I beg to move, That the Bill be now read a Second time.
I am pleased to introduce this important Bill. The House will understand that my right hon. Friend the Home Secretary is indisposed, but I am sure that he will be back with us shortly.
This important Bill will bring what are essentially 19th-century extradition arrangements into the very different world of the 21st century. The main legislation that it will replace is the Extradition Act 1989, which, of course, was a consolidation measure that included large chunks of the Extradition Act 1870. The 1870 legislation effectively still governs our bilateral extradition arrangements.
Our extradition arrangements are in urgent need of reform. On average, it takes 18 months to extradite someone from the UK and, in many cases, much longer. The system allows the fugitive to raise the same—arguably, often spurious—points time and again, and to mount numerous legal challenges. Even when—as has happened many times—an individual appeals all the way to the House of Lords following the committal hearing, he can, once the Secretary of State has considered the case, appeal all the way again on exactly the same grounds.
To give a real-life—but anonymous—example, Mr. B was wanted by the French authorities for trafficking in cannabis. It was alleged that he assisted his father in overseeing the importation of approximately £1.3 million worth of cannabis resin into the UK. He was arrested in the UK in November 1995. He appealed against his extradition, through habeas corpus and judicial review, no fewer than five times, raising many of the same issues each time, and then attempted to delay his extradition on health grounds just before his actual surrender. He was finally extradited to France in September 2001, nearly six years after his arrest, and was sentenced in November 2001 to four years imprisonment and a Euro45,000 fine. The costs of detention alone in this case exceeded #120,000, to say nothing of court and legal costs.
The present extradition system has manifest failings. Mr. Maples, speaking in the debate on the Loyal Address less than three weeks ago, said:
XIt is clear that the extradition procedure needs to be tightened, streamlined and speeded-up . . . we need to limit the number of appeals and to tighten up the whole procedure . . . Currently, I think one can make about six appeals in the average extradition case."—[Hansard, 20 November 2002; Vol. 394, c. 682.]
Although he went on to make several detailed criticisms of the Bill, the House as a whole will share the sentiments that he expressed in those remarks.
We live in a day and age in which crime is becoming increasingly international, and we simply cannot go on as we are. We need a quick and efficient extradition system in which proper protection for the rights of those who are the subject of extradition requests is built in. Before describing the provisions of the Bill, perhaps I can explain to the House a little of its history.
In March 2000, the then Home Secretary, who is now the Foreign Secretary, announced that a review of extradition law would take place. It was completed a year later, and a consultation paper was published in March 2001. We are very grateful for the responses that were received, which can be found in the Library and on the Home Office website. We published a draft Bill in June this year and again received many helpful comments. I particularly welcome the interest that the Home Affairs Committee and the Joint Committee on Human Rights have shown, and I pay tribute to my hon. Friends the Members for Sunderland, South (Mr. Mullin) and for Bristol, East (Jean Corston), who chair those Committees. We have also heeded what those Committees said, and a number of additional safeguards in relation to politically motivated requests and fugitives' state of health have been built in to the Bill as a consequence.
As the Minister is aware, many important extraditions have not gone ahead because of the courts' interpretation of article 3 of the European convention on human rights. Is he aware of the Soering judgment, in which someone accused of murder could not be extradited to the United States under article 3? What will the Bill do to try to streamline such cases and make the extraditions go ahead?
It is important to say that the Bill does not seek to overturn the European convention on human rights. Indeed, the convention provides a test for extradition that is built into the Bill, so it would be wrong to suggest that we are attempting to use the Bill as a way round some of the issues arising from the convention. In drafting the Bill, we have sought to make it clear that the extradition proposals do not suspend or change the convention's provisions. Such a human rights principle should be reflected in the Bill.
Although I was grateful to hear my right hon. Friend's kind words of a moment ago, the recommendations in the Home Affairs Committee's report go considerably further than the ones that he has so far adopted. I was a little disappointed, therefore, by the off-hand press release issued on Thursday in response to our report. It seemed to suggest that we should not take too detailed an interest in this subject. I am sure that that was not the intention, but can my right hon. Friend confirm that he proposes to look carefully at the rest of our recommendations and that we might, in future, look forward to seeing some of them implemented too?
Naturally, I am very disappointed that my hon. Friend is disappointed at the tone of the press release. I hope that nothing that we said gave the impression that it was not the business of the Home Affairs Committee to look closely at this Bill. In my earlier remarks, I was referring, in particular, to the changes that we were able to make between the draft Bill and the Bill's current version in response to representations and suggestions made by, among others, the Home Affairs Committee. In the past few days, we have received the more recent comments of the Committee on the Bill before us. I am sure that those comments will be discussed in this debate and examined carefully in Committee. We will, of course, consider every suggestion and recommendation on its merits and, if we are convinced of them, we will seek in the appropriate way to amend the legislation. I have not in any way closed the door on the principle of considering some of the recommendations from the Home Affairs Committee.
The right hon. Gentleman has received suggestions from a wide circle of people who have taken an interest in the Bill. How many consultees' suggestions were incorporated in changes to the draft Bill before it reached this stage?
I cannot give the hon. Gentleman the arithmetical answer that he seeks; indeed, some suggestions came from more than one organisation. In particular, the provisions for politically motivated requests and for the health of suspects were made in response to proposals from several different organisations. Further changes were made to the drafting in respect of the release of prisoners if an extradition were withdrawn purely because the consultations revealed that ambiguous drafting had led to the wording being interpreted in entirely the opposite way to that which the Government intended. There were a series of recommendations of that sort. The consultation responses that we have permission to publish are in the House of Commons Library, and I am sure that they will be of use to hon. Members when the Bill is in Committee.
I shall describe in more detail the provisions in the Bill. Parts 1 and 2 create two parallel regimes for handling incoming extradition requests. Part 1 is the more streamlined regime. It will apply initially to requests from other European Union member states and enable us to give effect to the European arrest warrant—the EAW. The Government believe strongly in the principle of mutual recognition. It has been suggested in some quarters that the EAW is the first step towards the creation of a European judicial superstate—quite the reverse. It is precisely, if we want to avoid pressure for a Europe with harmonised laws and a single judicial system that we must be prepared to recognise the judicial decisions taken in other European countries.
The right hon. Gentleman has just told the House that the Bill is designed to extend, in the first instance, the power to other European countries. We are, of course, dealing with the power of designation, so to what other countries do the Government, at this time, intend to designate by Order in Council?
We do not at this stage have particular countries to which that could be extended.
Major issues of concern surround the European arrest warrant. It will help if I address them now because, on closer examination, they will turn out to be unjustified. The framework decision on the European arrest warrant was given parliamentary scrutiny. The Government maintained a scrutiny reserve until both Houses had cleared the instrument, which happened after the Under-Secretary, my hon. Friend Mr. Ainsworth, had appeared before Committees in both Houses and there had been a debate in another place. By introducing the Bill, we are giving Parliament another opportunity to consider the measures.
There have been fears about foreign police officers coming to Britain to arrest people. They are groundless. Only British law enforcement personnel, such as the police and Her Majesty's Customs and Excise, will be permitted to execute a European arrest warrant in this country.
But the offences are not listed in the Bill and the means of changing or expanding them is by ministerial order. Do the Government not think that that is a highly unsatisfactory process?
That is a slightly different issue. I was talking about powers of arrest. The Bill reflects the framework decision on the list of generic offences and makes specific reference to that in, I think, clause 63. The list of generic offences is clear. At the moment, an amendment to the list could be made only by unanimous agreement in the Council of Ministers. It is our judgment that it is better to have drafted the Bill as we have, referring to that decision, rather than to be required automatically to have new primary legislation should such a change be made. I am sure that that will be explored in Committee. The Bill is drafted in such a way as to avoid the need to introduce primary legislation. I am not aware of any proposals in the justice and home affairs division of the EU to change the list of generic offences.
I said that it was the Government's intention that only British law enforcement personnel would be permitted to execute a European arrest warrant in this country. That means the police, but it could also include Customs and Excise. There are plenty of legal precedents for using the term Xappropriate person", including in legislation adopted by the Conservatives when they were in government to deal with powers of stop, search and entry that gave an even wider range of discretion to the Home Secretary. Given the point of principle that I have outlined, I have no doubt that the precise wording can be considered in Committee.
I am saying that there is plenty of precedent in almost identical circumstances in which Governments, including Conservative Governments, have restricted a power to British law enforcement personnel even though they have used the term Xappropriate person", or something similar, in legislation. That should give the House sufficient confidence in this Government's intention to use the Bill in the same way. I have no doubt that the matter will be considered in Committee. However, it is important for the House to understand clearly the Government's intentions.
A few months ago, I spoke to a police officer who worked on serious crimes, by which I mean drugs, people smuggling and so on. He said that not one of the top 100 criminals—those people who are involved in the most serious crimes—lived in the UK. Is not that a good reason why we need the Bill?
Crime is becoming increasingly organised internationally. It is important that the system of extradition does not prevent the effective but just use of extradition to ensure that serious criminals can be dealt with. It is the recognition throughout the European Union that the systems that we have in place make law enforcement and the exercise of justice more difficult that lies behind the agreed moves throughout the EU to change extradition arrangements. I think that my hon. Friend is right.
My right hon. Friend referred to the European Union. Will he confirm that if the EU is enlarged during the next few years, the proposed legislation will mean that we can take much more effective action to deal with the criminality that exists throughout the European continent? It will then be far more effective in tracking down the origins of the people smugglers and the drug smugglers who use central and eastern Europe as a conduit to this country.
My hon. Friend makes a good point, to which I shall turn shortly.
An important part of the accession agreement is that states must be able to fulfil their full obligations under the framework decision and the European arrest warrant. The ability to have common approaches throughout the EU after enlargement will, I think, be of significant assistance to us in fighting international and organised crime.
I shall continue to go through the issues that have been raised as potential objections to the Bill. It has been said, for example, that people will be sent off to stand trial in another country without due process in this country. I can reassure the House. Anyone who is the subject of a European arrest warrant will be entitled to an extradition hearing before a British judge. They will then have the right of appeal to the High Court and, if significant points of law are raised, to the House of Lords.
No. In the context of part 1, the issuing country does not have to do that today, and has not had to for many years. Under the European agreement on extradition, a much wider group of countries than the EU—essentially, the Council of Europe countries—agreed more than 10 years ago that prima facie evidence did not need to be provided. It is an unfortunate myth that the Bill is introducing a profoundly new principle into our extradition arrangements with our European colleagues.
There is an issue about prima facie evidence that comes up in part 2, which I shall address briefly. However, as for EU countries, I think that there is no new issue of principle in the proposed legislation.
The provision of prima facie evidence is not required at present and it will not be required in future. On this issue, the Bill does not introduce a new principle.
It has been suggested that a newspaper editor could be extradited for publishing an anti-German editorial. I am sure that right hon. and hon. Members will not be surprised to learn that these stories are wildly inaccurate. No one will be extradited for conduct in this country that is not illegal in this country. I shall say more about dual criminality in a moment.
No. I hope that hon. Members will forgive me. Perhaps I could make some progress and then take more interventions.
There have been complaints that we are removing the requirement for evidence in the case against fugitives to be produced. As I have said, all the Council of Europe countries have not had to provide prima facie evidence with their extradition requests since the United Kingdom signed up to the European convention on extradition in 1991. I assume that the Opposition found that an acceptable principle then—I assume that they still do today. It has been suggested that we would be obliged to extradite in cases where the presumption of innocence is not applied. As my right hon. Friend the Home Secretary pointed out to Mr. Letwin in the debate on the Gracious Speech, the presumption is a guaranteed right under the European convention on human rights, to which all European Union states have signed up. In the case of convictions in absentia, the Bill it makes it clear that we will extradite only if the fugitive is guaranteed a retrial. A retrial is differentiated from a simple appeal by the fact that the process starts again from scratch with a presumption of innocence.
Having spent rather longer than I intended on what the European arrest warrant is not about, I shall say what it is about, and describe its benefits. It will speed up extradition with EU partners. In future, cases within the EU should take about three months, as opposed to nine to 12 months at present. The current timetable for bringing serious criminals to justice does a great disservice to the victims of crime. It works both ways—Britain's extradition procedures are notoriously slow, but our EU partners are not always above blame, as demonstrated by the case of Mr. L. He was sentenced to life imprisonment in this country for beating a man unconscious and leaving him to die. The victim died from his wounds four days later. Mr. L escaped from prison and absconded to France, and an extradition request was made to France, where he was duly arrested. One would have thought that that was a very clear case, yet it took more than a year before he was returned to Britain—one can only imagine the additional distress and pain that the episode must have caused the victim's family.
Some of our European partners refuse to extradite their own nationals, even if they have committed the most heinous crimes in Britain. The European arrest warrant will mean that those countries will no longer be able to prohibit extradition of their own nationals, denying us the right to try those who have committed serious crimes here.
Some of our European partners have traditionally been unwilling to extradite people who have committed purely fiscal offences. The UK has never held the view that fiscal offences are minor crimes, but others take the contrary view. UK criminals have not been slow to exploit that loophole, with the result that people accused of major tax evasion and VAT fraud have been able to escape justice. The European arrest warrant means that serious criminals accused of fiscal offences will no longer be able to hide within the EU.
Some of our European partners are unwilling to extradite for crimes where they have a statute of limitations, even though we do not. The case of Mr. Y, a British national, illustrates the problem. He was accused of the serious sexual abuse of two children in Britain—a crime that by its nature only comes to light many years after the event. His extradition from Denmark was sought, but refused because Denmark's statute of limitations had expired. However, Mr. Y could legitimately have been put on trial in this country. In future, people in his position will be extradited.
The European arrest warrant will have all those clear benefits for the United Kingdom and our criminal justice system, but there will also be strong safeguards for fugitives—an extradition hearing before a district judge, the right of appeal to the High Court and, if important points of law are raised, to the House of Lords. Extradition can be barred because of double jeopardy, and will not be possible if the fugitive's mental or physical condition makes it unjust to extradite him; if there is reason to believe the prosecution is politically motivated; if the fugitive's trial is likely to be prejudiced by extraneous factors; or if the fugitive's rights under the European convention on human rights would be breached. All the states that we are talking about are mature democracies and ECHR signatories, so it is highly unlikely that some of those bars will ever arise.
I have almost lost my voice, so I hope that the right hon. Gentleman can hear me. On the ECHR point, will it involve the district judge assessing the quality of the trial that the defendant will receive in the country to which he is to be extradited?
The Bill is based on mutual recognition of each EU country's judicial and criminal justice systems. The presumption on which the original framework decision and the legislation are based is that decisions in one another's countries are respected and trusted. None the less, we need to be sure that ECHR rights are not breached. Personally, I think that unlikely in the case of the states under discussion, but it would be open to people to argue, as it always is in legal processes, that that would be an issue. It is important that the House understands that mutual recognition is a point of principle on which the Bill is based.
The Minister brings to the House his usual temperate delivery, for which we are grateful. However, there is a concern. If 32 categories of offence are exempted from the dual criminality requirement, what does the Minister say about Lord Scott's observation that the definition of a xenophobia offence in the schedule
Xwould almost certainly cover the distribution of Biggles and probably the Old Testament"?
On the murders, rapes and child offences, nobody in the Chamber would do other than share the Minister's views, but it is the other aspects of European law, which are not customary in the United Kingdom, that cause concern.
First, no one will be extradited for conduct that takes place lawfully in this country. Secondly, it will be possible for people to be extradited for conduct that is not illegal in UK law, but where that conduct has taken place in the requesting state and breaches its law. The principle is simple: British people who go abroad should be expected to obey the law of the country that they are visiting, in the same way as we expect visitors to this country to obey our laws.
If a German citizen came to this country and acted illegally in the UK, we would expect them to be arrested and put on trial, irrespective of whether their conduct was contrary to German law. In the same way, a Briton who visits Germany should not expect to escape justice for breaking German law simply because Britain does not have an exactly equivalent crime. If a British citizen goes to Sweden and breaks the law there, he can expect to be arrested and put on trial, irrespective of whether the conduct is contrary to UK law. I am sure that no right hon. or hon. Member objects to that proposition—
It will be useful to flush that out in the debate. I believe that a British citizen who goes to Sweden and breaks the law there should expect to be dealt with by the Swedish criminal justice system. Opposition Members seem to believe that if that person flees before arrest and manages to cross a border, they should be safe from prosecution. In a world where travel is so simple and widely available, that is an indefensible position.
Is the Minister suggesting that, had the tourists in Greece earlier in the year left Greece and got back to the UK, and had an extradition warrant subsequently been issued for their arrest, it would have been quite proper for us to ship them back for conduct—observing aeroplanes—that is a crime there, but not here?
Just as we in this country would expect our espionage laws to be followed. There is a fundamental point of principle here, which Opposition Members need to recognise. It is difficult to argue that British citizens should be able to travel to other EU countries and break their laws, without arguing that the same rights should be extended to visitors from the EU who come to this country. That is not what our fellow citizens in this country expect. We expect that anybody in the UK who breaks our laws can be brought before British justice and that the extradition system should enable those people, if necessary, to be brought back to face British justice.
I am grateful to my right hon. Friend for giving way. Are not specific offences such as sex with children under 16 and some forms of drug trafficking or drug abuse legal in certain European countries but illegal here? Are those who oppose the measure suggesting that we should let people who commit such offences off simply because they flee the country before prosecution?
My hon. Friend makes an important point. It would be useful to find out in this debate whether Opposition Members believe that people who break the law in this country should be able to escape justice simply by leaving these shores for another European Union country. That is at the heart of the issue.
After I have made some progress, I shall give way to the hon. Gentleman.
Not all EU countries have an offence of incitement to racial hatred and most other EU countries do not have an offence of fraudulent trading—but we do. Not all EU countries have laws equivalent to ours on the evasion of excise duties. As long as Opposition Members maintain that there must be absolute dual criminality in the EU, it follows that they are suggesting that people can commit the serious offences that I mentioned with complete impunity as long as they can cross the frontier before our police apprehend them.
Does the Minister not appreciate that the matter is more complex? Essential to our concept of liberty is freedom of expression and free speech. We regard that as an especially important ingredient, but other countries take a view on some elements of free speech. For instance, xenophobia may be a thought crime here, but it is not a legal crime, even though it can be an offence elsewhere. The Bill is now trespassing on areas that affect the freedom of the citizen in this country, as well as that of the German or French person who expresses in words something that is contrary to their law and then seeks residence here. We would have to extradite such a person for something that we hold to be important—the right to freedom of expression.
The problem with the hon. Gentleman's argument and the logic of his position is the suggestion that somebody should be able to travel to this country from Portugal—I have nothing against the Portuguese people or any reason to believe that they might wish to do this—which does not have laws on incitement to racial hatred, and incite racial hatred here, perhaps with a serious impact on community cohesion. If they were to escape arrest, they could then return to Portugal without our being able to take action. It is our view that that is unacceptable.
Indeed, the principle that underlies the framework decision in the EU is that member states collectively and unanimously believe that the creation of loopholes that enable criminals to avoid the consequences of their conduct throughout the EU is wholly undesirable both for individual member states and for the development of the EU itself.
It is useful to have this discussion to flush out some of the issues, but I should like to make some progress. I shall, however, give way to the hon. Lady.
The Minister said that, in the round, the Bill, and therefore the European arrest warrant, reflected the principle of mutual recognition, which is a key legislative principle in the EU. However, does he accept that, as we have seen in swathes of legislation implementing the EC single market, the principle of mutual recognition is based on the premise of a minimum harmonisation of standards? That has not happened in criminal law as it was outwith the scope of the EC treaty. It is only with regard to third pillar measures that any moves have been made in criminal law. Is it wise to proceed with such measures when we lack proper understanding about whether we have a common and acceptable framework with regard to procedural safeguards in criminal law, for example, and also whether the presumption of innocence is applicable in the terms in which we understand it, certainly in Scots law, throughout the European Union?
That is clearly a matter on which hon. Members need to reach a judgment as the Bill progresses. The Government believe that the answer to both the hon. Lady's questions is yes. We have sufficient confidence in the criminal justice systems of the mainly mature democracies of the 15 countries of the European Union. I shall deal with the point about the accession states shortly. The European convention on human rights is incorporated into the law of each of those countries. The protection of the presumption of innocence is therefore built into the approach that we are considering.
The Minister has been extremely patient, but I want to take him up on his last point, which he made earlier in passing. Does he accept that there is a difference between the right to a fair trial, which the convention guarantees, and the presumption of innocence, which is a peculiarity of specific judicial systems, including ours?
I believe that the protection that we seek for the presumption of innocence is in the charter, but doubtless we shall debate the matter at greater length.
I need to make progress, but I hope to take further interventions before I finish.
Subject to the Bill's successful passage, we shall be in a position to begin operating the European arrest warrant by the deadline in the framework decision of
I want to consider part 2, which deals with extradition to the rest of the world. Its provisions are similar to the current system, with a continuing role for the Home Secretary, but it also incorporates some of the advantages of part 1. Instead of the multiple and overlapping hearings and appeals that currently occur, there will be a single extradition hearing, which will be followed by the Home Secretary's consideration of the case. After that, there will be a single appeal hearing, under which all the decisions can be reviewed. The case can subsequently go to the House of Lords if significant points of law have arisen. We have also incorporated significant safeguards from part 1.
No one will be extradited if their mental or physical condition would make that unjust or oppressive. No one will be extradited if a request has been made for the purpose of persecuting the fugitive on the grounds of race, religion or political opinions, or if those factors mean that he is liable to be prejudiced at his trial. No one will be extradited if double jeopardy comes into play, or if the person is below the age of criminal responsibility in this country.
The hon. and learned Gentleman makes an important point, which I was about to tackle. He is right that we will need to match the relevant provisions of both Bills so that they make coherent sense. Although the Extradition Bill simply provides that no one will be extradited if double jeopardy comes into play, as the measure progresses through Parliament, we will try to provide for the possibility of extraditing somebody from a country that took the approach that we hope to effect in the Criminal Justice Bill.
In other words, if another country had a judicial process that was akin to the ability that we propose for the Court of Appeal to set aside an existing judgment and thus enable a case to be retried, extradition could be allowed from this country. Our ability to extradite someone who, in a classic case, had been identified through DNA evidence, from another country would depend on its domestic law. The hon. and learned Gentleman makes an important point, because this is not what the legislation says, as it stands, and nor is it quite what the Criminal Justice Bill says. It will be important that both pieces of legislation are worked together as we go through them. I am grateful to the hon. and learned Gentleman for ensuring that we did not go past this point in the debate without my having the opportunity to say that.
I am always grateful for flattery, from whichever quarter it comes, but the House is entitled to know which is the lead Bill. Is it the Extradition Bill or the Criminal Justice Bill? Both cannot be discussed at once on the Floor of the House, and both may yet get Royal Assent on the same day. It is important for the public, as well as for practitioners and for potential victims—if I can use that expression—of either Bill, to understand precisely how the Government are going to order their priorities. That is wholly unclear at the moment.
We will need to keep discussions open on the way in which this is to be dealt with, through the usual channels. To some degree, that will depend on the rate of progress of Bills through this place. The hon. and learned Gentleman makes an important point, and I do not dismiss it out of hand. I hope that he will accept my assurance that we recognise the validity and importance of the issue that he has raised, and the need to be as clear as we can with those outside—as well as with right hon. and hon. Members and Members of another place—about how we intend to mesh the two Bills carefully together.
I want to say a little more about part 2. I should make the point that a district judge will be explicitly required to consider whether extradition would be compatible with a fugitive's rights under the European convention on human rights. I am sure that there will be further discussion on this, but article 6.2 of the convention states that:
XEveryone charged with a criminal offence shall be presumed innocent until proved guilty according to law."
That relates to a point that was raised a few moments ago.
In addition, most countries in part 2 will, as now, continue to have to provide prima facie evidence to accompany their extradition requests. However, as I have already explained, under current arrangements the non-EU members of the Council of Europe do not have to provide prima facie evidence, and that will remain the case. The Government believe that there is a case, as we said in the March 2001 consultation paper, for removing the prima facie requirement from certain key Commonwealth and bilateral partners. We have not sought prima facie evidence from European countries for more than a decade, so why should countries such as Australia and Canada continue to be subject to that requirement? For countries of that kind, questions of guilt or innocence should be matters for the court of trial in the requesting country. The Bill therefore allows for orders to be made removing the prima facie requirement from certain part 2 countries. The Bill also enables a strict timetable for part 2 cases to be put in place. Notwithstanding the significant safeguards for fugitives that will exist, we believe that it should generally take no more than six months for one of these cases to be completed, which will represent a significant speeding up of the process.
Part 3 deals with outgoing extradition requests. Our existing legislation is largely silent on this issue, and we have relied mainly on the use of the royal prerogative. The Bill sets out who will be able to apply for European arrest warrants in this country, how, and for what offences. Part 4 sets out the powers available to the police in extradition cases. It had always been assumed that the powers in the Police and Criminal Evidence Act 1984 applied in extradition cases, but a legal ruling in a particular case cast doubt on that. We are therefore taking the opportunity to bring a measure of certainty to the matter. Let me stress that the powers that the Bill creates are closely modelled on those in PACE. Finally, Part 5 covers miscellaneous and general matters. The Bill runs to some 208 clauses. Its length reflects the consultation earlier this year, as well as the decisions to include provisions on outgoing requests and police powers, and to make the law as accessible and clear as possible.
The case for reform of our extradition laws is clear. There is no other area of law in which people can raise the same, often spurious, points, time and again, simply as a means of delaying proceedings. The Bill will modernise our extradition procedures, while retaining the important and necessary safeguards for those who are the subject of an extradition request.
Organised and international crime is, as my hon. Friends have said, a sad feature of life in the 21st century. We need an extradition system that enables us to meet that challenge. The Bill will provide that and I commend—
I am grateful to the Minister for giving way so close to the conclusion of his remarks. Will he confirm that those Irish citizens who have committed acts of terrorism, which is a conduct listed in the relevant provisions, and who have gone on the run to the Republic of Ireland, will now be extradited?
The hon. Lady intervened during the last sentence of what I admit was a rather low-key peroration, but a peroration none the less. There is certainly nothing in the Bill to put any obstacles in the way of extradition. As I said earlier when detailing the history of the Bill, it long predates the many new terrorism measures introduced after
I commend the Bill to the House.
I begin by sending—on behalf of the whole House, I am sure—our best wishes to the Home Secretary for his speedy recovery.
The bulk—by volume, as opposed to importance—of the Bill is not highly contentious. Parts 2, 3 and 5 will no doubt repay attention in Committee but do not involve vast matters of principle. Part 4 contains some worrying elements—for example, clause 160(3)(b), which, if I understand it correctly, allows the police to search premises if they have Xreason to believe" that a warrant will in due course be issued in some other country. That does not fill me with enthusiasm. We will have to look closely at part 4 and the powers contained therein, but by and large I do not think that it contains matters that need detain us long—they did not detain the Minister during his opening remarks.
Part 1 is a wholly different matter. There are four problems with this part, which deals with the European arrest warrant. The first problem is that the part does not say what the Minister says it means. The second problem is that what the Minister says part 1 means is not acceptable. The third problem is that we do not need part 1 in any event, because part 2 would do the trick perfectly well. The fourth problem is that the only reason for having part 1 is a reason that we do not accept. Other than that, there are no objections to part 1. [Laughter.]
Let me explore the first of those four objections—that the part does not say what the Minister says it means—and give some examples. In clause 2(3)(a), the definition of the scope of the warrant is given. We are told that the arrest warrant must contain a statement that
Xthe person in respect of whom the warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant".
The Minister told us that that is meant to mean that the offence itself must be committed in the territory in which the warrant has been issued. I believe that that is what the Minister means it to mean, but the English language has a stubborn habit of carrying its own meanings, and the words printed do not mean what the Minister says. The words printed mean that the person in respect of whom the warrant is issued has to have been accused in that territory of the commission of an offence; the offence may actually, within the meaning of subsection (3)(a), have been committed in this country or some other country.
Let me give a second example. The Minister told us that there was no intention whatever of allowing anyone other than an English law enforcement officer, however defined—I accept that it might be an officer of Customs and Excise rather than the police—to execute the warrant. Clause 3(3), however, defines an Xappropriate person" who may be allowed by the Secretary of State to make an arrest by means of the warrant dealt with in subsection (2) as
Xa person of a description specified in an order made by the Secretary of State for the purposes of this section."
In other words, the Bill does not mean what the Minister wants it to mean. It means that the Minister can decide that absolutely anybody is an appropriate person, including a policeman from a different jurisdiction.
For the purposes of English law and in England, they would be English officers. Presumably for the purposes of Scottish law and in Scotland they would be Scottish officers. My unionism is still strong enough for me not to worry too much about that distinction, although I am immensely concerned about the prospect of an officer from another EU country coming to the United Kingdom because he has been designated by the Secretary of State. I take the Minister's statement at face value, and if he says that the intention is to specify only law enforcement officers in our jurisdiction, that is what the Bill should say.
I am sure that that is the answer we shall be given in the Minister's winding-up speech, but somewhere down the track there may well be an agreement between EU interior Ministers that each will enable the other to authorise, by some designation procedure, the officers of the other to execute the law in the United Kingdom.
I agree. I must not have made myself clear. I do not mean that it would be acceptable for the Minister to keep saying, on the record, that he intends the clause to be used only in regard to English officers; I mean that part 1 would only be remotely satisfactory if it specifically precluded the least possibility of anyone other than an English law enforcement officer carrying out such procedures in England. That is why I say that the Bill must mean what the Minister says he wants it to mean, and not something else. I do not want to live in an Alice in Wonderland world of legislation.
The right hon. Gentleman will know that Scotland has a separate criminal legal system—fortunately—with separate rules and regulations governing our police force. It would help if he was specific when referring to the territorial make-up and the various component parts of the United Kingdom in that context.
In the presence of the hon. Lady, I would be terrified to make the slightest statement except in relation to English law and its enforcement in England. I am sure she will tell us what she thinks about Scotland, and we can discuss it further in Committee. I would rest content if it were the case, which it is not, that part 1 was satisfactory from an English point of view.
My second objection is this. We now come to the first of the issues of principle. Part 1 would not be acceptable even if it meant what the Minister says he means it to mean. The Xlist of offences", for instance, is not a list of offences, as my hon. Friend Mr. Shepherd pointed out with his usual perspicacity. It is, in fact, a mechanism whereby a set of representatives of executive powers—of Governments—in the European Union will decide what, from time to time, they wish to be the list of offences. The Minister told the House that it was far better to ensure that it was done by the unanimous decision of the Council of Ministers rather than by some other mechanism, but what does he mean by the unanimous decision of the Council of Ministers? He means that the Governments of the member states would get together and change the framework directive, and thereby change the list of offences.
Again, the Bill may not mean what it is meant to mean. Perhaps it is meant to mean just the current list; if so, let us include the current list, to which I shall shortly object in any event, and not a mechanism that seems to the ordinary reader to permit the list to be enlarged further. In fact, I believe it to be the intention of Her Majesty's Government to allow the list to be enlarged. I think that Parliament will be consciously sidelined as we proceed, with a larger and larger list of offences specified.
The list is already deeply obnoxious. It contains the arguable offence of xenophobia, which is an offence in some countries but not in ours, in a most bizarre and ambiguous form. Clause 13 specifically provides one of the few bars to extradition under part 1. For example, extradition would be barred if a person found that the warrant had been issued for the purpose of prosecuting or punishing him on account of
Xhis race, religion, nationality or political opinions".
I do not know what an English judge would do when faced with one clause that tells him that he cannot extradite someone if the extradition relates to the person's political opinions, when another clause tells him by the roundabout route of the framework directive that the person can be extradited if the charge is xenophobia. I do not know how an English judge could be expected to adjudicate on that appropriately. It is not clear from part 1 whether the English judge will or will not—there are two contrary suggestions within the drafting—be able to look at whether the charge of xenophobia is ipso facto a charge that relates to the political opinions of the person in question.
I do not suppose the Minister has the slightest idea what the answer to that question is. The framework decision has been adopted lock, stock and barrel, and a group of people has got together to put back, through the bars in clause 11, a few constraints designed to ameliorate a set of draconian measures.
May I take it from the right hon. Gentleman's comments that he would be perfectly happy if neo-Nazi groups in one European Union state were able to use computers, the internet and publishing material to undermine laws on incitement to racial hatred or xenophobia such as exist in this country and in Germany without any possibility of action being taken against them?
I am not sure that I have ever heard quite such a confused intervention. The difference between the offence of xenophobia, which we do not have, and the offence of incitement to racial hatred, which we do have, is the very difference that we are discussing. Of course, if the test of dual criminality continued to apply as it should—it does not under the Bill—one could continue to extradite those who were engaged in incitement to racial hatred, which is a criminal offence in this country, but not those who were accused of xenophobia, which is not an offence in this country.
The right hon. Gentleman has given his views on xenophobia. What is his view about a British citizen who commits a tax evasion offence in this country but is able to escape with impunity to another European Union country? Is he happy that there should be no extradition powers because no dual criminality exists?
Given that we are talking about an extradition procedure that, in total, currently covers about 50 people a year, some 25 or 30 of whom come from the European Union, the idea that one would prejudice the fundamental liberties built into the fabric of our laws for the sake of the possible extradition to this country of perhaps one person every two or three years is not proportional. I should say now—I will deal with the matter in more detail in a moment—that we accept that, in the sole case of terrorism, the dangers to this country are so great that something similar to what is in part 1 might be thinkable. However, that is an altogether different level of threat.
No, not candid. Does the right hon. Gentleman agree that the Minister is not being as resourceful as he could be? Tax evasion is also fraud, and presumably fraud is actionable in both states.
The hon. Gentleman has the great advantage of knowing something about English law, and of being a canny lawyer. I have no doubt that the British state could—and indeed does—arm itself with canny lawyers who could make such an argument. That illustrates very well why we ought not to seek to avoid the need for ingenuity, and why we ought not to adopt instead draconian measures that have real effects on civil liberties in this country, when the gains are so slight.
I turn briefly to the issue of the fair trial, which is of immense importance and also reflects on the Criminal Justice Bill. There has been a misunderstanding between Opposition Members and those on the Treasury Bench about the meaning of a fair trial, and of the term Xpresumption of innocence"; the Minister's remarks brought that out interestingly and powerfully. He pointed out that one of the bars to extradition under part 1 is any failure to comply with human rights, and in that he was absolutely right. There is no doubt that clause 21 unambiguously applies the European convention on human rights, and even if it did not I do not suppose that it would make the slightest difference under the Human Rights Act 1998. In any event, it is unambiguously present in the Bill.
Paragraph 2 of article 6 of the convention, which is properly headed XRight to a fair trial", states:
XEveryone charged with a criminal offence shall be presumed innocent until proved guilty according to law."
That is the paragraph on which the Minister was hanging his hat. In many of the jurisdictions to which part 1 applies—in all of them, I believe—the ECHR is either incorporated into, or de facto a part of, law through the monistic theory. One way or another, the meaning of article 6 is therefore already being applied in those countries, many of which have inquisitorial systems of justice. In such a system, the examining magistrate begins with the assumption, let us say, that the person whom he or she is investigating deserves to be investigated, and seeks to find out whether there was a reason why the person should not have been investigated. I would call that an assumption of guilt, to be disproved by the investigation. Call it what one may, the process is utterly different from the dialectical process in an English court of law, whereby the accused is presumed by the jury to be innocent, and the duty of the prosecution is to prove beyond reasonable doubt that the presumption of innocence was false. Those are different systems of justice.
In a moment. Arguments can be made for either system, but they are different. We know that paragraph 2 of article 6 is applied in countries with inquisitorial systems, and that they are held by Strasbourg to be in conformity with that clause, so the Minister cannot claim that, in the sense in which we in this country mean it, the presumption of innocence and the need to prove beyond reasonable doubt is maintained through the ECHR: it is not, as a plain matter of fact.
Perhaps the right hon. Gentleman could help the House on two points. First, does he recognise that the Bill explicitly says that extradition can be only for the purpose of trial, not for investigation? Secondly, given that, under previous Conservative Governments and under this Government, we extradited many people to countries whose inquisitorial systems he does not like, does he believe that all those extraditions were in breach of human rights?
No, because those cases—as would be the case if part 2 applied, as it should—are open to challenge. The whole point of part 1 is to undercut the opportunity for challenge. That is the sole purported advantage of the European arrest warrant in part 1. It is a very grave difference.
I suppose that I shall be accused of being old-fashioned and perhaps even xenophobic, but as a matter of fact I do think that it is superior. Whether it is superior or not, it is clear that part 1 will make it very much easier for people to be removed to places where the adversarial system does not apply and the presumption of innocence in that sense is not applied.
I said at the beginning of my speech that apart from not meaning what the Minister wants it to mean and containing things that are intrinsically offensive, the third problem with part 1 is that we do not need it because part 2 works perfectly well. I want to use the example of the United States of America, but let me point out that no observation in retort to what I say based on the death penalty operating in the United States will be of the slightest interest, because in both parts the Human Rights Act applies. Rightly or wrongly, therefore, no one would be extradited to the United States under part 1 or part 2 to face the death penalty.
Apart from the death penalty, I do not see the slightest reason to suppose that judicial operations in the United States are less meritorious than those in the European Union. As a matter of fact, its system of justice is more, rather than less, aligned to ours than those of most of our continental partners. Its record in administering justice is, like that of all civilised countries, imperfect, but it has a recognisable system of justice that, by and large, delivers justice. There is no doubt that it is a major extradition partner. On page 8 of its very useful analysis, the Home Affairs Committee reveals that the United States of America accounted for 23 of the 139 extraditions that occurred in the three years between 1999 and 2001. It is therefore the second largest partner in extradition. Germany is the only country to which a larger number of people were extradited in those years.
Part 2 of the Bill, not part 1, will apply to the United States. I cannot for the life of me understand why we are taking measures of this kind to assist extradition to other EU countries if we do not regard it as necessary to do that in relation to the United States and if we regard part 2 as a sufficient and, to the Government's credit, considerable improvement in the current arrangements for extradition. Why do the Government not have as much confidence in part 2 as I do?
I said that there was a fourth point and there is—it is the answer to my semi-rhetorical question. There is a reason why the Government do not have confidence in part 2 and why they are using part 1, notwithstanding the severe reservations of the Home Affairs Committee. The reason is that part 1 is being used as an aspect of the development of a new relationship between the EU and its member states in relation to justice and home affairs. I may part company with some of my right hon. and hon. Friends here, but I think that a rational argument could be made in favour of that transformation. I do not happen to share that view; I do not believe that it would be an advance for mankind, but I admit that there could be such a rational argument.
There can be no excuse, however, for the effort to enact part 1 without admitting the reason for doing so. An open acknowledgement that, in respect of our EU counterparts, part 1 is to be preferred to part 2, because at the time and in the context of
May I reinforce my right hon. Friend's point? Is it not extraordinary that the part 1 procedure would apply to Greece yet the part 2 procedure would apply to Australia? Surely most people in this country would think that if the Government had such absolute confidence as to use the part 1 procedure, they would use it in respect of the courts of Australia and not in respect of the courts of Greece.
Yes, I agree with my right hon. and learned Friend. Incidentally, the House should be aware that he and I have not always been on the same side in every argument about the evolution of the EU.
The measure offers a set of steps that are unacknowledged but dangerous. They are unacknowledged because the Government do not want to enter the debate that would be caused if they acknowledged what they were up to. I hope that my right hon. and hon. Friends in this place and my noble Friends and others in another place will prevent part 1, as drafted, from coming into effect.
A moment ago, I pointed out to the Minister that he faced a problem with the match between this Bill and the Criminal Justice Bill. The Criminal Justice Bill attacks the jury system in a most pro-European way and the Government persist in attacking the lay magistracy. Continental Europe has neither the jury system nor a lay magistracy. There is thus a double marriage between the two measures. My right hon. Friend is rightly and carefully pointing that out.
I agree with my hon. and learned Friend. Furthermore, the Government have presented the Crime (International Co-operation) Bill as a tiny amendment that would for the first time allow foreign policemen—whom the Minister tells us he means not to authorise, but who will be authorised under the Extradition Bill—to enter the country to pursue a villain across our borders.
In short, we find ourselves surrounded by a set of minor incursions that are centripetal in their intent. There is a move towards the homogenisation of systems of justice in the EU—[Interruption.] The Minister for Policing, Crime Reduction and Community Safety suggests that I do not believe what I am saying. I do not think that I have ever in my life said anything that I believe more strongly. If he is sufficiently naive as not to believe it—if he is a fellow traveller rather than a willing enthusiast—he will be sorely disillusioned as the measure progresses.
I shall not detain the House further. We cannot and will not put up with part 1 and we hope to see it erased—except in relation to the extreme case of terrorism.
I shall speak mainly to the Select Committee's report, to which several Members have already referred.
I thank Ministers for publishing the draft version of the Bill long enough in advance for interested parties to comment on it and for my Committee to examine it. As the Minister for Policing, Crime Reduction and Community Safety, my right hon. Friend has pointed out, one or two changes have been made as a result of representations received. I am pleased to note that and I hope that there will be more in due course.
At the outset may I say that I entirely accept that there is a need to overhaul our procedures, given some of the lengthy fiascos that have surrounded extradition cases in the past? However, in the Select Committee's view the Bill goes too far in dispensing with the protections that are rightly available to protect our citizens from injustice at the hands of foreign legal systems. To some extent, of course, it is a fait accompli because Ministers have already signed up to the framework document, committing the Government to introducing far-reaching reforms, but the Government appear to be going further and faster than the framework document requires, and we do not believe that that is justified.
As we have heard, the Bill will create two categories of country. For category 1 countries, there will be fast-track procedure, dispensing with just about all the existing safeguards, including dual criminality and the discretion of the Home Secretary. Instead, a judge has merely to satisfy himself that the warrant is in order and that the alleged offence comes within the 32 categories listed in article 2.2 of the framework document. For category 2 countries, the procedure will be more rigorous, but still a great deal simpler and with fewer safeguards than at present.
Category 1 will initially consist of all existing EU members which have signed up to the framework document. Category 2 is likely consist of all non-EU members of the Council of Europe, including countries such as Albania, Azerbaijan, Bosnia, Georgia and Russia, whose legal systems, as they would be the first to admit, leave a certain amount to be desired. Indeed, I was visited the other day by a man in President Putin's office who told me that the Russian judicial system results in a conviction rate of 99.6 per cent. One possibility—in fairness to him, he did not seek to argue this—is that he presides over a nearly perfect system, but we need to contemplate another possibility. In addition, we are told that some Commonwealth countries will be included, as well as other countries with which we have bilateral treaties.
Clauses 1 and 68 will allow the Government to designate by Order in Council which countries fall into which category. Clause 205 provides that such orders will be subject only to a negative resolution, so parliamentary scrutiny will be minimal. That brings me to the Select Committee's first concern. In effect, Ministers could add any country to category 1 or 2 without having to explain their reasons to Parliament. Although they say that they have no plans to do so, it does not need a great deal of foresight to foresee the day when they will wish to add the United States to the list of category 1 countries, to which people can be extradited with the minimum of formality. I wish to say plainly that that would not be acceptable.
I part company with Mr. Letwin on the judicial system in the United States. In my view and, I think, that of the Select Committee, there is a world of difference between the judicial systems of western Europe and those in the United States, where there is a huge variation in the quality of justice available, depending on whether people are in the east, west, north or south. I do not agree that the death penalty is irrelevant to this debate. To take but one example, I can think of nowhere else in the developed world where politicians compete for office on the basis of the number of death warrants they have signed.
In the unanimous view of the Select Committee, clause 1 should be amended to specify that only countries that are signatories to the European framework document should be included in category 1. In any event, the Select Committee was of the view that no country that maintains the death penalty should be allowed into category 1. Clause 68 should be amended to specify that only countries with which the United Kingdom has bilateral treaty arrangements may be included in category 2. At the very least, clause 205 should be amended to provide that Orders in Council designating new members of either category must be approved by an affirmative resolution of each House.
Turning to category 1, almost all existing safeguards will be dispensed with for countries in that category. Instead, as I said, it will merely be necessary for a judge to satisfy himself that the alleged offence is among the 32 listed in article 2.2 of the framework document, and that it carries a maximum sentence of 12 months or more.
The House owes a great deal of gratitude to the hon. Gentleman's Committee for its work on this matter. Is he satisfied that the 32 categories are sufficiently accurately described and defined outside or in the Bill? It seems to me that some are extremely vague: for instance, the category of sabotage, which could mean a lot or very little, depending on which country was involved.
That is precisely the point to which I was coming, although I recognise some of the problems to which the Minister referred in his opening remarks.
It is true, as we have seen, that not all the 32 offences are recognised under British law. Apart from xenophobia, which has been mentioned, those offences include computer-related crime, environmental crime, swindling and sabotage. Under the Bill, it will therefore be obligatory for suspects to be extradited for alleged offences that British law does not recognise, and British courts will have no power to intervene. The judge who examines the warrant will be a mere cipher, which is not satisfactory.
One solution might have been to amend the list of offences for which extradition is automatic, but that is impossible as Ministers have already signed up to the EU framework document, which is now immutable. The next best solution, which is the one that my Committee commends to the House, is for the Bill to be amended to allow a district judge to examine the warrant and state whether, in his opinion, dual criminality applies. In cases in which an alleged offence is not an offence in the UK, the Home Secretary should be given the discretion as to whether to extradite. That would circumvent the problem of the offences that are not recognised in this country but are on the list of 32.
Did the hon. Gentleman's Committee reflect on the very unsatisfactory procedure in this area, whereby Members of Parliament can be asked for their views on such proposals, but their views count for nothing? Ministers can take decisions at a European level that are binding on the United Kingdom, without the assent of the UK Parliament, or of either House, having been secured beforehand.
On the point about giving the Home Secretary discretion when the district judge has signified that there is a dual criminality issue, did my hon. Friend's Committee seek specialist or legal advice as to whether that was possible, and whether it would be consistent with the EU framework to which the Government have subscribed?
We did have specialist advice, but of course there are specialists and specialists. No doubt the Home Secretary had a few specialists at his disposal, and perhaps he will tell us if there is a reason why that discretion cannot be given. I am not aware, however, of any such reason. As I said, that would surmount one problem.
With regard to the seriousness of the offences to which fast-track extradition may apply, the EU framework document applies only to those offences for which a maximum sentence of three years is available. Ministers have gone much further than the EU requires. They have lowered the threshold to 12 months, which will greatly increase the number of offences for which extradition applies, not all of which, as we have seen, are recognised in this country.
Does my hon. Friend recognise that, at the moment under extradition law the threshold in this country is 12 months, so the debate is about whether it should be raised from 12 months to three years to fit in with the framework decision or whether it should be left at its current level?
At the moment there are certain safeguards which it is now proposed we do away with. It is still a live issue, and we recommended that the three-year limit specified in the framework document should be retained, although that is a matter for debate. We may be able to improve the safeguards and thereby resolve that issue.
I wish to make one general point in passing. I realise that it is argued that no law-abiding citizen has anything to fear from the judicial systems of our EU partners and that the quality of justice elsewhere in the EU is at least as good as that available here. Generally speaking, I am sure that that is true, although I would point out that a suspect in, say, Italy could find himself on remand for several years before he has his day in court. What is more, I notice that under our existing system the courts have often refused extradition to EU countries, and so, occasionally, has the Home Secretary. What has suddenly changed that has enabled us to throw all caution and existing safeguards to the winds as regards extradition to category 1 countries?
There are other problems with category 1 extraditions. As it stands, the Bill allows the list of 32 offences to be incorporated into UK domestic law without any opportunity for Parliament to disagree with, let alone debate, the proposed changes. The Select Committee believes that that is unacceptable. Furthermore, despite Ministerial assurances to the contrary, it appears that clause 2(5) will deny our judges the opportunity to refuse an application on the ground that it does not come from a properly constituted judicial authority of a category 1 state.
The Bill is also silent as to what information should appear on a warrant. In addition, the Government have signalled their intention to abandon the so-called speciality rule, which has not yet been referred to in the debate and which makes clear the principle that a suspect can be tried only for the charge for which he is being extradited unless the extraditing authority consents to its being varied or added to. In the Select Committee's view, all those points need to be addressed, and we have made recommendations for doing so.
With regard to category 2 states, non-European countries are currently required to show that there is a prima facie case to answer before the UK will agree to extradition. Clause 83(6) will enable the Government to exempt any category 2 country from that requirement. We think that the recommendation is too broad and that it should be limited either to non-EU member states that are signatories to the convention on extradition or to any other state with which we have a bilateral agreement that imposes obligations similar to those set out in the convention.
On extradition to countries that have the death penalty, we recommend that, in line with existing practice, the Secretary of State, rather than a district judge, should be required to assess the adequacy of a written assurance that the death penalty will not be imposed or carried out. We urge Ministers to explain how such written assurances will be assessed.
Finally, we recommend that the powers of arrest contained in the Bill be tightened. It should specify the appropriate persons entitled to make arrests, although I heard what the Minister said about the precedents on that point. If we mean—in addition to the police—Customs and Excise officers, let us say so. Arresting officers should be required to show the warrant to an arrested person, and judges should also be required to inform an arrested person of the contents of the warrant and to ensure that a person has access to proper legal advice before they can consent to extradition.As I said in an intervention, I was a little disappointed with the tone of the press release that was issued in response to our report by the Home Office, under the name of the Under-Secretary my hon. Friend Mr. Ainsworth. In it, he said:
XDoing nothing is not an option".
Well, we agree about that. No one—certainly not the Home Affairs Committee—has suggested that we do nothing. He added:
XIt's time to stop talking . . . and take action".
We agree about that, too. Nothing in our report should stand in the way of streamlining our outdated procedures. It is, however, our view that the Bill would benefit from further revision.
Liberal Democrat Members wish the Home Secretary a speedy recovery. I should also declare that I am a lawyer, but I do not practise.
I record my gratitude to Mr. Mullin and to the Home Affairs Committee, which he chairs, for its report on the Bill, which makes compelling reading and is extremely useful. It is a tribute to his Committee that it managed to compile it in such a relatively short time.
Most hon. Members acknowledge that certain crimes, particularly terrorism and serious international crimes, have to be dealt with as speedily as possible. Furthermore, we all understand that, as the Minister said, extradition works both ways. Not only are we called upon to extradite individuals, but there are occasions when we seek extradition to our jurisdiction.
The changes that the Bill proposes will make extradition, particularly between category 1 territories, swifter and less bureaucratic. My problem with the Bill is that it does so by jettisoning some established protections for individuals and watering down many other safeguards. I shall come to that point.
The Home Affairs Committee set out a raft of detailed objections to the Bill, and I wish to dwell on some of the principled objections. I apologise to the House if I repeat some of the points that the hon. Member for Sunderland, South made. There will be scope in Committee to endeavour to improve what is an ill-thought-out measure.
Currently, the law provides some crucial protections. First and foremost, there is a requirement for dual criminality, and that point has already been explained several times in the debate. The offence for which extradition is requested should not be of a political character. Existing law tells us that extradition is not allowed if its purpose is to secure the prosecution of a fugitive on account of his or her race, faith, nationality or political opinions or if he or she might be denied a fair trial for those reasons. The fugitive will not be extradited if he or she has been previously acquitted or convicted of the same offence for which his or her extradition is sought. That is the current state of play. Most important, we will not extradite for an offence that carries the death penalty in the requesting state, although undertakings that the death sentence will not be carried out can be given.
Furthermore, after a fair appeal process, there is the rule of speciality that the hon. Member for Sunderland, South mentioned. It provides that the fugitive cannot be charged with any conduct for which he was not extradited. This is, for obvious reasons, an extremely important rule that prevents extraditions for trivial or other offences that are subsequently dropped and for which a prosecution in the extraditing country of a more questionable offence is substituted.
We will want to discuss in Committee how the rule of speciality applies. There is clearly the issue—it is not hidden—of the dropping of dual criminality for those offences on the list. The hon. Gentleman claims that other safeguards will be removed, but surely he recognises that the proposals in the Bill do not change anything to do with extradition to countries with the death penalty or with the bar relating to politically motivated prosecutions.
I am grateful for that intervention. I am not suggesting what the Bill will do but merely giving an exposition of what I believe the current law to be. I was interested by what the Minister has just said and by what the Minister for Policing, Crime Reduction and Community Safety said earlier about his mind not being closed to amendments. I was glad to hear that.
Other principles are worthy of mention, and they include legal representation, abuse of triviality, consular access, availability of interpreters, habeas corpus and no undue delay. Some of them are unfortunately absent even in countries that are signatories to the European convention on human rights. As Annabelle Ewing pointed out, we should expect minimum standards. We do not want to put the cart before the horse. It is a shame that the Government have signed up to the framework decision before securing those minimum standards in the European Union itself. The first is that a suspect or defendant must be able to understand and contribute to the legal process. If he or she cannot, there can be no effective participation. Such impediments, whether linguistic, physical or mental, must be overcome. That means having adequate interpreters, legal representation and consular access.
Unfortunately, some member states do not have legal aid—I understand that Greece is one—and cannot provide proper legal support. We need effective participation in the legal process, and it will be denied if the apparatus, such as access to interpreters, is not in place. Furthermore, rights that we believe are fundamental, such as the presumption of innocence until proven guilty, the right to bail if appropriate and the right against self-incrimination, should be expected from all jurisdictions to which a person is extradited. Not only have the Government precipitately signed the framework decision, but the Bill takes the provisions further, as the hon. Member for Sunderland, South stated.
Our main objection to the framework decision is the fact that the principle of dual criminality is surrendered if the offence falls within one of the 32 offences listed in article 2.2 of the framework decision, or if the offence carries a maximum penalty of at least three years' imprisonment in the issuing state. To say that some of those offences are nebulous is an understatement. Some of them are certainly not capable of definition and many are capable of distortion, as the Home Affairs Committee points out. Swindling and xenophobia are difficult to define under the current law in EU member states, including this country. There is no way of knowing how those offences may be defined in future. Offences such as participation in criminal organisations, corruption and fraud are extremely broad, as the Select Committee states in paragraph 26 of its report.
Does the hon. Gentleman agree that the distinction that he is trying to draw implicitly challenges the principle of XWhen in Rome, do as the Romans do"? The offences for which one might be extradited would, with rare exceptions, be those that are committed on the soil of the country where the law applied. Unless the hon. Gentleman wishes to change that, he must accept that it is possible to be arrested on the spot. We are debating only whether a person could be arrested if he flees the country before the authorities catch up with him.
I understand the hon. Gentleman's point, but we had a short debate on that earlier. As I said when I intervened on Mr. Letwin, it is clear that, with some resourcefulness, one can invariably match up the crimes and there is no problem with dual criminality.
If we are asked to execute a European arrest warrant, our courts will not be able to refuse to do that on the ground that we disagree with the legal classification of the offence. We will be bound by the classification made by the issuing authority.
I do not oppose it in principle, but there have to be minimum safeguards and conditions. That is what I am trying to advocate.
Regrettably, we are committed to those provisions, and they sweep away the crucial safeguard of dual criminality. That long-standing and powerful principle is a protection against abuse. The Home Affairs Committee helpfully recommends in paragraph 31 that, in each case, a district judge should look at the terms of the offence specified in the European arrest warrant and state whether dual criminality applies. If the offence is not a crime in the United Kingdom, the decision should be referred to the Home Secretary. I am anxious to know what practical steps are needed to achieve that important amendment.
Clause 12 is not sufficiently tight in relation to double jeopardy, which occurs from time to time throughout Europe. Lorry drivers are particularly vulnerable as they can be charged on the same facts in more than one country, but with different offences. Like most hon. Members, we are concerned about the Executive's wide discretion to designate states as category 1 or 2 territories. The Bill provides that that can be done by an Order in Council. It does not provide for guidance covering the choice of territories and the Order in Council is subject only to annulment by negative resolution of the House. Again, as the Home Affairs Committee points out, it enables any country to be designated a category 1or 2 territory. There is nothing to prevent an Order in Council from designating a country that has not signed up to the framework decision as a category 1 territory, so a highly unsuitable country may be promoted for a pragmatic reason. I hope that the Government will table amendments in Committee along the lines suggested in paragraphs 41 and 43 of the Select Committee's report.
I believe that a prima facie case should be made. I am aware that changes to that were made some time ago between EU countries, as the Minister explained, but it should be preserved for category 2 territories. Furthermore, the rule of speciality should be preserved in all respects for all extraditions. That means securing that a requesting state proceeds against an individual only on the facts and for the offence for which he or she is sought for extradition. I agree that for that reason clause 53 should be deleted in its entirety.
Finally, there is no justification for extending category 1 status to any country that maintains the death penalty. That is because the clause 15 bar is not absolute. As the Home Office admitted, it will be possible to designate non-EU countries as category 1 countries and it is conceivable that such a country would retain the death penalty on its statute book. That is reason enough to justify the proposition that part 1 should not be extended to include any countries that still use the death penalty as a form of punishment.
We have reservations about many other matters, although they are more appropriate for deliberation in Committee. My colleagues and I thought long and hard about our attitude to Second Reading. As I said, there are practical reasons why the extradition system should be less bureaucratic and swifter, but on no issue and in no circumstances can we justify reducing the proper judicial safeguards and other safeguards to which all citizens are entitled. There is a case for reforming extradition law, but not for abandoning the safeguards to which I referred.
The Bill has fundamental flaws that must be remedied in Committee. I am glad that the Minister has not closed the door on amendments. I was also pleased to hear the Under-Secretary's comments. However, unless there is root-and-branch change, we shall vote against the Bill in future proceedings in this House and the other place.
The Bill is long overdue, but I have several concerns on which I hope to be reassured in the winding-up speech and during the Bill's progress through the two Houses.
The Government's approach has been to expose the Bill to criticism. A draft Bill was prepared on which the Joint Committee on Human Rights produced a report and the Home Affairs Committee, chaired by my hon. Friend Mr. Mullin, commented. That is all to the benefit of the House. Too often, Bills are presented to us and we do not have the time to consider them properly. In this case, the approach has been correct. There may be disagreements about what we should do about the Bill but at least we know the issues because they have been exposed.
There is no doubt that the law of extradition is out of date. To some extent, it dates back to 1870, when the law divided the world into the empire and the rest. Although there have been changes since then, the case for updating the law is strong.
There are practical difficulties with the administration of extradition law at present—my right hon. Friend the Minister mentioned its cost. The procedures are often dragged out and too much time is taken. In addition, with cross-border crime, we need a law that more readily addresses the issues. My hon. Friends have raised international drug dealing and trafficking in children.
Concerns have been raised about part 1. There are advantages in its drafting because considerable safeguards have been inserted. The bars to extradition are flagged up in clause 11 and developed in later clauses. The provisions mean that we shall not automatically extradite to category 1 countries. There are bars on double jeopardy. In response to an intervention, my right hon. Friend said that the provisions would have to take into account the Criminal Justice Bill. That is not a major problem, but he gave a welcome reassurance.
Clause 13 refers to extraneous circumstances. We shall not extradite people where they might be pursued for political or religious opinions. That is a good thing. There is, of course, the question of definition. In the Shayler case, the French court refused to extradite Shayler to this country on the ground that it was a political offence, so there can be disagreement about what extraneous circumstances might entail. However, there is a valuable barrier that will operate in our domestic law.
The barrier imposed in respect of the death penalty has already been mentioned. Both my hon. Friend the Member for Sunderland, South and Liberty have raised issues about the assurance that we shall have to receive, and to what extent it will be carried out in practice. We already have considerable experience of that issue in extraditions to the United States. As the Bill is considered, it will be helpful to hear how in practice the provision will operate with countries other than the United States.
Mr. Burnett mentioned speciality, which is a valuable barrier that will operate on extradition. There are other barriers. into which I need not go, that relate, for example, to persons who have been convicted in their absence and are being pursued by the requesting state.
There are two concerns that I should raise. The first involves the list of offences. It goes without saying that I would have preferred the list to be in the Bill. In a way, we are being asked to approve a Bill when we do not know, without referring to another document, what we are voting for. However, I understand the difficulties. It would be necessary to produce a composite definition involving offences in all the jurisdictions in the European Union in relation to the list. There is great merit in the Home Affairs Committee's recommendation in paragraph 55 of its report: if the list is to be extended in any way, Ministers should explain to the House when countries are being added to category 1.
The hon. and learned Gentleman is making a telling point. I am sure that he heard the Minister of State say that the list could be extended by the Council of Ministers. I was not sure from the right hon. Gentleman's contribution whether that meant that the matter would return to the House for scrutiny or whether there could be an Executive power in conjunction with the other members of the Council of Ministers.
The difficulty is that, for members of the European Union, in many ways, decisions are made by the Executives of the different countries. The Parliaments of the different jurisdictions will have to rubber-stamp, as it were, the proposals that are made. That is the nature of membership of the EU. That arises in many federations. Executives of federations agree on a policy, and the Parliaments, states, provinces or whatever are asked to give approval. In many instances, legislators are presented with a fait accompli. The Select Committee is recommending that, in that case, the Government should explain the matter to the House so that at least we can be reassured on what has been decided.
The protections of the European convention on human rights that are built into the Bill are extremely important. Xenophobia is a listed offence. Article 8—freedom of speech—might well be brought to bear in extradition in relation to that offence. I am concerned that the list is not in the Bill, but I accept that there are practical reasons for that. At the same time, there is great merit in what the Select Committee said about a fall-back position.
The Select Committee also recommended that a district judge might certify that there is not dual criminality and that then the Home Secretary—
I do not want to be oily but the hon. and learned Gentleman has considerable legal expertise. We thought long and hard on the Select Committee before submitting the suggestion to which he referred. Will he tell us whether, from his experience, it would amend the European arrest warrant to make it something that we had not signed up to, or whether it would be an acceptable way of making the procedure work and provide an extra safeguard?
Perhaps my hon. Friend is right.
At this stage, I can only say that I see some merit in the suggestion. I want the Government to consider the point seriously in Committee. It seems to have a certain value.
The hon. and learned Gentleman took comfort in the fact that there was a back-stop in the European Court of Human Rights, but states already have xenophobia as an offence as part of their legal codes. That has presumably been acceptable to the Court, which would therefore be no protection in a collision between the freedom of expression that we respect and the criminal code of other countries.
Yes, there is no doubt about that. I shall shortly consider the operation of legal systems in other countries that have often got the green light in decisions by the European Court of Human Rights even though one may doubt whether they are human rights-compliant. Clause 21, however, says that judges have to address the human rights point. In theory, they could decide—I do not suggest that this is a strong possibility—that, even though the warrant relates to xenophobia, that runs contrary to article 8 in the European convention on the freedom of speech and that extradition should not take place. As I said, the list of offences gives rise to concerns. During consideration of the Bill, the Government may well introduce changes to assure us that the bars on extradition will operate robustly.
I have already foreshadowed the fact that even though countries may be members of the European Union or, in a wider context, the Council of Europe, we are not always reassured by the operation of their criminal justice systems. My hon. Friend the Member for Sunderland, South mentioned people being on remand for substantial periods, and I certainly have knowledge of that. It would be invidious to mention particular countries, but the system in some EU countries or, more widely, European convention or Council of Europe countries, does not always reassure us about the extent to which human rights are taken into account in practice.
I am reassured by the robust approach of our courts in, for example, the recent Ramda decision, when the High Court said that the fact that France was a signatory to the European convention on human rights was not a complete answer. The courts have also said that they are not prepared, in asylum cases, for example, to accept what Germany does. France and Germany, one may think, have systems comparable to ours but our courts, taking a closer look, have said that they are not prepared to accept at face value the extent to which human rights operate there.
Clause 21 will therefore be extremely important in the operation of the system. We must work on the assumption that each EU member and, possibly, each signatory to the European convention has a criminal justice system in which human rights are recognised and which complies with article 6 and the fair trial provision. Clause 21 opens up the possibility that the subject of the warrant can say, XIn these circumstances, the operation of the system will not be human rights-compliant," which will be of considerable reassurance to hon. Members.
In conclusion, the Bill is overdue, the system is in need of considerable reform—it is weighed down by an accretion of law going back more than a century—and the problem of cross-border crime needs to be addressed. None the less, we cannot give the Bill unequivocal approval because some matters still require the Government's urgent attention—the list of category 1 offences and the fact that some category 1 countries, although they may generally operate in compliance with the European convention, may not in practice meet that standard.
As a simple and humble man—I know that my colleagues share that view—I hesitate to intrude on what, on such an occasion, can be a lawyer fest. When introducing the Bill to the House, the Minister for Policing, Crime Reduction and Community Safety used tempered words, which were very convincing indeed. However, before the Under-Secretary, Mr. Ainsworth gets too excited, the response of my right hon. Friend Mr. Letwin was utterly devastating. I do not think that he is a lawyer, but I would hate to appear against him as the defence—his performance was extremely impressive, and many of his points will be difficult for the Under-Secretary to answer in his winding-up speech.
On many occasions, I have listened in the Chamber to Ministers' tempered words and the honeyed assurances of lawyers. In fact, they came from a Conservative Government. When the House was considering the Single European Act such was the effectiveness of those reasonable words that they even secured the enthusiasm of Baroness Thatcher and Lord Tebbit. I see one or two faces in the Chamber this afternoon who, like me, were less persuaded. Sadly, however, my right hon. and hon. Friends fell for those honeyed words, only to regret it later. When legislation is introduced which, whatever people say, extends the power of European states, the House should tread with great care.
The report produced by the Select Committee chaired by Mr. Mullin makes for interesting reading. The House should take its advice and exercise great caution. The Bill has been described as an attack on civil liberties, and I have not yet heard a convincing rebuttal of that charge. Our Front Bench spokesmen are right to oppose the Bill—I shall join them tonight—and the introduction of a European arrest warrant. It is not right to extradite Britons for offences that are not crimes in the United Kingdom—that is not acceptable to our constituents. The thought of foreign police being able to initiate the arrest of a British citizen in the UK for something that is not a crime here will go down very badly with the British public. The Minister graciously gave way to me, but did not deal with my point about the 32 serious offences that may cause UK citizens to be handed over to a foreign power, even though they will not have committed a crime here.
Does the hon. Gentleman believe that the reverse is acceptable? Does he believe that if someone comes here and commits a crime under our law, but can argue that it is not a crime in his country, we should not extradite him?
I am not sure that I do—it depends on the crime. People have a right to expect protection from the Government of the country where they are citizens. I do not know whether the hon. Gentleman reads The Daily Telegraph—I know that it is not the most popular newspaper among Government Members—but Lord Scott, a Law Lord, commented in it that the definition of a xenophobia offence in the schedule to the Bill
Xwould almost certainly cover the distribution of Biggles and probably the Old Testament".
I am too young to understand the reference to Biggles, but some of my hon. Friends may have read about him—perhaps it would cause offence in continental Europe. However, people who take such books abroad with them as holiday reading should not risk being arrested when they return to Britain.
The definition of political opinions is more serious and much more worrying. The process of extradition may well be imperfect, but it could cause us to risk sending British citizens abroad for trial. I do not believe that there is a Member on either side of the House who would challenge the proposition that appalling crimes should be dealt with. No reasonable person believes that a national or geographical border should hamper ultimate justice, but provision already exists in English law to protect that process.
I believe the Bill to be another brick—a very heavy brick—in the growing temple of the European state. It goes agin what Britons have held and continue to hold dear, which is not only sovereignty, but the protection of our citizens in our country. I hope that the measure fails to obtain a Second Reading tonight.
I speak as a lawyer—a former lawyer, I should stress—and I aspire to the humbleness to which Derek Conway referred. When one approaches the issue as a former lawyer, it is important to be aware of one's current responsibilities to represent one's constituents. While there is always the temptation to become enmeshed in legal argument when dealing with such legislation, there is also always a requirement to look at the big picture concerning the enforcement of the law in respect of serious criminal offences which are borne from abroad into our country and also to consider the attitude of our constituents to such offences and the way in which the law operates against them.
I welcome the Bill in general terms, and I welcome one aspect of it that has not yet been mentioned. In general terms, I do not like politicians being intimately involved in the judicial process. That concept has had its day. The Home Secretary has on a number of occasions encountered difficulties in the courts in recent times, on subjects such as mandatory life sentences. As a former lawyer and now a politician, I believe that it is better for criminal justice cases to be dealt with, as much as possible, in the criminal courts. I have confidence in the existing judicial process, and I believe that the Bill contains substantial safeguards that would enable our judiciary to exercise discretion in favour of any individual whose human rights it considered were being substantially interfered with by the Act, as it would then be.
My hon. Friend makes a valuable point about politicians not being involved in judicial decisions. Of course, when the Home Secretary exercises that jurisdiction, he acts in a quasi-judicial way, but that still means that he can be subject to criticism. I agree with my hon. Friend. The point has not been mentioned and it is valuable.
I am grateful to my hon. and learned Friend for his intervention. The intricacies and traps that exist in a quasi-judicial process were fully exhibited in the Pinochet case, which caused all sorts of judicial and ministerial problems at the time. Such a situation should be avoided as far as possible in the future.
I am conscious that we are discussing heartfelt individual rights, and it is important that those rights are always taken very seriously by all hon. Members. I know that there are Members, particularly Opposition Members, who have taken that view for many years, both in government and in opposition. I respect that viewpoint, but I believe that the legislation will provide the necessary safeguards, although in certain respects it can be improved.
We must accept that the extradition system is outmoded. It is largely the child of the 19th century—we have heard reference to legislation from 1870. It is based on the concept that the British criminal justice system is inherently superior to any other criminal justice system that has ever existed or still exists. When I was preparing for the debate, I had in mind the type of attitude exhibited by Lord Palmerston in the Don Pacifico case, and that impression was reinforced by some of the interventions and references from the Opposition today. I am glad that I looked out the statement in which Lord Palmerston, in a five-hour address to the House back in 1850, said:
Xas the Roman, in days of old, held himself free from indignity, when he could say Civis romanus sum; so also a British subject, in whatever land he may be, shall feel confident that the watchful eye and the strong arm of England will protect him against injustice and wrong."
[Hon. Members: XHear, hear."] I sensed that that would be the reaction from Opposition Members, but I think that we have moved on from that attitude. I find it surprising that the Opposition consider the criminal justice system in this country to be perfect. There have been substantial miscarriages of justice in recent years, which must cast doubt upon the strength of our system. There are good arguments to support the contention that certain aspects of systems in various parts of Europe are better than ours. We can respect other criminal justice systems in Europe, and build a sensible extradition system on the basis of mutual respect and mutual recognition.
I accept the hon. Gentleman's proposition entirely, but does he accept that the evidence shows that we cannot generalise? Some of the other EU countries are unexceptionable and have all the safeguards that we would wish, but those who practise regularly in courts in those countries and in the UK note that certain countries, of which Belgium and France are two, do not have the same level of safeguards. There are regular problems. We must therefore be clear about the generality and note where the standards do not rise to the level that we would expect as minimum legal requirements for our citizens.
In any system of justice, one must be watchful and always safeguard the rights of the individuals whose liberty is in question in the courts. I do not believe that the British criminal justice system is inherently superior to any other system in Europe. In a modern world we need to devise an extradition system that is responsive to the needs of our country and of our constituents.
I am conscious that in the debate today, we have heard little about international crime, which is an issue of profound concern to many of my constituents in Wrexham, in north Wales. Those people are worried about international trafficking in class A drugs. Given that we have an extradition system that is still based largely on concepts from the late 19th century, when it was rare indeed for my constituents to travel to England—mine is a border constituency, 5 miles from the border—we ought to be considering ways of improving the system to ensure that it is responsive to international organised trafficking and crime at a level that is unprecedented in our history.
At times like this, as a former lawyer, I try to become a politician. Although I have concerns that have been bred into me through my training, I must also listen to the concerns that I hear from my constituents—the anxiety about serious crime and the threat to their children from the blight of drugs in their community. As always in these matters, one must exercise a degree of balance. It is difficult to do so, particularly when one is dealing with the individual liberties of anyone who appears before the courts.
I am sure that in Committee, the Under-Secretary, my hon. Friend Mr. Ainsworth, whom I know well, will listen carefully to all the matters put to him, and will respond to them in due course with well reasoned and well considered arguments.
I welcome the fact that the procedure is a judicial procedure and that it will be swift. The Minister referred to the time and expense that the current procedure involves for the criminal justice system. In the context of the Criminal Justice Bill, that money could be better spent on assisting drug addicts, better sentencing or improving our court structure than on antiquated, protracted and technical extradition procedures. Although I have some concerns, I welcome the general thrust of the Bill in that regard.
I commend the way in which the Bill has been considered to date and greatly welcome the publication of draft legislation, which allows points to be made and will lead to a general improvement in legislation. I understand that the Bill has been considered by the House of Lords Select Committee on the European Union, the Select Committee on European Scrutiny, a European Standing Committee, the Joint Committee on Human Rights and the Select Committee on Home Affairs. We are still at a stage at which not everyone is happy, even on the Labour Benches, with every aspect of the provisions, but I am sure that that process has improved them. The scrutiny will continue, as I am sure will the improvement.
There was a lot of scrutiny and the publication of the draft Bill was welcome, but I am sure that the hon. Gentleman will understand the concern felt by many of us that we still have a procedure of accountability that serves us poorly. The Under-Secretary knows that Ministers end up presenting proposals to Committees several months after they have been debated and when there may have been significant changes, and that there is nothing that we can do about it.
I am sure that the Government are aware of that problem, which needs to be addressed. None the less, I think that they believe in increased scrutiny. For example, I do not believe that any Government who contemplated reducing scrutiny would introduce draft legislation. We all agree that that is an exceptionally good innovation and that it will lead to better legislation in due course.
I mentioned that I had some concerns about the Bill. My major concerns are twofold. First, the list of individual offences that has been mentioned is not set out in the Bill. I would like to be satisfied that, if the list were to be extended, there would be due opportunity to consider the matter and ensure proper scrutiny.
Secondly, I am unhappy about the provisions relating to the death penalty—an issue about which I feel very strongly on a moral basis and, speaking as somebody who has been intimately involved with the courts professionally, as a result of the failures of the judicial process. Indeed, many such cases have been a matter of public record. I cannot feel comfortable with the clause 91 provisions on the death penalty and the written assurance that is to be given to the Secretary of State. There are compelling arguments for the view of the Home Affairs Committee that no country that has the death penalty should be admitted to category 1. I would be very uneasy in any circumstances about the extradition of any individual to a country that maintained the death penalty.
I assure my hon. Friend that there is no intention on the Government's part and no desire in the USA—the main country that we are talking about in terms of extradition—to propose consideration for entry into category 1. However, we have extradited people in fairly substantial numbers to the United States, many of them potentially in respect of capital offences, without any problem, having received the assurances that are set out. There is no intention of watering down assurances about capital punishment in respect of either category 1 or category 2 or allowing extradition so that people can be executed.
I am pleased and reassured by the Minister's assurance. I know well and greatly admire the stance that the Government have taken on the death penalty internationally. My concern is that the written assurances would relate not only to the United States, but to another country that has not been specified at this stage. I wonder whether we can rely on written assurances from other Governments on the same basis as that on which we rely on those of the United States.
I share the hon. Gentleman's concerns about clause 91 and, indeed, clause 15, which deals with the same issue. I find very worrying the language saying that we must rely on a judgment made by the Secretary of State. Even in the United States, the death penalty process can take a decade or even longer. At what point will the assurance become less assuring, given that the process takes so long?
The Government rightly ask for assurances from the United States, but other Governments or even individual Ministers who are more supportive of the death penalty may decide not to ask for such assurances. Is my hon. Friend taking that into account?
I take my hon. Friend's point, but the Bill relates to this country, so although our ambit is wide, I think that his approach is rather Palmerstonian. Perhaps we should restrict our discussions to the United Kingdom.
I should like to take up one further point in relation to the speech of Mr. Letwin, who often makes great play in the House of terminological exactitude and the importance of being very specific. Indeed, that was part of his criticism of the Government's position, but in that context, it would be appropriate in future for him to make it clear whether, in talking about the United Kingdom, he is talking about England and Wales, Scotland or the United Kingdom as a whole. As an Englishman who is proud to represent a Welsh constituency, I know that a large number of my constituents would not take kindly to the attitude that he took in his speech. Indeed, it may go some way towards explaining why the Opposition have no representative of Wales in the House.
I thought for a moment that the Government had found a supporter in Ian Lucas, but I am afraid that his speech was less unequivocal than it had seemed it would be. So far, the Government have failed to find unequivocal support among their Back Benchers.
I firmly believe—the Minister referred to me in this respect—that we must reform our extradition legislation. I believe equally firmly that the Bill is the wrong reform. I have no problem with part 2, although I shall mention one or two minor concerns, but I have very serious problems with part 1, which was effectively demolished by my right hon. Friend Mr. Letwin and the Chairman of the Home Affairs Select Committee. Indeed, one is tempted to leave it at that, say XIt's over to you" and ask the Minister to explain why those are not killer objections.
I came to this issue after
The case of Rachid Ramda has already been mentioned. He was arrested in November 1995 at the request of the French authorities for the Metro bombings in the summer of that year in which many people were killed. He managed to drag out the time before the case reached the House of Lords until May 1999—nearly four years after he was arrested. He dropped his appeal, and it was up to the Home Secretary to decide whether to remove him. It took the Home Secretary 29 months—nearly two and a half years—to make a decision. It has been reviewed by the divisional court and is back in the Home Secretary's hands. Rachid Ramda has therefore been here for seven years.
I raised the matter with the Prime Minister and said that it was a scandal. He replied that it was the law's fault. That is partly true. I agree that the law provides for far too many appeals and stages of the process. Part 2 goes a long way towards tackling that. However, the problem is also due to the courts being incredibly dilatory. I do not know how judges can look at themselves in the mirror when terrorist offences occur around the world and they know the obstacles that they unnecessarily place in the way of justice. People are entitled to a fair hearing but not to drag out proceedings for seven years. The Home Secretary should not blame the law or the courts when he has been dilatory in exercising his functions.
The courts can deal with such matters quickly. For example, the Pinochet case was heard three times in 15 months in the House of Lords. It is possible to do things quickly if there is enough political pressure to do so.
I agree that we need new legislation. We need to reduce the number of appeals and have a faster procedure for countries whose judicial systems we trust and respect. However, part 1 removes almost all the protections that have been constructed over many years. They include dual criminality and the Home Secretary's final discretion. Provisions for prima facie evidence have already gone. Those matters have been at the heart of our extradition law for a long time. That does not mean that they are bad. It has taken a long time to build up those freedoms in this country. I do not know Labour Members' view of history before May 1997, but we have a history of constructing individual freedoms against the power of Governments. We should not discard them lightly, as the Bill does.
I want to consider part 1, to which I have the greatest objections. The list of offences is vague. A law graduate who worked for the parliamentary draftsman and produced the list as proposed legislation would not survive the probation period. It is so vague that it defines nothing that would pass muster in our law. For example, what does participation in a criminal organisation mean? What is computer-related crime? The categories are too vague and too wide and are unacceptable.
It is our job to protect our subjects' liberties unless a process of law deprives them of it; the Extradition Bill provides for such a process. Unless the offences and the process are clear, we do not honour our obligation. It is wrong simply to refer to the framework decision to justify such vague offences. Most of them exist in our law, and we could define them adequately. We could define racial hatred, although xenophobia does not exist. Some computer-related crimes are offences in our law. We should define them and let our citizens know when they are in danger. We should have clear law, not a vague list of offences that is imported from a framework directive.
The choice is between listing categories of offence and individual offences. The hon. Gentleman implies that we should list every offence that might apply so that people know exactly where they stand. Does he not agree that the problem is that although we have a definition of racial hatred, it may be slightly different from, for example, that in Portugal? Does he suggest that we assemble a list of all possible crimes in every European Union country to which we might be prepared to apply the Bill?
The Bill removes the defence of dual criminality. If it continued to exist, I would not have a problem because the person whose extradition was sought could use the defence that the action was not criminal in both jurisdictions. However, that defence will no longer be available, so I believe that we should define the crimes more closely and carefully.
Does the hon. Gentleman agree that it would be helpful, for example, on racism and xenophobia, if the draft framework decision, which we recently considered in the European Scrutiny Committee, at least made it clear that
Xan offence was not committed unless the behaviour is threatening, abusive or insulting and is carried out with the intention of stirring up racial hatred, or is likely to do so"?
The hon. Gentleman makes a good point. Of course, the problem would not exist if the defence of dual criminality remained. However, I am amazed that Ministers allowed the directive to appear in that form, with incredibly vague wording. To that extent, I agree with the hon. Gentleman. If Ministers are determined to maintain a category of offence for which dual criminality is not available as a defence, it is incumbent on them to tighten the drafting.
European Union directives and regulations and the European Acts are worded vaguely. That is acceptable in many European jurisdictions, but it is not acceptable to us. We define matters tightly in law, and we should not make the Bill an exception, especially as the liberty of British subjects is at stake.
I should be happy with part 1 if dual criminality remained a defence. It is an absolutely fundamental protection in our extradition law, but the Bill removes it. It also removes the Home Secretary's final discretion about whether to extradite someone. At least a British subject has someone—the Home Secretary—who is accountable to a democratically elected Parliament for his final decision. As I said earlier, we have already dropped the requirement for prima facie evidence.
Where will we extradite people? I do not have problems with France, although the divisional court in the Ramda case does. I do not have problems with most European jurisdictions, but that does not apply to them all. Has any hon. Member not had a constituent languishing in a Spanish jail for months awaiting charge and trial? Let us consider the recent case of the plane spotters in Greece. The point was made that if they had returned from their holiday, the photographs had subsequently appeared and they had been charged under the Greek terrorism Act, they would have been on the plane to Greece, with no defence. The hon. Member for Wrexham would have found it difficult to explain to his constituents, whose will he believes he is doing, if someone's son, daughter, father, mother, husband or wife was on the plane without a sniff of a defence that they had committed no offence in British law and no facts had been established.
After an extremely long time and a ridiculous, farcical procedure. I pray the case in aid as an example of a jurisdiction the equality of whose justice with ours I do not accept. I am prepared to accept that of France, Germany, Sweden or the United States. However, that does not apply to all the countries, and I have cited two examples.
The Bill will apply not only to existing but to new members of the European Union. Twelve years ago, some were communist countries and they have no tradition of impartial and independent judges. Their tradition is heavily politically motivated. Turkey may become a member of the European Union. There are so many awful stories about the administration of Turkish justice to foreign citizens that we would have serious difficulties if the Bill applied to Turkey.
The European convention on human rights is not adequate protection. We should include a requirement for minimum standards in the Bill. The Government clearly recognise the problem because two clauses deal with extraneous considerations. One appeared in a previous draft and the other did not. Their inclusion suggests that the Government accept the possibility of a category 1 jurisdiction seeking to pursue someone on the grounds of race, religion, nationality or political opinion. The incorporation of a human rights provision in clause 21 adds protection. The Government therefore appear to accept that that is necessary and that the jurisdictions are not perfect.
The other offences that the Bill covers at least require dual criminality to be proved. That makes them reasonably acceptable. I do not have great problems with category 2 because prima facie evidence is required in most cases, but it can be waived if the Government identify specific countries for which it is not required. Again, however, the Home Secretary's ultimate protection is very limited.
Under clause 193, the Home Secretary's discretion to disallow someone's extradition is severely curtailed. He would have to do it either in pursuance of statutory authority or in circumstances in which he had exempted the person from the possibility of prosecution. It would also have to be done in the interests of national security. I would suggest that that does not go wide enough. We need to go further, and at least include the provision that someone should not be extradited if a serious miscarriage of justice were likely to occur, or if the national interest required it. The Home Secretary is the right person to make such decisions.
I want to identify a couple of other weaknesses in the Bill. In many continental jurisdictions an investigating magistrate is entitled to arrest people in the course of his investigation, to examine them as witnesses and to collect evidence. Under the Bill, if such a magistrate had signed an arrest warrant he would be able to arrest someone, who might not then be charged for a long time, if at all.
I am also concerned that, under subsections (4) to (6) of clause 63, there is a possibility of a British Minister's extradition being sought by a category 1 country for something that that country might define as a war crime. I shall return to this matter in Committee or on Report, or perhaps the Minister will be able to deal with it when he replies to this debate. In the Pinochet case, a Spanish magistrate issued a warrant for Pinochet's arrest for something that had not happened in Spain or the United Kingdom. In the very special circumstances of that case, he was not extradited. Although few of us had a lot of personal sympathy with General Pinochet, we should not allow that to colour the fact that there could be a very dangerous hole in the law.
Let us take a relevant example that might touch a nerve with the Government. Our bombing of Kosovo was almost certainly illegal under international law. It is impossible to find a serious international lawyer who thinks that it was not. It may have been the right thing to do, but it was certainly illegal. Greece was very sympathetic to the Serbs in that conflict. I would like to be assured that the Bill could not be used in similar circumstances to those of the Pinochet case by, for example, a Greek magistrate bringing a prosecution against a British Minister for their action in connection with the Kosovo conflict, or to prosecute a Minister in the then Conservative Government over their action in the Falklands, as it could be argued that one or two things done there were outside the remit of international law. Ministers are responsible to the House for their actions, and I would like an assurance that that could not happen.
We have seen the consequence of this with the plane spotters, and the provisions could have all sorts of other hypothetical consequences. A British citizen could be investigated on the say-so of an investigating magistrate for a vaguely defined offence that was not an offence in the United Kingdom, with no prima facie case having been established, and no democratic accountability. That person could languish in a foreign jail for a long time without being charged, let alone tried. That is unacceptable, which is why I shall vote against part 1. I do not understand how anyone could vote for it.
I would like to suggest some possible amendments. First, the rule covering dual criminality should be retained in all cases. There should be no distinction between offences in the framework decision and offences outside it.
Yes, I do, because I want that protection for our citizens. It is our job to protect the liberty of our citizens, and if the price to pay for that is that someone who commits an offence here goes back to Germany, Spain, Greece or wherever and cannot be extradited for that reason, I absolutely accept that. It is unlikely to occur in what we would consider to be very serious cases, such as crimes of violence, armed robbery, murder, or terrorism. It is likely to involve only trivial cases involving dealing in some of the less important kinds of drugs, for example, or photographing military aircraft in Greece. I do not think that the security of our country or the integrity of its criminal justice system will fall because of this issue.
I am intrigued that the hon. Gentleman has referred to possible amendments. To what extent does he envisage that there should be an exact correspondence between these offences in different jurisdictions? Does he also feel that his overriding view in favour of streamlining the present system is consistent with his views on the dual criminality issue?
Yes, I do, because I have said that I would be perfectly happy if part 1 required dual criminality for both sets of offences—those in the framework document and those outside it. It is required for those outside it. If it were required for those within it, there would not be a problem. As to whether my amendments are consistent with the obligations to the European Union that we have undertaken, the answer is that I do not know. Clearly some exemptions are consistent, because the Government have already put them into the Bill, including those relating to extraneous considerations, human rights and one or two other things. Those are clearly acceptable. If my proposals are not consistent with those obligations, I hope that it will be the will of the House that the Government should go back and renegotiate, because what they have negotiated is absolutely unacceptable.
I shall continue through my list of possible amendments. If we cannot reintroduce dual criminality for everything, it would be right to adopt the amendment suggested by the Select Committee on Home Affairs, which proposed that a judge should certify that the case would not pass the dual criminality test, and that the Home Secretary should then take the final decision on it. I also agree with Mr. Mullin and his Committee that we should not lower the standard in this regard from three years to 12 months. I do not know why we have chosen to introduce a lower standard. The framework decision requires a maximum sentence of at least three years, and I cannot think why we have reduced it to 12 months.
The Home Secretary should have wider discretion under clause 193 than he has, and it should relate to questions of national interest, rather than national security. Category 1 offences should be confined not only to European Union countries but to those of whose judicial systems we in the House have specifically approved. There should be minimum standards, and, under the Bill, a minimum guarantee that, if someone is extradited to another country, they should be charged within a certain time—a few weeks—and tried within a few months. If that does not happen, they should be returned.
The Bill is just another example of the long list of freedoms with which the Government have become very careless. These freedoms are long held and hard won, and they are very valuable to the citizens of this country. Our history over the last 500 years has involved the acquisition by individuals of freedoms that used to be held in the power of the state. The Government are reversing that process in the interest of getting a few more convictions. Jury trial is being seriously circumscribed, and the presumption of innocence dramatically reduced in some cases. The burden of proof is being shifted in some cases, the admissibility of previous convictions is now being considered, and the double jeopardy rule is to change. All those provisions are being compromised. They are fundamental principles of our criminal law and of our rights and freedoms as British citizens, and the Government are getting very careless with them.
In some ways, the Extradition Bill represents the worst of all the proposed changes. At least in the other cases a British court and judge would try a person—often with a jury—in their own country and in a language that they understood. If a person is extradited, none of those things will apply. They will probably not understand the language, the law will not be familiar, and it will operate in a system that they do not understand and in which they may not have much confidence. In some ways, therefore, these freedoms are the worst ones to erode.
It seems that just about every Labour Member who has spoken—and who has thought about this—shares some, if not all, of my reservations. I hope, therefore, that there can be cross-party consensus and that we can collectively make the Government think again about this Bill. I want to know how Government supporters who do not vote against the Bill will explain—as I know I could not—to a constituent why their mother, father, son, daughter, husband or wife has been extradited under this procedure, as one of those plane spotters might have been, and is languishing in a foreign jail awaiting trial, as constituents of mine have done in Spanish jails.
I would like to apologise to the Front-Bench speakers for the fact that, owing to Committee work, I was unable to attend the early part of the debate. I apologise to the House more generally if I inadvertently duplicate any points that have already been made.
As a starting point, we need to stress that the current position is not satisfactory. We are not living in an ideal world in which extradition works perfectly, in which wrongdoers are invariably returned to the country in which they committed an offence, or in which we can sit back and feel that we must not disturb this idyll because any change would be a change for the worse.
Now, when we attempt to extradite someone who has committed or is alleged to have committed a crime in another country, it normally takes us about 18 months and costs the taxpayer #125,000. It is reasonable to ask whether that process is necessary for the exercise of fairness and justice. None of us wants justice to be accelerated to the extent that people are sent back under some sort of summary decision and then treated cruelly and unjustly in another country, but most people who have had anything to do with extradition accept that the current process is abnormally cumbersome.
Conversely, when we attempt to extradite people in other countries who we believe have committed crimes in Britain, the process usually takes at least a year, and quite often we fail to get the necessary extradition order, especially when financial crime is involved. That, too, strikes most people as unfair—that a person who lives in Britain and commits a crime will, we hope, be brought to court and so to justice, but if, before the crime is detected, the person escapes to the Cote d'Azur or some other location within the European Union, he will have a sporting chance of not being returned for a long time, and perhaps not at all. Most people would agree that that does not seem a sensible way in which to proceed.
Some argue for what one might describe as the lowest common denominator of European offences. They say that they would be willing to apply a more rapid extradition process, but only where dual criminality applies, which is to say that the offence allegedly committed in another country is also an offence in Britain. The effect, if all those bilateral decisions were applied, would be that the only international extradition network that functioned efficiently would be in respect of crimes that were crimes throughout the EU.
Some go yet further and argue for the application of what one might describe as the British common denominator. Derek Conway, who is no longer in his place, argued that we should protect British citizens who return to Britain from overseas from having foreign laws applied to them, but we should be able to apply British law to people who come to Britain, after they have returned to their own country and even if their own law exempts them. I may have misunderstood the hon. Gentleman, but if I have represented his argument correctly, I have to say that such a one-sided position is not sustainable in any serious EU discussion.
I respect the different position held by Mr. Maples. He courageously accepts that sauce for the goose is sauce for the gander and that if we say that we will not allow a British person to be extradited for a crime that is not a crime under the British code, we will accept the reverse. He suggested that that would apply only in relatively trivial cases, but I would like to give a couple of concrete examples of the type of case that we are discussing, because I feel that our debate has been conducted in a vacuum, whereby we discuss everything in principle.
My understanding is that, in Spain, the age of consent is 12. Sexual intercourse with a 12-year-old in Spain is legal, whereas in Britain it is an act of serious sexual abuse. If someone from Spain visited Britain and had sexual intercourse with a 12-year-old and it was detected the day after he returned to Spain, I suspect that the hon. Gentleman would feel that it should not be a sufficient defence for that man to say that, in Spain, what he did would have been legal. Even if the hon. Gentleman does not wish to intervene on that point, he might like to reflect on it.
Conversely, in Germany, for historical reasons with which we are all familiar, it is illegal to claim that the holocaust—the slaughter of millions of Jews and other people—never took place. It is illegal to do so because it is seen as giving aid and comfort to neo-Nazi groups who might want to revive past horrors. In Britain, because it has never been such a major issue, it is not illegal so to do. Anyone can go out on the street, grab people by the sleeve, and try to persuade them that the holocaust never happened. People would think it disgusting, but it would be legal. A couple of years ago, a well-known Englishman went to Germany, where he supported an extreme right-wing group which, among other things, claimed that the holocaust either did not happen or was grossly exaggerated. He then returned to Britain. Under German law, he had committed an offence. Under British law, he had not.
If we deny the European arrest warrant, we are saying that neither the Spanish paedophile under British law, nor the extreme right-wing English historian under German law, should be prosecuted. Are we saying that? No, we are not. We are saying that we should not prosecute them if they happen to have crossed the border. We accept, and have always accepted, that if people commit an offence in a country that they are visiting, that country has a right to prosecute them. The only question at issue is whether the country still has the right to prosecute if the person who commits the offence crosses the border before the offence is noticed. That is the apparently holy principle to which hon. Members refer when they say that we have had 500 years of liberty and so on: the issue is not whether one can be prosecuted for an offence in another country, but whether we allow people to escape by crossing a border.
Various suggestions have been made on how we might make exceptions to a dual criminality rule. The Home Affairs Committee suggested that a district judge should examine such cases, and if he or she determined that the crime in question was not covered by the British criminal code, the case should be referred to the Home Secretary. We all like to make life difficult for the Home Secretary—it is almost a national sport—but what is the Home Secretary supposed to do? Under the European Council's decision, he is compelled to decide that extradition is possible if the case comes under one of the listed categories, so in fact we are building in one of the notorious delays which, as the hon. Member for Stratford-on-Avon rightly said, are an unpleasant characteristic of the current system. We have someone who is accused of a crime that in another country is considered a serious matter, and everybody knows that he has to be sent back sooner or later, but we build in a clause that states that first his case must go to the Home Secretary, the Home Secretary has to think about it, and then say yes. That is not an advance. It imposes not an additional freedom, but additional delay.
There is a tendency among defenders of liberty, whom I respect, to use delay as a defence of liberty. That is undesirable in principle. The idea that justice should be speedy is not wrong in itself, but we should impose delays only where that improves the quality of justice, rather than as a token extra step.
I am sorry if the hon. Member for Stratford-on-Avon feels that I am getting at him, but I want to respond to what he said in his interesting speech. Another point—others made it by implication, without being as clear as he was—is that if we are to have exemptions from dual criminality, they should be specific. We should have a list of well defined offences so that we all know where we stand. The hon. Gentleman will correct me if I have misrepresented him, but I think that that is his position.
I am not sure how many serious criminal offences—Xserious" as defined in the Bill—exist in the British code, and in the French, German and other codes; but there are a great many. There are, for instance, a number of possible crimes under the heading XSexual abuse of children". I think most reasonable people would agree that we should not introduce a lot of legal hurdles in such cases, but should allow extradition even if the definition is not precisely the same in our country. In those circumstances, we would have to replace the broad category with a list of all the offences that we were prepared to accept. We would have to get the Home Office to inspect the Portuguese criminal code, offence by offence, saying, XYes, we will accept that one," or XNo, we will not accept that one."
It would be the exception rather than the rule if the definition of the offences were identical in every EU country. If we are saying that not just categories but individual offences must be identified, we are giving our law-makers a momentous, mammoth, gargantuan task.
Some offences on the list simply do not exist in Scotland—sabotage, for example. Some definitional guidelines would give sheriffs an idea of what criminal conduct was being discussed.
It would be a good idea for the hon. Lady to look up the definition before visiting a country where sabotage is a criminal offence, if she was thinking of doing something that could reasonably be construed as sabotage. I remember when those applying for a visa before going to America had to sign a form saying that they were not planning to engage in terrorist activities. Currently, if the hon. Lady commits an act in Italy that constitutes sabotage according to the Italian code, she can be arrested and sent to prison for years. We are merely discussing whether, if she got out of Italy before she was caught—I hope she will forgive me for referring to her directly—that would allow her an exemption.
The hon. Lady implies that we will all be able to travel freely until the Bill becomes law, and that we need not know what constitutes sabotage in foreign jurisdictions because it will not apply to us. That is not true. It will apply to us; indeed, it applies to us now. The only question is whether we can extradite people for it if they come back to this country.
I think Members may agree, if they think further, that it is not practicable to descend to the level of the individual offence. They might be on slightly firmer ground if they suggested that the categories of offence should be recognised more in Britain.
My hon. Friend will surely realise that while the offences in the framework document are generic offences, and such crimes are covered for the very reasons he has been giving—problems would be involved in doing anything else—when a Scottish judicial authority frames a warrant it will frame it in Scottish law. The offence will be very clear in Scottish law. It will meet the requirement in the framework document and the minimum sentencing requirement. When a warrant is received from a Danish or French judicial authority, the offence will again be spelled out clearly in Danish or French law. There will be no dubiety about the fact that an offence has been committed in one of those jurisdictions.
That is a good point. We should not give the impression that people will be extradited on the basis of a vague warrant that says, XWe think he carried out some sabotage"; the warrant will be very specific.
At the risk of repeating myself, let me say that the hon. Lady will need to know what it means; otherwise she will be at risk when she travels today, regardless of the Bill.
Perhaps I did not make myself clear enough. It is of no concern to me whether an individual like me is aware of the criminal code in each EU state. The key point I was trying to make is that the court in Scotland would have to have an idea of what criminal conduct was being discussed. The Minister's response did not deal with that. Sabotage, for example, does not exist in Scots criminal law. With no guidelines on what is encompassed in that category, the sheriff—
I take the hon. Lady's point, but I think she is trying to smuggle in the idea that the Scottish, or the English, courts would have a second bite at the cherry and make an assessment of whether the crime had actually taken place. I think we must accept, when we are talking about extradition, that people are not tried at both ends. They are tried in the courts at the other end, under the law as defined at the other end.
What we are discussing is whether there are certain categories of offence that are so serious that they warrant going beyond the principle of the lowest common denominator—whether, even if we accept that the law differs slightly from country to country, it is reasonable for the country against which such offences have been committed to ask for the extradition of the suspect. As most Members have accepted, this is very much a dual facility: either we get it for ourselves, or no one gets it. If we are fanatical and say that we will not extradite anyone unless they have clearly committed a crime that is also a crime in Britain, we are accepting that the Spanish paedophile and everyone else who commits a crime in Britain that is not a crime at home can escape scot free. I question whether our constituents wish us to do that.
Several Members cited the plane spotters in Greece, asking how, if a constituent was one of them, we could justify the Greeks' entitlement to try them for the alleged offence. I think we would be on uneasy territory if we started discussing each individual case, but few Members would claim not to be able to find an example of a British court case with peculiar features, causing most to wonder why it had been brought. They say that hard cases make bad law. As most people would accept, we should not base the entire principle of mutual extradition within the European Union on the specific case of an unreasonable prosecution of a plane-spotter in Greece. If we do, we will be saying that if any country in the European Union sometimes brings a prosecution that we think unreasonable, as happens every month, if not every week, in Britain, we will not accept the principle of mutual extradition.
What is more, it is less purist than that. People say that they accept the principle of mutual extradition but that they want it to take a long time: they want it to cost #125,000, to take 18 months, to clog up our courts, to go to higher courts, to the Court of Appeal, to the House of Lords and to the Home Secretary. It is so important to them that we preserve the distinction and protect the rights of the Spanish paedophile and the English right-wing historian that they are willing to accept that as the price.
I doubt whether the average constituent who is not involved in a specific case would agree with that. Constituents who are involved in a specific case will always feel strongly that it is an outrage and should not happen. [Interruption.] Mr. Cameron is pointing at his watch. I do not know whether he has an urgent engagement but I have not noticed a great flood of Conservative Members seeking to speak. When they flood in, I shall take care to give them adequate time.
I raise some specific issues. I raised this one in European Standing Committee B: the impact of the internet on the entire process. Clause 63(2) on page 30 refers to the alleged crime occurring in a category 1 territory. If the offence is committed in Germany, as we have discussed, dual criminality may not be a necessary condition.
Let us say that I set up a website written in the German language, marketed for readers in Germany and run through an internet server in Britain, and that I never set foot in Germany. Will I be liable under clause 63(2) because the offence has been committed in a category 1 territory, namely Germany? The question is: is it my location, or the location of the supposed victim, the person who is forced to read, let us say, neo-Nazi propaganda, which would be illegal in Germany?
What would happen if I went to Germany and urged people to look at the website—if I did not when in Germany promote neo-Nazi views but encouraged people there to read my website? What if I gave interviews to the German media and said, XI have a website full of interesting things about Germany, and I urge you to read it," and then travelled back to Britain? Would I have committed an offence under German law? Would I have committed an offence on German territory? If I did not travel to Germany but placed an advertisement in the German media, would any offence have occurred in a category 1 territory?
The Minister may feel that I am making a fine point, but it is the sort of thing that will come up more and more as the internet becomes our main source of information. The entire category of crimes that consists of making inflammatory statements that are illegal in a number of countries will become the subject of intense legislative debate, and it would be helpful if the Minister at some stage during the proceedings on the Bill were to address that issue.
I do not wish to prevent all the Conservative Members who wish to speak from getting in, so I will bring my remarks gradually to a close. As has been pointed out, the opposition to this entire Bill is based on the underlying assumption that other courts cannot be trusted as much as ours. I do not say all other courts; I say some other courts.
We must make a decision. We must decide whether we are prepared to have a common legal framework for serious crimes to the extent that we will trust each other to prosecute them. If we are not prepared to have that common trust, we will be saying that people can be war criminals, or sex offenders, that they can commit a wide range of serious offences, and that if they slip through the net of the current system, we will accept it because we do not trust the Greeks—look at the plane spotters. It is not reasonable.
The hon. Gentleman points to the Birmingham Six as an example. Every country has examples of miscarriages of justices. That is not a reason not to prosecute. It is a reason to prosecute carefully. Either we accept that the other countries are worthy of respect in this case, or we do not.
Those hon. Members who say that we should not respect the other countries' courts are often the hon. Members who do not respect other aspects of the other countries in the European Union, who say that they cannot be trusted to follow the rules of the European Union, and who say that they wonder whether we should be members of the European Union at all, given that the others are so unreliable.
Does the hon. Gentleman not accept that many hon. Members may agree with the sentiments that he has expressed but will not be prepared to vote for a Bill that does not have what we consider adequate safeguards?
I accept that. I am not claiming that anyone who disagrees is a Europhobe. I am saying that there is a tendency here: that some hon. Members are opposed to the Bill because they instinctively mistrust a number of foreign jurisdictions; and that that reflects a wider mistrust of foreign communities in general. That is an area where the Government have made a difference compared with previous Governments. When we say that we are willing to engage with Europe, we mean that we are willing to discuss with our European partners what a reasonable joint basis is and to proceed on the basis of mutual trust. Sometimes it may go wrong. Sometimes—often, I believe—it will produce more justice than we have at the moment. On that basis, I commend the Bill to the House. 7.38 pm
It is a great pleasure to follow Dr. Palmer. I congratulate him on speaking for more than half an hour. I oppose the European extradition warrant because it is a bad law founded on a good principle that has been wildly misapplied by our masters in the European Union who have agreed the warrant. That is the principle, to which the Minister alluded, of mutual recognition.
Fans and amateurs of the European Union, such as me and the hon. Member for Broxtowe, who spoke at such great length, know that the principle of mutual recognition has brought many benefits to the people of the European Community. The principle arose from a famous case—the Cassis de Dijon case—and I hope that hon. Members who are waiting to speak will forgive me for briefly reminding those who have forgotten about it.
In Dijon, a vendor of Cassis de Dijon, a substance used to transform Kir into Kir Royale, had difficulties selling his product to Germany, and he went all the way to the European Court of Justice, which is the supreme judicial body on our continent for the European Union. It decided that what was good for Dijon should be good for Germany, and that there should be a principle of mutual recognition of standards.
From that, of course, flowed all the benefits of the single market. For example, Labour Members could, if they so chose—I hope that, in due course, they will—take up alternative careers as dentists in Belgium or taxi drivers in Greece. That is the triumph of the single market, which was of course promulgated and pushed forward by great Europeans such as Lord Cockfield and Mrs. Thatcher.
It must be said that that principle cannot be universally and successfully applied. Hon. Members who have travelled to the continent will know that, in spite of 30 years of EU membership and working away solidly at the principle of mutual recognition, it is not yet possible to plug in one's toaster in France—should one bring it from Britain—and nor is it possible to use a British video recorder. Another example of the failure of the principle of mutual recognition can be found in road safety. It would be unwise if the European Union were to apply the principle to driving on the left-hand side of the road. It would lead to many fatal accidents if Ministers were to turn up in France and try to drive on the right. The principle of mutual recognition cannot be excessively applied because it does not cohere with what happens in the real world.
The hon. Gentleman touches on a real point, which I should have thought was an advertisement for the principle of mutual recognition. He is right that we cannot have a European system of law that applies to the rule of the road, because some drive on the right and others on the left. However, surely we can have mutual recognition so that, when somebody is accused of dangerous driving and potentially killing someone in France, that penalty can be taken into consideration in Britain so that they are not liable to do the same thing here. Surely the hon. Gentleman accepts that such mutual recognition protects our citizens, as well as those of the rest of the European Union.
The Minister is groping towards the essence of the problem, which is that mutual recognition can only go so far. It does not work in the sphere of road traffic, because trying to drive on the left-hand side of the road in France would prove catastrophic, and it does not work in the criminal justice system. It is eccentric, dangerous and profoundly undemocratic to apply that principle to this very delicate area of law. There is simply no reason to do it. The only possible outcome of abolishing the principle of dual criminality is the creation of a single legal regime that does not have the sanction and authority of this House. It is particularly worrying—
The hon. Gentleman's point is so frivolous as to not be worth answering. It is perfectly obvious that mutual recognition is not applicable in the sphere of driving or in the criminal justice system. As he himself said, very different approaches to the law exist. It is particularly worrying that British citizens could face immediate and unchallengeable extradition for offences that may carry as little as 12 months' imprisonment in the extraditing country.
The problem is not just that the list of 32 offences is inchoate and vague but that this House has had no say in the drawing up of the laws that fall under those categories. As has been said repeatedly, it is therefore possible for a British citizen to be extradited for conduct that has not been criminalised in this country. Worst of all, it is particularly intolerable that this House will have no control over any future legislation that may fall under any of these vague categories, and which may be drawn up by any member state in any contracting country.
I shall not delay the House with examples of cases where our law does not criminalise activities illegal in other countries. The point about the plane spotters has already been well made. I thought it generous of the Minister for Policing, Crime Reduction and Community Safety to concede in advance that, under this EU extradition warrant, those people would have been sent back to Greece immediately, had they been in Britain. That rather kicked the legs out from under his position, and it infused the contributions of most Labour Back Benchers, with the exception of the hon. Member for Broxtowe. The point about xenophobia has also already been well made.
I am not going to retract what my right hon. Friend said. First, the Greek plane spotters case was not an extradition case, but had it been so, potentially it would be extraditable now. The charge was espionage, and no ability exists to question on a prima facie basis whether or not such an extradition would be carried out. The European arrest warrant would not materially change that situation. Those people could be extradited now, under law passed by the hon. Gentleman's own Government some 10 years ago.
I understand the position, and I am grateful to the Minister for trying to save his right hon. Friend from the very difficult position in which he put the Government. However, I think that he will find that, under the current dispensation, it remains at least within the power of the Home Secretary to vary such a decision by not extraditing on the spur of the moment—as this EU extradition warrant envisages—a bunch of poor tourists who fall foul of the Greek authorities.
I shall not labour the point, but I want to make one other that occurred to me during the debate. It relates to a particular category of difficulty that many Members will have noticed in their postbags: the different approaches in EU countries to the law of custody of children. I can well imagine that Germany, for instance, might take a very different view of what constitutes illegal restraint—as it is described in the 32 new categories—from that taken by our courts. British mothers of children with a German father who brought those children to England might well fall foul of the German courts, and could be extradited to Germany for something that is not a crime in this country. I mention that as merely one example of the dangers inherent in the abolition of the principle of dual criminality, and of the establishment of mutual recognition of criminal law.
What is the benefit of the proposed change? The Government have proposed only one serious benefit: once in a blue moon, it might be possible to snare a tax avoider who absconded to Luxembourg. More or less, that was the only good argument that I heard. That is a pitiful and petty objective. If that is all that we hope to achieve by giving away the legal certainty of people in this country, that is a shameful thing. It is wrong to do away with the principle that the criminal laws by which people in this country can be held to account should at least be consistent with the laws passed by the Parliament of this country. If Ministers want a law against xenophobia, they are perfectly entitled to draw one up and bring it to Parliament to see whether we will pass it but that cannot happen without the approval of Parliament.
I was interested in the remarks of the hon. Member for Broxtowe about paedophilia, although I thought that he elided his example. Consenting sexual relations in Spain became, in his mind, paedophilia. If the Spanish want to change the law on consenting sexual relations and to raise the age of consent, that is a matter for them and not for this House.
In contrast to my previous intervention, I want to make a serious point. It seems to me that it is a matter of serious concern in Britain if visitors from another country believe that they can safely have sexual relations with children aged 12 because it is legal in their country. I should have thought that the hon. Gentleman would believe that to be of interest not only to the Spanish Parliament.
If the hon. Gentleman accurately represents the position in Spain—I have no independent knowledge of it and should be grateful for elucidation afterwards—he has a fair point. In that respect, what takes place in Spain is clearly a matter of interest to us. However, to do away with the legal certainty of people in this country that they will be governed exclusively by the laws of this country, passed in this House, for the sake of the elusive prize of capturing one so-called paedophile or someone who has sexual relations with a person aged 12 and over is, I think, very wrong.
It is plain what needs to be done. We need to insist on the principle of dual criminality or to do as the Home Affairs Committee has suggested and Members on both sides of the House have proposed: we should leave it to the power of the district judge. If he decides that dual criminality does not apply in a particular case, he will give the case to the Home Secretary to decide whether the extradition may go ahead. That at least would provide the procedure with the fig leaf of democratic accountability—anything else would undermine confidence in justice and in our democratic system.
This has been an interesting debate. Opposition and Labour Members have ventilated some important principles and issues. However, although Conservative Front Benchers have a principled objection to part 1, one cannot help feeling that much of the heat generated by the Opposition is informed by plain anti-Europeanism or Euroscepticism. Having said that, I welcome the Bill but have reservations about its practicalities. I was impressed by the report of the Home Affairs Committee and the speech of my hon. Friend Mr. Mullin.
I agree with the Government that reform of the law of extradition is necessary and overdue. Current procedures are too slow and expensive, and ineffective in dealing with the growing phenomenon of organised crime that knows no international boundaries. The current system does a disservice to many victims. I agree with my right hon. Friend the Minister for Policing, Crime Reduction and Community Safety that, when it takes six or seven years to conclude extradition proceedings and the process can be punctuated by no fewer than seven different forms of appeal, something is clearly wrong. That surely is an illustration of the axiom that justice delayed is justice denied.
There is something of a tension as far as the objectives behind the legislation are concerned. One can accept that there is increasing co-operation between the member states of the European Union. We know that the Government have subscribed to the aim of establishing an area of freedom, security and justice. That is an extension of the single market, and that requires mutual recognition, as Mr. Johnson said so eloquently and humorously. However, it is not always possible to achieve mutual recognition. Business in this country—particularly the professions—finds it frustrating that our European friends do not recognise our professional qualifications and often do not give the reciprocity necessary to establish a single market. However, there is a need for judicial co-operation if that single market is to be established in terms of recognising civil judgments and civil legal procedures.
In criminal justice, if we are to create a European Union in which there is freedom of movement, security and justice for all our citizens, we need to trust our European Union partners. I speak as someone who is by no means a Euro-enthusiast when I say that I recognise that there needs to be greater judicial co-operation and an extension of trust by this country when dealing with extradition requests from other EU member states.
If a Government are concerned, as this Government are, to expedite the long-winded and cumbersome extradition procedures, it is necessary for us not blithely to abandon caution but to extend a fair degree of trust to those mature democracies that we feel have a system of justice that can more or less be trusted. That is why I think that the Bill's structure, in so far as it draws a distinction between category 1 and 2 countries, is justified. We know that the so-called fast-track procedure involving the European arrest warrant will apply to category 1 countries.
The removal of protections that hitherto existed, however, is quite a draconian step. If countries can avail themselves of the fast-track procedure, there needs to be a reasonable degree of parliamentary scrutiny of which countries should be included in category 1. Although I welcome the Bill as a whole, I agree that the Home Affairs Committee recommendation on that point is particularly compelling. The Committee concluded that it was wrong for the Government to be able to add non-EU countries to category 1, thus enabling them to benefit from fast-track procedures, without there being appropriate parliamentary scrutiny. Will the Minister confirm whether the measure will leave it open for the Government, as a discretionary matter and without adequate scrutiny from the House, to add other countries to category 1?
It is important to stress that if trust between countries is to be the basis for extending a fast-track approach to category 1 offences, Parliament should have the right to test the Government's view that it is right to extend that privilege to other countries. Trust is a byword, however; if we are to have good and practical relations with our European neighbours, there must be an expedited procedure.
I have some support for the points made by my hon. Friend the Member for Sunderland, South about dual criminality. Hon. Members will recall that he argued for the necessity of some political process to ensure that a district judge could express a view that dual criminality did not exist—in other words, that the offence that was the subject of the warrant might exist in the country where the warrant was issued but did not exist in the UK.
As I understood my hon. Friend's argument, he envisaged a situation in which a district judge could make a declaration that dual criminality did not exist. In those circumstances, the Home Secretary—accountable to Parliament as he is—could make a separate decision on whether extradition was appropriate. In that sense, parliamentary scrutiny would be brought to bear on the case and that would give an important safeguard.
However, there is a false element in that argument. I tend to the view that if we are serious about trusting countries admitted to category 1 status, we have to accept that they are a job lot—to put it crudely. Having accepted the principle that there should be fast-track procedures for mature democracies, which have robust judicial systems that provide safeguards for individuals and which adhere to the European convention on human rights, we cannot gainsay that and embark on a minute assessment of their criminal law systems.
One has thus to accept the logic of the Government's position—although hon. Members may be right to express some reservations about how it would work in practice. There is room for abuse. The provisions could be a blank cheque. What may be appropriate at present may not be in years to come. We cannot guarantee that laws passed by our EU partners will meet our expectations as regards conformity with human rights standards in the future.
The provisions may give rise to some tension. I shall be interested to hear the Minister's broad response to my points. If one is to take the route proposed in the measure, one cannot complicate matters by creating a situation that brings about the very mischief of delay and expense that the Bill is intended to address.
Hon. Members who suggest that there are dangers in doing away with dual criminality may be overstating the case. As I understand it, English common law never required that there should be an exact correspondence between offences in the country to which extradition was required and those that could be heard before courts in England and Wales. English common law applies to Wales and some Labour Members who represent Welsh constituencies hope that primary legislative powers for Wales will remain in this place.
Extradition treaties between sovereign countries have been in existence since the time of the nation states of Greece and Sparta, as I am reminded by the learned author Michael Forde in his recent publication on extradition law. He makes the point that extradition is an extension of diplomacy because if nations are to have good relations with each another, they need to show respect for and trust of their respective judicial systems.
Michael Forde states:
XUndoubtedly there was some form of extradition in ancient Greece and also between the Italian city states. During the 18th century France had extradition arrangements with Spain, with Portugal and with Wurtemburg."
He notes that the XJay" treaty of 1794, which marked the end of hostilities between the United States and Great Britain, made provision for extradition between Holland, the United States and Great Britain.
We have moved away from the use of extradition treaties to a more logical approach. To return to what I regard as the overstatement of Opposition Members' case on dual criminality, I refer to clause 10, which deals with the initial stage of the extradition hearing. It contains an important safeguard on which the Minister might care to comment. The clause states:
XThis section applies if a person in respect of whom a Part 1 warrant"— in other words, a fast-track procedure—
Xis issued appears or is brought before the appropriate judge for the extradition hearing . . . The judge must decide whether the offence specified in the Part 1 warrant is an extradition offence."
I hope that my hon. Friend the Minister will correct me if I am wrong, but my understanding is that the clause imports an element of judicial discretion in interpreting the European arrest warrant. One accepts that the 32 categories of offence in the EU framework are generic and vague in certain respects, but there is a safeguard none the less. The judge is required to assess whether the warrant includes something that is an extradition offence.
There are some good points in the measure, but one can understand the reservations. We are taking our neighbours on trust and we are doing away with a legal and political tradition, but life moves on. Organised crime moves on. Society moves on. People are more mobile and we have to produce legislation that is consistent with our era. I believe that the Bill meets that requirement.
I shall refer to another point made by my hon. Friend the hon. Member for Sunderland, South, and there is something very compelling in it. It relates to what I and perhaps other hon. Members would regard as the Government's gold plating of that part of the EU framework decision that deals with dual criminality. To refresh hon. Members' memories, the European arrest warrant refers to 32 offences that do not require criminality in the country that seeks extradition to correspond with that in the country to which the warrant refers.
Page 11 if the Home Affairs Committee report states:
XAs discussed in paragraph 16 above, article 2.2 of the framework decision provides that surrender of a suspect under a European Arrest Warrant will not be subject to the dual criminality requirement where the offence for which extradition is sought falls into the list of 32 offences", to which copious reference has been made,
Xand"— this is an additional requirement—
Xcarries a maximum penalty of at least three years' imprisonment in the issuing state."
May I point out to my hon. Friend that this is not a case of gold plating? Although the requirement for dual criminality has been removed from offences on the generic list, a directly comparable offence will be found in the two jurisdictions in the overwhelming majority of such cases. By ending the requirement for dual criminality, we will prevent endless legal argument about whether there is an exact replica of the alleged criminality in another state. So to move from one year to three years would represent a considerable weakening of our current, long-standing extradition arrangements with our European partners.
I understand what the Minister says, perhaps as well as his point about the inherent delay in the present system, where a nit-picking analysis of what is and what is not a criminal offence in one country or another can take place. However, with the greatest respect, my hon. Friend has not dealt with the fact that the Government have subscribed to the framework document, which refers to a three-year imprisonment threshold for the European arrest warrant to bite. Why do the Government therefore feel it necessary to go over and beyond that protection? The Home Affairs Committee was correct to say that that decision seemed somewhat extraordinary.
The simple reason is that our current extradition law refers to 12 months, not three years, so we cannot possibly be gold plating the framework decision. That decision is drafted to encompass only far more serious crimes than our current, long-standing extradition arrangements carry.
With the greatest respect, our current extradition law does not operate in the context of an all-embracing fast-track system, which will apply to category 1 offences. To create that sort of category is a drastic, but necessary step, although it should be counterbalanced by certain protections.
I may get on to that subject, but I repeat that the Government should look again at lowering the threshold from three years to 12 months. I accept the Minister's comment that, as a matter of common sense, we have conventionally operated a 12-month limit because we think that offences that carry a sentence of no less than 12 months are probably sufficiently serious to justify the extradition process. However, we shall operate in different territory if the Bill becomes law and, with respect, my hon. Friend the Member for Sunderland, South and others make a strong point when they say that, if we are to go down the route of the European framework, we should at least apply the protections that are in it and adhere to the three-year threshold.
I was about to deal with the question of scrutiny as regards the categories of country that can take advantage of the fast-track procedure. Again, I ask the Minister to refer specifically to that issue because it leads on from my reservations. Yes, the new systems are required, but there must countervailing checks and balances. There is a case for Parliament having an opportunity to debate whether countries should be added to that list.
I shall conclude because other hon. Members may be anxious to catch your eye, Mr. Deputy Speaker. I welcome the Bill—it is a recognition of changing times and realities—but it is capable of being improved, and I earnestly ask the Government to consider the points that I have made with a view to providing some countervailing checks and balances.
One of the great advantages of being called relatively low down the batting order is that many of the important points have already been made and one therefore has the luxury of being brief. I am sure that Dr. Palmer excuses himself from not having made use of that luxury on the grounds that he was not present for the opening speeches, but I am afraid that that excuse is not available to Gareth Thomas. How he managed to work the Spartans into this debate is a matter of great ingenuity. To be fair to him, his points were well made, although he took rather long in getting round to them.
My constituency is not inundated, as are some hon. Members' constituencies, by the problem of asylum seekers and refugees. In that respect, my constituency is well favoured, but asylum seekers have come to my surgeries—I can think of a couple of cases in the past year—in an attempt to enlist my support for their case. I openly admit that I have sat there with a certain amount of preconceived prejudice, and I have judged the implausibility of the case that is put before me. It is right and proper, therefore, that my prejudice should have nothing to do with the case, which will be properly determined by a tribunal that will examine the prima facie case.
What strikes me as extraordinary is that, while we are labouring under the huge number of asylum seekers and the system that attempts to be fair to them and give them a fair hearing, the Government are introducing a measure that will remove the proper procedures and throw people out of this kingdom to be dealt with by courts elsewhere. That is absolutely grotesque.
I fail to see the connection between asylum seekers and people being extradited for crimes. Is the hon. Gentleman implying that asylum seekers are somehow responsible for crimes?
No, I was merely juxtaposing that with what I regard as the ridiculous nature of this measure. Clearly, I made a mistake in giving way to the hon. Gentleman.
Labour Members—and one Opposition Member—have displayed squeamishness throughout this debate, which was clearly unjustified. In expressing their support for this measure, they have said that it must not be applied wherever capital punishment might be the consequence of extradition. They are not being just to the arguments. When the Minister replied to my question about the case of the tourists who were plane spotting in Greece, he said that we cannot have citizens of our country travelling the world, breaking laws, and coming back here expecting to get away with impunity. Sauce for the goose, however, is sauce for the gander. If people are prepared to go to other parts of the world and break the law, surely they should have some mind of the penalty for those crimes. In trying to draw a distinction in respect of countries where capital punishment exists, hon. Members undermine the whole argument for the general principle that they have espoused.
The Minister went further in his reply and said that we cannot have people from this country going across Europe and breaking the law. He exhibited precisely the same prejudice to which I admitted when listening to what I considered to be the implausible arguments of an asylum seeker explaining his case. One cannot make the presumption that people have gone abroad and broken the law—a proper procedure exists for courts in this country to decide whether the law has been broken. This measure attempts to do away with that, or to go further in doing away with it than we have already gone.
I now come to the heart of this abominable Bill.
If a British driver were found guilty of dangerous driving in France, would that not be a matter of concern for people in this country? The hon. Gentleman appears to be saying that it is not a matter of concern, that we should concern ourselves only with dangerous driving that occurs in this country, and that whatever occurs abroad is nothing to do with us.
The hon. Gentleman mistakes me, and it is my fault. I was speaking of the reply of the Minister for Policing, Crime Reduction and Community Safety to my intervention. As the hon. Gentleman has raised the issue, however, I accept entirely that if there is a case to answer for a crime that is also a crime in this country, it is proper that extradition should take place. What I reject utterly is the proposal that we should extradite for crimes that do not exist in this country—clearly, the crime of dangerous driving does exist in this country, and I would have absolutely no objection to such an extradition when a prima facie case was made.
I return to the rotten heart of this Bill. The reality is that we are elected to this legislature to determine the laws of this country—what constitutes criminal behaviour, and for what offences our constituents should be sent to prison or extradited. The Bill takes that decision from this legislature and hands it to the Council of Ministers, who will decide for what crimes people will be extradited from this country.
I would like to raise a point that has not reared its head in the debate so far. In relation to decisions being made in the Council of Ministers, has the hon. Gentleman considered the fact that the Scottish Minister for Justice, a Liberal Democrat, has managed to miss 15 of the last 19 Council of Ministers meetings? What kind of guarantee is that in terms of the guarantees of Scots law?
I assure the hon. Gentleman that nothing would surprise me about the indolence and incompetence of such a Minister, particularly one from that party.
Matters that are properly for this House to decide are being taken from it and given to somebody else. No self-respecting legislature or free Parliament should vote for such a measure. 8.26 pm
I am generally supportive of this Bill, but it needs careful and close scrutiny, which I hope will happen in Committee. I hope that the Government will have an open mind to some of the changes that are proposed, and will be prepared to accept some of them.
When Bills that have connections with other countries come before the House, the security services often get involved, and they seem to have too much influence in comparison to the civil liberties lobby. I know that what they have to say must be taken seriously, but a balance needs to be struck between what the security services think are in their interests—or what Foreign Office civil servants think are in their interests—and the civil liberties lobby. We cannot ride roughshod over civil liberties.
On that subject, I agree with the principle outlined by the Minister that we would want crimes committed in this country by foreigners to be dealt with by our courts, so it is reasonable for crimes committed by Britons in foreign countries to be dealt with by those countries' courts. A glaring loophole exists at the moment, however, in relation to diplomatic immunity cases—the Foreign Office civil servants are still protecting their own. Foreign diplomats are not subject to the law if they commit crimes in this country, and some very serious crimes have been committed by foreign diplomats in this country and by British diplomats abroad. They have claimed diplomatic immunity, which is an anachronism. They should not be allowed that, and, if necessary, extradition should be applied to them. Given the principle that Ministers have outlined, I ask them to consider that aspect anew, and to persuade other countries, too, to rethink their approach in that respect.
I support the Bill's underlying principle of greater international judicial co-operation. A few years ago, when I was on the NATO Parliamentary Assembly's economic committee, I led a delegation of parliamentarians from Europe and the United States to Interpol. There must be greater police and judicial co-operation to tackle organised crime. Police chiefs at Interpol told us that organised criminals deliberately used the boundaries between countries, the different rules and laws and even the nuances in the laws to get away with crime and to evade justice. Therefore, the principle of a European arrest warrant is okay. The shadow Home Secretary's criticism of it was unjustified.
The shadow Home Secretary tried to compare the position here with that in the United States. We are not a state of the United States; we are a member of the European Union. Therefore, it is not unreasonable to seek better arrangements with the European Union.
Even if the hon. Gentleman did not listen to the extremely detailed arguments of my right hon. Friend Mr. Letwin, will he not consider the similar arguments advanced in the incredibly hostile report produced by the Labour-dominated Home Affairs Committee, which is led by Mr. Mullin. If the hon. Gentleman will not listen to my right hon. Friend, surely he should listen to a Labour-dominated Committee that has considered the Bill in great detail. The hon. Gentleman also said that we should not ride roughshod over civil liberties, but does he not accept that Liberty, which is the main champion of civil liberties, shares all our criticisms of the proposals?
I will mention Liberty and other aspects of the Bill. I pay tribute to the Home Affairs Committee and its report. It raised very important issues. My speech will contain criticisms of the Bill and that is why I began by saying that I want it to be closely scrutinised in Committee and that I hope the Government will have an open mind about changes to it. However, I have been outlining the fundamental principles behind the Bill and my view that they are worthy and worthwhile.
My former pair, Mr. Maples, made an impressive speech, and I agree with certain aspects of it. He made a good point about the problems of facing a trial in a court where a different language is used. I ask my hon. Friend the Minister to consider that point. Perhaps more support should be offered to someone in those circumstances in a foreign court.
However, the hon. Gentleman made a couple of points that left me flabbergasted. In particular, he seemed to suggest that criminals could almost pick and choose the country to hide in. If every country adopted the approach that he and those on the Opposition Front Bench have taken, the criminal could go to the country that afforded him the best protection for the crime that he had committed. That runs contrary to the aim of having a general European arrest warrant that closes the loopholes that the Interpol chiefs mentioned in their comments to my delegation.
Has my hon. Friend had the opportunity to holiday in Spain recently? I am unaware of the current position there. As he will recall, an area known as the Xcosta del crime" was of considerable concern to this country. Like me, would he be interested to hear what my hon. Friend the Minister has to say about that phenomenon?
Indeed, I would. The Xcosta del crime" did not do this country any favours abroad. I support better arrangements with Spain and other countries so that there is a fair extradition process.
One of the themes in the Queen's Speech was that there should be justice for the victims of serious crimes and their families. It is right that that principle should apply to victims abroad and not necessarily just to Britons. We should prevent people from evading and delaying justice by using their UK citizenship as a cover for that purpose. People do not have the right to commit crime abroad and then come back to hide in this country.
I do not support the approach that was described as a form of judicial imperialism. The law must apply both to those countries that extradite criminals to us and to this country when we extradite criminals abroad. The process must be fair and equal.
The hon. Gentleman's comment on judicial imperialism has formulated a thought in my mind. Will the Bill apply to British overseas territories or Crown territories, or is similar legislation expected?
I am not an expert on that and leave it to the Minister to respond. I think the Bill should apply to British overseas territories. I am not unsympathetic to the idea that people should stand trial in the country in which they committed the crime, although the language consideration is relevant.
Delays of six years have been mentioned before a decision is reached. That is too long and needs to be reduced.
Two aspects of the Conservatives' approach worry me. The first relates to the death penalty. In an article on
My second concern about the Conservatives' approach relates to xenophobia. Some hon. Members said that UK law does not cover xenophobia, and the Conservatives have used that as a reason to oppose extradition. Let us consider the appalling genocide in Rwanda. It was well known that that was incited in many ways, including in the country's media. The mass slaughter that followed was incited for xenophobic reasons. A person who incited such violence could come to this country without the Government's knowledge and be allowed to stay. Indeed, that has happened. Provided that all the rules come into play, including the policy of no death sentence, it would be proper for the Government to extradite someone who incited such murder—it was a holocaust, really—in order that they may face justice. It would not be unreasonable in those circumstances for xenophobia to be taken into account or at least considered when an extradition request is made.
I have some concerns and criticisms. I want an assurance that mental and physical health will be taken into account before extradition is granted. If it is not, that itself could be an oppressive punishment, or could add to such a punishment.
Liberty makes three good points. One is that British citizens could be extradited for offences that are not crimes in the United Kingdom. The test should be that where there is no offence in this country when set against what is being requested for extradition by another country, extradition should not take place. However, where there is a similar offence—what I would describe as nuances in different laws—that should be reason enough for the extradition process to be allowed. I do not know exactly how that would be worked out, but I ask my hon. Friend the Under-Secretary to adopt that approach in such cases.
Secondly, Liberty goes on to say that the process should apply only to serious offences to guard against thousands of individuals being sent abroad for minor or trivial offences. I agree. The threshold for the extradition procedure is too low. Twelve months has been mentioned, and the Minister referred to three years, but even three years is too low. We do not want the procedure to apply to many thousands of people, either way. It should apply only to the most serious crimes.
Thirdly, Liberty says that the list of offences that can give rise to extradition is too vague and too wide, and includes unacceptably ambiguous offences such as computer-related crime. That is a good point. The list should be much more specific. Computers are still relatively new, as are the applications for using them. Those who use computers may engage in some form of criminality, and may even know that they are doing so, but that should not mean that the extradition process will automatically kick in. The Government should be much more specific.
There have been some cases of people hacking into the Pentagon computer. I do not know how serious the breaches were, but the United States obviously regarded them as serious. If they could have started world war three, they were certainly serious, but they may not have been so serious as to warrant people being extradited to the United States, perhaps to suffer a harsh punishment. Such matters could have been dealt with easily in the United Kingdom, and that should be considered.
There are three other points to be made. —[Interruption.] I am making genuine points; I am not waffling. If I am upsetting Opposition Members, I shall make them quickly. I thought that they would like my points because I am making criticisms. First, the United States has denied civil liberties at Guantanamo bay. Military law applies there and defendants are not allowed an independent defence. The United States is detaining people without trial and is ignoring the Geneva convention. The shadow Home Secretary praised the US and said that we should have an agreement with it. However, I bet that he would not support sending someone back to a country just to face military action—that is what we would be doing by extraditing people to Guantanomo bay. We should not do so—the United States is out of line with international standards on civil liberties. It is not right that people should be extradited to a country if it imposes military law on them and does not comply with the Geneva convention.
Secondly, the Government have produced a Green Paper on mercenaries and legislation will be introduced in future—they may even be legitimised. Mercenaries carry out killings and it would be unreasonable to grant an exception in extradition law so that they can do so without facing extradition or any justice at all. They may start or be involved in a war or civil war against the UK's proclaimed policy, and should not be allowed special concessions. We will see how the legislation turns out after the consultation, but it must be linked to existing extradition measures.
Finally, the Secretary of State's involvement in political cases is excessive. He should intervene less and the judiciary should be involved more—we should examine those cases under a proper judicial process. It is wrong for political considerations to drive extradition. I note that the exception for political offences, which provides a defence of political motivation, is to be abolished. However, that defence is still needed. People may commit a criminal act. For example, some of those who fought against apartheid in South Africa committed criminal offences, and some of the people resisting the Zimbabwean regime now may be committing criminal offences. However, they probably had, or have, a political motive and reasons that we would otherwise support for doing so. The defence is still needed, although I accept that there must be a balance between consideration of the criminal act and someone's political motivation. I do not favour getting rid of the political offence exception altogether.
I hope that the Government will consider those points carefully in Committee and at later stages in the Bill's consideration. I hope that they will take some of my criticisms on board and amend the Bill accordingly.
I am pleased to be called to speak, and am grateful for the opportunity to follow Harry Cohen, who made his points clearly, if lengthily.
I was rather disappointed by the comments of Gareth Thomas, who said that Conservative Members spoke purely and simply from a visceral dislike of anything European. That is a grave disservice to my right hon. Friend Mr. Letwin and my hon. Friend Mr. Maples, both of whose speeches were extremely cleverly formulated and, I like to think, were free of the tedious prejudice which, I admit, was often expressed by my party in the past.
I was trying to make the point that some basic principles have come across clearly. Labour Members could not help but think that underpinning those principles was a fair amount of Euroscepticism which may reflect arguments going on in the Conservative party. That is all that I said.
I take the hon. Gentleman's point, but I commend those two speeches in particular as being completely free of that negative influence.
I shall be as brief as I can in speaking about the background to the Bill. I wholly understand that something needs to be done about extradition. I largely support every part of the Bill, except part 1. If I contradict myself, I hope that the Minister will bear with me. Although I understand that the conditions that prevail after
I do not know how familiar the House is with the French press. For several years, well before
Obviously, it was America that was attacked on
The impact of terrorism has been keenly felt by America. That country was not used to terrorism in any shape or form before
May I point out what has happened in Australia recently? It is probably fair to say that Australia was not expecting to be attacked as it was in Bali. To quote one or two comments from the Australian press, Australia is now ready for a much more hairy-chested foreign policy. That means that the judgment of countries such as Australia is likely to be skewed, and countries in Europe are likely to be subject to the same pressures.
If we take away the existing restrictions and protection, we probably end up doing the terrorists' job for them. Having fought terrorism for the best part of 25 years, I can say that it was always an article of faith that security forces acted with complete moral and legal rectitude in everything that they did. Britain has experience of terrorism and the maturity in its laws to deal with it. I am concerned that any alterations to the extradition laws may endanger that.
Furthermore, we have heard in recent weeks arguments from Labour Members about the risk of scaring the pants off the population by warning people about likely terrorist attacks. They have argued, cogently in some respects, that that does the terrorists' job for them. Any changes to our extradition laws will partially assist the terrorist in achieving his aims of bringing about a change in the law and a wholly different climate in which law-abiding nations work, and of dissolving the moral superiority with which so-called civilised nations deal with the problem.
I could deal in detail with one or two of the points that have been made, but frankly, they have been made with much greater clarity than I could ever make them. I also realise that time is short, so I shall conclude my remarks. I believe that part 2 will do the job, but part 1 infringes everything that this country's courts and law have stood for over the years. While I fully take the point made by hon. Members on both sides of the House and agree that times and circumstances are changing, I suggest to the Minister that now is the time for this country, which understands the problems of violence, terrorism and subornation of the legal process, to stand firm in what it believes, to continue to provide protection to people, and to stand, alone if necessary, but 100 per cent. behind the defence of the individual. Only by being 100 per cent. above corruption and completely correct can we hope to prove to our enemies that our cause is correct.
Patrick Mercer made a point that was partly correct when he spoke about London and international terrorist organisations. The circumstances that he described may have existed in the past, but since we introduced the Terrorism Act 2000 and the post-
I am short of time and I should like to build my argument.
I believe that the Bill is not only about terrorism, but about a range of issues of which terrorism is one. As the Minister said in introducing the Bill, current legislation is more than a century out of date. The measures introduced 12 or 13 years ago were consolidation measures. The reality is that current legislation dates from the Victorian and imperial age. Let us think back to that time. There were very few states in the world, a large swathe of which was coloured red.
Indeed. The reality of the situation today is that we have about 200 nation states, the United Nations, the International Labour Organisation and the World Trade Organisation, and a huge number of international covenants and treaties dealing with genocide, crimes against humanity, laws of war and many of the issues that are currently considered when we discuss the workings of the International Criminal Court. In those circumstances, it is absurd for extradition legislation to be based on a pre-modern age—the Victorian age and the age of empire. For those reasons, significant modernisation is well overdue.
There are also other reasons; for example, the current system does not work and allows the wealthy criminals and the criminal lawyers to benefit from their expenditure to avoid justice. I use the phrase Xcriminal lawyers" advisedly. Some people in the legal profession do well out of representing international criminals, drug dealers and people who are engaged in crimes in one country, live in another and have offshore assets in some bank account that is hard to get at.
We live in an age when people use the internet to commit crimes. They perpetrate sophisticated fraud on gullible and/or innocent people. Yet the international policing organisations are often unable to track them down. We have heard the debates about paedophilia, and we know that racist, Nazi groups use the internet. We also know that Nazi groups who operate in Germany are based in Denmark because they can easily get across to Schleswig-Holstein and smuggle in literature. Current Danish law does not allow them to be picked up or prosecuted because Denmark has an absolutist, free-speech approach, which some Conservative Members favour.
It is fortunate that this country has laws against incitement to racial hatred. We have the Public Order Act 1986, and other legislation, which is not enforced strictly enough against organisations that peddle race hate, anti-Semitism and Islamophobia. I should like us, like some other European countries, to have a law relating to holocaust denial. Britain should be alleged to be a sanctuary for neither terrorists nor racists and extremists.
Let me give a specific example. For many years, the people who carried out the bombing in Bologna in the 1980s lived in Brighton, and nothing was done about it. They were linked with far-right groups such as the League of St. George, and involved in fascist training camps, yet they lived in Brighton without anything being done about it. That is outrageous. I hope that a common European arrest warrant and provisions for a Government to ask for extradition would lead to a solution to such a problem.
We have experienced problems over the years that relate to Northern Ireland; for example, we had problems with the Irish Republic. I believe that they have been resolved since the Belfast agreement. Nevertheless, the Irish courts often refused to extradite. We experienced similar problems with the United States. For example, IRA fundraisers, people who were wanted for crimes, and even people who had escaped from prison could live in the USA because the courts would not extradite them to this country.
The Bill may not be a perfect solution, but it highlights a genuine problem that must be tackled. The way in which Conservative Members and Liberal Democrat Members in the House of Lords deal with the Bill when it emerges from this House will be interesting. The past two or three years have shown that the Conservative-Liberal alliance in the House of Lords can defeat the Labour Government, with their democratic majority, whenever it chooses. Labour has only 26 per cent. of the peers in the upper House. The Liberals and the Conservatives have ganged up on several Home Office measures in recent years. That presents more of a challenge to the Liberals than the Conservatives, because I expect the latter to use their normal approach in the House of Lords. However, the Liberals have to reconcile their pro-European stance with their libertarianism. Perhaps they will have a problem in deciding which side to choose; maybe they will sit on the fence.
No; what I recognise is that many people in the legal profession who have made their living as QCs over many years have a view of the realities of the world different from that of my constituents and those who suffer from the effects of drug dealers, paedophiles and all the others who engage in international criminal activity. It is time for the voice of the ordinary people who suffer from the effects of international criminality to be heard.
Let us take another example. In east London—and other parts of the city—at this moment, international gangs of criminals are operating prostitution and drug rackets. We need effective measures to deal with them. Such people often flee this country to escape justice. As we enlarge the European Union and get better international co-operation, we must ensure that the new member states—as well as the applicant states and those that aspire to become part of the European Union, perhaps in 10 or 15 years—will get their house in order, and use our support and the support of others to do so. For example, British drug enforcement officers and police officers are working in countries such as Romania and Bulgaria today. Similarly, we are doing good work in Kosovo.
We must work together with our European Union partners, and that will involve our having the ability to extradite criminals from those countries. I was in Pristina last year, where I saw hundreds of motor vehicles with German, Austrian and Italian registration plates. They had been stolen and driven across into Kosovo. Those activities do not happen by accident; they are carried out by organised gangs. We then hear stories of people in our constituencies inadvertently buying vehicles that have been stolen in some other European country and re-badged. We must get to grips with these problems, and the way to do that is through international co-operation. We talk about international law, and about the United Nations, but this is really all about getting rid of our petty, narrow-minded belief that, because we are British, we somehow have the best legal system in the world, despite the fact that it has not delivered justice to many people for many years. Instead, it has delivered fat fees to lawyers and given many of the victims of crime a sense of growing frustration.
If we are to have effective law, we must ensure that our systems work quickly and get the right results. We do not want the wealthy—whether it is the van Hoogstratens, the Kenneth Noyes or the Jeffrey Archers of this world—to be able to escape justice because they have a large amount of money. Those three people have all been subjected to justice, and one of them was brought back from another country to be tried. We need a structure that will give the people on the street the confidence that the criminal justice system is doing its best for them. That will mean greater international co-operation in extraditing those who are living on the Xcosta del crime", and those who are exploiting the poor and weak in our own communities and taking their assets out of this country to some other part of the world. For that reason, I welcome the Bill and I hope that it gets through both Houses very soon.
It is a great pleasure to follow Mike Gapes, who speaks with great passion. If I were a lawyer, I would not want to meet him on a dark night. My brother is a lawyer, so I will tell him to avoid Ilford when the hon. Gentleman is around.
I serve on the Select Committee on Home Affairs and I am pleased to contribute to the debate. I think that we produced a good report in a very short time, although I would have liked it to go a little further. I will vote against the Bill because I disapprove of part 1, specifically the changes to dual criminality. It has for many years in this country been a safeguard that one cannot be extradited for something that is not an offence in this country, and that safeguard should not be lost. I did not sulk, but tried to help the Committee to suggest some safeguards, particularly our ingenious safeguard of involving the district judge and the Home Secretary in checking on the dual criminality element.
The Government are going in entirely the wrong direction in respect of extradition and deportation. It has become close to impossible to deport or extradite those who might actually be a danger to this country—my hon. Friend Mr. Maples made that point. That is why we have the stern detention powers in the Anti-terrorism, Crime and Security Act 2001—vast powers to detain people without charge and without trial. One reason we have those powers is that it has been so difficult to extradite or deport those who pose a threat to the life of the nation.
The reason for that is not the European convention on human rights itself, but the way in which it has been interpreted. Two cases are essential to understanding why that has happened. The first is the Soering case, which I raised with the Minister for Policing, Crime Reduction and Community Safety. The judgment in that case was that an alleged murderer could not be extradited to Virginia because of the conditions on death row. In one step, the Soering case internationalised the European convention on human rights so that it applied not only to the countries that had signed it, but to America and other countries that had not signed it.
The second case, which might be regarded as more serious, is the Chahal case, in which it was found that the Home Secretary was no longer able to balance the risk to national security of keeping someone here against the risk to the individual of being maltreated if he were to be deported or extradited. The judgment in that case stated:
XThe prohibition provided by Article 3 is equally absolute in the expulsion cases . . . in these circumstances the activities of the individual in question however undesirable or dangerous cannot be a material consideration."—
I repeat, Xhowever undesirable or dangerous". Imagine that, by some chance, Osama bin Laden arrived on the shores of this country. If the Americans tried to extradite him and refused to waive the right to impose the death penalty, the Chahal case, as I understand it, would make it impossible for us to extradite him from this country to the United States of America.
We have a crisis in extradition and deportation, but what are the Government doing about it? They are not sorting out the problem of the jurisprudence under article 3 by re-acceding to the European convention on human rights and admitting some exceptions, as the French have done. Instead, through the Bill they are adopting the European arrest warrant, which means that UK citizens can be extradited for alleged offences that are not crimes in this country. It is extraordinary that, on the one hand, it has become harder to extradite people who have done something that is an offence in this country and could present a grave risk to the life of the nation, but, on the other hand, it will become easier to extradite someone who has done something that is not a crime in this country. That is why I say that the Government are going in the wrong direction.
I find the European arrest warrant highly objectionable because of the problem of dual criminality. Hon. Members have spoken about that, but let us be clear about what it means. One of our constituents goes to Spain on holiday, commits an alleged offence, and returns home. All that is necessary for him or her to return is that the warrant is correctly filled out—in its report the Select Committee set out what a warrant looks like—and that a district judge in the UK sees the warrant and judges that the offence falls into one of the 32 categories. At no time is it asked whether the offence is a crime in this country.
When one examines the matter, as the Home Affairs Committee did, one finds that the position is far worse than that. Nowhere in the Bill are the 32 categories of offences mentioned or written down, as Ross Cranston pointed out. The Committee asked the Home Office why the 32 categories were not listed in the Bill. Our report states:
XThe Home Office responded that this was because article 2.2 allows for the list to be amended".
Whole new classes of offence could be added to the European arrest warrant without proper parliamentary scrutiny.
That is bad enough, but it gets worse: individual EU countries can decide which offences fall within the 32 categories. It is a case of—I quote from the report—
Xas they are defined by the law of the issuing member state".
Again, we asked the Home Office—this sounds a bit like XThat's Life", and XWe went back to the gas board . . . ". The Home Office said that it
Xdoes not have detailed definitions of offences in the criminal justice systems of other EU member states".
We simply do not know what we are letting our citizens—our constituents—in for.
Dr. Palmer, whom I am pleased to see back in his place, made one good point in his long speech. It is difficult to list all the offences, and to ask all the other EU countries to list them all. The Select Committee recognised that, and it is a good reason for doing away with the dual criminality provisions altogether.
The situation gets even worse: countries can add to the offences in the 32 categories. The Select Committee made an important point in paragraph 26, which states:
XNot only does it appear to be largely unknown how the categories of offence will be defined by the current law of EU member states, there is no way of knowing how those offences may be defined by the future law of member states."
They can add to the offences—
Yes, but we do not know what we are letting our constituents in for.
And it gets still worse. Countries joining the EU can automatically be designated category 1 countries. I have huge respect for countries in eastern Europe that have broken free of the communist yoke and I welcome them into the EU—I think that their joining is extremely important—but we must recognise that, if we pass the Bill, we will be taking other EU judicial systems on trust. That does not involve only the countries that are currently EU members, with their current laws, but all the countries that will join in future, with their future laws. It means taking an enormous step.
Perhaps the biggest objection of all for those of us who care about the House and the way in which Parliament works is that we cannot amend the list of offences. We must either take the Bill whole, or reject it whole. We cannot take out the most general offences, such as xenophobia and computer-related crime; we must take the lot, or none at all. That is why I think it would be best to vote the Bill down. The Select Committee came up with an ingenious suggestion that I hope the Home Secretary will consider. It stated:
Xin each case the district judge should look at the terms of the offence specified in the European Arrest Warrant and make a statement as to whether dual criminality applies. In cases where the alleged offence is not a crime in the UK, a separate decision about whether to extradite should then be made by the Home Secretary, who is responsible to Parliament."
I know how few our numbers are on these Benches, and I know that we will probably be defeated in the Lobbies, but I hope that the Minister will consider that.
What objection could there be? There are two possibilities. One is that this is, as I believe it to be, a modest additional safeguard that does not change the terms of the warrant but merely gives a new, additional responsibility to the district judge and the Home Secretary—a backstop power. The hon. Member for Broxtowe said that it was far more than that: he said, effectively, that it would run counter to the whole European arrest warrant, and could leave the Home Secretary in an invidious position because it would cause a conflict between him and the Council of Ministers in relation to their decision on that warrant. If someone came before him who had committed an offence that was not a crime in this country, according to the district judge, the Home Secretary would have to say, XI am sorry. You may spend time rotting in a Greek or Spanish jail. Weeks may pass before you are even charged with an offence that is not a crime in this country. But there is nothing I can do about it." If that is so, it demonstrates the inflexibility of the law that the Government have signed up to on our behalf—and if it is that inflexible, we should not adopt it.
One of the things that we are supposed to do here is to defend the rights of people in this country: the people who send us here, our constituents, citizens of this country. We are meant to stand up against an over-mighty Executive, whether the over-mighty Executive are making decisions from Westminster or from Brussels, as is the case with this measure, particularly when our Government do not have the wherewithal to stop it. Therefore, the best we can do is to vote down the Bill tonight.
It is a pleasure to follow my hon. Friend Mr. Cameron, who has made a powerful contribution to the debate, as he always does on home affairs matters.
It is worth reflecting on the fact that this has been a slightly unusual debate. Conservative Members have made a large number of relatively short, powerful and well-observed speeches that have looked at the Bill itself, at its details and at the report by the Select Committee on Home Affairs, whereas a small number of Labour Members have made extremely lengthy speeches in which they ventilated many of their prejudices but hardly talked about the Bill and occasionally mentioned the reservations of the Labour-dominated Select Committee. Basically, they were so embarrassed by the Bill that they wanted to talk about other things that were only tangential to extradition.
It is worth looking in a little detail at how the Bill came to be in its current form. My right hon. Friend Mr. Letwin has talked about the fact that one needs to have exceptional provisions to deal with the exceptional danger of terrorism. That is something on which we on the Conservative Benches and the Government agree: one should have rare exceptions to deal with an exceptional threat.
That was the genesis of the framework directive. In the immediate aftermath of the terrorist attacks on
I am indebted to the distinguished jurist and constitutional lawyer Leo Price, QC, for his description of what happened next. Until just before the Laeken summit in December 2001, Italy was not willing to agree to any such European arrest warrant proposal unless the relevant offences were restricted to seven offences plainly of terrorist character. As my right hon. Friend the Member for West Dorset set out, we would still be happy for the sole exception of terrorism to be included, but other people, in drafting what was proposed in Europe, decided to see the measure as a vehicle for introducing something else that, until then, the present British Government had always opposed. They wanted to introduce part of the corpus juris that successive British Governments, including the current one, had previously rejected as unacceptably contrary to our common law traditions. Suddenly, we had the list of 32 offences, which were not part of the war against terrorism at all.
The arrest warrant, in its much wider form, with the implementation of part of the corpus juris, was formally adopted at a meeting of the EU Justice and Home Affairs Council on
Then, my right hon. Friend Mr. Heathcoat-Amory and my hon. Friends the Members for Stratford-on-Avon (Mr. Maples) and for Henley (Mr. Johnson) and I expressed in some of the European Committees our concerns about who was going to be regarded under the new arrangements as a competent judicial authority. In that regard the case of the Greek plane-spotters in Kalamata, which many Members have mentioned in interventions and in speeches, is particularly relevant. We remain of the view that, if one cannot say who is a competent judicial authority, the proposal is extremely dangerous. In many other countries covered by category 1 of the proposed legislation, those who take the role of an investigative magistrate in another jurisdiction—a juge d'instruction, or something of that ilk—will be regarded automatically as a competent judicial authority, and no British court will have the right then to intervene to protest about the way in which such an arrest warrant has been issued. The whole burden of all that we Conservatives have said this evening is that we ought to preserve the protection for British subjects whereby a British court—and, potentially, the Secretary of State—has a reserve power to scrutinise what is going on before somebody is simply arrested and taken away to face a foreign court that perhaps has a wholly inappropriate system of justice, in which there is no presumption of innocence.
I know that the Minister always speaks very softly when introducing proposals, however controversial they are, but we did not find today's soft words of much reassurance. We want provisions such as those that we have discussed to be included in the Bill as safeguards, as my right hon. Friend the Member for West Dorset and many others have said. The Minister's soft words were obviously reassuring to some Labour Members; indeed, so soft were they that Fiona Mactaggart was fast asleep for several minutes of his speech, before a message from the Whip woke her up. On a serious note, there needs to be sufficient maturity of criminal justice in all the countries to which part 1, in particular, relates.
Mr. Mullin, the distinguished Chairman of the Home Affairs Committee, set out its very powerful reservations about this legislation. Conservative Members share many of those reservations. He referred to the vagueness of some of the crimes—such as sabotage and environmental crime—set out in the framework directive consisting of 32 crimes. He rightly said that a British judge's becoming a mere cipher was not acceptable. We agree with his Committee's suggestion that the proposal should be amended to allow a district judge to scrutinise anything put forward in such an arrest warrant.
The hon. Gentleman said that, instead of a reduction to 12 months, we ought to go back to the proposal for a three-year limitation. He also reminded the House that, in practice, courts have often refused extradition under current law—even to EU countries—and so have successive Home Secretaries of different parties. As the hon. Gentleman rightly asked, what has changed to lead us to throw all caution to the wind? In our view, nothing has changed to allow us to discard those safeguards.
The hon. Gentleman further pointed out that the proposed EU arrest warrant requires inadequate information, and yet again we agree. We need a much more detailed warrant, and even for category 2 countries—the hon. Gentleman talked about clause 83—the Government's freedom to exempt is far too wide. He suggested a restriction in respect of signatories to the convention on extradition, or of bilateral extradition treaty countries. That is a matter to which we shall undoubtedly return in Committee. The hon. Gentleman also rightly said that proper legal advice should be given to anyone before they consent to extradition from this country. Again, we regard that as an enormously helpful safeguard.
Mr. Burnett, who spoke for his party, said that in his view, the Bill is unacceptable in its current form, and that he wants to improve it. He pointed out that many signatory countries to the framework directive do not in fact have the legal safeguards that we enjoy. In Greece, for example, there is no legal aid. It is also important to protect the presumption of innocence, which does not exist in many other countries. However, the hon. Gentleman's main objection was that the dual criminality rule was abolished for category 1 countries. We entirely agree about that. He talked, as did the hon. Member for Sunderland, South, about vague and nebulous offences, and ended by saying firmly that he wanted the Bill completely changed because it was unacceptable in its current form. We will be watching with interest what he and his colleagues do in the Division Lobby tonight.
Ross Cranston said that the law needed updating. He wanted the Government to address his points, which were in some ways similar to those made by the Home Affairs Committee. However, he said that he is not always reassured when he sees the rest of the European Union's judicial systems in operation, something that I thought very significant coming from a former Solicitor-General in this Government. The thought crossed my mind that perhaps when the hon. and learned Gentleman was in office he advised against the introduction of this sort of measure, which is why he now finds himself on the Back Benches. Perhaps we will never know, but he rightly reminded us that British courts have always taken a very robust view about these matters. He stressed, again quite rightly, that clause 21 on the human rights safeguards will prove very important. In summary, he felt that he could not give the Bill an unequivocal welcome.
In a powerful contribution, my hon. Friend Derek Conway, warned against the extension of the European state. He used the parallel of what had happened in the past over the Single European Act. He quite rightly said that the Bill is an attack on civil liberties and that there has been no effective rebuttal of what the Law Lord, Lord Scott, had written about xenophobia and that something as simple as distributing a Biggles book or the Old Testament could be regarded in some countries as xenophobia.
Ian Lucas, in what I thought was a slightly schizophrenic speech, first said that he welcomed the Bill in general terms but that he did not like politicians being involved in the judicial process in general terms. He pointed out that the Home Secretary has had problems on such issues as mandatory life sentences. He said that he was speaking as a former lawyer; he felt that there had been problems with the Pinochet case and that the legislation could be improved. However, he went on to say—and this is where I thought he contradicted himself—that the extradition system, purely as a creature of the 19th century, should not preserve the reliance on the judiciary that Lord Palmerston had used in the Don Pacifico case in 1850. If the hon. Gentleman believes that politicians are interfering too much and that we ought to rely on the judiciary, it is not really logical to say that we have to move away from the protections of the judiciary by which our citizens have been protected since the 19th century. The hon. Gentleman's attitude was that it does not matter about protecting British citizens who will be extradited—he was more concerned about people being extradited to this country. The Bill deals with both eventualities, and we must preserve the protection for our citizens.
My hon. Friend the Member for Stratford-on-Avon pointed out that the Bill had been comprehensively demolished in the opening speech of my right hon. Friend the Member for West Dorset. My hon. Friend said that the Government are careless with the freedoms of our citizens. He talked about the cases of people who should have been deported being delayed, not because of delays in the judicial system but because the Home Secretary had not decided on cases in which appeals were rejected by the House of Lords as far back as December 2001. He said that it was not good enough for the Government to say that the judicial system is slow; he pointed out that the Pinochet case had been heard three times up to the House of Lords in 15 months. If a case has sufficient political priority, it gets heard.
My hon. Friend drew attention to the year zero kind of thinking on the Government Benches which says that just because something is hallowed by tradition, it is automatically wrong. He said that we must not disregard the protections that have been built up over the generations for British citizens. He talked about the dangers of the Bill being used for allegations of war crimes, as in the Pinochet case. He wondered whether Ministers might be worried if some other judicial authority one day decided that they were guilty of war crimes in relation to the bombing of Kosovo.
My hon. Friend also rightly pointed out that many of the offences in the list of 32 could and should be fully defined in the Bill. In response to an intervention from Angus Robertson about definitions, my hon. Friend said that we need the dual criminality safeguard that has always existed. In the past, our divisional courts have had a problem accepting even French or Spanish jurisdiction. The safeguard should be preserved.
Dr. Palmer maundered on for about a half an hour saying nothing very much. However, he engaged in an interesting exchange with Annabelle Ewing, who speaks for the Scottish National party. It seemed that she and the hon. Gentleman were in greater agreement with one another than he was with the Minister.
No, I am pressed for time so if the hon. Gentleman will forgive me I shall not give way.
My hon. Friend Mr. Johnson talked about the history of mutual recognition and the Cassis de Dijon case. He rightly pointed out that our sovereign Parliament had no say in drawing up the list of offences and will have no say in any future changes to the list. As he said, Parliament should object to that.
Gareth Thomas said that a sifting process was necessary and that hon. Members were right to express reservations about how that would work in practice. He expressed concern about the lack of counterbalance in the measure.
My hon. Friend Mr. Swayne exposed the lack of logic in the Minister's case on the death penalty. My hon. Friend expressed concern that the Council of Ministers had the power to change the categories of offence when Parliament had no scrutiny of that process.
Harry Cohen said that the concerns of the civil liberties lobby could not be ridden over roughshod. He expressed anxiety that various matters were not dealt with in the Bill; for example, diplomatic immunity and the death penalty in Rwanda. He shared some of the reservations expressed about the Bill by the Select Committee on Home Affairs.
The hon. Gentleman did not refer to any of the differences between category 1 and category 2 extradition, but he believed that the provisions were needed to deal with the costa del crime problem. May I point out to him that category 2 extradition, with which we are happy, would deal with that? He really should study in greater detail the comments of the Select Committee on category 1 extradition. That is the real problem. The hon. Gentleman also referred to Guantanamo bay, mercenaries and political cases although I do not think that they had much to do with the Bill.
My hon. Friend Patrick Mercer said that, like my right hon. Friend the Member for West Dorset, he supports the provisions on category 2 extradition, but not those on category 1. He rightly pointed out that to tinker with the current rules is extremely dangerous. He talked about the belief of some writers in the French press that terrorists operate in London with impunity. Before the Government start threatening the safety and security of my constituents and those of other hon. Members, many people would probably want them to deal with the difficulties in deporting some of the mullahs who preach treason.
Mike Gapes ventilated his lawyer-bashing tendencies and said that previous legislation had not worked successfully. He and his colleagues are always the first to say that everyone must have the right to representation, but it seems from his speech that people have that right only if he and his colleagues agree with them.
No, I am coming to the conclusion of my speech.
My hon. Friend the Member for Witney in the final contribution to the debate, said that he was proud to be a member of the Select Committee that produced the report. He drew attention to the fact that it is almost entirely impossible to deport the type of people we need to deport in order to protect our security. He referred to the recent cases of Soering and Chahal. He showed the contradiction in Government policy as regards the problems with the Human Rights Act 1998, to which we have already referred, in terms of delay, cost and injustice. Like so many speakers, my hon. Friend supported the safeguards that would be provided by district judges and the scrutiny of the Home Secretary.
There are many things to which we shall return in Committee. We need to press hard so that the Government make the changes that will be forced on them by another place. The Bill is dangerous; it goes much too far and, as my right hon. Friend the Member for West Dorset said, part 2 would have achieved all that the Government wanted. Part 1 should be anathema to all British citizens.
Although spiced with prejudice and Eurosceptism, the debate has been thoughtful and serious, as it should be on such a serious issue. Although the Conservative party has decided not table an amendment or to vote against the Bill, one thing is clear: our present extradition arrangements are unsatisfactory, and I have not heard a single Opposition Member say that that they can be allowed to continue. It is simply not right that it can take more than five years to extradite a person accused of a serious crime, especially when the requesting state is another EU country. Of course there must be proper protections for those who are subject to an extradition request, but that should not extend to their being allowed to launch appeal after appeal, all on the same point, for the sole purpose of frustrating the process.
I will try to give way to the hon. Gentleman in a while.
The Bill will ensure that no one can be extradited where the request is politically motivated, where the double jeopardy rule applies or where the fugitive's medical condition—an issue raised by my hon. Friend Harry Cohen—would make it unjust. On conviction in absentia cases, we will extradite only where the fugitive can be sure of a retrial. We will not extradite unless we are certain that the death penalty will not be carried out. Finally and very importantly, extradition cannot take place where it would be incompatible with the fugitive's human rights.
Many detailed points have been made during the debate, and I shall try to respond to at least some of them. My hon. Friend Dr. Palmer raised the issue of the internet and asked whether someone who put neo-Nazi propaganda on a German website would be liable for extradition under a European arrest warrant. In those circumstances, the court would probably take the view that the conduct had occurred outside the requesting state and apply the dual criminality test. Since holocaust denial is not an offence in the United Kingdom, the dual criminality requirement would not be met and extradition could not take place.
Mr. Heath, who is not now in his place, asked whether the Bill would extend to British overseas territories. The relevant provisions, with modifications as appropriate, can be extended to British overseas territories by virtue of clauses 174 and 175, but that will apply only to category 2 procedures, not to the European arrest warrant.
My hon. Friend the Member for Leyton and Wanstead asked about the language in which a European arrest warrant may be sought. Article 11.2 of the framework decision provides that the person who is arrested for the purpose of extradition under a European arrest warrant will have a right to be assisted by legal counsel and any interpreter needed in accordance with the national law of the executing member state.
Mr. Maples and my hon. Friend the Member for Leyton and Wanstead raised the issue of diplomatic immunity—one on one side of the argument and one on the other. Nothing in the Bill will affect state or diplomatic immunity. That may reassure the hon. Member for Stratford-on-Avon and it may be a matter of concern to my hon. Friend, who may want to raise the issue further with us, but it goes far wider than the Bill.
My hon. Friend Mr. Mullin raised a number of concerns, as did the Home Affairs Committee in its report. Those concerns are shared by many of my hon. Friends, who have broadly supported the Bill, but have none the less sought reassurances in some areas. They include my hon. and learned Friend Ross Cranston and my hon. Friends the Members for Wrexham (Ian Lucas) and for Clwyd, West (Gareth Thomas), as well as other hon. Members on both sides of the House.
In relation to speciality, extending the list—whether in relation to other offences or to other states—and effective oversight and scrutiny arrangements in the House, I hope that we will show in Committee to the satisfaction of hon. Members that we have covered those issues. Alternatively, as I understand the point made about not trusting honeyed words, we will genuinely listen to hon. Members' concerns, and, where they remain, we will seek to make changes to the Bill in relation to the framework document.
The Bill contains clear safeguards on the death penalty, on whether people will be extradited to face execution, on whether people could be extradited in contravention of their human rights, and on whether people could be extradited for reasons of their political opinions. Mr. Letwin shakes his head. I know from his opening speech that he has read the Bill, so I refer him to clause 13 on extraneous considerations, under which extradition will not be allowed of people being prosecuted or punished for crimes that are accounted for by their race, religion, nationality or political opinions. Extradition is specifically barred when those cases apply, and it is specifically barred in category 1 and category 2 when a death sentence might be carried out. It is specifically barred, too, under clause 21, when a person's human rights under the Human Rights Act 1998 and the European convention on human rights would not be fully protected.
Let us identify what changes are in the Bill, and what changes are not in the Bill. Clearly, there are two changes. One is the speeding-up of the process, which is greater in relation to European partners with whom we have very porous borders that allow law-abiding citizens and criminals to travel freely between our jurisdictions. The other is the abolition of dual criminality in relation to the list offences. Those are the only fundamental changes that are being made. As my right hon. Friend the Minister for Policing, Crime Reduction and Community Safety clearly demonstrated at the start of the debate, the prima facie requirement for evidence was removed a long time ago.
I, among others, referred to paragraph 31 of the Select Committee's report and to the suggestion that, if there is dual criminality, the matter should be referred to the Home Secretary for his decision. What I—and, I believe, other Members—asked was what practical steps were necessary to achieve that end.
We will have the opportunity to talk about that in great detail in Committee, and I hope that we do so. In my opinion, the issue that the hon. Gentleman raised would undermine the position of mutual recognition. He suggested in pursuance of that, and was supported in it by the right hon. Member for West Dorset, that we could get round some of our current problems with a little ingenuity. All that we needed to do was to frame our request in a different way and, all of a sudden, the walls of Jericho would come tumbling down and we would not face some of the serious problems that exist with regard to the current extradition law. However, that is simply not the case. Some countries in the EU will not extradite for fiscal offences. One can frame the extradition warrant however one likes, but they will not do that. Under the current arrangements, they will not extradite their own nationals, and it does not matter what heinous crime they may have committed in this country. Some countries will not extradite their own nationals, and no amount of ingenuity can get us round that.
Some countries have statutes of limitation. When my right hon. Friend the Minister for Policing, Crime Reduction and Community Safety opened the debate, he pointed out some of the injustices that have occurred because of those statutes of limitation. Some crimes are not reported until many years after they are committed, but it is wholly wrong that people should escape justice simply because there is a statute of limitation in the country to which they have fled and because we cannot require them to return to this country.
We will discuss in Committee the issues that Mr. Burnett raised, and I hope that I can satisfy him on them. However, I was a bit concerned about the tone of his reception for the Bill. It was totally at odds with the Liberal Democrats' submission to the consultation. They then said that
Xthe removal of judicial review and habeas corpus . . . are, we believe, adequately compensated for by the duty on the courts to consider the ECHR implications of extradition, provided there can be no derogation from ECHR rights. The proposed appeals system would allow for a fair review of the case on both points of law and fact."
I seriously hope that we have not seen a dramatic shift to a Eurosceptic position by the Liberal Democrats. Such news would go far wider than the Bill.
I entirely welcome the Liberal Democrats' damascene conversion on this matter. The Minister is being thoroughly reasonable, so will he clarify one point? Were his earlier remarks intended to suggest that the bar on political opinions being a cause of extradition under part 1 would override the inclusion of xenophobia in the list of 32 offences?
As the right hon. Gentleman knows, clause 13 contains a bar on extradition. It does not say that there may be a bar, because it is clear that there will be a bar on extradition on the ground of
Xrace, religion, nationality or political opinions".
That point is quite definite. It is in our law and applies to our citizens. It is wholly wrong for the right hon. Gentleman to suggest that the bar is anything other than a bar. A British judge will sit in a court and consider the case. If he considers that it involves issues concerning a person's political opinion, he will not issue an arrest warrant. I do not understand why the right hon. Gentleman has great difficulty with that.
The right hon. Gentleman raised some of the issues that many of my hon. Friends raised, including speciality, scrutiny and the politically motivated crime that we have just discussed. However, the overwhelming point that he made was his view that the problem with part 1 resulted from the fact that the Government were involved in a great, secret conspiracy to which they were not prepared to admit. He suggested that it had come about as a result of
Opposition Members demanded that no one should be extradited for conduct that would not be criminal in Britain. I think we are entitled to ask them a couple of questions that flow from that. First, a Frenchman who commits a crime in Britain that is not illegal in France can expect to be put on trial if he is arrested here. Why should he be entitled to escape justice simply because he has crossed the frontier? Secondly, why should someone be able to commit an offence, such as incitement to racial hatred or fraudulent trading, in this country with impunity simply because he can get to an EU country that does not have a corresponding offence? The Opposition have either avoided the questions posed by my right hon. Friend the Minister of State or they have effectively said that that situation is okay.
I have given way to the hon. Gentleman once and I am not doing it again.
Those Opposition Members who were prepared to answer the question seemed to say that the problem did not matter. I wonder whether the victims of crime feel the same way.
EU countries are mature democracies. All of them have signed up to the European convention on human rights. In an age when people, including criminals, can move freely about the EU, we should be prepared to operate on a principle of mutual recognition. We should not prevent extradition simply because of the lack of an exact equivalent offence. We need to recognise the other benefits that the introduction of the European arrest warrant will bring. It will end the ability of other European countries to refuse to extradite their nationals; it will end the refusal by other European countries to extradite for fiscal offences; and it will end a situation in which extradition cannot happen because another European country's statute of limitations has expired on a particular crime. We are well into the 21st century. There can be no excuse for continuing to use procedures that have largely been unchanged since the 19th century and that work against the interests of the victims of crime and the interests of justice.
The Bill will modernise and simplify our extradition arrangements. It retains proper safeguards for fugitives. We will discuss the issues raised by my hon. Friends, especially my hon. Friend Mr. Mullin, the Chairman of the Select Committee, and take them seriously. We are prepared to respond flexibly if they can show that there is a problem, but I think that the Bill contains many of the answers. I hope that I will be able to convince them of that.
We cannot ignore the menace of serious international crime. We need the tools to combat it. The Bill will be an important part of that armoury. I commend it to the House.