moved Amendment No. 1:
Before Clause 1, insert the following new clause—
The purpose of this Act is to make provision about extradition and to give effect to the Council Framework Decision of 13th June 2002, on the European arrest warrant and the surrender procedures between Member States."
My Lords, after nine days in Grand Committee, this important Bill now reaches the Floor of the House. I welcome the fact that the Government have listened to some of the arguments put in Grand Committee and have tabled a total of 158 amendments to the Bill. I give advance notice that some of the government amendments on the significant issues will need to be further amended. That reflects the fact that the Government listened to some of the arguments put in Grand Committee, but also, sadly, that they have set their face against the argument of principle that we pressed on the issue of the European arrest warrant. Today, therefore, we have ahead of us some important amendments.
The objective of Amendment No. 1 is to set out clearly the purpose that underpins this legislation, and ensure that a reference is made to surrender procedures right at the start. We had a substantial debate on the amendment in Grand Committee, and my noble friend Lord Hodgson raised the issue briefly in a debate on the Criminal Justice Bill earlier this month. I shall therefore abide by the guidance on the Report stage and try to be as brief as possible.
The Long Title of the Bill states that it is a Bill to make, "provision about extradition". We believe that that is misleading. The noble Lord, Lord Stoddart of Swindon, pointed out in Grand Committee that Parts 1 and 2 of the Bill serve different purposes and are based on distinctly different procedures. Another of the Minister's many noble friends, the noble Lord, Lord Wedderburn, made the same point, when he said that,
"while the Bill concerns extradition, Part 1 especially seeks to give effect to the framework decision about the European arrest warrant and surrender procedures which are explicitly stated in that decision to be the object of the Union".—[Official Report, 3/6/03; col. GC 122.]
The new extradition system for category 1 countries does not correspond in any way to the meaning of the word "extradition" as understood by the public. To them, extradition means a fully judicial process involving home and overseas judicial authorities, with appropriate checks and balances. Under this proposal, in Part 1, those checks and balances are too few.
Perhaps we should not be surprised, because the European arrest warrant is contained in a Council framework decision in paragraph 5, of which the preamble reads:
"The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition"—
I emphasise "abolishing"—
"between member states and replacing it by a system of surrender between judicial authorities".
A sample of the warrant to be used is included later in the document. Paragraph (i) of the warrant refers to:
"contact details of the person to contact to make necessary practical arrangements for the surrender".
We propose nothing more sinister than clarity in stating that the purpose of the Bill is not straightforward extradition but, in Part 1, surrender as well. I beg to move.
My Lords, the main issue before us today is an attempt to remove Part 1, which concerns the European arrest warrant, or to restrict it to terrorist offences. I make clear that if that is the main aim, we shall certainly support the Government on the matter.
The noble Baroness talked about the European arrest warrant. We simply want to ensure that it will simplify and speed up extradition procedures. In particular, it will be unnecessary to provide prima facie evidence in support of an application for extradition. However, that is not a major change in the law, because all European Union member states are already party to the Council of Europe Convention on Extradition, which dispenses with the need to provide prima facie evidence.
The argument is likely to be based mainly on the restriction of dual criminality, to which we shall come later, and which is a rule that forbids extradition unless the relevant offence is a crime under the laws of both the territory requesting extradition and the territory receiving the request. Under the framework decision setting up the European arrest warrant, Article 2.2, concerning EU members, states that dual criminality must not be applied for the 32 categories of offences listed in the article if the minimum sentence for that offence in the requesting territory is at least two years.
We accept that on the ground that people are required to observe the law of the territory in which they are present and, in the case of serious offences, should not be able to escape extradition on the technical ground that the offence with which they are charged does not correspond to a specific offence under UK law.
Later, we shall debate large groups of amendments led by Amendments Nos. 3 and 6. I am dealing with the matter now because I do not want to pop up on every amendment in those groups simply to say that we will not support them.
My Lords, there is often, but not always, good reason for a purpose clause in a Bill. In this case, the reason is compelling. I am sure that my noble friend has not moved the amendment as a gesture; there is a need for a purpose clause. If the Bill is to be properly understood now and in future, it must make clear that it has the two distinct purposes to which my noble friend referred. Its aim is to speed up existing extradition procedures with countries outside the European Union and also to include in English and Scots law the European Union framework agreement already accepted by the Government.
As my noble friend said, in its preamble the framework states that it will lead to the abolition of extradition and its replacement with a system of surrender. The Bill abolishes extradition and introduces a system of surrender. It also improves extradition with states outside the Union. Surely it should say so. The Short and Long Titles do not state that. My noble friend suggested that they are misleading; they are. There must be a purpose clause. I hope that the Government will agree to that; that would do them no harm and make for clarity in future. I support the amendment.
My Lords, I have come to the opposite conclusion. Everything that could be said in favour of the amendment ought to be said in speeches, not spelt out in the Bill. Many Bills come before the House of which people observe that certain matters ought to be stressed. That is right. The purposes spelt out in the amendment are entirely appropriate, but that is not a matter for the Bill. I hope that the noble Baroness will not press the amendment to a Division, because it would be counter-productive.
My Lords, I shall briefly support my noble friend Lady Anelay on the amendment. When we debated an identical amendment upstairs in Committee, the then Minister, the noble Lord, Lord Filkin, said that he would reflect on what we said. Although he held out no great hopes of agreeing with our proposal, he nevertheless made clear that he would reflect on it. He said that he believed it important that the Bill's purpose be made clear.
The amendment is important and a purpose clause justified in this case because this is a major Bill that makes substantial change to existing law. On Second Reading, I had the temerity to suggest that it was difficult to say that this is merely a Bill to simplify the Extradition Act 1989 when it extends to many clauses and pages and is far longer than the Act that it claims to simplify.
In two vital ways, the Bill changes the law for category 1 countries, in that it does away with the requirement for the Secretary of State to have an executive role in returning those for whom extradition has been asked; and because it does away with the rule of dual criminality, which has always been accepted. A Bill as fundamental as that should make clear in its purpose clause what it does, which is as my noble friend Lady Anelay described.
Does the Minister have any real objection to including the clause? In particular, does she agree—as, it appears, it was implicitly accepted in Committee—that the words of the purpose clause, whether or not it is necessary, accurately reflect what the Bill does? If I am right about that, is there any harm in having that written into the Bill?
My Lords, I thank the noble Baroness for tabling this amendment, but I must say that I am sorry that we must start the debate in this way, with the Government being accused so boldly of being misleading. Nothing could be further from the truth. Noble Lords will know that both in the other place and in Grand Committee the Government have strenuously defended our position and been open and frank about the purposes for which the Bill is to be used. There has been no attempt to mislead, hide or cover our purpose.
I must endorse everything that the noble Lord, Lord Dholakia, said and thank him for the clarity and succinctness with which he outlined the purpose of this part. Unsurprisingly, I also agree with the comments of my noble friend Lord Clinton-Davis. I refute the charge made in its entirety. The framework decision cleared scrutiny in both this House and another place well before the Bill was even introduced. At every stage, the Government explained that the framework decision and the European arrest warrant would be implemented by Part 1 of the Bill and have ensured that the way in which the Bill transposes the provisions into United Kingdom law is clear. There has been no secret there either: the link between the Bill and the framework decision is transparent.
It is important that we get the Bill right, because it will govern the law in the United Kingdom; as all noble Lords know, the framework decision has no legal force.
We believe that the Long Title of the Bill—
"to make provision about extradition", is clear and accurate. Extradition is about the transfer of a wanted fugitive after due judicial process—a definition which applies equally to Part 1 of this Bill as much as it does to Part 2 and, for that matter, to the Extradition Act 1989.
If I may say so, the noble Baroness, Lady Anelay, seems somewhat preoccupied with the term "surrender". I believe that term was also used by the noble Baroness, Lady Carnegy. As the noble Baroness, Lady Anelay, rightly said, it is a term used in the framework decision, but for the purposes of this Bill and our system in the United Kingdom we believe that it is clearer and more accurate to refer consistently to extradition throughout the legislation. The Bill is about extradition—the process of sending back wanted criminals to face justice after due judicial process. It is simply wrong to claim that the Bill puts in place surrender arrangements which somehow deviate from that.
As the noble Baroness, Lady Anelay, mentioned, we dealt with this matter in passing in a different context in Committee on the Criminal Justice Bill. I urge the noble Baroness and noble Lords opposite not to press the amendment. As my noble friend Lord Filkin promised, we reconsidered the matter. We considered whether it had merit and we came to the conclusion that that which we have now expresses the truth of the situation and is clear, honest and straightforward. Therefore, we do not think that there is any need to amend further. I ask the noble Baroness not to press the amendment.
My Lords, I perfectly understand the position taken by the noble Lord, Lord Dholakia. The Liberal Democrats made their position clear throughout Grand Committee and spring no surprises on me. The noble Lord, Lord Dholakia, is deputising for the noble Lord, Lord Goodhart, who is the Liberal Democrat spokesman on the Bill but who is unavoidably absent. I accept that he has taken the proper course in saying that he will not speak to each and every group of amendments.
I am grateful for the support of my noble friends Lady Carnegy and Lord Carlisle of Bucklow regarding the need for a clear statement of purpose. The Minister said that the Government preferred to refer consistently simply to extradition and that they have been clear and open about what the Bill is about. The Government pepper the Bill with references to surrender. We simply seek greater clarity. Later we shall discuss government Amendment No. 308, which seeks to insert the European framework list on the face of the Bill. Subsection (3) of the new clause in that amendment refers to the surrender procedures between member states. So in a sense we are at one on how we consider that the framework list should operate. However, we believe that we need clarity. As my noble friends have said, we believe that a purpose clause is needed. I wish to test the opinion of the House.
My Lords, in moving the amendment, I shall speak also to Amendment No. 5.
I hope that your Lordships will welcome and agree to the government amendments. I am grateful to the noble Baroness for tabling Amendment No. 5, which is concerned with the designation of territories under Part 1. However, I believe that in the light of the additional protection and scrutiny offered by the government amendments, Amendment No. 5 will not be necessary or appropriate.
The group is the first of a number of groups of government amendments which we will discuss today. I hope that it will set the tone for those to come, as I imagine it will be welcome to your Lordships. The amendments, like many to come, respond to points raised in Grand Committee. We have gone away and considered many of the points raised, and in many cases have been able to come forward with government amendments designed to meet the concerns.
In this case, we are dealing with an issue that was raised not only by noble Lords in Grand Committee, but by the Select Committee on Delegated Powers and Regulatory Reform. That committee recommended that orders designating countries as extradition partners should be subject to the affirmative resolution procedure, even though that represents a much higher level of parliamentary scrutiny than we have at the moment. We have taken those comments to heart.
The main purpose of the amendments is therefore to provide that, henceforth, the designation of the United Kingdom's extradition partners will be by the affirmative resolution procedure. For the avoidance of doubt, I should also put on record that any orders to disapply the prima facie evidential requirement for any country, and any orders to vary the period within which a Part 2 country has to supply full papers following provisional arrest, are also subject to the affirmative resolution procedure. Again, that is in line with the recommendation of the Delegated Powers and Regulatory Reform Committee.
I should explain why in a number of places in the Bill we are changing Orders in Council to Secretary of State orders. Simply, there is no reason why designation orders should be Orders in Council. They are at the moment, but that is a legacy of the Extradition Act 1870, passed when the world was a very different place and we legislated in a very different way. Using Orders in Council makes life much more difficult, not least because timing is very much constrained by the timetable of Privy Council meetings. The key point—I should stress it—is that making the change has absolutely no impact on the level of parliamentary scrutiny that the orders receive. That is determined by the rest of the Bill and, as I have just explained, we are providing for all designation orders to be subject to the affirmative resolution procedure.
Amendment No. 5 would restrict the countries which could be designated under Part 1 to those which had signed the framework decision on the EAW, which are the member states of the EU, Norway and Iceland. The issue was debated at some length in Grand Committee. On 3rd June, the Grand Committee's first sitting, my noble friend Lord Filkin explained the Government's thinking on which countries would be in Part 1. Having considered the matter further, our position is unchanged. We remain of the view that it is not desirable to limit the countries which could be designated under Part 1 to those countries which had signed the framework decision on the EAW.
However, we do not believe that we should limit the room for manoeuvre of our successors if they decide that they want to put a non-European country into Part 1. On previous occasions, we have discussed the possibility—I must stress that it is only a possibility—of putting a Commonwealth country such as Australia, New Zealand or Canada into Part 1. Those are countries with established democracies, where the rule of law is respected, and it does not strike us as impossible that there may be a strong case for putting them in Part 1 at some point in future. I therefore believe that the Bill needs to retain a modicum of flexibility to cope with the situation.
I know that the noble Baroness has concerns about what criteria would be used to determine whether a country might be added to Part 1. As I have indicated, the Government have no plans to designate any non-European countries in Part 1. That being so, we do not believe it appropriate to set out the criteria now for the designation of a country which may or may not happen at some specified point in future. By bringing forward the government amendments in the group, the designation of any country under Parts 1 and 2 will be subject to the affirmative resolution of both Houses of Parliament.
Therefore, if at the appropriate time it is deemed desirable to add a non-European country to Part 1, we have made sure there will be an opportunity for Members of both Houses to consider the basis of that proposal and whether the designation is justified. The affirmative resolution procedure is an important procedural safeguard and gives the appropriate level of parliamentary scrutiny. Once that is in place, I suggest that it would not be appropriate to limit the flexibility of Part 1 any further.
I hope that that gives the noble Baroness sufficient reassurance to agree not to press her amendment. I beg to move.
My Lords, I welcome this group of government amendments. They respond properly and fully to the objections put first in another place by my honourable friends and subsequently by me in this House where I was supported by the noble Lord, Lord Goodhart. Indeed, the Minister is right to refer to the excellent report of the Delegated Powers Committee.
I am grateful to the Minister for addressing my concerns in Amendment No. 5: what happens if any government want to extend the list? I find comfort in some of her earlier comments because she said that the Government would expect the extension to be those of an established democracy where the rule of law was respected. That is just what we want to hear.
I shall not press the matter to a Division today. I want merely to put on the record our concern that we are leaving to uncertainty—albeit an affirmative statutory instrument—the extension of a system of surrender extradition, which will be a swift and powerful weapon. We have made that point and are grateful for the Government's recognition of the importance of these orders. They have rightly changed them from an Order in Council to a statutory instrument, which reflects what happens in the real world.
I have a question of which I was unable to give the Minister notice, but I do not believe that it will trouble her too much. It relates to the further report issued today by e-mail by the hard-working Delegated Powers Committee. I commend the committee on the expedition with which it has done so. It makes another recommendation relating to negative instruments being changed to affirmative ones—and that is the Government's Amendment No. 313 to Clause 315. For the convenience of the House, is the noble Baroness in a position to indicate whether by Monday, the second day on Report, the Government will be able to table an amendment which will meet the point of view expressed by the Delegated Powers Committee—a point of view which we fully support?
My Lords, the noble Baroness is right in saying that the report has only recently been issued on e-mail and therefore she will not be surprised to learn that we have not had time to give it the full consideration that it deserves. I undertake to look at the matter fully and properly and at our next meeting on the Bill to come forward with an answer. If we reach a swifter conclusion, I shall seek to indicate that to both Front Benches so that they can address appropriate comments.
My Lords, I hope that that was the Minister answering the noble Baroness, Lady Anelay, before she sat down rather than her closing speech, otherwise I shall be debarred from speaking. Taking it as such, I, too, welcome the fact that the Government have moved to this sensible solution.
I share the Minister's view that it renders Amendment No. 5 unnecessary, but I want to ask a question about the criteria which will be used for designation. Is it the Government's intention to designate a country only if it has a system of extradition which is reciprocal to the system in Part 1 or at least is moving rapidly towards that? I hope that we shall not see a situation in which we are extraditing under a Part 1 system to a country which is not giving us the equivalent reciprocal powers.
My Lords, I was a member of the Delegated Powers Committee and I took part in Grand Committee and I, too, welcome the amendments that the Minister has made. Without wanting in any way to be ungracious, I believe that the House should remember what the Government once thought was the right way of proceeding. They believed that additions to the list of countries to which a United Kingdom citizen could be surrendered—could be sent back—unprotected by the existing extradition procedure could be decided by Parliament without discussion or agreement in both Houses.
The Government have changed their mind, but they believed that until now. It illustrates that they have convinced themselves that they are simply tweaking the extradition laws, which was borne out by the noble Baroness, and doing no more. It is a great deal more than that and it is having a big effect on the liberty of the citizen. It is interesting that the Government needed a push to make the change.
I do not want to be ungracious, but we should put that on the record. As we proceed through the Bill, we must ensure that we are looking carefully at the effect of, in particular, Part 1 on the liberty and freedom of United Kingdom citizens.
My Lords, I repeat that the countries which may be considered are those with established democracies and where the rule of law operates. Noble Lords will know that the difference between EU countries in Part 1 and other countries in Part 2 is that we are in comity with the EU countries—we share similar values and traditions and we have made certain binding agreements with them in partnership. It is, if you like, the family of Europe. We will be looking carefully at the matter. The Government would not seek to suggest that any country with which we did not have similar strong ties and reflect similar values could in any way be involved in Part 1. I hope that that reassures noble Lords. As I said, we have no such intention at the moment. The provision simply allows us the possibility of doing so if the need arises.
My Lords, I fully understand what the Minister is saying about similar values and ties. My question was: will we insist that they have reciprocal arrangements so that we can get people back here for trial as easily under an equivalent Part 1 system rather under an old-fashioned system requiring much more? It seems wrong that we should allow other people easy extradition if they do not give us easy extradition.
My Lords, I understand what the noble Viscount, Lord Bledisloe, is saying. The whole point of Part 1 is that we have total reciprocity. I can only anticipate that anyone who wants to participate in Part 1 must participate on the same terms as all the others. I cannot bind the Government on that, but it would be my reasonable expectation. There is a difference between Parts 1 and 2 because, as the noble Viscount knows, there are those with whom we do not have parity of treatment.
My Lords, in moving Amendment No. 3, with the leave of the House I shall speak to the very large number of amendments grouped with it. To save time for the House later when speaking to the group headed by Amendment No. 6, which would delete the whole of Part 1, I shall try to amalgamate the arguments so far as is reasonably possible.
The amendments in this group have one straightforward objective. They would confine the use of the European arrest warrant to terrorism offences alone. We have argued consistently in both Houses that we believe that Part 2 does enough to fulfil the Government's objectives—that is, to speed up our extradition procedures and to remove the ability of criminals to evade justice by unnecessary and convoluted appeals.
We welcome now, as we always have done, the streamlining of our extradition procedures. We recognise that a reform of our extradition law is necessary and we welcome the Government's commitment that cases which currently take 18 months or more will, under Part 2 of the Bill, in future be dealt with in about six months. That seems to us to be right as an objective. We agree that the current delays in extradition impede the delivery of justice and that they are an unwarranted burden on the victims of the offences for which extradition is sought.
I stress all that because, when I re-read the Hansard report of our debates on these amendments in Grand Committee, it seemed to me that, from time to time, the Minister, the noble Lord, Lord Filkin, implied that, by hoping to restrict Part 1 to terrorist offences or, indeed, by hoping to knock it out altogether, we were somehow being soft on criminals and assisting them to commit their crimes with impunity. Nothing, of course, could be further from the truth. If that were the case, then the Government are doing precisely the same thing in Part 2, and I would never accuse them of trying to do that.
Therefore, why do we try to restrict Part 1 of the Bill to terrorism alone? The answer is that we do not agree with the Minister on the essential focus of Part 1. The noble Lord, Lord Filkin, told us in Grand Committee:
"We do not see why those who commit serious crimes should not also be subject to the fast-track procedures that we propose for Part 1, which strike the right balance between ensuring the right to fair treatment under the law as well as speed of decision".—[Official Report, 3/6/03; col. GC 150.]
We on these Benches believe that the removal of key safeguards from Part 1—in particular, the removal of the ministerial right of decision as the final decision on every extradition case and the removal of the protection of dual criminality from the list of 32 offences—does not ensure the right to fair treatment under the law, which we seek to guarantee to all our citizens.
Of course, it is true that the measure will achieve speedier decision-making—the Government are right about that. They say that it will reduce decision-making to three months. However, we believe that for the sake of three months—that is, six months in Part 2 and three months in Part 1—we are giving up too many freedoms for our citizens. This is not about siding with the criminals as opposed to the victims; it is about fundamental, basic rights, which, at present, our judicial system provides for our citizens, and about whether we feel that those should be compromised by accepting Part 1 in its current form.
I hope that, thus far, I have justified both these amendments and those that will follow in the group headed by Amendment No. 6. Therefore, when we come to the later amendments, I shall not repeat what I have said.
It is unfortunate that, because of the way in which, quite rightly, we deal with amendments, I have to invite the House to consider our second preference first—that is, to confine the Part 1 operation to terrorism offences only—before we can then go on to consider our first preference, which is to delete Part 1 from the Bill altogether.
We recognise that terrorism is, indeed, a unique threat. The Government argue that benefit in relation to other serious crimes will be gained from Part 1 procedures and that it makes no sense to differentiate between terrorism and other offences. I believe otherwise. First, other serious crimes can be dealt with by Part 2 procedures, which may take just three months longer but should ultimately deliver justice of the same quality. Secondly, in this country terrorist activities are officially recognised as being of a different nature from ordinary criminal activities. After all, we have a definition of terrorism in the Terrorism Act, and it is that definition that we use in our amendment.
Therefore, as a whole, this group of amendments would remove all references to an extradition offence in Part 1 of the Bill and all references to offences outlined in the European framework list with regard to the broad issue of offences. It will narrow them down and replace them with a definition of a terrorist offence. If the Government are determined to resist our request in the next group of amendments to excise Part 1 from the Bill, then of course we shall decide now that we believe Part 1 should be for terrorist offences only. This is the second best option: we have saved the best till last. I beg to move.
My Lords, I find this amendment remarkable. A short while ago, the noble Baroness moved Amendment No. 1 to explain that:
"The purpose of this Act . . . is to give effect to the Council Framework Decision of 13th June 2002".
As I understand it, the Council framework decision of 13th June 2002 lists a very large number of crimes to which this procedure is to apply. For those of your Lordships who are not already grossly over-bored with this matter, they will find that list in Amendment No. 328. Obviously, a large number of the serious crimes listed there are not terrorist offences.
Ten minutes after telling us that we should say that the Bill is intended to give effect to the Council framework decision, the noble Baroness moved an amendment designed to ensure that it does not give effect to about 75 per cent of that framework decision. I am never surprised by inconsistency among politicians, but this takes even me somewhat aback.
My Lords, we cannot support the amendments in this group, which would restrict the European arrest warrant to terrorist offences. I listened with great care to what the noble Baroness, Lady Anelay, said. Our position remains the same as we spelt out in Grand Committee. I shall repeat the words of my noble friend Lord Goodhart, who, as was mentioned, is not present as he is on important business abroad. He said:
"I can see no justification for confining Part 1 to terrorist offences. If Part 1 is not suitable for people charged with other serious offences up to and including murder, it cannot be suitable for people who are charged with but not, at that stage, convicted of terrorist offences. They must be entitled to the same kind of defence against improper extradition as anyone else".—[Official Report, 3/6/03; col. GC 144.]
That is why we cannot support the amendments in this group.
My Lords, as to my noble friend's consistency, I have to say, in her support, that her first amendment was not carried by the House. Had it been, she certainly would not have moved this amendment. One sometimes has to have failsafe amendments. Indeed, if the removal of Part 1 were voted for by the House, she would not be moving this amendment. Therefore, the noble Viscount should forgive her for that. Even if she did seem to be talking in two different directions, one has to take account of the procedure of the House. I believe that that is only fair.
My Lords, I am astonished that the noble Viscount, Lord Bledisloe, should be surprised at inconsistency in political matters. Politics is full of inconsistencies, as we note every day in this Chamber.
I am certainly in favour of the amendment, and the Minister will remember that I raised this matter both at Second Reading and in Grand Committee. I believe that, had the process of introducing a European arrest warrant gone forward in the usual way, it probably would not have turned out as it has. Indeed, the impetus given to it, the reason it was introduced so quickly and the reason we are discussing it on Report now is because of the terrorist act on 11th September 2001. It is perfectly plain from the discussions of the European Parliament that the arrest warrant would not have received a blessing as quickly or as fully as it did were it not for 9/11.
I am extremely worried by Part 1 of the Bill. It is perfectly proper and desirable to have an amendment to the general extradition procedure. That probably had become outdated, although I am no expert on the matter. Putting the European arrest warrant in the Bill—putting Part 1 in the Bill—explodes the myth that the Bill is about extradition. Part 1 is not about simple extradition; it is about harmonisation of the judicial process between our country and the European Union and it is a step further towards judicial integration.
I do not believe that that should have been wrapped up in a Bill that is supposed to be about extradition. I note that the Government were good enough to write to me about the matter, but unfortunately they did not convince me and I am sure that they did not expect to convince me. Despite their efforts, I support the amendment and if there is a Division on it I shall support it in the Lobbies.
My Lords, the second approach—to get rid of Part 1—is the logical approach. If we do not do that we can consider whether it should be confined to terrorist offences. The Minister said that the basis upon which we propose these special arrangements with EU countries is that they all embrace the same view of the rule of law and they are all part of the judicial family. I regret to say that I find absolutely no signs of that whatever. Perhaps they are all striving to get there, but many of them have a very long way to go and the situation will be even worse when the EU is enlarged.
For my part, the Bill, with its surrender provisions, is premature. When we are all one family it may be fine. If the proposal were to bring in Canada, the situation would be different altogether. Perhaps then I would be an enthusiastic supporter because it would be more justifiable.
I find myself in the position of not liking this system of surrender without adequate precautions within our own community to ensure that there is a just surrender. But I accept that in our view of the law we have to take account of the realities of terrorism. We have tried—to some extent successfully—to preserve the liberties of the individual, even if someone is accused of acts of terrorism and even if there is very strong evidence that he or she is guilty. We have tried and I believe that we have more or less succeeded, but it must be accepted that we have introduced modifications to the law to meet the case of terrorism.
Against the background that, from my point of view, the Part 1 changes to the law are premature and at present wholly unsatisfactory, I would go along with the possibility that they could be applied to terrorism, but to terrorism only. Accordingly, I support the amendment.
My Lords, I follow exactly the reasoning of the noble and learned Lord, Lord Donaldson. I am deeply sceptical of the presumption that all EU countries have fairly equal justice systems that justify the need for any other country to scrutinise the fairness of extradition to such a country. Frankly, I find it a little unconvincing that we should retain the controls in relation to the United States but abolish them in relation to other EU countries.
Not so long ago we had a request for extradition from the United States in relation to a British citizen of Algerian descent. The British courts threw out the case because in the opinion of the court the United States' prosecuting authorities did not offer evidence that was convincing enough. Quite rightly, many British newspapers took the opportunity to comment on how that showed the independence and the robustness of the British courts system. Despite the tremendous pressure and the atmosphere at that time, the court considered the evidence and decided, despite political pressure from the United States Government, not to concede. I took pride in the fact that we have courts that are independent in that way.
Of course, in future no such court could take such a stance in relation to a request from an EU country. Under one of the amendments proposed by my noble friend on the Front Bench, extradition would be allowed for a terrorist offence. However, as she has explained, her real objection is to the whole of Part 1 and the limitation to terrorism is a fall-back if the first amendment is rejected.
It seems to me that it is difficult to make this point about other systems. When the matter was raised in Grand Committee the noble Baroness who led for the Government rather blandly said that everyone thinks their system is the best and different countries have different strengths. I am sure that there is some truth in that. I am not someone who believes that everything in this country is better than in other countries. But I believe that our legal system and our courts system is one of the most uncorrupt in the world and I believe that it has stood the test of time. I also believe that far less controversy surrounds our courts system than surrounds the courts and justice systems in certain other countries.
This is a difficult point to raise, but I believe that the noble Baroness did not answer this point when it was raised in Grand Committee; nor did the noble Lord, Lord Filkin. I appreciate that they would probably prefer not to address the matter, and they have not addressed it. There are instances in relation to EU justice systems that cause concern and, I believe, justify the need to retain a right for the British courts to have a handle, perhaps through dual criminality, on a case so that there can be a hearing.
Perhaps I could refer to what has happened in Belgium. We know, without going into the grisly details, that there is widespread dissatisfaction with the legal system there. A quarter of a million people took to the streets of Brussels to demonstrate against the judges, the judicial system and the handling of the Dutroux case. One of the peculiar points about the Dutroux case—whatever we may think of Mr Dutroux—is the justification for holding a man on remand in prison for eight years. I do not believe that that is easily justified. Public concern with the Belgian system undoubtedly exists.
Turning to Italy, the Prime Minister of Italy has made very clear his views of the Italian legal system. He says that judges in Italy are politically motivated and corrupt. I am sure that many Members of the House believe that Mr Berlusconi is wrong, although others say that he bribed a judge. In that case the Italian justice system has something to answer even if Mr Berlusconi is in the wrong.
At Second Reading, I quoted what Mr Strauss-Kahn, a former finance Minister of France, said about the French justice system. According to the European Convention, a person is meant to be presumed innocent until proved guilty. He said:
"In our system you are presumed innocent until declared guilty. The reality is you are seen as guilty from the moment the judicial system is interested in you".
Only last week I happened to have dinner with someone who had been Prime Minister of a European country. He is a major advocate of European integration. When we were discussing a particular case, he said to me: "Well, you have to recognise that in France and in Italy, justice and judges are strongly influenced by politics". I shall not embarrass the gentleman by giving his name.
If the concerns were examined honestly and without embarrassment people would agree that they have some force. I think that the noble Baroness should answer the issue. She refused to answer it before and she brushed the matter aside. She just said "Well, everyone has their strengths and weaknesses". However, the concern is shared by Liberty, an organisation which most people think to be fairly dispassionate. It said:
"The EAW is based upon the presumption that EU countries all have fair and equal systems of justice which should remove the need for any other country to scrutinise the fairness of extradition to such a country. This presumption is seriously open to question".
It goes on to make this important point:
"In the 13 years since the Extradition Act 1989 was enacted, UK courts have intervened to refuse extradition following habeas corpus or judicial review proceedings in a significant number of EU cases, and the Home Secretary has refused to extradite in a significant number of other cases where extradition would have been plainly wrong and unjust . . . For example, in Re Barone (1997) the Divisional Court held that it would not be right to extradite the defendant to Italy because he had been convicted in his absence and would have no right to appeal against his conviction. In Re Gale (2001) Portugal persisted with a request for the extradition of a young mother even though it conceded that she could not, legally, be convicted there for the alleged defence. The High Court held that her extradition would be oppressive. These are just two examples of the type of injustice which can occur even with EU partners".
Liberty goes on to say,
"We are very concerned that the Bill would not prevent such injustice from occurring . . . The Eurowarrant proposals would seriously increase the risk of injustice in such cases by removing the power of the High Court and Secretary of State to scrutinise the merits in an individual case. Moreover, in R (Ramda) v. Secretary of State, 27th June 2002, the High Court said that it was no answer for the Secretary of State to invoke France's status as a signatory to the Convention (and hence that the defendant could always apply to the Strasbourg court)".
That, it ruled, was not an answer to complaints about the fairness of the trial. Time after time, whenever we raised such concerns on the Bill, we have heard chanted, "The convention, the convention, the convention". The courts have not taken that view. I put it to the Minister that, although it is embarrassing to discuss, we must consider justice for our citizens. To remove completely the rights of courts to scrutinise in any way—I am of course aware, before the noble Baroness mentions it, of what changes have been made—and the removal of dual criminality in the way that the Bill proposes is reckless and poses risks for justice. That is why I support the amendment put forward by my noble friend on the Front Bench.
My Lords, your Lordships will not be surprised that I do not support these amendments. We have been very clear throughout about the purpose to which these provisions should be put. I can be telegraphic in responding to these amendments. I endorse absolutely the remarks of the noble Lord, Lord Dholakia, in his recitation of the succinct summation made by the noble Lord, Lord Goodhart, in Grand Committee. I join with the noble Viscount, Lord Bledisloe, in his slight bemusement, but I understand the position in which the noble Baroness is placed.
The noble Baroness says that Part 1 should be restricted to terrorist offences. She knows that I disagree with the narrowing of the provision to terrorism, not least because of a real difficulty in separating pure terrorist acts from subsidiary terrorist acts. We know, regrettably, that many terrorists groups participate in other forms of criminal activity of a very serious nature. To differentiate between those two would be intolerable.
The amendments would lose the great benefits afforded to this country by the framework decision. We would lose the very real benefit of being able to seek the return of nationals from countries who currently refuse to extradite their own nationals. We would lose the benefit of being able to extradite those who commit fiscal offences. We would also lose the benefits of the efficient and effective extradition that the instrument would give us with our fellow member states.
I cannot accept the analyses of the noble and learned Lord, Lord Donaldson, the noble Lord, Lord Lamont, or my noble friend Lord Stoddart. My noble friend said that everything was being done in order to harmonise European law. In fact, this is the antithesis of harmonisation, because these revisions seek to respect the integrity of the internal system of each state and to apply the law on that basis. I hear what the noble Lord, Lord Lamont, says. He challenges me to go further than I did in Committee. I am afraid that I feel unable to give him greater satisfaction. We have said very clearly that the systems in Europe comply with the European Convention on Human Rights. We have dealt quite extensively with the provisions in Articles 6, 8 and others. That would benefit from further repetition.
Therefore, I disagree with the noble Baroness that the narrowing of the provision is proper or justified in any way. Furthermore, to seek to expunge the framework decision, which in effect is what the provisions seek to do—is fundamentally flawed and would be outwith what we agreed. Therefore, I ask the noble Baroness not to press the amendment. However, if pressed, I shall resist.
My Lords, I begin by addressing the very proper remarks of the noble Viscount, Lord Bledisloe, who tried to take me to task on the basis that I appeared to be inconsistent. Indeed, he thought I was inconsistent. The Minister rode to my defence, and I hope to improve it even more. I was not able to leap to my feet and say, "But excuse me, it is not quite as bad as it looks" because the rules on Report say that I have to sit and await my opportunity.
The first amendment I moved today looked at the Bill and found it wanting, in the sense that the Government lacked a definition of its own purpose. I was therefore trying—mischievously perhaps the Government might say—to assist them by putting in a proper purpose clause. But that was the purpose as they see it. This amendment says something about how I see the Bill and what I want to do about it. So in that sense I was not being inconsistent. It perhaps shows a difference between the Government's approach and my approach to Part 1.
Like the Minister, I shall try to be brief after that explanation—it is not an excuse—to the noble Viscount. Unlike the Minister, I accept the analysis put by the noble and learned Lord, Lord Donaldson, her noble friend Lord Stoddart of Swindon and my noble friend Lord Lamont. It would have taken a Damascene conversion for either of us to resile from the position that we have taken. She will therefore understand why I wish to test the opinion of the House.
My Lords, in speaking to the previous group of amendments, I made it clear that I was putting forward to the House my arguments for both that group and this one, led by Amendment No. 6. This group seeks to delete from the Bill the whole of Part 1. I have given my arguments about why we feel that the European arrest warrant is not acceptable in its present form. When I have given the Minister the opportunity to speak, I will respond to her remarks, but I will not test the patience of the House further at this stage. I beg to move.
My Lords, everything has been said in relation to this matter. I regret that I am unable to accept the amendment moved by the noble Baroness and do not intend to trouble the House by saying any more.
moved Amendment No. 7:
After Clause 1, insert the following new clause—
"PART 1 WARRANT: AUTHORITY TO PROCEED
(1) When the designated authority receives a Part 1 warrant it shall make an application to the High Court or, in Scotland, to the Court of Session, for authority to proceed with the warrant under this section.
(2) The court must make an order giving authority to proceed with the warrant under this Part if it is satisfied that the person in respect of whom the warrant is issued faces charges, or has been convicted of, an offence in a category 1 territory which involves conduct which, if it occurred in or outside the United Kingdom, would constitute an offence under the law of the United Kingdom.
(3) In any other case, the court may make an order giving authority to proceed with the warrant under this Part of this Act if, having regard to all the circumstances, it is satisfied that it is in the interests of justice to do so.
(4) A decision of the High Court in an application, or the Court of Session in an application, to make an order giving authority to proceed under this section shall be final and shall not be subject to appeal.
(5) A person shall not be dealt with under this Part of this Act except in pursuance of an order made under subsection (2) or (3).
(6) The Lord Chancellor shall make an annual report to both Houses of Parliament on the cases in which the High Court has exercised its discretion under subsection (3) to make an order giving authority to proceed.
(7) The following provisions of this Part are subject to the provisions of this section."
My Lords, Amendment No. 7 would introduce a new clause after Clause 1 entitled "Authority to proceed". Its objective is to provide a backstop power in instances in which extradition is requested for an offence that is not an offence in the United Kingdom.
At Second Reading and in Committee, I rehearsed the reasons why we thought that this aspect of the Bill—the removal of the dual criminality requirement for the 32 generic offences set out in the European framework list—was of most concern to British citizens. I shall not repeat the arguments. In brief, we have a dual criminality requirement in Part 2 and a requirement for the involvement of the Secretary of State in every decision on extradition. That is the appropriate procedure for Part 2, but it should also apply to Part 1.
As the Government will note, the amendment has changed substantially since Grand Committee. We listened to the criticisms made by some Members of the Committee. In particular, the noble Lord, Lord Filkin, criticised the fact that, under our amendment, it would be the National Criminal Intelligence Service or, in Scotland, the Crown Office that would decide whether the warrant had been issued for an offence that had an equivalent in the UK. The noble Lord said:
"So we have a dual criminality test that was previously a matter for the courts being applied by NCIS—or the Crown Office, in Scotland. That seems slightly curious".—[Official Report, 9/6/03; col. GC 5.]
Secondly, the noble Lord, Lord Filkin, had trouble with the referral to the Secretary of State of any extradition request to which dual criminality did not apply. His criticisms were based on the fact that it was unclear in what circumstances the Secretary of State would refuse such a request and that his decision would be subjective and could be subject to judicial review, something that we all try to avoid.
We took both those points into consideration when we drafted the amendment. Noble Lords will appreciate that the key alteration that we have made is that every extradition request received by NCIS or the Crown Office must be referred to the High Court or, in Scotland, to the Court of Session. The court will then decide whether dual criminality applies and will grant authority to proceed. If dual criminality does not apply, the court may still allow the request to proceed, if it deems that that would be in the interests of justice, as subsection (3) says. The amendment picks up the wording employed in the Extradition Act 1989.
The flexibility that the amendment would give the High Court would be a welcome addition to the Bill. It has been recommended to us by specialist extradition lawyers whom we consulted in the interim between Grand Committee and Report. In subsection (4), we have also added a provision that states that the final decision made by the High Court will not be subject to judicial review or appeal. We hope that that might counter the argument that any decision made about proceeding with an extradition request could fall foul of judicial review, causing further delay.
Because of that new procedure, it is right that we should keep an annual report in the Bill. That forms part of the amendment. The onus would be on the Lord Chancellor or whoever replaces him to provide details of how that aspect of the Bill works. That would not be too hefty a task; there are roughly 100 extradition requests every year. Even with the increases that the Government anticipate, as a result of the simplification and extension of surrender procedures, it should not cause too great a problem for the Department for Constitutional Affairs or whoever takes on the work.
Although the number of extradition requests is relatively small, it is right to get the procedure as good as it can be. That is why we have tabled an amendment that is different from the one that we tabled in Committee. We hope that it might find favour this time round. I beg to move.
My Lords, I made it clear in Committee and earlier at Report stage that I am concerned about doing away with the rule of dual criminality. As I understand it, my noble friend's amendment would—while accepting that the House has accepted Part 1, relating to the European arrest warrant—require that the safeguard of dual criminality should still apply to any application from a category 1 country.
My concern has always been that the list of 32 is very wide. Although it may be argued that the Bill should cover matters such as terrorism and murder, there are the lesser offences, and someone may be extradited back to a country for committing an act that would not have been a crime in this country. That is wrong. My noble friend Lady Anelay of St Johns is taking a fallback position, but the Government should seriously consider providing for the continuation of the safeguard of dual criminality.
My Lords, I confess to being puzzled about the procedure intended by the amendment. Perhaps I may go through the amendment and the noble Baroness could interrupt me if I have got it wrong. The warrant is received from abroad by the particular magistrates' or sheriff's court designated to receive it. That court automatically makes an application to the High Court—let us consider England because I know rather more about it. Quite how it does that, I do not know. The concept of one court applying to another is unusual. Does it instruct counsel to make the application on its behalf? Anyhow, the warrant gets to the High Court.
The High Court asks whether it is a dual criminality case. As I understand it, if it is, the High Court sends the warrant back to the magistrates' court to go through the remaining hoops in the act. If the High Court says that the case is not one of dual criminality, it then has to decide whether it is satisfied, in the interests of justice for the warrant to be proceeded with. Does that mean that the High Court then does the same procedure as happens at the moment; that is, it looks at all the evidence, decides whether the case is suitable for trial, looks at whether the man may be unfairly treated and looks at the stability of the case?
If the High Court decides that it is in the interests of justice to do so, it sends the warrant back to the magistrates' court, which goes through the same hoops in the act. Seemingly, this is a matter which can go to any judge in the High Court. Whereas, under the present system, specialist magistrates deal with such cases, there will be varying judges who may come to different approaches on law. Since these cases are not subject to appeal, no one will ever be able to resolve those differences of approach. Could the noble Baroness, Lady Anelay, indicate whether I have accurately summarised the effect of her amendment?
My Lords, with the leave of the House, it seems that I must break the rules, but only because I am looking directly at the Woolsack. The rules state that on Report I may not speak. I can only introduce the amendment, then I can respond to it. Therefore, perhaps I may enlighten the Committee as to the procedure rather than answering the questions, which I shall be delighted to do when I am allowed to do so.
My Lords, I think that it is worth repeating what I said in Grand Committee. My fear is, I think, the fear of many ordinary people in this country who have studied the Bill. A citizen from this country could go abroad and inadvertently commit a crime which he or she did not know was a crime in that country. It is possible that that could happen. The person would return home and there would be no way in which Ministers could defend them. They would be extradited; possibly simply to be held in a cell for some weeks while being interrogated. That is a worst-case scenario, but it could happen.
The dual criminality rule is there to protect people when they have done something in another country, which is not a crime in this country, and that they were unaware was a crime. I must make that point as it is a very ordinary one which lawyers do not always enjoy because of all the technicalities involved.
My Lords, before the noble Baroness sits down, does she not realise that if a person goes abroad and innocently commits an offence and gets arrested out there, he or she will be tried for it? What difference does it make if a person gets on an aeroplane and comes back here before being arrested? In either case, on going to another country a person should find out its laws before disobeying them.
My Lords, quite simply, the difference is what happens to the person, who cannot be protected by their own country. I do not think that this big, happy family of Europe, which I hope will become bigger and happier, should have that effect. People simply cannot be protected politically by their own Ministers. That is the point. It is a big difference.
My Lords, as ever, I am grateful for the courteous way in which the noble Baroness, Lady Anelay, argued her amendment with her customary clarity. The noble Viscount, Lord Bledisloe, got to the bottom of that clarity rather well and deconstructed the noble Baroness's amendment rather well too.
We need to focus on what the amendment proposes. As we understand it, it would provide that whenever we receive a Part 1 extradition request, there must be a court hearing before the High Court or its territorial equivalent. That would be in addition to the main extradition hearing. From the outset, the Government's intention to simplify and speed up extradition procedures would be harmed. The noble Baroness made the point that she did not consider that a hefty task—there are approximately 100 extradition requests every year. That is not the point. It is not about volume; it is the length of proceedings with which we are concerned. We want to simplify and truncate the proceedings, but leave all the important protections in place.
In effect, we would have not just one single hearing, we would have two separate hearings. We cannot see the advantage in that. Indeed, one of the weaknesses of the present system, which we are seeking to remedy, is that the authority to proceed stage requires the Secretary of State to consider each case twice for no good reason.
At the extra hearing, the High Court would be required to determine whether the extradition request is concerned with conduct which would constitute an offence if it had occurred in the United Kingdom or over which the United Kingdom takes extra-territorial jurisdiction; that is, whether the dual criminality test is satisfied. That may sound simple. Clearly, for certain conduct—say, murder or rape—it is a relatively easy matter to determine that the United Kingdom has an exact equivalent offence. But that is by no means always the case.
Noble Lords who have attended an extradition hearing—I know that the noble Baroness, Lady Anelay, has done exactly that as part of her preparation—would concede that, currently, a great deal of time is devoted to arguments about dual criminality. Questions about whether certain types of conduct—say, computer fraud—would be criminal in this country, and, if so, by virtue of which particular section of the Computer Misuse Act, can, and do, give rise to a great deal of argument.
From the start, the extra new hearing could become long and complex. Certainly, both the requesting state and the person whose extradition has been sought would want to be represented at that hearing and to advance legal arguments. At the conclusion of the hearing, the High Court would be required to reach a conclusion as to whether the dual criminality test has been satisfied. That is obviously an important decision, so it is somewhat surprising to discover that there is no possibility of appeal.
If the High Court decides that the dual criminality test is satisfied, all well and good; the case can proceed as normal. If the High Court concludes that the conduct would not constitute a United Kingdom offence, it has to decide whether the case should proceed. It does that by deciding whether it would be "in the interests of justice".
Precisely how the court is meant to perform this test is not made clear. Courts exist to interpret the law and to adjudicate on disputes about it. How a court would determine where the interests of justice lay when it comes to bringing a person to justice who is accused of a crime in another country, I do not know. Again, it seems to be a crucial decision which warrants the right of appeal.
For all those practical reasons we cannot support the amendment, which would prolong the extradition process and add time and expense. I am unsure what benefits would be achieved as a consequence.
Perhaps I should say something about the broader issue of dual criminality because it has been a matter of concern for many noble Lords taking part in this short debate and, of course, it is one of the key aspects of the Bill. I think we need to be clear about what the Bill does and does not say. No one will be extradited in respect of conduct which occurs in the United Kingdom which is not contrary to our law. So those comments that have been made about people being extradited for writing a ludicrous article in the Sun newspaper or reading books about Biggles are fanciful in the extreme. What the Bill does provide is that if a person goes to another EU country and while there breaks the law of that country, they can expect to face justice, even if the United Kingdom would not regard the particular conduct as criminal.
To be frank, I do not see how anyone can logically object to that. If a person breaks the law of another EU country and is arrested there and then, no one would complain about it. Why should such a person escape justice simply because they have fled across a border before being apprehended?
This has to work both ways. We rightly expect all those in the United Kingdom to abide by our laws while they are here. Our courts would never accept as a valid defence the fact that the conduct in question was not criminal in the person's native country or the fact that the person did not know that the conduct was illegal here. So if a person from another country breaks our laws and then conveniently disappears, we would want to be able to bring that person back to stand trial.
My Lords, my understanding from our deliberations in Committee is that we explained that all member states are in the process of implementing the framework document. I believe it is the case that Spain is more advanced than are we in this regard. It has to be right that we should not seek to give sanctuary to those who have committed criminal acts in other EU member states.
I apologise for having spoken at some length, but I respect the fact that this is an issue of concern. However, I think that we are right to insist on our approach, creating simpler and more clear-cut procedures. That is widely understood to be the best way forward.
Obviously the noble Baroness has given a great deal of thought to her revised amendments, but while she has attempted to improve their quality, we take the points made in particular by the noble Viscount, Lord Bledisloe, during this debate; that is, that the amendments are confused in their extent and purpose. I turn once more to the point made by the noble Lord, Lord Carlisle. It is the case that all countries will implement this process by 1st January 2004. I shall correct what I said a moment ago and explain that both Spain and Denmark have already done so. We are on track and working together with our European partners. Having listened to my response, I hope that the noble Baroness will feel able to withdraw her amendment.
My Lords, perhaps it would be more courteous if I begin by addressing the questions quite rightly put to me by the noble Viscount, Lord Bledisloe. One of the difficulties of debate on Report is that one is not able to respond immediately, as is the case in Grand Committee.
The noble Viscount directed me to respond to two important questions. The first concerned the determination of the interests of justice and how that might be obtained. He asked whether the court would follow the procedure that it does now with the full process of bringing evidence, asking questions and so forth. My answer to that is yes, and it is obvious that the Minister assumed that in his response when he appeared to accuse me of wanting to prolong proceedings, but not to prolong them for long enough—I have not allowed for quite as many appeal procedures as he would consider consistent with my argument.
What we are seeking to make clear here is that in the Government's drafting of the Bill there does not appear to be sufficient scrutiny of the reasons why someone is to be packed off overseas. We are not trying to prevent extradition, but we want to ensure that it takes place in the right way. The noble Viscount will appreciate that this amendment is one of many that seek to put into the Bill safeguards which in themselves may appear, when considered individually, sometimes a little defective. When they are taken together, however, we think that they would provide a valuable service.
The noble Viscount also asked how much consideration would the court give. This is one of the difficulties of the Government's own drafting and, taking into account their responses to our questions put in Grand Committee, we do not feel that we have been given a sufficient explanation of exactly how the court is expected to gather the relevant information. Much has been left unsatisfied in that regard.
The second matter directed to me by the noble Viscount concerned the proper question of whether to specify the judge. At present the job is done by specialists. He will appreciate that the district judges sitting at Bow Street court have particular expertise in this area. Magistrates consider these matters on a daily basis. Although there is no specialist training as such, they train one another within a system of continuous training. I imagine that it would be very difficult for other judges to take on such work.
While I take the noble Viscount's point entirely, I would answer it by saying that the Government have not specified which judges in England shall hear these cases. Indeed, I understand that they intend to roll out extradition and the specialist expertise required to other parts of the country beyond Bow Street; I tabled amendments in Grand Committee on that point.
Finally, I see that the noble Earl, Lord Mar and Kellie, is in his place on the Liberal Democrat Front Bench. As a Scot he will appreciate that, in this case, the Bill is kinder to Scotland than it is to England. That is because in Scotland, the specific judge who will hear these cases—the office holder—is identified later in the Bill.
Those are my responses to the noble Viscount. While of course I understand the explanation given by the Minister, I would argue that we are trying to put into the Bill an essential element of safeguard to which my noble friend Lord Carlisle of Bucklow has spoken. I endorse entirely his arguments. I wish to test the opinion of the House.
My Lords, perhaps I may suggest to the noble Lord on the Woolsack that one vote should be deducted from those who were Not-Content on the ground that the Minister casting that vote was plainly out of order, as every person in the Chamber noticed.
My Lords, if the noble Lord on the Woolsack was entitled and allowed to speak on matters of order, he might do so. But as the rubric states that he is not, I cannot answer that.
My Lords, I can be brief in moving this amendment and speaking to the other amendments in the group. I say that for two reasons: first, they are very simple amendments; secondly, I anticipate that they will be welcomed by all sides of the House.
The amendments arise from points raised in Grand Committee, which were strongly put by the noble Lord, Lord Stoddart of Swindon, my noble friend Lord Wedderburn and the principal opposition spokespersons from the Liberal Democrat and Conservative Parties—a fairly formidable team of opponents.
The Government like to show that we see the sense and force of good argument in debate. For those reasons, we have brought forward our own amendments, which we are confident are robust and will do the job that they set out to do. We recognise the force of the argument and that is why I am bringing forward these amendments today. I beg to move.
These amendments address another issue that has been of the utmost importance to noble Lords during our discussions at Second Reading and in Grand Committee. The question is whether someone can be extradited to a category 1 territory for the purpose of interrogation after merely being accused rather than for the purpose of prosecution when there is already substantive evidence to warrant a trial. I note that in another place the Government and all other groups are on the same side on this matter. The Government tabled amendments to this clause which sought to clarify that a person should be extradited only if there was a case to answer if they were to be prosecuted. Our difficulty is that we feel that the clarification is not yet sufficient.
The Minister has tried to assure us that the drafting of the Bill already guarantees that a person can be extradited only for the purposes of prosecution and not for evidence gathering. I will not repeat the matters discussed in Grand Committee, particularly at col. GC 24 of Hansard. There were objections from around the Committee pointing out that as the noble and learned Lord, Lord Donaldson, and my noble friend Lord Carlisle, said earlier today, other jurisdictions differ considerably in the manner in which they take forward their criminal cases.
Our other difficulty is that we feel there is a danger that our citizens could be extradited to jurisdictions where, instead of facing a trial immediately, as we would expect in this country, there could be some investigation or fishing expedition. Our amendments put the matter beyond all doubt by replacing "is accused" with "faces charges" and by expanding and defining the phrase,
"for the purpose of being prosecuted".
I know that my noble friend Lord Lamont will speak more fully on this matter and give some examples of where we think the problems lie.
I believe that these amendments—mine in particular—deserve to be on the face of the Bill. I beg to move.
My Lords, I shall speak to Amendments Nos. 11, 12 and 13 in my name, while supporting those of my noble friend Lady Anelay. The purpose of my amendments, as with hers, is to deal with what I think is a well known situation, whereby foreign magistrates have been known, quite frequently, to detain people purely for the purposes of questioning. They may detain people for quite long periods—no charges are ever laid and people are released. These amendments would make it clear that nobody should be extradited and fall victim to this practice in Europe. I would be grateful for the Minister's attention.
That this is the practice is, I think, widely accepted. John Mortimer QC, a supporter of the party opposite, went out of his way in a recent article to warn people not to be arrested in Belgium, Italy or Spain because they might find themselves locked up and interrogated until a judge decided he had applied enough pressure to get out of them the information he wanted.
This point is of concern not just to me and my noble friend—it has been highlighted by Justice, Liberty, the Law Society and Fair Trials Abroad. The situation arises where there are juges d'instruction, magistrates who are both investigators and prosecutors. A person may be accused of a crime but that does not mean that they will ever stand trial. Investigation can continue while the person is accused, held in prison and then dropped. This may go on for many, many months.
The point was very succinctly and more clearly expressed by Mr Leolin Price QC in his comments on the code of practice on extradition. He said:
"In some member states, arrest—although the legal system of that state may regard arrest as the beginning of the process of prosecution—is the beginning of an investigation; and the decision whether to charge the arrested person, or release him without taking the case to trial, will occur while the arrested person is in custody, perhaps for many months. In those circumstances the arrested person may never be, in our common law language, accused of the offence or any offence, and there may never be a charge clearly formulated".
That is his opinion, and I think it is widely accepted. That is why some of us have had great worries that the legislation might result in people being accused and extradited.
For that purpose, I asked a Written Question of the Foreign Office. It asked:
"Whether they will publish a table showing the total number of British citizens in prison in each country in the European Union; and how many, if any, in each country have been held in custody for longer than three months (a) without being given bail and (b) without being charged".—[Official Report, 20/6/03; col. WA 200.]
The House may be interested to know that the number of prisoners in EU gaols—I am sorry, I meant gaols in EU countries; we have not quite got to that stage yet—is 815. The number held over three months without being given bail is 275. The number held over three months without being charged was given, in the Answer from the noble Baroness, Lady Symons, as zero in each country. I seriously question that Answer.
I tabled a further Question for Written Answer asking the Minister what was the definition of being charged. Did it simply mean that the person was accused or did it mean that the person had been told they would stand trial? The Answer I was given was that the Foreign Office was not aware of anyone having been held in gaol for three months without being charged. That is hardly an answer to the question, "What is the definition of being charged?". All I was given as an Answer was a repetition of the Answer I had already been given. In view of the seriousness of this issue—I will be surprised if other people do not, to some extent, share that belief—not giving the definition of "charged" was very inadequate.
I then tabled a further Written Question, asking for an expansion of the table, whose figures apply to 31st March this year. I asked how many people had subsequently been released without being charged. That would have been a very good indicator of the definition of the word "accused" or "charged". The reply was that the expense of answering the Question would be disproportionate. I put it to the House that when we have such an important issue coming up in the Bill, that is not an adequate Answer. I know the Foreign Office is very busy, arranging the Queen's birthday party and attending EU functions, but it is not above answering very important questions.
I then asked a further Question about whether we could have some information on the 12 people held in Belgium for longer than three months and what they had been charged with. Again, I was told that to find that out for 12 people would incur disproportionate cost. I question whether the Foreign Office can be carrying out its consular function if it does not have that information. I repeat that I regard that as a highly unsatisfactory Answer.
That it is important whether someone is actually charged or just accused is indicated by the fact that the Irish have attached a declaration in relation to the European arrest warrant in Article 1(1). It states that the issuing authority with an arrest warrant must either give an undertaking that surrender is only sought for the purpose of charging the person with, and trying him or her for, the offence concerned, or a statement in writing that the person has been charged and a decision to try him or her for the offence concerned has been made.
I hope that we can have a serious answer to a serious question, and I hope that the Minister accepts that I am asking it in a genuine spirit of trying to ensure that there are no miscarriages of justice.
In Committee, the Government stated repeatedly that they were not aware of such an event happening. The noble Lord, Lord Filkin, said that he had not been aware of any problems of someone since 1999 being extradited and not being prosecuted. He said:
"I would be open to being educated if any Members of the Committee know of any examples of that being the case".—[Official Report, 9/6/03; col. GC 22.]
I should like to give one example, although I do so with considerable hesitation, for a reason that I shall make clear.
As Members of the Committee know, I have been interested in extradition for some time, and have been interested in the whole concept of the European arrest warrant. I first wrote an article about it in the Daily Telegraph in 2001. Having described what I saw as the dangers of extradition and its procedures, and the risk of being accused without being charged, it never occurred to me that someone I knew very well would actually get into that very situation. I would not want anyone in the House or elsewhere to feel that in making these remarks I was motivated by a financial interest or some special factor.
I wish to refer to the case of a Mr Vahid Alaghband—someone who is known to the Government and has from time to time advised the Government and the Cabinet Office. He is a citizen of this country, and a dual citizen; he is an Anglo-Iranian, and has given advice to the Government on several occasions. When Mrs Mowlam was Secretary of State for Northern Ireland, he gave some advice to the Cabinet Office on her visit there. He has also given advice to the British Embassy in Teheran, and given considerable help. He is a prominent businessman in this country, and at one stage employed nearly 20,000 people. He appears in the Sunday Times rich list.
I said that I would not wish my motives to be misunderstood. I have declared in the Register of Lords' Interests that I am a director of a company that Mr Alaghband owns. He is the chairman of it, but it is not a company that is involved in any way in the matter that is the subject of the legal dispute to which I wish to refer. I have no connection with those events beyond my connection with him. I am uneasy about raising this case, but I simply felt that it made no sense for me to speak in these debates without referring to something that, by a terrible coincidence, I have witnessed and watched, and which absolutely exemplifies what has worried me about the proposals from the word "go".
Mr Alaghband was arrested in Switzerland, at the request of a German magistrate, when he was one of the main speakers at the Davos Conference in January. He was accused in connection with the take-over of an unquoted company in Germany, a company of which he owned 95 per cent. He is accused of breaking German law in the take-over of the company, on two grounds: a breach of fiduciary duty and fraud. Those are the two precise accusations that have also been made against Mr Ackermann, the chairman of the Deutsche Bank, in relation to the take-over of Mannesmann by Vodaphone. Indeed, the magistracy in the Dusseldorf area has been extremely active in commercial law and in indicting large numbers of prominent German businessmen.
What Mr Alaghband is alleged to have done—and indeed did—was to borrow money to buy a company and then use cash within the company to repay the loan. That is known as a leveraged buyout, which is largely not an offence in British or American law, but can be an offence in German law. None of that surfaced until there was a move by the company to make some redundancies and to move the headquarters of the company out of Germany to London, when allegations about breaking the law arose.
I emphasise that I do not know the facts of the case, or the rights or wrongs; I have not been involved in any way and am not part of the company that was involved. I personally believe in Mr Alaghband; he is someone whom I deeply admire and respect. He is known to quite a number of people in this House. I was perfectly content and happy to write a letter supporting his application for bail in Switzerland, and a Labour Peer did exactly the same—believing, as I do, that he is an honourable man. I am not suggesting on this matter that the Government should do anything, or that they have failed to do anything. I simply wish to describe the legal procedures in this case. That is what concerns me at this point—not whether Mr Alaghband is innocent or guilty.
Mr Alaghband was arrested in Switzerland. The British ambassador, who knew him personally, to try to facilitate bail said that he was prepared to guarantee that British embassies and consulates would not issue him another passport and that he would surrender his passport. That was not enough, and he was refused bail. He was then extradited to Germany, in conditions that I shall not describe as they are not relevant to what we are discussing, but which are highly alarming. He was taken to Germany and has now been there, in prison, for four months, having been six months in Switzerland. He has been in gaol for more than 10 months, and has not been charged. He has been accused, but the prosecutor has not made up his mind whether to recommend charges to the judge, and the judge has made no decision about whether he should be prosecuted.
The important point is that Mr Alaghband has only been accused; that is the language that is used in the Bill. The word is "accused". In tabling our amendments, my noble friend Lady Anelay and I believe that a person should be extradited only if he is definitely going to be prosecuted. I know that the Minister will say that it is impractical to propose that people should be extradited only if they are going to be charged and stand trial within six months, and that if they do not stand trial within six months they should be returned. I can understand why she would say that would be impractical. However, regardless of that, the issue of someone simply being accused and not being charged is a very real one.
The noble Lord, Lord Filkin, said that he would be educated if someone could provide an example, and I believe that I have provided an example of someone who has been in prison for a long time without actually being charged, and with no indication that he will be charged. The term has been extended for six months—and then possibly there will be another six months.
An interesting point arising from the case, which is very relevant to the issue of extradition, is the contrast between the treatment of Mr Alaghband and the treatment of the chairman of Deutsche Bank, Mr Ackermann—a case that aroused enormous publicity and fears in the German business community. Mr Ackermann is also accused of fraud and breach of fiduciary duty, but he is a Swiss citizen resident in Germany. He is not detained, because he is a well-known figure in Germany. A foreigner in Germany is in a much more difficult position; he is at a disadvantageous position because of the risk of flight.
I put it to the noble Baroness that it is very unsatisfactory that someone can be detained in such circumstances. The Minister—not the noble Baroness, but the noble Lord, Lord Filkin—challenged us to come up with a single example, and I was horrified that I knew of one from my own experience. I think that the case illustrates that there is a very real problem in that people can be detained without being charged. The Answer to my Written Questions was, frankly, deplorable. The Foreign Office should have answered those Questions and indicated to me whether there are other situations like this in other EU countries. The case raises a fundamental question of civil liberties. Answering, or not answering, in such a cavalier manner is an abuse of Parliament. It shows that Parliament is being treated in a highly cavalier manner.
I have discussed this case with a number of lawyers who say that this situation is not uncommon. One Queen's Counsel said to me, "If the Government think that there are no people in that situation they just ought to ask a few British lorry drivers, plenty of whom are languishing in prison while they are investigated for drugs or smuggling immigrants". What often happens in these cases, I am told, is that the accused—having been accused but not actually charged in our sense, and having been detained for many months—are given a sentence for the time they have already been in prison, in order to avoid their taking legal action against those who accused them. Enormous pressure is therefore put on people to strike a bargain with the judicial authorities.
For all those reasons I believe that, if not the precise words in my amendments, some such provision should be included in the legislation, to ensure that people cannot be extradited from this country for the purpose of questioning. It would be all too easy for the extraditing country to use the word "accused" to indicate that it is operating "with a view to" a prosecution, as the Bill states, when they do not know whether they will prosecute. They may think they will prosecute, but they do not know. As Mr Leolin Price QC said in his evidence, that is the common way in which these investigating magistrates proceed, by continuing to investigate while detaining someone. If that someone is a foreigner, he is at a very considerable disadvantage compared with the locals of those countries.
On the basis of their Answers when we have raised this issue, the Foreign Office and the Government seem not to be aware of this real and serious problem. I hope that the noble Baroness will reflect and come up with a more satisfactory approach.
My Lords, I support at least the spirit behind these amendments, though which of them I know not. I suspect, in fact I know, that the Minister also supports the spirit behind them because she has consistently stated that it is clearly the Bill's intent that one shall be extradited under Part 1 only to face trial and not to be interrogated. However, while the noble Baroness said earlier that all the countries within the family of the EU share common values, their criminal procedures are undoubtedly different. They may be no worse, but they are different. Undoubtedly there are many countries where one is arrested expressly for the purpose of being examined so that someone can thereafter decide whether or not to try one.
As the noble Lord, Lord Lamont, says, everyone knows that British citizens are languishing in EU prisons and being interrogated. They have not got there by being extradited because, at the moment, before you can be extradited the country has to prove sufficient facts to put you on trial. Therefore, to have challenged the noble Lord, Lord Lamont, to come up with examples where someone has been extradited and then held for questioning was asking the wrong question. A fact that no one would dispute is that in many countries people are held without bail—if they are foreign, they are particularly likely to be held without bail—for the purposes of being extradited. If there is any loophole in the Bill that might allow extradition to be used for that purpose then that loophole must be blocked.
It is important to remember that when one is interpreting the words "is accused of" and the warrant is issued with a view to his arrest, it is not a matter which will be decided de novo by the English court. The Bill requires a statement in the warrant by the foreign court that that is what they are doing. The English court is basically bound by that statement in the warrant. A foreign court, with its procedure, could perfectly legitimately say, "A man is accused"—as the noble Lord, Lord Lamont, has pointed out—"of the commission of an offence, and I am issuing a warrant with a view to his arrest and extradition for the purpose of his being prosecuted". They might, in the light of their procedure, find it perfectly legitimate to make such a statement, although an English court in the same situation would not have been able to make that statement because the words meant something different. That is why the words in this part of the Bill have to be superabundantly clear, that you can issue this warrant with this statement in it only if you say, "I've got my tackle in order. I've got the evidence to prosecute him. That is why he is coming here—to be prosecuted".
I urge the Minister, at the very least, to say that she will take the matter away and devise a form of wording that is not capable of being innocently misinterpreted by a foreign court to achieve a result that no one, particularly the noble Baroness herself, wants to achieve.
My Lords, I concur in everything that the noble Viscount said. He said it with a great deal more up-to-date knowledge than I have. However, I would add this. It may be that those who are not lawyers will not appreciate quite how different the continental system is from the British system. I particularly have that in mind as there was one occasion when I was a judge in the Queen's Bench Division when someone applied to me for a writ of habeas corpus which was directed to the Commissioner of the Metropolitan Police, either to charge the arrested person or to release him. As the Commissioner did not deign to take any notice of my presence, I gave instructions at the lunch adjournment that the writ was to issue unless by two o'clock he had appeared and explained which he proposed to do. Come two o'clock there was not a sign. So I said, "Right; the writ will issue". Two minutes later, a perspiring sergeant arrived and said, "We have charged him".
That is the difference. I forget the exact time period involved, but four or five days was probably the limit within which the accused had to be released or charged. When one compares that with the experience of the sort of case described by the noble Lord, Lord Lamont, it really is staggering that the Minister can say that we all belong to the same judicial club.
My Lords, the noble Viscount, Lord Bledisloe, said that he suspected that there was very little difference in spirit between the views of the Government and those of my noble friend Lord Lamont on this matter. I would suggest that probably everyone in the House at the moment agrees totally on what is desired.
"It is clear that a Part 1 warrant under Clause 2(3)(b) can be valid only if it is for the purpose of a prosecution. A request from a member state to this country for extradition for the purpose of investigation or interrogation would not be lawful".—[Official Report, 9/6/03; col. GC 23.]
Therefore, it seems to me that the only outstanding issue is whether the wording in the Bill which refers to "accused" is adequate, or whether, for the reasons given by the noble Viscount, Lord Bledisloe, and the noble and learned Lord, Lord Donaldson, the matter should be looked at again to produce words which clearly carry out the intention of both sides.
My Lords, that confirms what I said. Indeed, the noble Lord, Lord Filkin, did not appear to be totally clear that the wording in the Bill met the aim. I say with respect to the Minister that the matter should be looked at again to ensure that the Bill's wording is adequate to achieve the end that everyone desires.
My Lords, when the noble Baroness replies, will she answer one simple question? Is there anything to guarantee that member states of the European Union will not in the future change their law for the worse in this respect?
My Lords, we have had much discussion on this matter and on this particular clause. There is no doubt of the wording of Clause 2(3). I shall read it out so that I understand it. It states:
"the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant".
That is what the Bill states. However, Article 1 of the framework decision, under the heading, "Definition of the European arrest warrant and obligation to execute it", states:
"The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order".
There is nothing there about people being accused of offences. The wording is quite clear. It states:
"for the purposes of conducting a criminal prosecution".
That means that the matter is presumably settled. It is not a question of extraditing a person who has been accused of something, but rather someone who is already guilty of something and is going to be tried. If I am wrong, it seems to me that either I have not read the Bill correctly or I have not read the framework document correctly because the two things do not seem to tie up. The Minister should insert the words of the framework document, which do not mention accusation. Then we could all get on to the next amendment and we would all be happy and our people would be safe from being accused and whipped over to a continental country and questioned by a magistrate for months on end. Why does she not do that?
My Lords, I am sure that the noble Lord, Lord Stoddart, is very warmed by that generous support.
I make it absolutely clear that the noble Viscount, Lord Bledisloe, is right to say that the Government acknowledge the spirit of this amendment. Where we differ is that we say that the current drafting is clear. We looked very carefully at the difficulties that were raised in Committee to ensure that we reflected that which all noble Lords on all sides of the House wished to see secured. Therefore, I am grateful to the noble Baroness, Lady Anelay, and to the noble Lord, Lord Lamont, for having tabled these amendments. I hope that I can put beyond doubt the Government's view of these provisions.
I reassure my noble friend Lord Stoddart that the clarity with which he accurately assessed the framework document is reflected in the Bill that we now have. He is right to point out that surrender for the purposes of conducting a criminal prosecution was what everyone agreed to in that document, and nothing else.
I am not persuaded by the merits of these amendments. We believe that they are unnecessary. As the noble Lord, Lord Carlisle of Bucklow, said, the issue was quite properly debated at length in Grand Committee. My noble friend Lord Filkin put on record the assurance sought by the noble Baroness, Lady Anelay, on that occasion. That assurance was correctly recited today by the noble Lord, Lord Carlisle of Bucklow.
I repeat that this Bill, as it is currently drafted, allows extradition for the purposes of prosecution only in accusation cases. The Bill does not allow extradition for the purposes of questioning, investigation or, of course, interrogation. My noble friend Lord Filkin agreed to reflect on further issues raised by Members of the Grand Committee. As I said earlier, we have done that. I think that we are clear on all sides about the objective.
Although this is Report, it is worth looking at what the current extradition legislation says. Section 1 of the Extradition Act 1989 provides for extradition procedures where a person "is accused" of the commission of an offence. It goes no further than that on the subject and the phrase "is accused" is not qualified in any way. Your Lordships will know that that is the law that we have had for the past 14 years since 1989 and that it has not been an issue between ourselves and our partners. In contrast, the Bill is very explicit. It goes on to say that a warrant must have been issued,
"for the purpose of being prosecuted for the offence".
Those additional words strengthen and underline the purpose of the warrant. As I say, this is more than we have at the moment and we are pleased to have had the opportunity to make that point very clear.
I suggest that concerns of the noble Lord, Lord Lamont, about fishing trips are simply unfounded. We are not aware of any such problems under the current system, where the test is far less clear, and we certainly do not anticipate them in future. I listened with great care to the example concerning Germany and Switzerland that the noble Lord gave. However, that certainly does not relate to any extradition, or experience of extradition, that we have had with our partners.
My Lords, does the noble Baroness recognise that one could not have had that problem in this country because one would have had to put before the court the evidence one had before one could secure extradition?
My Lords, as I just said, there is not a dissimilarity between the phraseology of "accused" and the form that has to be proven. In fact, we are making the provision stronger, not weakening it. As the noble Viscount will know, some people will seek robustly to interrogate these matters when they come before the court. They will know the precise nature of the framework document. They will also know what will be in the warrant. It will be our judges who will interpret the provisions.
My next point is on what was said by the noble Lord, Lord Stoddart, and the noble Baroness, Lady Carnegy, about others changing the law. Whatever is in the framework document, it is the Bill, if it comes into law, that will determine how matters are adjudicated on in our country. This is the law that will apply, and these are the provisions that will bite when the matter comes to be determined.
My Lords, I accept what my noble friend says, but our court will be presented with the warrant. It will be presented with a view to an arrest, for the purpose of being prosecuted. In such jurisdictions as I know about in one or two European countries, that may well lead to detention for a very long time before there is any sniff of a trial. Surely she knows that that happens. In Italy and Spain, as well as Germany, it is not unknown.
"for the purpose of being prosecuted", is a subjective formula, as would be quite honestly felt by those issuing the warrant abroad. Is the Minister really satisfied that we should have no guarantee about how long such a person on extradition under the Bill—I do not care about the present position—will be detained in gaol before they are brought to anything near a trial?
My Lords, perhaps it is right that I remind the House of the current position, although I hear what my noble friend Lord Wedderburn says about not wanting to dwell on that. Noble Lords will know that in 1991 the country had the fortune—I will not say whether it was good or bad—to have a government other than our own. Since that year, the position on extradition arrangements has been that EU countries have not had to provide prima facie evidence in the relevant regard. It is very easy for us to forget that position. As now, the term "accused" was in operation, but without the extra safeguard of making absolutely clear that it is for the purpose of being prosecuted for the offence. It is on that basis that we can be confident on how the issues will be interpreted.
I presume that if there were a problem with people being extradited for evidence-gathering or interrogation, it would have manifested itself fairly early on, and the Conservatives would certainly have sought to amend our extradition legislation, particularly if they held the views then that they hold now. We can draw some comfort from the fact that no attempts were made to amend our legislation, implying that the problems that the proponents of the amendments seek to remedy are unlikely to exist. We have had the provisions for 12 years. It is said that things can take a little time to ripen, but we would have had the problem by now if we were going to have it.
We already have well established extradition arrangements with all the countries with which we will be involved through the European arrest warrant. None of them currently seeks extradition for the purposes of investigation or interrogation, and the European arrest warrant is being implemented across Europe on the basis of that understanding. I was pleased that my noble friend Lord Stoddart emphasised the basis on which the agreement for the European arrest warrant was made.
I shall not take up the House's time with unnecessary detail, but there are already a number of instruments concerning mutual legal assistance and judicial co-operation with our international partners. The relevant authorities in each country have dedicated contacts and systems for such work. It is that route, rather than abuse of the extradition system, by which we co-operate with other countries on investigative work. If a warrant were issued for the purposes of investigation, which is clearly the point at issue, that warrant could not be certified or executed in the United Kingdom. It would not be a Part 1 warrant as defined in the Bill.
Amendment No. 15, on which the noble Baroness touched briefly, demands that,
"sufficient evidence has already been gathered to bring a prosecution and to commit to trial the person in respect of whom the warrant is issued".
Presumably the only person who could judge that is the district judge, who would be required to examine the evidence against the person which had been gathered in the requesting state. That sounds very much like the reimposition of an evidential test. As I said, such a test has not been imposed on extradition requests from our EU or ECE partners since 1991.
As the government in 1991 saw no problem in disapplying the prima facie requirement, we find it difficult to understand the rationale for reintroducing it now. That is what the noble Baroness suggests. We have asked about that before, but I do not recall having been given an adequate answer. I do not know whether she wishes to give one today. I think that all noble Lords would be interested to know if it really were being suggested that we reintroduce the prima facie evidential requirement for all our extradition partners and, if so, why.
I shall deal briefly, I hope, with the amendments tabled by the noble Lord, Lord Lamont. The same general points apply, and perhaps there is no need for me to repeat them. However, I would like to address his Amendments Nos. 12 and 13, which would introduce a requirement that the requesting territory guarantee that the person be prosecuted within six months of his extradition. If that change were made to the Bill, we would be unable to make an arrest on any warrant unless it contained that guarantee, and it would not be a Part 1 warrant. The framework decision does not include that requirement, so it will be highly unlikely that any warrant will contain the appropriate guarantee. That would make us unable to extradite anyone to another EU member state.
I am aware that the noble Lord has concerns about the European arrest warrant—that he would like to expunge it from the face of the Bill, if not of the world—and the nature of the agreement with our European partners. Nevertheless, I cannot believe that he really intends that our extradition arrangements with them should come to an entire halt. Perhaps I am being too optimistic. I am sure that your Lordships will understand that it would not be for the United Kingdom to impose such conditions unilaterally—that is what is being suggested—after the framework decision has been agreed.
The noble Lord's third amendment goes one step further. It would mean that the statement would have to say that the person would be prosecuted within six months of his extradition. If he is not, it provides that he will be returned to the United Kingdom. As well as unilaterally imposing extra conditions on other EU states, the Bill would then unilaterally impose a sanction on the requesting state if it failed to meet the terms of the unilaterally imposed condition. The sanction would be that the person was returned to the United Kingdom to walk free.
I acknowledge that the noble Lord has difficulties with the Bill and that he has tabled amendments which he believes will strengthen it. However, I do not agree that that is the result. The amendments would greatly weaken the Bill, weakening the provisions beyond all recognition. There are many reasons why the prosecution may legitimately take longer than six months to begin. For example, if the person were suffering some extreme illness the trial might have to be delayed. The person might quite legitimately ask for extra time to prepare his defence.
The amendments make no allowance for such circumstances and, where they occurred, they would see the fugitive walk free. I would go further and say that the amendments would create a loophole which fugitives would undoubtedly seek to exploit. The sanction of unconditional release means that it would be in the fugitive's interest to delay the bringing of a prosecution for as long as possible, realising as he would that simply by delaying matters he would be able to get off without any punishment at all. It would be a wonderful incentive. I also have to ask what would happen if, in those circumstances, another country refused to return the person to the United Kingdom. He would be out of our jurisdiction, so presumably we would have to resort to other alternatives.
Although views of the Bill may differ, I thought that all sides of the House had agreed that the law on extradition needed updating. I heard everything the noble Lord, Lord Lamont, said about the Questions for Written Answer he had asked my noble friend Lady Symons and her stand that she had properly answered them. It is by no means cavalier for the Government on occasion to say that it would involve disproportionate cost to answer. Regrettably, answering some Questions involves the Government in considerable cost. I know, for example, that answering the noble Lord's June Question involved the Government in very considerable costs indeed. It is a position to which many governments of all complexions have had to resort when costs are disproportionate. All courtesy and propriety has been addressed. The noble Lord indicated further questions and I know that my noble friend Lady Symons, with her usual courtesy and propriety, will seek to give a full and proper answer to all of them.
It would not be proper for me to comment on the case the noble Lord mentioned. I understand the reasons why he hesitated so long and hard and he may on reflection feel that he should have hesitated even longer. But I believe the latter two amendments would create more difficulties than solutions. I have sought to explain that the Bill imposes a much more stringent test than we have at the moment. The words,
"for the purpose of being prosecuted for the offence" are new and far more explicit than anything that can be found in previous extradition legislation. The much looser formulation that we have at the moment has not given rise to problems, so I fail to see why it is anticipated that a much higher test will do so.
I really do not believe that we should be contemplating re-introducing the prima facie evidential requirement for Council of Europe extradition partners. I hope that I have said sufficient to convince your Lordships that we need to be satisfied with what we have done so far. I have given great thought to everything that has been said and we believe that the balance is now about right.
My Lords, before the Minister sits down, perhaps I may ask a question. As I understand what she says, if another EU country honestly issues a warrant in the terminology of the Bill, but it can be shown that in practice the words have a different meaning to that used by its judicial authorities and that someone is being arrested with a view to seeing whether it is possible to prosecute him, it would not in the eyes of the Government be a European arrest warrant. If that is right, will it be open to the British courts, faced with the document which prima facie complies, to investigate whether it does comply on the ground?
My Lords, I hear what the noble and learned Lord says and perhaps in reply I may explain how the system will work. The arrest warrant will come through the usual official channels, as has been the case for the past n-number of years. Two methods of working are conducted between ourselves and our European partners. The first is in relation to investigative and other work where we co-operate and work together. The second is when approved warrants come through the correct channels and it is clear that they are compliant. If such a warrant has come through the proper channels and is compliant, it will be safe and satisfactory for the courts to work on the premise that it is a proper warrant issued pursuant to the proper procedures.
Furthermore, there was concern in relation to a number of countries about how the European arrest warrant would work in practice. For instance, while I was in the Lord Chancellor's Department I worked with my Spanish colleague, Jose Maria Michavila, to try to get the procedure that we will each adopt right. We looked at practices such as video conferences which take place between our country and our partners to see whether we could produce an exemplar of how procedures will work in practice. Whether all our European colleagues then want to emulate the practical arrangements we have made between us, we must wait to see.
My Lords, I will indicate immediately that much has been said by noble Lords which causes me to believe that I must take this whole group of amendments seriously. I shall look at them between now and Third Reading to decide which to bring back for the House to consider.
I also give the Government a little more leeway for another reason. In Grand Committee I asked them specific questions about the code of practice and its drafting. That drew attention to the Government's concern that there might be confusion when the police tried to exercise their duties in relation to these powers. At col. GC9 of Hansard for 10th September, the noble Lord, Lord Filkin, the then Minister, said that he would take away the thrust of my questioning and return to the matter when the Government were able to produce a draft in response to all the replies to their consultation. I appreciate that that consultation concluded only in September and that in October we now have some of the replies in print. Therefore, I do not in any way criticise the Government for failing to come forward today with a response.
However, there is an underlying concern about the effectiveness of these powers. I intend to give the Government every opportunity at Third Reading to persuade the House that there is sufficient clarity for it not to be concerned. We are all on the same side with regard to that.
The Minister asked me why we accept that the 1989 Act, which deals with, for instance, procedures on placing charges, prima facie requirements and abolition, works. As she knows, I expatiated at Second Reading and in Grand Committee on why knocking away all the major supports and safeguards in Part 1 meant that it was not acceptable also to knock away the support of prima facie requirement.
There is much to consider and I shall do so. I beg leave to withdraw the amendment.
moved Amendment No. 16:
Page 2, line 15, leave out from "including" to end of line 17 and insert "a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person, the nature and legal classification of the offence and the applicable statutory provision;"
My Lords, Amendment No. 16 is supported by the noble Lord, Lord Goodhart. It focuses on the information which must be contained in the arrest warrant as set out in Clause 2(4)(c). When we put forward the amendment in Grand Committee, we did so together with an alternative proposal that the content of a warrant must conform to the model arrest warrant appended in the framework decision. Since then, we have not only listened carefully to what noble Lords have said but we have had discussions outside the House. In particular, we listened to the Minister's examples of how the Bill already incorporates requirements to be contained in the model warrant. I had particular discussions with the noble Lord, Lord Goodhart, before bringing forward this joint amendment, which we consider should be the best way forward.
Subsection (4)(c), as was pointed out to us by Liberty, paraphrases Article 8(1) of the framework decision. We agree with Liberty that there are dangerous consequences in paraphrasing the article, especially as certain criteria are omitted from the list of what should be included on the warrant. The framework decision states at Article 8(1) that the warrant should contain information such as the following: the identity and nationality of the requested person; the name, address, telephone and fax numbers and e-mail address of the issuing judicial authority; evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2; the nature and legal classification of the offence, particularly in respect of Article 2; a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person; the penalty imposed if there is a final judgment or the prescribed scale of penalties for the offence under the law of the issuing member state if there is no judgment just yet; and, if possible, other consequences of the offence.
Our objection is that the Bill itself requests scant information. It asks for the person's identity, details of any other warrant for his arrest, how long his sentence would be if convicted, and then—the catch-all—
"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 place at which he is alleged to have committed the offence".
We believe that the drafting of the Bill should be clearer than that. I beg to move.
My Lords, we on this side of the House support the amendment. Indeed, my noble friend Lord Goodhart has attached his name to it. I stress that the amendment reflects what is already included in the annex to the framework agreement, as explained by the noble Baroness, Lady Anelay. The words are directly taken from that document, which sets out the form of the warrant.
Why should that cause a problem? We have something that is explained in ordinary language. Is it not better to use those words rather than paraphrase the words in subsection (4)(c)? In trying to legalise the language, the Government, as has rightly been pointed out, have missed out certain parts of the wording—particularly those relating to the legal basis. We backed this issue in an amendment in Grand Committee and we back it again.
I read very carefully the reply given in Grand Committee by the noble Lord, Lord Filkin. He may have complied with the framework decision but perhaps I may spell out what he said. He said that the matter of identity is covered by virtue of Clause 2(4)(a) and that the matter of judicial information is covered by Clause 2(4)(b). He then said that the sentence which may be imposed is covered by virtue of Clause 2(4)(d). He went on to refer to information about convictions in absentia being supplied in Clause 20, and he then went on to talk about information on 32 generic offence categories being supplied to comply with Clauses 10 and 63.
Is that all necessary? In the amendment we ask only that all the requirements be included. I believe that most people find this legalised jargon difficult to understand. Perhaps I may suggest to the noble Baroness that she reconsiders the matter carefully. I feel that the amendment deals with much of the problem and it is very much in line with the framework document.
My Lords, I always take to heart accusations from the noble Lord about legalised jargon. If I may respectfully say so, one striking aspect of this Bill is that the draftsman has been rather clear and the drafting is simple.
I am very grateful to the noble Lord and the noble Baroness for tabling this amendment so that we can explore the interesting area of what information should be contained in an incoming Part 1 warrant. Clause 2(4) of the Bill sets out—in Part 1 accusation cases—what information an incoming warrant needs to contain, as the noble Baroness and the noble Lord both made clear. However, the information in question is: details of the identity of the person whose extradition has been sought; particulars of the domestic arrest warrant that has been issued for the person in question; details of the offence of which the person is accused, including details of the time and place where the offence was committed; and details of the penalty that could be imposed.
I am sure that your Lordships will see why that is all relevant information which should be included in any warrant. The amendment seeks to change part of the wording of Clause 2(4) and, in particular, it seeks to remove some of Clause 2(4)(c) and insert substitute wording. It is not difficult to see where the proposal has come from. I believe that it has been lifted almost directly from the framework document, and I can understand why it has come from there.
However, your Lordships will see that, in trying to craft the Bill, we have not simply filleted the framework document and put it straight into our law. We have had to frame it so that it is consistent with our own structure and understanding of the law to try to make it clear. We thought that the draftsman had been rather successful. Indeed, phrases such as "the degree of participation" of the wanted person in the offence and the "legal classification" of the offence do not sit very neatly in a piece of UK legislation because it is outwith the way that we would normally deal with these matters. As I said, we are not obliged to copy the wording of the framework decision.
I listened carefully to what both the noble Baroness and the noble Lord said. I think that we have probably got it right. But I am happy to take away the matter and look at it again, particularly in relation to the details of the law of the requesting country which the person is alleged to have broken.
To be absolutely frank, I am not sure that we shall return with an improvement to the wording because I tend to think that this is, if I may say so somewhat colloquially, fine. If the noble Lord and the noble Baroness really want us to reconsider the matter, we shall do so. However, I anticipate that I may come back saying that we have done our homework in the best way that we can and that we have marked it 10 out of 10, although others may take a different view.
My Lords, I am grateful to the Minister for her customary openness and honesty in her responses, which we always value. I appreciate that the Government feel that the draftsmen have it right. The Government are saying, "We are not slavishly copying the framework decision; we are trying to achieve some kind of consistency throughout". Of course, I can then point the Minister to Amendment No. 328 in the Government's name, which will impose on the framework list of 32 offences the European general wording that has been agreed.
We are saying that we consider it appropriate for the proper wording to be put on the face of the Bill. We accept that the Government have made considerable progress in the way that they have defined this part of the Bill. However, I have to say that, for the safeguards that we believe are necessary, the progress is not sufficient. I wish to test the opinion of the House.
My Lords, in moving Amendment No. 27 I shall speak also to Amendments Nos. 40, 193 and 203.
The amendments focus on the definition of who is entitled to make an arrest or a provisional arrest under Parts 1 and 2 of the Bill. Our debate on those issues in Committee was quite productive, but I am still not completely satisfied with the drafting of the Bill as we now have it.
Initially my noble friend Lord Hodgson of Astley Abbotts put forward a series of amendments aiming to ascertain whether Royal Parks Police and the other types of police as listed in Section 86(3) of the Police Reform Act 2002 would be eligible to make an arrest under a warrant. The problem with the clause as it is drafted is that there is no clear definition of "constable". The noble Lord, Lord Bassam, was able to satisfy us in part, and the omission of "customs officer" from those allowed to make a legitimate Part 2 arrest has been rectified by a later government amendment.
It is clear that we all agree that non-UK constables should not be allowed to arrest our citizens and that all extradition requests should be carried out using our police. However, we are still concerned that the Bill as drafted leaves a loophole and does not provide an adequate safeguard to stop a foreign constable making an arrest.
Since the Bill was first printed in the Commons, we have made progress on Clause 3, but subsection (2) still reads:
"The warrant may be executed by a constable or a customs officer in any part of the United Kingdom".
Our amendments would amend Clauses 3, 5, 72 and 74 to make it crystal clear that "constable" and "customs officer" mean United Kingdom constables and customs officers. I do not think that the assurance from the noble Lord, Lord Bassam, that the common-law definition of "constable" would bar any foreign constable from making an arrest for extradition is a satisfactory guarantee. Our amendment would put the question beyond any doubt. I hope the Minister will look at it with some sympathy. I beg to move.
My Lords, I put on the record at the outset that I continue to be puzzled by this amendment. I am puzzled because I thought we had satisfied noble Lords opposite. I shall take them very carefully through the issue. They said they were satisfied.
In another place, the issue of who could carry out an arrest in this country was a big bone of contention, and there was much champing on it. The Opposition went so far as to suggest that the Bill would allow foreign police officers and other foreign law enforcement personnel to come to the United Kingdom to carry out arrests; and they were not having any of it. That has never been the Government's intention and we amended the Bill in another place to put the matter beyond any possible doubt.
Indeed, in Grand Committee, the official Opposition positively bridled at the suggestion of foreign police officers enforcing a European arrest warrant in this country. Indeed, it might assist your Lordships if I reminded them what the noble Lord, Lord Hodgson, said during our discussions on the point. He said:
"The Government say that they have no such plans. I made it punctiliously clear . . . that we never said that the Government had any such plans . . . It is clear beyond peradventure that the Minister and his colleagues elsewhere in government do not wish non-UK constables to arrest people in this country".—[Official Report, 18/6/03; col. GC 306.]
So the noble Lord accepted the position. He made it quite plain that he believed we were absolutely right in saying that we had no intention of enabling non-UK police personnel to come to this country and conduct an arrest. So, if it was accepted then, why not now? Therefore I ask: why are these amendments necessary? I reiterate my puzzlement.
It is possible that noble Lords opposite may argue that, while they accept that the Government have no intention of letting foreign police officers exercise arrest powers in this country, we cannot be certain about future governments and that the drafting of the Bill might leave some ambiguity.
Let me try to demonstrate why that is not the case. Perhaps I could deal with the amendments in turn, starting with Amendments Nos. 27 and 40, which are concerned with Part 1 of the Bill. Part 1 provides that a European arrest warrant can be executed by any constable, customs officer or service policeman. The term "service policeman" is clearly defined in the Bill, and as these amendments are not concerned with service police officers I assume that the Opposition are happy with that.
Similarly, the term "customs officer" is very clearly defined in Clause 212(6), so I hope the Opposition will accept that the parts of their amendments dealing with customs officers are unnecessary. No foreign customs officer could fall within the definition found in Clause 212.
I turn to the term "constable". The office of a constable has been established in common law for a very long time. On appointment, every constable in the police force must,
"be attested as a constable by making the appropriate declaration".
The use of the phrase "a constable" is common in other legislation, for example, the Police and Criminal Evidence Act 1984 (PACE), the Terrorism Act 2000 and the Anti-terrorism, Crime and Security Act 2001. No foreign police officer could make the necessary declaration or be attested, so there can be no possibility of a foreign police officer falling within the term "constable".
Therefore, I suggest that these amendments are unnecessary. Moreover, if we seek to give a statutory definition to the term "constable" we could call in to question all other legislation using the term and on the basis of the common law definition. That is my answer to the question: what harm would the amendments do? I repeat, this would be a step out of line with precedent, which is acknowledged and accepted by noble Lords opposite, and it would, I argue, provide lawyers with a field day as they sought to challenge the myriad other pieces of legislation—many of which were enacted by the party opposite when in government—which do not contain a statutory definition of "constable". This is a dangerous road to go down for noble Lords opposite. We have never seen fit to define that term. That has not given rise to any problems, ambiguity or challenge. I do not see why we should change our practice now.
I should put on record one other matter which was covered in recent correspondence sent by my noble friend Lady Scotland to the noble Baroness, Lady Anelay. The noble Lord, Lord Hodgson, suggested in Grand Committee that the Crime (International Co-operation) Bill contains a definition of "constable". In fact, it does not and, like this Bill, it relies on the common law definition.
I wish to turn briefly to Part 2 of the Bill, which Amendments Nos. 193 and 203 seek to change. There the powers of arrest are conferred on a constable or any person to whom a warrant issued by a UK judge is directed. There is a simple, well-tried and tested reason why we have gone for that formulation. Virtually identical wording can be found in Section 8(5) of the Extradition Act 1989. I can report that that has not given any difficulties; nor has there ever been any suggestion that a UK district judge has ever contemplated directing a warrant to anyone other than a UK law enforcement officer.
The arguments in Part 2 are unnecessary and potentially harmful for the reasons that I have given. I reiterate that the Bill does not allow overseas police officers to carry out arrests here; nor does it contain any ambiguity. So, from our perspective, there is no need to amend the Bill; not least because to do so would call into question many existing statutes concerned with the police service. I hope that this time the noble Viscount can assure his colleagues that we have got it right, and that he is safe in withdrawing the amendment and not moving the others grouped with it.
My Lords, I thank the noble Lord, Lord Bassam, for that very comprehensive reply. He is right in saying that our only point at issue was whether the Government's intention was correctly and permanently reflected in the drafting of the Bill. I shall look very carefully at what the Minister has said. In the mean time, I beg leave to withdraw the amendment.
My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion I suggest that the Report stage begin again not before 8.32 p.m.