'A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence or since he is alleged to have become unlawfully at large (as the case may be).'.—[Mr. Bob Ainsworth.]
Brought up, and read the First time.
With this it will be convenient to discuss the following:
New clause 5—Unconscionable delay—
'(1) This section applies if the Secretary of State believes that the conditions in subsections (2) and (3) are satisfied in relation to a person.
(3) The second condition is that there has been unconscionable delay between the time when the offence for which extradition is sought was committed and the extradition request.
(4) The Secretary of State may certify that the conditions in subsections (2) and (3) are satisfied in relation to the person.
(5) If the Secretary of State issues a certificate under subsection (4) he may—
(a) direct that a Part 1 warrant issued in respect of the person and in respect of the offence is not to be proceeded with, or
(b) direct that a request for the person's extradition in respect of the offence is not to be proceeded with.
(6) If the Secretary of State issues a certificate under subsection (4) he may order the person's discharge (instead of or in addition to giving a direction under subsection (5)).
(7) These rules apply if the Secretary of State gives a direction under subsection (5)(a) in respect of a warrant—
(a) if the designated authority has not issued a certificate under section 2 in respect of the warrant it must not do so;
(b) if the person is arrested under the warrant or under section 5 there is no requirement for him to be brought before the appropriate judge and he must be discharged;
(c) if the person is brought before the appropriate judge under section 4 or 6 the judge is no longer required to proceed or continue proceeding under sections 7 and 8;
(d) if the extradition hearing has begun the judge is no longer required to proceed or continue proceeding under sections 10 to 25;
(e) if the person has consented to his extradition, the judge is no longer required to order his extradition;
(g) if the person's extradition has been ordered there is no requirement for him to be extradited.
(8) These rules apply if the Secretary of State gives a direction under subsection (5)(b) in respect of a request—
(a) if he has not issued a certificate under section 69 in respect of the request he is no longer required to do so;
(b) if the person is arrested under a warrant issued under section 70 or under a provisional warrant there is no requirement for him to appear or be brought before the appropriate judge and he must be discharged;
(c) if the person appears or is brought before the appropriate judge the judge is no longer required to proceed or continue proceeding under sections 71, 73, 74 and 75;
(d) if the extradition hearing has begun the judge is no longer required to proceed or continue proceeding under sections 77 to 88;
(e) if the person has given his consent to his extradition to the appropriate judge, the judge is no longer required to send the case to the Secretary of State for his decision whether the person is to be extradited;
(f) if an appeal to the High Court or House of Lords has been brought, the court is no longer required to hear or continue hearing the appeal;
(g) if the person's extradition has been ordered there is no requirement for him to be extradited.
(9) These must be made under the hand of the Secretary of State—
(a) a certificate under subsection (4);
(b) a direction under subsection (5);
(c) an order under subsection (6).
(10) The preceding provisions of this section apply to Scotland with these modifications—
(a) in subsection (8)(a) for "he has" substitute "the Scottish Ministers have" and for "he is" substitute "they are";
(b) in subsection (8)(e) for "Secretary of State for his" substitute "Scottish Ministers for their".
(11) In subsection (2) the reference to an enactment includes an enactment comprised in or in an instrument made under, an Act of the Scottish Parliament'.
New clause 8—Passage of time—
'A person's extradition to a category 1 territory is barred by reason of the passage of time if it appears it would be unjust or oppressive or not proportional in all the circumstances to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence or since he is alleged to have become unlawfully at large (as the case may be).'.
New clause 9—Referral of Part 1 warrant to Secretary of State—
'.(1) Where a Part 1 warrant has been issued in connection with conduct which would not constitute an offence under the law of the relevant part of the United Kingdom, that warrant must be referred to the Secretary of State, who must make a decision separate to any decision of the appropriate judge as to whether extradition to the requesting country would be proper in all the circumstances.
(2) The Secretary of State must make an annual report to both Houses of Parliament on the cases in which he has exercised his discretion as set out in subsection (1) above and the reasons for the exercise of his discretion in each case.'.
New clause 19—Injustice and oppression—
'.—A person's extradition to a category 2 territory is barred if it appears that because the accusation against him is not made in good faith in the interests of justice it would, having regard to all the circumstances, be unjust or oppressive to return him.'.
Government amendment No. 45.
Amendment No. 23, in page 6, line 19 [Clause 11], at end insert—
'( ) passage of time;'.
Government amendments Nos. 47, 49, 51 and 52.
Amendment No. 5, in page 30, line 38 [Clause 63], leave out
'12 months' and insert
Amendment No. 91, in page 40, line 35 [Clause 78], at end insert—
(e) injustice and oppression'.
Government amendment No. 74.
This list of amendments is not quite so extensive, but there are still some issues to deal with, and I shall take the least controversial first. Government amendments Nos. 49, 51, 52 and 74 relate to the speciality waiver and further extradition to a category 1 territory. Under the Bill as drafted, the UK was able to adopt a higher position on speciality, which means that we could agree on a reciprocal basis with a part 1 extradition partner that they, and we, can, after extradition, presume our consent to the person being prosecuted for offences committed before extradition took place. However, grave concerns were expressed about this issue, and we listened to the worries expressed by members of the Standing Committee, and of the Home Affairs Committee. We have therefore decided that the reference to the use of the higher position on speciality and re-extradition should be removed from the Bill, and these amendments achieve that aim.
Government amendment No. 47 is a purely technical amendment. It takes account of the possibility that such conduct might not constitute a criminal offence in the UK. In such circumstances, the district judge is required to apply the test of assuming that the conduct is contrary to UK law, and of then establishing whether the rule of double jeopardy prevents extradition.
I turn to perhaps meatier issues: the passage of time bar to extradition, Government new clause 11 and Government amendment No. 45, and new clause 8 and its consequential amendment. The Government amendments duplicate the bar to extradition already contained in part 2 of the Bill. We made that change in the light of concerns expressed during consultation on the draft Bill, and in Standing Committee. Where extradition would be unjust or oppressive, as a result of the amount of time that has elapsed, it would in any case be prevented under the Bill's provisions on human rights. However, we have listened to the arguments and see no harm in giving the judge the explicit direction to consider the question of the passage of time. I hope that Opposition Members will be happy to accept the proposed change.
New clause 5 would give the Secretary of State the power to intervene in any case where there had been an unconscionable delay. I am not quite sure what Opposition Members believe the Secretary of State could bring to resolving such an issue, or how he could make a decision on unconscionable delay that contradicted the district judge. That judge's decisions are already subject to appeal to the High Court and, on points of law, to the House of Lords, so why add the Secretary of State to the process? That would open up the avenue for the legal challenge and judicial review, which would delay the proceedings. I hope that Opposition Members will accept that that the new clause is unnecessary, especially when we are including in the Bill the requirement for the district judge to consider the passage of time directly.
On new clause 9, the Opposition present us with an opportunity to say that, if the crime for which the person is requested is not an offence in the UK, the Secretary of State should decide whether that extradition would be proper. I am not sure exactly what that means. A warrant would be issued by a body that we recognise—and have recognised for some time—for extradition purposes, and certified by our central authority, the National Criminal Intelligence Service, for an offence committed in a requesting state that is punishable in that state by at least the threshold amount. The Home Secretary, we are told, should decide whether that is proper. I look forward to hearing Opposition Members explain how the Secretary of State should go about deciding whether the decisions taken by the judicial authority of one of our European partners are proper.
I do not want to pre-empt my hon. Friend Mr. Hawkins, but the Minister might like to ask any one of the Labour members of the Select Committee who voted for the report and in favour of a specific clause that was similar to the new clause. It would give the Home Secretary a backstop power, in cases in which the crime in question was not an offence in the UK, to do precisely what the new clause suggests.
Members of the Select Committee must speak for themselves, but I am not sure that they were seeking to do what the hon. Gentleman suggests. I can speak only to the new clause tabled by Opposition Members. I would be interested to hear—I did not hear it in the hon. Gentleman's intervention—how the Secretary of State is to decide whether the decision, say, of a French magistrate, to request extradition was proper. I may have gone to a different school from the hon. Gentleman's, but I do not see how he could get his head around that problem. Even if he could, any decision taken would be subject to judicial review and we would be left with appeals and delays—precisely what we are trying to avoid.
If people from another EU country came here and broke our law, would we expect that country to put them on trial? The fact that the conduct in question was not contrary to the law of their home country would be no excuse. How would we feel about a French Minister deciding whether our request was proper? I ask Opposition Members to view the problem in reverse perspective and think more about the consequences of what they are proposing.
The second limb of new clause 9 requires the Secretary of State to produce an annual report on the operation of the legislation. We do not believe that the Home Secretary should perform the role conferred on him by the Opposition in this new clause; nor do we see any need for an annual report. Home Office Ministers are answerable to Parliament and have to answer questions on the operation of extradition and other legislation—including details of the number of cases and the average time taken to process them. I see no reason for a formal annual report. No such requirement obtains in existing legislation and I see no reason to move in that direction.
Amendment No. 5 is designed to limit the removal of dual criminality to offences attracting a three-year sentence, rather than a one-year sentence, as the Bill currently provides. The basic threshold for extradition that has operated for many years is set at 12 months, and we do not believe that it would be sensible to set a different threshold for the application of the dual criminality role. To do so would be a recipe for confusion. More than that, if hon. Gentlemen take the view that dual criminality is so important and necessary to prevent injustice when dealing with requests from another EU country—not a view that the Government share—why should that safeguard apply only to offences attracting a penalty of between one and three years, but not to more serious offences for which the person concerned potentially faces a longer period in prison? It would be illogical to impose a dual criminality requirement at the lower end of the offence scale, but not to impose such a requirement at the upper end.
Secondly, I do not see why the UK's approach, in giving effect to European Union instruments, should always be characterised by doing the bare minimum necessary to comply, but I doubt whether many Opposition Members would agree. We have led on mutual recognition and we should seek to set an example to others. Several UK offences have no parallel in other European states, so there would be clear advantages for the UK and for the victims of crime here if other EU member states chose to go beyond the framework decision in respect of dual criminality.
I shall now deal with Liberal Democrat new clause 19 and consequential amendment No. 91, which would add a further specific bar to extradition. I support the motives behind the amendments: we should not countenance extradition in circumstances in which it would be unjust or oppressive because the accusation has not been made in good faith. However, the Bill requires no such enhancement. The bars already included in part 2, under clause 78, cover double jeopardy, extraneous considerations, passage of time and hostage taking. It is important also to remember that the whole Bill has the protections of the European convention on human rights firmly enshrined in it.
Clause 80, "Extraneous considerations", specifically covers where the request has been made for the purpose of punishing the person on the grounds of
"race, religion, nationality or political opinions."
Extradition is barred if a person would be prejudiced at trial or have his liberty restricted for any of those reasons. I do not believe that any additional requirement is necessary, and there is a risk that the amendments would be counterproductive. Their language is so subjective that they would present fugitives with a golden opportunity to block and frustrate the extradition process by creating additional grounds for appeal.
I am sorry for taking the House's time, but I wanted to cover all the amendments in this group. I hope that Opposition Members will be prepared to withdraw the new clauses and amendments in their names.
This substantial group of amendments is not quite as large as the previous group. I want to deal first with the Government new clauses. It is a measure of the lack of enthusiasm for the Bill among Labour Members, especially those who belong to the Labour-dominated Home Affairs Committee, that the Minister has no one behind him on the Government Benches apart from his Parliamentary Private Secretary.
Government new clause 11, and the linked Government amendment No. 45, amount to a significant concession. We welcome the Government's agreement to insert in part 1 of the Bill a "passage of time" bar to extradition, as proposed in my amendment No. 23. That is very similar to what the Government have proposed for part 2 cases.
In Standing Committee, I explained how clients of expert extradition solicitors such as Victor, Lissack and Roscoe had suffered injustice as a result of the huge delays in other countries' legal systems. We welcome the Government's concession, and I welcome what the Minister has said today. The Government's proposal in response to the Opposition's new clause 8 and amendment No. 23, which were tabled before the Bill reached the present Report stage, and therefore before the Government concession was announced. We are of course delighted that the Government have been converted to our point of view, if a little on the late side.
The Bill should not be retrospective. New clause 2 was not selected for debate, but we hope that the other place will reconsider the issue of retrospection.
Our new clause 5 deals with unconscionable delay. We hope that the Government will continue to consider, in another place and more generally, whether that new clause's wording would be of additional assistance to clarify matters further, given the bad experience that expert extradition lawyers have had.
We also hope that a de minimis provision will be inserted in the Bill in another place and, although new clause 7 was not selected for debate, that trivial matters will be excluded from the Bill.
New clause 9 deals with the referral of part 1 warrants to the Secretary of State. It is an important matter, and I can tell the Minister that, if necessary, we will press it to a vote. We have made it clear repeatedly that one of the Opposition's main objections to the new European arrest warrant machinery, and to the framework list that the Government have signed up to, is that many offences are listed that are not offences under UK law. Some, such as xenophobia and computer-related crime, are vague and undefined.
The prospect is that UK citizens could be arrested here, at the request of a foreign authority, and shipped off abroad. They would not have the right to ask a UK court to test the matter. That is especially important in connection with undefined and vague categories such as xenophobia, and catch-all categories such as computer-related crime.
New clause 9 would introduce the safeguard that the matter would have to be brought back to the Secretary of State, and that Parliament would receive an annual report. That would mean that there would be clear parliamentary scrutiny. My hon. Friend Mr. Cameron made a well judged intervention on the Minister a few minutes ago when he made the point that the Labour-dominated Home Affairs Committee had called for just such a backstop. It is not good enough for the Minister to say that the new clause is not necessary and to ask how the Secretary of State would exercise the powers.
We in this House are familiar with legislation that give Secretaries of State backstop powers. Given what the present Home Secretary has said about judges—the right hon. Gentleman claims that they do not operate legislation in the way that he intended, and says that judges should take note of what Parliament intended—I should have thought that he of all people would recognise that he needs the long-stop that a reserve power represents. Opposition Members strongly believe that there should be a regular report to Parliament, so that the massive change that the Government are introducing can be checked on annually by Parliament.
Given the Home Secretary's very public anger about the way in which judges have stopped him doing what he wants, we hope that a scrutiny power for the Home Secretary will find favour. If the Minister is not empowered to say as much today, we hope that the debate in another place will force the Government to think again and give UK citizens the protection that they need.
I stress that it would be even better if all cases could be looked at by a UK court before a British citizen is extradited for something that is not a crime in UK law. That is especially important after some of the issues raised by the Pinochet case. The danger is that another state could seek the extradition of Ministers—in the current Government, or in past or future Governments—in the same way as a Spanish magistrate sought to extradite Pinochet. Ministers may need to consider that possibility in connection with the current action in Iraq, or in connection with other international decisions. Reference was made in Committee to the concern about decisions made with regard to the bombing in Kosovo. Some people outside the House said that the decision was not an appropriate one for Ministers to take.
The Minister must accept that the issue is serious. There is no doubt that it will be examined in another place. It cannot be dismissed.
New clause 19, tabled by the Liberal Democrats, offers another sort of safeguard in these matters. Although our new clause 6 was not selected for debate, the issue remains important. I am sure that many people in another place with senior experience in government or in the law will share our concerns. We understand what the Liberal Democrats are doing with new clause 19, and in general we share their concerns. New clause 19 could be a helpful further safeguard. In the future, if a far-left or fundamentalist Government were to take power in Turkey, say—if it was an EU member by then—or in Italy, and if that Government were to seek the extradition of the UK Prime Minister or Foreign Secretary of the day, Conservative Members would be able to say that we warned the Government that that could happen. They would be able to say that it was because the present Home Secretary failed to introduce a political reasons exception to this Bill, as recommended on Second Reading by my right hon. Friend Mr. Letwin. The Bill needs a reserve power so that a future Home Secretary can have a fall-back position that will allow him to decide that extradition is not appropriate in certain cases.
We do not agree with the list of offences to which the Government signed up in the framework decision, but we entirely understand the view put forward by the Chairman of the Select Committee, who is not able to be with us at present. He proposed an amendment that would have put the whole list on the face of the Bill. The Opposition might have proposed that ourselves if the list had been better, but our concern about the nature of some offences on the list means that that would not have been appropriate. However, the principle remains, and we shall come back to it in connection with a later group of amendments.
Government amendment No. 47 is a technical amendment on double jeopardy, as the Minister made clear. It mirrors clause 14 and takes account of the possibility that the conduct complained of may not constitute a criminal offence in the UK. The Minister has made it clear that the Government acknowledge that possibility.
Government amendments Nos. 49, 51, 52 and 74 represent a significant concession to the opinions expressed by us and by the Liberal Democrats in Committee, and by the Select Committee on Home Affairs, in relation to speciality waiver and re-extradition. We do not want other countries to able to assume that they have the UK's consent. I welcome the Government's concession, although it was clear from the Minister's letter to me that it was made somewhat reluctantly. I will not go so far as to say that it was made grudgingly, but it was not made as willingly as some of the others.
Amendment No. 5, to which I am delighted that the hon. Members for Torridge and West Devon (Mr. Burnett) and for Orkney and Shetland (Mr. Carmichael) have added their names, would reintroduce the protection for which the Home Affairs Committee also called—namely, that the offences covered in clause 63 should be only those carrying three years' imprisonment, not 12 months. I remind the Minister that the Labour-dominated Home Affairs Committee used very strong language about that. It said:
"In relation to the dual criminality requirement, we can see no justification for eroding the basic level of protection provided by the framework decision".
It went on to say:
"The framework decision requires the UK to do so only in relation to offences with a maximum penalty of at least 3 years and we are dismayed that the Home Office is seeking to do so".
Amendment No. 91, tabled by the Liberal Democrats, seeks to introduce an "injustice and oppression" safeguard. We do not disagree with that, although it may not go as far as our suggestion of a political reasons safeguard.
Although I have tried to be brief in summarising our responses to these matters and in speaking to our new clause, I should stress that my brevity does not suggest any lack of enthusiasm. These are important issues that will be taken seriously in another place, and I shall certainly want to press the new clause to division.
I have already said that we welcome the concession on speciality, and we also welcome the passage of time amendment tabled by the Government.
New clause 9 proposes important safeguards that we support. The Bill contains many offences that are not offences in the United Kingdom. We have not discussed swindling: if I bought a car from the Minister for £1,000 knowing that I could sell it to Mr. Hawkins for £2,000 and then did so, would I be swindling the Minister? Perhaps I would, but that is the basis on which business is done throughout this country. That might seem to be a facile example, but it goes to the core of the entire definition. These offences are nebulous and uncertain. We believe that there should be safeguards, so we support the new clause.
As I said in my intervention on the Minister, I support new clause 9 because it is very close to what the Home Affairs Committee recommended as a backstop power for the Home Secretary. One of the objections made to us was that it may be contrary to the European arrest warrant and therefore out of order. As a good European, will the hon. Gentleman reflect on that possibility and give his view?
Mr. Burnett: In Committee, the Minister cursed his misfortune in having drawn the two most Eurosceptical Liberal Democrat Members—[Interruption.] I had better make that figure three, as my hon. Friend Mr. Heath is here, although he did not serve on the Committee. I believe in a Europe of nation states—a partnership—and I do not want to see foisted on our judicial system matters that are nebulous, uncertain and unfair to our own people or to people abroad.
I am delighted that we have the support of Conservative Members on new clause 19. The second head of injustice and oppression is not new—it is taken directly from section 11(3)(b) of the Extradition Act 1989 and appeared in all earlier extradition legislation. The Bill has adopted the cause of injustice and oppression arising out of the passage of time, which I welcome, and has rejected the
"accusation not in good faith in the interests of justice" test in section 11(3)(c) of the 1989 Act. I refer to the case of Saifi v. the governor of Brixton prison, which demonstrated that in the absence of a discretion for the Secretary of State to refuse extradition—that is, to act as a long stop to prevent injustice in exceptional cases—grave injustice may occur, which is not avoided by the application of the Human Rights Act 1998. In another case—the Murat Callis case, which was a Turkish case—the court discharged the accused on the ground that the accusations were not made in good faith in the interests of justice, but were made as a means of blackmail. While the principle of mutual recognition must be recognised in respect of category 1 countries that are party to the European Union, it does not fall to be recognised in respect of category 2 countries. The Minister said that he supports the underlying aims of the new clause. He does not, of course, believe that there should be injustice or oppression. As I said, however, it is no good the Minister falling back on human rights protections, because those are not available.
I want to say a few words about the change in the threshold from 12 months to three years proposed in amendment No. 5. The European arrest warrant removes the dual criminality requirement for 32 offences where those are punishable in the issuing state by a custodial sentence or detention order for a maximum period of at least three years. Clause 62(3)(c) reduces that to 12 months. The Government have provided no justification for the inroad into the protection offered at EU level. We should maintain the threshold at three years, which would reduce the risk of warrants being issued other than for the most serious offences in respect of which it has been decided that dual criminality is not required.
On amendment No. 91, a person's extradition to a category 2 territory is barred if it appears that because the accusation against him is not made in good faith in the interests of justice it would, having regard to all the circumstances, be unjust or oppressive to return him. That is an important principle, and the House should consider it so.
I rise to support the amendments tabled by my right hon. and hon. Friends, but also to defend the liberties of my constituents, as all hon. Members must do. I am concerned about the Bill, and I want particularly to address the European arrest warrant.
Although I would be the last person to want criminals from other countries to remain in the United Kingdom, and would prefer them to be punished in their native lands, I am concerned that the Government are not responding through the Bill to a genuine problem but are pandering to the wishes of Europe—not an uncommon occurrence with this Government, I am sad to say. Nowhere is that more apparent than in the Bill's provisions relating to the European arrest warrant. They would allow for British citizens to be extradited to other European Union nations for crimes that are not recognised in the United Kingdom, and with only limited UK legal hearings. It is particularly worrying that certain crimes in other European countries—especially those relating to so-called xenophobia and racism, and to computer-related crime—are exceptionally difficult to define and pinpoint accurately.
Surely it is unthinkable that any British Government should lay British citizens open to arrest for breaking laws that are not clearly definable. Were this Bill to be passed, an Englishman—or, of course, a Scotsman or a Welshman—who had perhaps done nothing wrong, or done anything that any right-thinking person in this country would condemn him for, or even anything that could be considered a criminal offence, could not feel secure in his own country.
Does the hon. Gentleman believe that, when an Englishman is, for example, in Germany, he should obey German law or English law while he is there?
Of course I believe that any person in any country should obey the laws of that country. I believe most strongly of all, however, that no British citizen should be subjected to the laws of other countries while they are in this country. That is completely wrong.
I agree with my right hon. Friend Mr. Letwin, who, alongside the directors of the Democracy Movement and Liberty, presented a petition on this issue to Downing street in November. The Bill will achieve an increase in the bureaucracy involved in extradition, at the cost of proper checks. What it needs to do is to tackle the real criminals who are a serious danger to the British national interest and to catch and deal with terrorists while protecting the innocent from European pettiness.
The European arrest warrant represents an assault on civil liberties in the United Kingdom that will be potentially devastating for British people who fall victim unintentionally to committing ambiguous crimes abroad. It will open the floodgates for British citizens to suffer in foreign prisons and under foreign judicial systems that do not share our own standards and values. I urge hon. Members to reject it.
It is with great pleasure that I follow my hon. Friend Mr. Rosindell, who has made a powerful case about the dangers of removing the protection of dual criminality. I rise to speak specifically in support of new clause 9, which would put into law the recommendation of the Home Affairs Committee—I am pleased to see its Chairman in his place—to give a backstop power to the Home Secretary in cases in which extradition was being sought for something that was not a crime in this country.
The Minister asked, when I intervened on him, how the Home Secretary could be asked to designate a request as being "proper." That is the word in the new clause. I did not draft it, and I have to say that I prefer the Select Committee's carefully drafted recommendation about the backstop power. I will try to defend the proposal, however, and I want to make two points to the Minister. First, the Home Secretary has a role in extradition right now. He has to decide in many cases whether someone should be extradited, and whether it is proper to do so. All that we are saying is that, under the European arrest warrant, if a person were accused of something that was not a crime in this country, the Home Secretary should have a backstop power to say whether it was proper or not. Secondly, we are in new territory here. Never before have we given up the dual criminality protection, so why not give a backstop power to the Home Secretary?
The backstop power proposed in new clause 9 is important because I believe that we are making a great mistake in getting rid of the protection of dual criminality. I shall give a simple example, so that we all know where we stand. Let us say that one of our constituents goes off to Spain, then returns to the United Kingdom and is accused of committing an offence. Under the Bill, so long as the arrest warrant had been properly filled out, that person would be returned to Spain. At no time would it be asked whether the offence that he was alleged to have committed was a crime in this country.
I did not have the pleasure of serving on the Standing Committee for this Bill, but I know that the proponents of the European arrest warrant say that we must try to give them a good example of a case that would be affected in the way that I have described. Because we have the protection of dual criminality, I have to admit that it is difficult to point to a good case. Perhaps I can ask the Minister what he thinks of the point.
Other hon. Members have identified the problem of the very vague 32 categories, one of which is "racism and xenophobia". Not a lot of people know this—as Michael Caine might say—but in Finland, under the category of racism and xenophobia, warmongering is an offence. I shall share with the House what someone would have to do in Finland to be accused of warmongering. The Home Affairs Committee report states:
"It is an offence, if, during an ongoing or imminent military or international political crisis, for the purpose of causing Finland to be at war with the target of that military operation, to:
—publicly disseminate statements or other propaganda intended to turn the public opinion in favour of the carrying out of offensives".
Unless I have got it wrong, anyone who, for example, supports military action in the Gulf against Iraq and who travels to Finland and makes the case that the Finns—who, after all, may soon be part of a common European security and defence policy—should join the coalition, would be committing an offence. Suddenly, that could be something for which someone could be extradited. I would not recommend that either the Foreign Secretary or the Prime Minister should rush to visit Finland if they are going to talk about what is going on in the Gulf. I see the Minister laughing, and I admit that it is quite funny. I did not know that that was Finnish law until recently.
Will my hon. Friend consider this further possibility? Were someone in Finland to access the Downing street website and read the many arguments for war that it puts forward, it might be possible for an alert judge or prosecuting magistrate in Finland to extradite the Prime Minister for warmongering.
Absolutely. We have only to look at the Downing street website to see many statements in support of military action. They could be taken as an attempt to encourage the brave and plucky Finns to join us in the Gulf.
I observed that the Minister was laughing at that example, but the problem is that the Bill is removing dual criminality as a protection. It is an important safeguard that people in this country have had for years. All that our modest new clause 9 proposes is to give a backstop power to the Home Secretary. I am sure that in most cases he would say, "It is fine. The arrest warrant has been filled out, and it can go ahead. This is clearly an offence." However, we would give him a backstop power for cases in which there was no dual criminality, so that he could say, "Hold on a second. This should not happen."
Proponents of the European arrest warrant always ask why someone should be protected just because they have managed to cross a border. They have been in Germany, Spain or Portugal, so why should they suddenly have protection when they get back to good old Blighty? My answer would be that our legal system is here to protect our citizens, and that that protection should be given up only if we can really trust the legal systems of other states. It is one thing to do that, as we have done in extradition cases for many years, when a crime that we recognise has been committed. It is quite another thing to give up that protection if we do not recognise the crime. This whole question turns on whether we trust other member states' criminal justice systems.
The case of the plane spotters in Greece has been mentioned several times. It is not directly relevant to the EU arrest warrant because they were arrested in Greece and did not make it back to the UK. However, it showed people in this country that one could be held in prison in Greece for weeks on end before even being charged, let alone tried. That is what shocked so many people in the UK: those people had not even been charged, yet they were languishing in a Greek jail.
My argument does not rely merely on one case, however. There are four vital objections to the removal of the protection of dual criminality. I shall deal with them briefly. First, we do not know for certain which offences will be covered by the EU arrest warrant. As I said earlier, the 32 categories include some extremely vague offences, such as xenophobia. We do not have a detailed definition of the offences that will fall into each of those categories in each member state. The Home Office told the Home Affairs Committee that it did not have detailed definitions of offences in the criminal justice systems of other EU member states. The Home Office cannot tell us for which specific offences we might be in danger of extradition.
Secondly, the 32 categories do not appear in the Bill. When the Select Committee asked the Home Office why that was so, the response was that article 2.2 of the framework decision allowed for the list to be amended. We have thus been told that new classes of offence and extra offences could be added without proper parliamentary scrutiny. We are certainly not discussing them today. As those new classes of vague offences are added, we will not know which crimes fall within them. The Government rejected the Committee's recommendation to import the list of 32 offences directly into the Bill. Their response stated only that, although they do not know of any plans to amend the list of 32 offences, they believe that they must retain the flexibility to deal with any such changes.
Do the Government want to amend the number of categories or not? The Select Committee's response to the Government was clear, and I could not agree more: the UK's domestic law should be clear in the future Act. Citizens should not have to refer to the EU document "sitting behind" the Bill in order to know what the law is. We should know about the laws that we are passing.
My third objection is that the situation is not static. Individual countries can add extra offences in each of the 32 categories—[Interruption.] I think that the Minister said "So can we". Even if he can tell us about every offence under each of the categories, including Finnish warmongering, he cannot reassure us that Governments will not create new offences in future. The protection of dual criminality would not exist for any of them.
My final objection is that countries joining the EU could automatically be designated category 1 countries and therefore be part of the European arrest warrant system. In fact, there is no restriction on any country being designated category 1—it does not have to be a member of the EU. The Government said that they do not intend to designate other countries as category 1, but they seem to be retaining that possibility. Their reason for rejecting the Select Committee's recommendation was that they required flexibility to be able to designate other countries as category 1, so there is no reassurance there.
Countries that join the EU or that become subject to the European arrest warrant can decide on their own interpretation of the 32 categories. They can decide which offences fall under them and add other offences in future.
In summary, what that means for our constituents is that getting rid of dual criminality is no small thing. The Minister is not saying, "Here is a small list of offences in a small number of countries. They will not change and all I ask is that you trust their criminal justice systems in those limited cases." He is not saying that at all. In effect, he is saying, "Here is a list of 32 vague categories of offence but I cannot tell you which crimes will be included in them, nor can I tell you which new categories will be added in future. I cannot tell you which new offences will be added to those categories and I cannot tell you what countries joining the EU in future will do". There are no guarantees whatever.
To put the matter in tabloid form, the Minister is not telling us to trust the current Greek, Portuguese or Spanish criminal justice systems. Instead, he is saying that we must trust any criminal justice system of any present or future EU country not as it is today but as it may be decades in the future.
That is why we need a safeguard. New clause 9 is modest, and I can see no objection to it. We are asking only that the Home Secretary be allowed to decide in cases in which the offence is not a crime in this country. We should give him that backstop power. Will the Minister explain what is wrong with that?
I can see only two possible objections. The first is that such a role is not appropriate for the Home Secretary—perhaps because he is too busy. I cannot believe that. Only a few cases would be involved. The Home Secretary should appoint another Minister to replace Mr. Denham. That would reduce the workload—[Interruption.] I am trying to help the Minister to have a fulfilling life. The Home Secretary has played a role in extradition for decades, so that cannot be an objection. As I said, there would be only a few cases in which people were subject to extradition for an alleged crime that is not an offence in this country.
The only other possible objection is the one that I raised with Mr. Burnett. I now know that the hon. Gentleman is a good man as well as a good European, because he supports a Europe of nation states.
The hon. Gentleman gets better. Soon he will outflank me on the right.
The other objection relates to whether the provision would be allowable under the European arrest warrant. Will the Minister tell us what legal advice he has received on that?
The House should try to get the law right for this country. There certainly should be expeditious extradition arrangements between European countries but we should not get rid of fundamental protections. The House should include a backstop power for the Home Secretary in the Bill and then we should see what the European Court makes of it. We should not lie down meekly because Ministers signed things away in Europe without thinking them through and say that we have to go along with them with no further debate.
It is with great humility that I shall try to follow the masterly summary of the arguments given by my hon. Friend Mr. Cameron. My hon. Friend Mr. Rosindell also spoke passionately and well. I support in every particular the comments of my hon. Friend Mr. Hawkins.
It would be foolish to pretend that the Bill is objectionable in every respect. I welcome some aspects of it, such as the speeding up of some of the procedures. The Minister heard a great deal in Committee about cases such as that of Rachid Ramda who was involved in the Paris metro bombing and succeeded in spinning out his case against extradition from the UK to France for seven years. It would be a very good thing if men like him were not able to monkey around with the judicial process for so long.
I want to focus on dual criminality, as my hon. Friends the Members for Witney and for Romford and other hon. Members have done. I can understand that we have something to gain and something to lose by getting rid of the principle of dual criminality in the case of European extradition warrants. We have heard that we would gain in cases where we wanted to extradite to this country someone who was guilty of something that we had made a crime in this country. but was not criminal conduct in another country where that person happened to be. Swindling, the age of consent and various other examples of how we might gain have been raised.
We would have something to lose, of course, and I want to range against each other two principles of law—mutual recognition and legal certainty. In my judgment, there is an overwhelming case for preserving legal certainty, not going down the route that the Minister constantly invites us to take, which he calls mutual recognition. There is a reason for that: this is not mutual recognition, properly so-called. I said that time and again in Committee until I was virtually blue in the face.
I had the great joy of spending five years in Brussels, reporting on the creation of the single European market, very largely brought about by Baroness Thatcher—it was in many ways a Conservative programme of extending the benefits of free trade and mutual recognition of standards and norms across the EU. Lord Cockfield, a former Conservative Cabinet Minister, who was the Commissioner responsible for the single market, pioneered the principle of mutual recognition, which is, of course, instantiated in the famous Cassis de Dijon case.
Under the principle of mutual recognition, if the Minister manufactures sausages that contain a red dye that is approved in his constituency, but not in Germany, or the Germans do not approve of the standard of sausages that he makes because they contain too much red dye, that sausage must be—
No, not extradited. That sausage must be legally bought and consumed in Germany. The rule of mutual recognition says that what is sauce for the goose is sauce for the gander, and if we in this country say that the sausage is perfectly good for us and perfectly good for the Minister and made him what he is—a fine figure of a Minister—there is no reason why the Germans should not eat it too. That is mutual recognition.
I want to tell the House in all candour that that principle can be very happily transferred to the criminal law. A moment or two's reflection will show why that is the case. It is possible throughout the Community to recognise two different types of sausage—the type that the Minister makes, in my hypothesis, and the type that the Germans want—so we could have German sausages and the Germans could have British sausages. There is a free movement of sausages—mutual recognition of sausages. It is not possible to bring that about in the criminal law.
It is not possible simultaneously to make it legal to drive on the right and on the left in all Community countries. The Minister will start to appreciate the point that I am making. It is not possible simultaneously to have a legal age of consent at 15 and at 18 in this country, and there are variations across the Community. Therefore, what we are talking about is not mutual recognition, as it has been generally understood in building the Community.
If anything, what we are trying to introduce by the European extradition warrant and the wrongful importing into the argument of the principle of mutual recognition is the assumption that, in any dispute between two criminal jurisdictions involving an argument about whether or not something is a crime, the higher standard will prevail; it will be assumed that that act is a crime for the purposes of extradition. That is not what is meant by mutual recognition. I am belabouring that point, and I mean to belabour it because I do not feel that it has been properly understood. I have tried to din it into the heads of Labour Members, but they have remained obstinately immune.
The hon. Gentleman will forgive me if I do not engage in a debate about sausages, but does he believe that, if the age of consent is 18 in another European country—to use the example he gave—and people from this country went there and committed an offence, they should not be eligible for extradition?
As I said in my opening remarks, I really think—I shall come to this point again in a minute—that we have something to gain and something to lose from such extradition. There will be things that we think are criminal, that are not recognised as crimes in other countries, for which we would like to extradite people to this country, and we will lose that opportunity.
My answer is no. I do not think that that involves mutual recognition. The House is being asked to agree that, in any dispute between two criminal jurisdictions, it should be assumed in deciding the matter of extradition that there is criminal conduct. It may be that the country in which the person currently resides says that the conduct is not criminal but, if there is a dispute, it will be assumed for the purposes of extradition that criminal conduct has taken place. That is something different from mutual recognition, and that fact should be recognised.
During the hon. Gentleman's five years of journalism in Brussels, did he obey Belgian law or English law? Is it not the height of arrogance for him to suggest—this is the conclusion of his argument—that people from this country who go abroad are bound by their native law, not by the law of that other country? In effect, that is what he is saying.
I am not going to take that criticism from the hon. Gentleman. Of course I obeyed Belgian law. As my hon. Friend the Member for Romford pointed out, we should obey the law of whichever Community country we happen to be in. Of course that is what we are saying, but we are also saying that when people are in Britain, they should have the legal certainty that the laws of this country, not those of another Community country, will apply to them. The whole point is that they will be vulnerable to extradition for things that are not crimes in this country. That is the point on which we differ.
It is perfectly clear that there is a list of 32 broad categories of offence. As my hon. Friend the Member for Witney pointed out, that list can be varied at will by the European Council on a majority vote. There is no way that we can possibly influence the changes made to those categories of crime or, indeed, to the criminal justice systems of other countries, so we are giving up our democratic right to make the law of this country.
To clarify the situation, the list can only be changed by unanimity. What we cannot do, however, is prevent the Belgians from changing Belgian law, or the French from changing French, law first as we will not allow them to prevent us from changing British law. If we changed British law, would we not expect people in our country to obey our new law?
I am grateful to the Minister for clearing up the point about unanimity and majority voting, and I am sorry to have got that wrong just now. He makes the point well that it is up to the Belgians to vary their own criminal justice system. We will have absolutely no influence over that. The net result will be that a citizen in this country can be extradited to Belgium or to another category 1 country to face charges for something that is not a crime in this country. In my view, that is taking away the legal certainty of people whom we represent and the freedoms of people whom we were elected to serve. It is rash of us to do that, particularly when we consider how deeply at variance we currently are about one aspect of international law: we cannot agree with the French about the legal status of the action that we are taking in Iraq. There is a huge difference of opinion about the legality of that most vital international operation. How, therefore, can we expect to have consensus and harmony about a great host of minor matters, and how can we possibly expect our citizens to have any certainty about what laws apply to them as they move around the country?
The hon. Gentleman is in danger of misrepresenting the case by almost suggesting—I know that he did not intend to say this—that a citizen of this country who has never set foot outside it will somehow be subject to extradition because he has broken a law in Britain that applies in another country. That is of course not the case. Citizens of Britain who go abroad are subject to the laws of that realm, and if they commit a crime in that country, irrespective of whether it is a crime in this country, they must surely be held accountable in the country that they have freely chosen to visit. Surely that is a fundamental point.
Of course such people must be held to account, and I am not opposed to their being held to account for crimes that they may have committed in foreign countries. Of course we must respect the legal systems of other Community countries. I am simply saying that when we think that there is no crime under our laws, it should be possible for the Home Secretary—a democratically elected representative of our people—to decide that there is no case for immediate extradition. The European extradition law means immediate extradition, with no argument and no discussion. All that the Opposition are suggesting is that that very small safeguard should be built into the Bill. That seems not much to ask.
The hon. Gentleman is making a powerful point, with which I have considerable sympathy. As he knows, dual criminality is abolished for category 1 countries. For example, someone who might have broken a swindling law in another category 1 country might be completely oblivious of the fact that he has broken any law whatever and would consider himself entirely innocent. Does the Gentleman agree that in those circumstances there must be some safeguards and there should not be immediate extradition?
I am very grateful to the hon. Gentleman, who advances ever further in the hierarchy of soundness and common sense. It is miraculous what common sense Liberal Democrats in the west country show when they are up against Conservatives.
To return to the previous intervention from Mr. Harris, I am in favour of us all obeying the laws of other Community countries and taking the consequences when we get home, provided that there is dual criminality. The Gentleman should bear in mind, however, that under the Bill, as he suggests, someone might be sitting in their front room doing something on a computer—as that is envisaged in the text of the Bill—and, as I read it, it is not outside the bounds of possibility that they could be extradited without having even set foot in a foreign country. The possibility that he raises as a reductio ad absurdam is therefore not as absurdam as he suggests.
Finally, I want to revert to the case of the Kalamata plane spotters, as the last time I did so I said that it would have been awful had they come back to Britain and been extradited on the spot. I think the Minister stood up and said, "Ha, ha! They could already be extradited, even without this extradition warrant Bill, because they were arrested under charges of espionage, and they would have had to go back." It was a good point. As I was able to say to him then, however, and as I shamelessly repeat now, the point is that under the current law the Home Secretary can decide whether to vary that warrant. It would be a small protection for our citizens to give the democratically elected Home Secretary the ultimate power to decide whether an extradition request from a European country was vexatious or improper. It is not beyond the imaginative powers of the Minister to understand how the Home Secretary, who is a very capable and intelligent man—unless the Minister is trying to tell me otherwise—could decide whether an extradition warrant was proper or not. He would simply decide whether the case had been well made and whether there was a case to answer, even if he could see no dual criminality, and then sign the case off. Installing such a small protection for the people whom we represent is the very least that we can ask of the Government.
I do not understand why the Minister does not do that because I can imagine the headlines that will be written after the provision bites. There will come a time when he will be recognised as the author of this sad legislation. I can imagine his future embarrassment and what certain tabloid newspapers will do to him. I could write the headlines for him—maybe I will. If he has any power of reflection, I urge him to think twice and accept the amendment.
It is a great pleasure to follow Mr. Johnson, not least because my hon. Friend Mr. Kilfoyle tells me that the hon. Gentleman has an iconic status among the young people of Liverpool. I am not entirely sure how that has arisen, but no doubt I shall gain some brownie points from my hon. Friend for speaking against the hon. Gentleman.
I listened carefully to the hon. Gentleman and, to put it kindly, the logic of his argument was muddled. He seemed to advance the theory that extradition should be right and permissible only when the offence that is committed in one country is roughly the same as an offence under our criminal law, which I assume he would concede to be the principle of dual criminality. I think that that was the burden of his argument, although he might wish to correct me because he was somewhat muddled and I might have misunderstood him.
I found it rather shocking that the hon. Gentleman made that argument, and I have two problems with it. I think that he believes that nation states have the right to decide what is right and appropriate for them. I presume that his time spent as a journalist in Brussels reinforced that view because I have heard him advance the argument in the past. If he accepts that any nation state, whether in the EU or not, has the right to make such decisions, it follows that any visitor to a nation state is bound by its law and that any visitor who commits an offence there yet manages to get home should expect to be extradited back to that country to face the music. I have no problem with the logic of that and I do not know why the hon. Gentleman, who is a great defender of nation states, cannot understand why that must be the case.
Surely the logic of the hon. Gentleman's argument is that we should remove the protection of dual criminality not only from EU states, but from states throughout the world.
No. The omission that the hon. Gentleman makes in raising that point is that all other EU states, and even to some degree the applicant countries, recognise that there is already a framework setting down some minimum standards. So, there is a distinct difference. For argument's sake, I would not say that that would be so in all countries in the world, because clearly there are some places where criminal law is not as sophisticated as that in most European states and ours.
I am not, of course, saying that people should not be extradited except where dual criminality applies. No one on the Conservative Benches is saying that. The hon. Gentleman grossly misrepresents my argument. All we are saying is that when dual criminality does not apply, the Home Secretary should have the power to decide whether to go ahead with the extradition. I thought that I had made that abundantly clear.
The hon. Gentleman's indignation overtook my ability to make my second point, which was indeed to talk about the Home Secretary's role. I happen to have been a junior Minister at the Home Office when my right hon. Friend Mr. Straw, as Home Secretary, had to study and make a decision on the Pinochet case. I shall not go into all the rights and wrongs of that, but I will make a couple of observations about the process.
First, a cordon sanitaire had to be built around my right hon. Friend because it was properly recognised by officials that he could not be easily influenced by anything else going on and that he had to concentrate uniquely and almost single-mindedly on the arguments for the application for extradition and their merits or otherwise. Secondly—
If the hon. Gentleman will let me finish my point, I will allow him to intervene.
Secondly, although I had no direct or even indirect involvement in the Pinochet case, I know that my right hon. Friend had to concentrate on the legal arguments that both sides put before him. He was not acting as some superimposed arbiter of right and wrong, but deciding on the legal arguments which, in almost any other circumstance, would have fallen to a judge.
Mr. Straw was in a difficult position because as a youth he had been out demonstrating against Mr. Pinochet. As far as I can remember, that was the particular difficulty that beset him. It is hard to imagine similar difficulties affecting future Home Secretaries in making such decisions. I therefore do not see why the hon. Gentleman's point invalidates the general desirability of a Home Secretary making such a final, safety, backstop judgment on whether extradition should go ahead.
The hon. Gentleman's point applies not only to my right hon. Friend but to almost all politicians. The truth is—and the hon. Gentleman is no exception to this rule—we all have form. Every one of us in pursuit of our political careers has taken positions on all sorts of things. If the hon. Gentleman ever found himself in a position such as the one I have described, he too would have form—not necessarily on Pinochet, but he will have made pronouncements not only in his political life but during his career in journalism. That is why it is far better for such things to be decided by judges than by those of us who find ourselves in political positions that on occasions may have quasi-judicial implications. The hon. Gentleman has not made a strong case. All the arguments go in the opposite direction, and I certainly shall not be voting for the Opposition amendments.
Where do I start? I thank my hon. Friend Mr. Howarth for trying to help me bring a little clarity and logic to the debate, although that is pretty difficult.
Let us try to unravel some of the jumbling that has gone on since the Conservative Back Benchers, joined by Mr. Burnett, took over the debate. The hon. Member for Torridge and West Devon complained about the list, and someone not knowing whether or not he was committing an offence. I understand that the Gentleman is a lawyer. If he is seriously telling the House that ignorance of the law is a reason for rendering one immune to prosecution, he should stand up and say so, otherwise he should not have come to the House and spoken about someone not knowing they had committed an offence.
Of course, I recognise and acknowledge that ignorance of the law is not a defence against a charge. Having said that, if someone commits an offence overseas which he believes is not an offence—he believes that it is an entirely innocent act—and is then subject to extradition, surely there must be some safeguards.
So if a German, for example, comes to our country, breaks our law, returns to Germany and says, "But wait a minute, I didn't know I was breaking the law," he should not be sent back here to face justice.
No, I am not going to give way to the hon. Gentleman again.
That is exactly what the hon. Gentleman is saying—there must be a safeguard that prevents that man from being returned. His ignorance of the fact that he was breaking the law ought to provide him with protection from prosecution.
The whole point, as the Minister well knows, is that ignorance of the law of one's own country is not a defence—that is indisputable. However, let us suppose that a fine, influential, upstanding Home Office Minister went to Finland and made a speech defending the behaviour of the coalition forces in the war, argued that there were good reasons for supporting military action in the Gulf, then went back to London thinking that he had done a good job, only to find that he was guilty of breaching the Finnish law on warmongering, would that Minister be wholly innocent or not on the ground that he did not know—and I bet that the Minister does not know, but perhaps he will correct me—that warmongering is an offence in Finland?
I shall not accept interventions for the moment, but of course I will allow hon. Members to intervene later.
We have heard numerous contradictions, including many in the speech of Mr. Johnson. He said that if the age at which someone could be prosecuted as a criminal in this country was different from that in another country they should not be sent back. However, only a couple of sentences later, he agreed that when he was in Belgium he abided by Belgian law. He cannot have it all ways. Mr. Cameron spoke about somebody who had committed an offence in Spain and returned to this country. That person could be extradited and, during that process, at no time would it be asked whether or not what he had done was an offence in that country.
Wait a minute, that is what the hon. Gentleman said. If he wants to check the record, he can do so, as that is clearly what he said. I do not know whether he spoke in error.
I urge the hon. Gentleman to sit down, as I am not going to give way to him. That is what he said. If he said it in error, I accept that, but he did say it.
That idea is being bandied around in Conservative circles, and people are beginning to believe their own propaganda. There is nothing whatsoever in the Bill that says that people can be extradited for activities in this country that are not an offence here. I wish that hon. Members would stop making that allegation because it is not true. The Bill includes a requirement that provides the legal certainty that the hon. Member for Henley asked for. The Bill contains a requirement that whether or not somebody crosses a border, people must abide by the law of the country within which they are. That applies to people who come to our country as it applies to UK citizens who go abroad. If a German, a Frenchman or a Spaniard comes to our country and breaks our—
Hold on for a moment.
If that person comes to our country and breaks our law, he or she would be punished under our law while present in this country. In my view, there is no reason why they should be able to jump on a Eurostar train and for things to change all of a sudden when they get half way through the tunnel, with the result that they are not as vulnerable to being punished under our law—
I am grateful to the Minister for giving way.
I think that the point that he is missing—my hon. Friends the Members for Witney (Mr. Cameron) and for Henley (Mr. Johnson) have been trying to get it over to him—is that one of the real mischiefs in the Bill is the vagueness of the categories of offence. The Minister must understand that one of the reasons for our concern, which is shared by Mr. Burnett, is that if there are vague categories that will lead to British citizens being vulnerable, that is a concern and a particular reason why there should be a modest longstop, as a Labour dominated Home Affairs Committee suggested.
I do not know how many more times the hon. Gentleman will say "a Labour-dominated Home Affairs Committee". It is a good phrase of his own. I thank the hon. Gentleman for his intervention because it brings me directly to the point that I want to make. He keeps saying, in the hope that it will become true, that people will be subjected to vague categories of crime. They will not.
Hold on for a moment.
The warrant that requires the arrest will be clear. It will spell out the offence that has been committed as defined in the law of the jurisdiction in which the person was when they are alleged to have committed the offence. It will not use vague terminology. It will use a clear and specific allegation in French law, Spanish law or German law, stating that "this person is accused and wanted to stand trial for this offence."
Before I give way to the hon. Gentleman, I would say that we have offences that are not recognised in other European countries. The offence in this country of incitement to racial hatred is not an offence in many other European countries. Another example is the offence of fraudulent trading. If hon. Gentlemen are saying that we should not be allowed to seek extradition for people who have broken our clear law—not a generic list, not a vague definition but our offence of fraudulent trading—because they happen to be in France or in Belgium, please let them say so and give us the reasons for so doing.
I want to clarify the point. The Minister was misrepresenting what I said entirely. I hope that he will give me some credit. I sit on the Home Affairs Committee and with others I spent hours producing its report. I was making the point about a constituent who went off to Spain and allegedly committed a crime in Spain. When the arrest warrant is filled out, at no time will it be asked whether the offence is an offence in this country. That is the simple point that I was making. I cannot think how the Minister can take issue with it. It is up to him to prove the case. He is the one who is taking away a safeguard that has been in the law of this country for decades. It is up to him to make his case.
It is not what the hon. Gentleman said. If I am wrong, I will apologise. We shall have a look at the record if that is what we need to do. I am not trying to disparage the hon. Gentleman.
Let us say he says what he says he said. At no time will it be necessary to prove that the offence that was committed is an offence in this country. The accused was in Spain and committed an offence there, and the warrant will define the offence in Spanish law. What is the matter with that? Effectively, the hon. Gentleman is saying that while his constituent was in Spain, he should have been prepared to abide not by Spanish law, but by English law, and that the warrant should take account of whether the offence was an offence in English law. The person in question was not in England when he committed the offence, but in Spain. The warrant will spell out not some vague category of crime, but a specific crime in Spanish law committed in Spain. If the threshold for extradition is exceeded, yes, that person will be extraditable.
I see no problem with that arrangement and believe that it is positive. After crimes are committed in Spain, there will be Spanish victims who are entitled to justice. When crimes are committed by other European citizens in our country, British citizens will be entitled to justice, so I see no problem with mutual recognition. I believe that it is the way forward and the direction that we need to take.
The hon. Member for Witney asked about the position of the Prime Minister, Ministers, diplomats and all the rest of it. The Bill contains absolutely nothing that changes the position on diplomatic or state immunity, so those who currently enjoy such immunities will continue to do so under the European arrest warrant arrangements.
I have dealt with the main point of contention in this discussion, but in order to bring a lighter note to the debate, I should like to respond to the threat of the hon. Member for Surrey Heath that some fundamentalist or left-wing Government in Turkey might use the European arrest warrant to arrest me or another member of the Government and that, in that event, he would be here to say "I told you so." I do not know whether that is an indication of his confidence that he will be sitting on the Opposition Benches for many a long year to come, but I certainly hope so.
The measure has been widely misrepresented. The generic list of offences is a mechanism by which mutual recognition is facilitated. Nobody will be extradited from one European country to another for anything other than an allegation of a clear breach of law in the other country, and hon. Gentlemen should not seek to suggest otherwise.
I thank the Minister for again giving way. He is laying a great deal of stress on the suggestion that certain things will be made absolutely clear in the warrants if the measure becomes law, but I ask him to address the question asked by the Opposition and by the Chairman of the Select Committee on Home Affairs from his own Back Benches. The Government have refused to include in the Bill the format of the arrest warrants or to accept what the Home Affairs Committee has said about including the list of very vague offences. I do not see how he can say at the Dispatch Box that he is confident about how the system will work unless he is prepared to include all the details in the Bill, as we have urged him to do.
I think I have said that it is extremely clear that the warrant will have to say exactly what the offence is, who issued it and whether they were an appropriate authority to do so—the Bill states that that authority will have to be a judicial authority—and that it meets the threshold in an accusation case that is required to allow extradition to be considered. If any of that information is not complete to the satisfaction of the National Criminal Intelligence Service in England or the Crown Office in Scotland, the warrant will not go forward and the case will not even be considered.
Let me deal with the reasons for not including a minimal safeguard at the back of the Bill. We cannot do that without opening up the issue of dual criminality and the playground to which it would lead on every single case. We cannot use the backstop of the Home Secretary without any decision that he makes being open to challenge and judicial review, yet the hon. Member for Henley claims that he wants a speedier system. He says that he does not want the sort of delays that occur in our current system, but tries to reintroduce provisions that allow the sometimes appalling delays under existing legislation. The Bill is designed to avoid them.
We are beginning to tease an important point out of the Minister. Many hon. Members would like a clear exposition of what, in the Minister's view, a warrant will contain. Will it spell out the exact offence under legislation in the countries that seek extradition? What else will the warrant include?
We discussed that at some length and I talked about the matter again when introducing this group of amendments. I do not know whether the hon. Gentleman has been able to sit through our proceedings this afternoon. The warrant will clearly state that people are sought in order to bring them to trial, give details of the law that has been allegedly broken in the jurisdiction and set out the potential penalty for breaking it. It will not refer to the generic list, which facilitates mutual recognition. The warrant will contain specific allegations. I refer the hon. Gentleman to clause 2(4) and (6). It sets out the exact requirements on the face of the warrant.
There is therefore certainty. The hon. Member for Witney asked what I would say to my constituents. I tell them that when people from another jurisdiction come to our country, they should be subject to our law. The fact that they manage to leave the country should not render them immune to it. However, the reverse applies to our constituents. When they go abroad, they must be prepared to abide by the law of the European country that they visit. Yes, those jurisdictions can change their laws, just as we can change ours. We require people to abide by the law as it stands at the time of the alleged offence.
The Minister gave Mr. Burnett an interesting answer. Surely, in the overwhelming majority of cases, a direct congruence between the offence in the other Community country and that in our law is immediately obvious. There will be genuinely no dual criminality in only a tiny minority of cases. Is it not sensible to leave those cases to the Home Secretary, acting as a longstop and a safeguard?
It is true that there is not an exact equivalent of an offence in British law in only a few cases. However, does the hon. Gentleman seriously suggest that that stops people raising the matter in every case and requiring arguments for the exact equivalent in British law? Does he not realise that that is one of the main causes of the delays in our current system?
"particulars of the person's identity; . . . particulars of any other warrant issued in the category 1 territory . . . particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence and the time and the place at which he is alleged to have committed the offence; . . . particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it."
Subsection (6) says that the information is
"particulars of the person's identity . . . particulars of the conviction . . . particulars of any other warrant issued in the category 1 territory . . . particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence . . . particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence".
If the warrant does not contain those particulars, the extradition will not proceed. That has nothing to do with any vague list; a specific offence must have been committed in a category 1 country, and must be stated in the warrant.
The style of the European arrest warrant is given on page 47 of the Home Affairs Committee's report, which will tell Mr. Burnett all that he needs to know. It is clear what the warrant will look like. What is less clear is the nature of some of the 32 categories, such as racism and xenophobia. I gave an example involving Finnish warmongering, supplied to the Home Affairs Committee by Home Office officials.
Will the Minister give an undertaking that in years to come the Home Office will give the Home Affairs Committee and the House some guidance on laws in other countries relating to vague categories such as racism and xenophobia, so that we can at least help constituents who may get into trouble as a result of the new procedure?
As the hon. Member for Surrey Heath pointed out, we could attempt to trawl every jurisdiction for every piece of legislation that hits the threshold for extradition, but the Spanish, the Portuguese or the Italians might change their laws, as we might change ours. There is nothing to stop them doing that. The principle is that when we are in their jurisdictions, we are obliged to abide by the laws of those jurisdictions, just as they are obliged to abide by ours. I see nothing wrong with that.
Question put and agreed to.
Clause read a Second time, and added to the Bill.