious to compare Dorset with Manchester and Manchester with London and to say that it is variable.

Noble Lords:

Oh!

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Baroness Scotland of Asthal (Minister of State (Criminal Justice and Offender Management), Home Office; Labour)

It is the reality of where we are. The United States has a system that is part federal and part state. Within that system there is an allowance for difference. We cannot recast the United States into a way that we would prefer.

I turn to some of the very specific issues raised by noble Lords. The noble and learned Lord, Lord Mayhew, suggested that we would be strengthenedif this Committee resoundingly supported this amendment. However, that is not the likely consequence or reaction that the United States may have to such an act. We have to look very carefully indeed at the basis on which we could logically justify removing the United States from Part 2 and the order in which it currently fits while allowing other states—which may also not have a treaty that inures to their benefit—to have the benefits and stay in the same place. That is a real difficulty.

The noble and learned Lord also asked me to deal with the issue of forum. We basically find ourselves in the following position: having extended inclusionto the United States, we would be removing it notwithstanding the fact that, as Ambassador Tuttle made clear in the article he put in the Financial Times, it has honoured requests from us. It has surrendered people from its jurisdiction to ours and believes that, in so doing, it has behaved honourably and well and in comity to us. So in practice the question would be: on what basis do we say that the US has behaved so improperly that it should be deprived of a benefit granted to it, a benefit from which we too have already benefited? I have heard nothing this evening that would give me comfort about what I could say to it to explain that.

I am aware of the frequently expressed concernof the noble Lord, Lord Goodhart, about the designation of the United States; indeed we have debated the point on more than one occasion. The amendment would require the United States once more to provide prima facie evidence with its extradition request, as it did before the Extradition Act 2003. I was grateful to the noble Lord for his acceptance that the prima facie evidence standard is greater than the United States has ever asked from us. As a result, on Amendment No. 191, we think thatan insistence on precise reciprocity of evidential requirement between our two jurisdictions before the United States could be re-designated would be flawed. The amendment is unnecessary because the arrangements currently in place achieve, as I have tried to indicate, a reasonable balance.

The forum argument can be well dealt with by virtue of what happened in the Enron Three case. The forum issue could quite properly be discussed. The court considered all the issues on those matters that the noble Lord, Lord Kingsland, has set out. We believe that the current system allows those issues to be dealt with in an efficacious way.

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Lord Brittan of Spennithorne (Conservative)

If the current situation is so entirely satisfactory, as the Minister seems to be saying, why on earth do we want the treaty to be ratified by the United States? Is it really just in order to clarify the situation and to destroy the myths that she has referred to? If not, what benefits will we get from ratification of the treaty which we do not have at the moment? She has not said anything about that.

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Baroness Scotland of Asthal (Minister of State (Criminal Justice and Offender Management), Home Office; Labour)

I have, but I am very happy to clarify it. One of the main benefits that we will get from the treaty, which we do not have now, concerns temporary surrender. That is important, but so is the removal of time limits. At the moment each extradition offence in the United States has a limit attached to it. So, for example, if we had evidence in our country that better identifies an offender through DNA—and our DNA work is so much better than it was 20 or 30 years ago; because of the incredible advances we are identifying perpetrators of pernicious, awful crimes as we could not do 20 or 30 years ago—because of the statute of limitations which applies to the different offences, and under the treaty currently, we could well have real difficulty extraditing people to this country to stand trial. If we had the benefit of the treaty, those matters would be much easier. So there are a number of benefits that go beyond the basic provisions of the 2003 Act. Neither we nor the United States would be able to take advantage of those provisions unless and until we ratified in the way that we have both wanted for a long time. Its ratification and our ratification will give to our respective countries the full benefit of the treaty which we have now wanted for a considerable period.

I can certainly assure noble Lords that I will leave the United States in no doubt whatever of the passion that is felt on this matter and the depth of concern that your Lordships have expressed. I say to the noble Lord, Lord Hodgson of Astley Abbotts, that it appears that our joint advocacy may have had some influence on Attorney General Gonzales, because he has been a vociferous supporter of ratifying the treaty. However, the Senate is very much like this place: it may listen, but it is not always persuadable.

7:00 pm
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Lord Phillips of Sudbury (Spokesperson in the Lords (Id Cards & Charities Bill), Home Affairs; Liberal Democrat)

May I ask the noble Baroness a question that may be in the minds of many Members of the Committee, especially the non-lawyers? We have heard a very engaged debate, conducted on this side by two highly distinguished Queen's Counsel—experienced lawyers—supported by no fewer than four other Queen's Counsel, some of them former Officers of the Crown. Is the noble Baroness saying that the six of them, not to mention the other distinguished contributors in favour of the amendments, are completely wrong and that they are building the amendment and their arguments on a phantasm and that, in effect, reciprocity already exists and all due process and protections are in place? It is a bizarre debate.

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Baroness Scotland of Asthal (Minister of State (Criminal Justice and Offender Management), Home Office; Labour)

What I am saying quite clearly is that, first, I understand the strength of feeling that has been expressed in this Committee as a result of the failure to ratify the treaty. The expression has been about fairness—that it is unfair that the Americans should have any portion of the advantage that was inherent in the 2003 treaty without having ratified. I understand the nature of that assertion.

I also understand that there is an argument as to whether there is perfect parity between evidence necessary to justify the issue of a warrant and probable cause. I have tried to explain to the Committee why I believe that the anxiety about those two matters is flawed—first, because the Americans have accepted that the two tests are very similar; secondly, and much more importantly, they have to satisfy the probable cause test before they ask for extradition from us. The information that they have been sending us seems to comply with that test.

So our position is that we do not see why America should be treated significantly differently from the other countries which currently have the advantage of that part of the Act. I have heard nothing in this debate to give any justification for that differentiation.

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Lord Christopher (Labour)

Would my noble friend be kind enough to confirm that I have heard and interpreted her correctly: that this is about serious alleged offences having taken place in the United States and that the evidence, or the principal evidence, for those alleged offences is in the United States and would probably not be available here?

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Baroness Scotland of Asthal (Minister of State (Criminal Justice and Offender Management), Home Office; Labour)

That is what the decision of Lord Justice Laws and Mr Justice Ouseley appears to make crystal clear.

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Lord Kingsland (Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament; Conservative)

I can be relatively—indeed, exceedingly—telegraphic. At the beginning of her response to this debate, the noble Baroness accused both me and the noble Lord, Lord Goodhart, of conflating the issues. I hope that when she reflects on what has been said today, she will disagree with her own assessment. Both the noble Lord and I have made clear from the outset that there were two distinct issues in the debate. The first was ratification; the second was reciprocity.

The noble Baroness has said very little about ratification. She has not explained to your Lordships' satisfaction—I trust, when we come to the vote—why the United States should be having its cake and eating it, why it should have all the benefits and none of the burdens of the treaty—not that the burdens of the treaty are very great. I can understand that, for a short period, that might be acceptable; but for two and a half years, it is not.

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Baroness Scotland of Asthal (Minister of State (Criminal Justice and Offender Management), Home Office; Labour)

I had hoped thatthe noble Lord had understood what I have said: that the United States does not have the full benefit of the treaty. It has those benefits that we have given each country that appears in Part 2, in which it sits. It has nothing more than that and if it wishes to have the benefit of the further provisions, it must ratify the treaty.

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Lord Kingsland (Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament; Conservative)

It is plain from the recent Court of Appeal decision that it has the full benefits of the treaty. It is equally plain that we have none of them. That is why we tabled Amendment No. 186.

I said at the outset that I would deal with all the other amendments in opening; I have done so. I shall now deal with the other amendments in closing. Central to the response of the noble Baroness has been her contention that the tests in the treaty signed by Mr Blunkett and Mr Ashcroft are essentially of equal weight. That is not something that she said in response to the debate on the 2003 provision; but she is saying it now.

I draw the attention of the noble Baroness to Article 8 of the 2003 extradition treaty. That deals with extradition procedures and required documents. Paragraph 3 states:

"In addition to the requirements in paragraph 2 of this Article, a request for extradition of a person who is sought for prosecution shall be supported by:

(a) a copy of the warrant or order of arrest issued by a judge or other competent authority;

(b) a copy of the charging document, if any; and

(c) for requests to the United States, such information as would provide a reasonable basis to believe that the person sought committed the offense for which extradition is requested".

There is no equivalent provision in the article for the United Kingdom. I simply do not believe it credible that the assertions of the noble Baroness about probable cause, made in response to the noble Lord, Lord Goodhart, can possibly be right.

The noble Baroness dealt very briefly with the issue of forums. We have signed a treaty not just with our European partners, but with all those European states which have signed up to the European convention, enshrining the forum concept contained in our Amendment No. 189. That provides that the judge ought to decide, in all the circumstances of the case, if an offence was capable of being prosecuted in this country, whether it should be prosecuted here or go abroad—whether to the United States or otherwise. That is a very simple amendment that the noble Baroness could make to the Extradition Act 2003. She has given no indication that she intends to do so. That would be an easy way out for her. If we had that forum test, it would prevent further pressure being placed on her to renegotiate the treaty itself.

As for the human rights protections, I was very surprised to hear the noble Baroness saying that she thought that the human rights issues had been dealt with satisfactorily by the Court of Appeal. Of course they had in the context of the existing law but, in terms of an appropriate balance between the extradition treaty and the human rights convention, the decision of the Court of Appeal revealed that amendments are necessary to rebalance the rights of individuals when they face extradition proceedings.

A number of noble Lords suggested that the Minister had conducted her response extremely charmingly but equally extremely unpersuasively. If I had received a set of instructions, such as those given to the Minister, from a solicitor, I would certainly have returned them immediately. I wish to test the opinion of the Committee.

On Question, Whether the said amendment(No. 186) shall be agreed to?

Their Lordships divided: Contents, 218; Not-Contents, 116.

Division number 1

See full list of votes (From The Public Whip)

Resolved in the affirmative, and amendment agreed to accordingly.

Schedule 14 [Extradition]:

7:23 pm
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Lord Kingsland (Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament; Conservative)

moved Amendment No. 187:

Page 134, line 3, at end insert-

"(j) forum.";"

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Lord Kingsland (Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament; Conservative)

I believe that Amendments Nos. 188, 189 and 190 are consequential on Amendment No. 187. I have already spoken to the amendment and I beg to move.

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Baroness Scotland of Asthal (Minister of State (Criminal Justice and Offender Management), Home Office; Labour)

This group of amendments were briefly alluded to in our debate on the previous group, but the arguments were not developed. It is our view that these two groups are significantly different from each other. In order to complete those arguments, it may be right for me to put on record our fuller contentions. Bearing in mind the previous vote, I appreciate that a Division on this amendment is likely to have the same result. So, to complete the slap which this House wishes to give the other place, I want to make it plain that on behalf of the Government I did justice to the arguments that were put.

The effect of the amendments would be to require the district judge in an extradition hearing to decide whether the wanted person should be tried in the United Kingdom if the person is not to be let free. I would suggest that that would not be practicable in the United Kingdom, as it is not required of judgesin any other context. It is the prosecuting authorities in the United Kingdom which decide whether to bring a prosecution, basing their decision on the usual public interest test. When a person is sought for extradition, there is right now no legal bar to stop the prosecuting authorities from deciding to launch a domestic prosecution for the extradition offences, provided there is the jurisdiction to do that. If a domestic prosecution was launched, the extradition request would be adjourned. It would almost always be terminated if the person was later acquitted or convicted of the offence.

That part of the amendment which requires the judge to take into account whether the competent UK authorities have decided not to prosecute would introduce a possible cause of delay to extradition proceedings, as judges might have to adjourn to ascertain the position of those authorities which may not even be aware of the allegation. If the authorities decline to take a decision on these matters, to what extent would that help the judge decide whether it is in the interest of justice that a person should be tried in the requesting state? Those matters were not dealt with by the noble Lord, Lord Kingsland.

Even if the judge had such a thing as a clear decision before him, would that really assist him? A decision not to prosecute domestically might bean indication that the circumstances favoured prosecution taking place in the requesting state; but that is not a test which our prosecuting authorities are required to apply. Nor could a judge take such a decision as an indication that no prosecution should take place, even in the requesting state. A decision on that basis would risk breaching our international obligations to the state which has decided that it is able to try the wanted person.

In summary, this part of the amendment would not have the effect that the noble Lord anticipates. It would not provide the necessary assistance to the judge. Although both the framework decision onthe European arrest warrant and the European Convention on Extradition have an optional ground for refusal of extradition where the offence was committed in whole or in part in the territory of the requested state, the United Kingdom has chosen not to implement this ground for refusal explicitly inits law.

The United Kingdom has in the 1989 and the 2003 Extradition Acts implemented a slightly different ground for refusal. It is based on dual criminality where the offences for the wanted person were committed outside the requesting state. In the interests of justice, the United Kingdom took the view when enacting both Acts, that extradition could proceed where the person was wanted for conduct committed at least partly in the United Kingdom, providing that the UK had the same jurisdiction to try the conduct if it had occurred outside the UK. That degree of flexibility is important in many extradition cases where the person is wanted for complex cross-border crimes concerning, for example, people trafficking, drugs trafficking and money-laundering, and where in theory a number of states had jurisdiction to try the case. An example, of course, is the Enron Three case where the court, in reviewing the decision by the Serious Fraud Office not to prosecute, came to the conclusion that this was an American case and that the prosecution should take place in that country.

Finally, if there was to be any way forward on the issue of forum, it would have to take into account the need not to fetter the discretion of our independent prosecuting authorities. It would have to be a solution that would not introduce unnecessary delays in the system. It would have to meet our international obligations; and it would indeed have to operate in the interests of justice. We have a proud history of our prosecutors being able to make independent decisions free from the Executive and free from any other improper influence. I therefore urge your Lordships not to confuse the two amendments—they are separate and distinct—and not to press this amendment at this time. Having had a resounding success, I invite the noble Lord, Lord Kingsland, to be content with that and not to press this amendment at this stage.

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Lord Kingsland (Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament; Conservative)

I spoke to these amendments at an earlier point and there is only one additional matter to which I wish to draw the attention of noble Lords. I am prompted to do so by the comments of the noble Baroness about the appropriateness of the judiciary making judgments about forums.

The United Kingdom has been a party to two European conventions; one is the Council Framework Decision of 13 June 2000 on the European arrest warrant and surrender procedures and the other is the European Convention on Extradition. Paragraph 7 of Article 4 of the Council Framework Decision states:

"The executing judicial authority shall refuse to execute the European arrest warrant,

7. where the European arrest warrant relates to offences which:

(a) are regarded by the law of the executing member state as having been committed in whole or in part in the territory of the executing member state or in a place treated as such".

So during the term of office of this Government they have agreed, on behalf of the United Kingdom, to that clause in that decision. It is quite plain that we think a judge is entitled to take that decision. Similar provisions are set out in Article 7 of the European Convention on Extradition.

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Lord Tebbit (Conservative)

I wonder if my noble friend could help me on a point. I have heard several references this evening to the Enron Three. Who are these three people who presumably have been convicted in a court of law of having some connection with Enron?

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Lord Kingsland (Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament; Conservative)

I share the conclusion reached by my noble friend. I understood them to be described as the NatWest Three because it has been alleged that they sought to defraud NatWest. I know nothing about any fraud on Enron.

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Baroness Scotland of Asthal (Minister of State (Criminal Justice and Offender Management), Home Office; Labour)

Since it was I who referred to the Enron Three, for his erudition I invite the noble Lord to look at paragraph 66 of the judgment of Lord Justice Laws and Mr Justice Ouseley who said that,

"It is important that on the prosecution case the benefit received by the defendants and their alleged co-conspirators was derived from funds paid by Enron on the strength of false representations made to the company by Fastow. Enron was deceived into parting with 20 million US dollars. What the director thought about the views of the City of London Police in 2002 is in my view neither here nor there".

So the court thinks that they are the Enron Three.

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Lord Kingsland (Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament; Conservative)

I am not aware, at this stage of the judgment, that the court is entitled to take any view about guilt or innocence. That, I thought, was the whole point of the noble Baroness' argument right at the beginning.

Photo of Baroness Scotland of Asthal

Baroness Scotland of Asthal (Minister of State (Criminal Justice and Offender Management), Home Office; Labour)

I agree. I am simply seeking to clarify why I referred to them as the Enron Three. I did so because in the judgment it appears that the allegation—it is but an allegation—is that it was Enron which was defrauded in the way complained of. That is not my judgment; it is not what the Government say; I am simply referring to the judgment of Lord Justice Laws and Mr Justice Ouseley.

Photo of Lord Kingsland

Lord Kingsland (Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament; Conservative)

If what was said in paragraph 66 of the judgment of the Court of Appeal was not intended as a reflection either on their innocence or guilt, how can that paragraph possibly be an answer to my noble friend's question? I wish to test the opinion of the Committee.

On Question, Whether the said amendment(No. 187) shall be agreed to?

Their Lordships divided: Contents, 192; Not-Contents, 109.

Division number 2

See full list of votes (From The Public Whip)

Resolved in the affirmative, and amendment agreed to accordingly.

7:45 pm
Photo of Lord Kingsland

Lord Kingsland (Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament; Conservative)

moved Amendments Nos. 188 to 190:

Page 134, line 5, leave out "19A"" and insert "19B""

Page 134, line 23, at end insert-

"19B FORUM.

(1) If the conduct disclosed by the request was committed partly in the United Kingdom, the judge shall not order the extradition of the person unless it appears in the light of all the circumstances that it would be in the interests of justice that the person should be tried in the category 1 territory.

(2) In deciding whether extradition is in the interests of justice, the judge shall take into account whether the competent United Kingdom authorities have decided to refrain from prosecuting the person whose surrender is sought for the conduct constituting the offence for which extradition is requested.""

Page 142, line 5, at end insert-

"Bars to extradition

(1) Section 79 (bars to extradition) is amended as follows.

(2) After paragraph (d) of subsection (1) there is inserted-

"(e) forum."

(3) In subsection (2), for "83" there is substituted "83A".

(4) After section 83 there is inserted-

"83A FORUM

(1) If the conduct disclosed by the request was committed partly in the United Kingdom, the judge shall not order the extradition of the person unless it appears in the light of all the circumstances that it would be in the interests of justice that the person should be tried in the category 2 territory.

(2) In deciding whether extradition is in the interests of justice, the judge shall take into account whether the competent United Kingdom authorities have decided to refrain from prosecuting the person whose surrender is sought for the conduct constituting the offence for which extradition is requested.""

On Question, amendments agreed to.

[Amendment No. 191 not moved.]

Photo of Lord Goodhart

Lord Goodhart (Spokesperson in the Lords (Shadow Lord Chancellor), Constitutional Affairs, Advisory Team On Legal Matters, Cross-Portfolio and Non-Portfolio Responsibilities; Liberal Democrat)

moved Amendment No. 191A:

Page 142, line 5, at end insert-

"14A (1) Section 84 (case where person has not been convicted) is amended as follows.

(2) After subsection (7) there is inserted-

"(7A) The Secretary of State may not make an order under subsection (7) designating the United States of America for the purposes of this section unless there is in force an agreement with the United States of America pursuant to which an order for the extradition of persons from the United States of America to the United Kingdom may be obtained in terms relating to the production of information and evidence similar to those which apply to extradition from the United Kingdom to the United States of America after the designation takes effect.""

On Question, amendment agreed to.

Schedule 14, as amended, agreed to.

Photo of Lord Bassam of Brighton

Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

I beg to move that the House be resumed. In moving the Motion I propose that the House should again consider the Bill in Committee no later than 8.45 pm.

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

House resumed.