Clause 1 - Extradition to category 1 territories

Extradition Bill – in a Public Bill Committee at 4:30 pm on 7th January 2003.

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Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath 4:30 pm, 7th January 2003

I beg to move amendment No. 1, in

clause 1, page 1, line 5, leave out from 'Kingdom' to end of line 6 and insert 'only to countries authorised by an affirmative resolution of both Houses of Parliament and only to persons who have been charged with terrorist offences.'

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

With this it will be convenient to take the following amendments: No. 90, in

clause 1, page 1, line 5, leave out from 'territories' to the end of line 6 and insert 'that fulfil the following condition; that are party to the European Convention on Human Rights.'

No. 116, in

clause 1, page 1, line 6, leave out from 'designated' to the end of line 8 and insert 'that fulfil the following conditions;

(a) EU member states that have implemented the European Arrest Warrant and procedures between member states; and

(b) that are party to the European Convention of Human Rights.'

No. 4, in

clause 2, page 1, line 18, leave out 'an' and insert 'a terrorist'.

No. 5, in

clause 2, page 1, line 21, after second 'the', insert 'terrorist'.

No. 6, in

clause 2, page 2, line 3, leave out 'an' and insert 'a terrorist'.

No. 7, in

clause 2, page 2, line 6, after second 'the', insert 'terrorist'.

No. 9, in

clause 2, page 2, line 8, after 'the', insert 'terrorist'.

No. 68, in

clause 63, page 30, line 12, leave out paragraphs (b) and (c) and insert—

'(b) a judicial decision made by a judge of a High Court of a category 1 territory in which the presumption of innocence applies shows that the conduct constitutes a terrorist offence;

(c) the terrorist offence is punishable under the law of the category 1 territory with a sentence of imprisonment of three years or more.'.

No. 69, in

clause 63, page 30, line 21, leave out 'an' and insert 'a terrorist'.

No. 74, in

clause 63, page 31, line 24, leave out subsection (8).

No. 75, in

clause 64, page 31, line 41, leave out paragraph (b) and insert—

'(b) a judicial decision made by a judge of a High Court of a category 1 territory in which the presumption of innocence applies shows that the conduct constitutes a terrorist offence'.

No. 83, in

clause 64, page 33, line 5, leave out subsection (8).

No. 85, in

clause 65, page 33, line 19, leave out subsection (3).

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

The first group of amendments goes to the heart of the Bill. I would describe the Bill in the business terms that I was familiar with in a previous incarnation: it is front-end loaded in that the most contentious parts are at the beginning. Few more important issues are evident in the Bill than are covered by this group of amendments. Many amendments stand in my name or in those of my right hon. and hon. Friends, but amendment No. 116, which I shall touch on briefly, is a Liberal Democrat amendment that would have broadly the same effect.

I hope that you, Mr. O'Hara, or your fellow co-Chairman, will, largely because of the front loading, use your discretion to allow a clause stand part debate as well as a debate on the amendments. When debates on amendments cover considerable ground, I realise that Chairmen are often reluctant to grant stand part debates, but I hope that it will be different this time because of the substance in clauses 1 and 2, which justifies a wide-ranging stand part debate on each clause.

Amendment No. 1 would restrict the ambit of the whole of part 1 to terrorist offences. I shall return in a moment to what my right hon. Friend the Member for West Dorset (Mr. Letwin) said on Second Reading. We firmly believe that the provisions are draconian and are justifiable only when restricted to terrorist cases. They are not justified for all 32 listed offences—some extremely vague—set out in the framework decision to which the Government signed up. As was said on Second Reading, the provisions are an attempt, despite a statement to the contrary, to introduce into English law through the back door the alien concept of corpus juris. That is at the heart of the debate about the whole Bill.

I turn now to what my right hon. Friend the shadow Home Secretary said on 9 December. It is important for the Committee to revisit the Second Reading debate, particularly the contributions of my right hon. Friend and of the Chairman of the Home Affairs Committee, the hon. Member for Sunderland, South (Mr. Mullin). Other members of that Committee may want to reflect on the hugely important constitutional issues posed by the amendments.

My right hon. Friend stated his objections to part 1 special provisions in application to offences other than terrorism. He said:

''Part 1 would not be acceptable even if it meant what the Minister says he means it to mean. The ''list of offences'', for instance, is not a list of offences, as my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) pointed out with his usual perspicacity. It is, in fact, a mechanism whereby a set of representatives of executive powers—of Governments—in the

European Union will decide what, from time to time, they wish to be the list of offences. The Minister told the House that it was far better to ensure that it was done by the unanimous decision of the Council of Ministers rather than by some other mechanism, but what does he mean by the unanimous decision of the Council of Ministers? He means that the Governments of the member states would get together and change the framework directive, and thereby change the list of offences.''

He continued a little later:

''The list is already deeply obnoxious. It contains the arguable offence of xenophobia, which is an offence in some countries but not in ours, in a most bizarre and ambiguous form.''—[Official Report, 9 December 2002; Vol. 396, c. 54.]

The reason why many aspects of part 1 of the Bill are inappropriate is the inclusion in the list of many vague categories of offence, such as computer-related crime, racism and xenophobia, which are not specifically defined in English law. We are by no means alone in our concerns about this, because we pray in aid the views of the Labour-dominated Select Committee on Home Affairs after its consideration of the Bill.

The Chairman of that Committee, when discussing category 1 extraditions, said:

''As it stands, the Bill allows the list of 32 offences to be incorporated into UK domestic law without any opportunity for Parliament to disagree with, let alone debate, the proposed changes. The Select Committee believes that that is unacceptable.''

That Select Committee is Labour-dominated. The hon. Gentleman continued:

''Furthermore, despite Ministerial assurances to the contrary, it appears that clause 2(5) will deny our judges the opportunity to refuse an application on the ground that it does not come from a properly constituted judicial authority of a category 1 state.''—[Official Report, 9 December 2002; Vol. 396, c. 62.]

We will return to that point when we discuss clause 2(5).

The hon. Member for Sunderland, South was not the only Labour Member to express such concern. Powerful concerns were also expressed by the hon. Member for Clwyd, West (Gareth Thomas), whom I have seen in other contexts before he was in the House. I have observed him practising as a lawyer and know him to be an able and distinguished barrister. He said:

''With the greatest respect, our current extradition law does not operate in the context of an all-embracing fast-track system, which will apply to category 1 offences. To create that sort of category is a drastic, but necessary step, although it should be counterbalanced by certain protections.''

He also felt that

''the Government should look again at lowering the threshold from three years to 12 months.''—[Official Report, 9 December 2002; Vol. 396, c. 95.]

That issue will occur again in later clauses, but is linked to the unacceptability of these draconian measures. Our amendments are intended to refer forward to other clauses in the Bill.

Members of the Committee will have noted that this group of amendments includes amendments Nos. 4, 5, 6, 7 and 9, which seek to amend clause 2, amendments Nos. 68, 69 and 74, which seek to amend clause 63, amendments Nos. 75 and 83, which seek to amend clause 64, and amendment No. 85 which seeks to amend clause 65. The fact that you, Mr. O'Hara,

wisely grouped those amendments shows that much of the meat of the Bill, and many of the contentious aspects in later clauses, all link back to clause 1. That is why we need to debate those matters now.

One of our amendments attempts to put into the Bill a specific requirement for an affirmative resolution procedure, so that there is proper parliamentary scrutiny of any decisions that are taken under the procedure proposed by the Government. The Opposition felt strongly about that issue, as did the Labour-dominated Home Affairs Committee, which specifically and in the strongest terms recommended the affirmative resolution procedure. I draw that to the attention of Labour Back-Bench Members, and put them on notice that their own colleagues on the Home Affairs Committee felt so strongly about the matter that in paragraph 42 of their report they said

''we consider that, at the very least, any Orders in Council made under Clauses 1(1) or 68(1) should be subject to the affirmative resolution procedure, whereby they may not be made unless a draft of the Order has been laid before Parliament and approved by a resolution of each House. The Home Office told us that it believes that the negative resolution procedure is the appropriate one to use for these Orders.''

In other words, the Government want such measures to go through on the nod, so there will be no proper parliamentary scrutiny.

The Select Committee went on to say that the Government

''pointed to the precedent of section 5 of the Extradition Act 1989, which provides that a list of Commonwealth countries may be designated by Order in Council for the purposes of section 1(2) of the 1989 Act. Section 1(2) provides that, if a person who is in the UK is accused of committing an offence in a country specified on the section 5 list, then that person may be arrested and returned to that country.''

Paragraph 43 of the Home Affairs Committee report is in heavy type. We all know what that means: it is a firm recommendation about which the Committee felt strongly. In response to what Ministers told the Committee, it said:

''We do not accept that Parliament should be constrained by the precedent of the 1989 Act from requiring an appropriate degree of parliamentary scrutiny for delegated legislation that may have the effect of removing significant safeguards for individuals subject to extradition requests. If our recommendation in paragraph 41 above is not accepted, then Clause 205 should be amended to provide that Orders in Council made under Clauses 1(1) and 68(1) may not be made unless a draft of the order has been laid before Parliament and approved by a resolution of each House.''

The report could not have put it more strongly than that. The Select Committee said that ''at the very least''—in other words, it was the minimum requirement—the affirmative resolution procedure should apply, but the Government have not even gone as far as that. I hoped that, following the strong views expressed on Second Reading, even by Labour Back Benchers and the Select Committee Chairman, the Government would introduce their own amendment to provide for the affirmative resolution procedure.

The previous recommendation in heavy type is in paragraph 41, which states:

''We . . . recommend that Clause 1(1) be amended to specify that only those countries that are signatories to the framework decision may be designated territories for the purposes of Part 1 of the Bill, and that Clause 68(1) be amended to specify that only those

countries with which the UK has general extradition arrangements may be designated territories for the purposes of Part 2 of the Bill.''

Conservative Members feel even more strongly than the Select Committee. We believe that part 1 of the Bill should relate only to terrorism. If it did, it would be just about acceptable as a minimum. For all the other offences, part 2 is much less controversial. To a large extent, it replicates many of the provisions in existing extradition legislation and may make them more efficient.

Conservative Members accept that the current cumbersome extradition procedures can be improved. We are not trying to get in the way of all extraditions. I am sure that the Minister will argue that the Conservatives are trying to slow down extraditions, allowing the guilty to get off, but in fact we are trying to protect the civil liberties of people, while accepting that more efficient extradition procedures are needed. We believe that we can have the more efficient procedures that the Government propose in part 2 without trampling over everyone's civil liberties.

Our views have been supported not only by the Labour-dominated Select Committee and by Labour Back Benchers on Second Reading, but by a rainbow coalition of those who care about civil liberties in this country. We have been supported by organisations as diverse as Liberty, which is traditionally thought of as being on the left of politics, and the Democracy Movement and the Freedom Association, which are traditionally thought of as being on the right. Surely that should give the Government pause for thought. What they are doing is not acceptable to all those who care about civil liberties, from whatever part of the political spectrum they come. We will not create a proper system under British law by taking away all the fundamental rights and freedoms of people to have the protection of the United Kingdom courts and Parliament.

If the Government were to accept these amendments, or to introduce their own along similar lines, it would bring back the degree of parliamentary and court protection on which British citizens have always properly been able to rely. There are many different rights, such as that of habeas corpus, that part 1 of the Bill does away with. That is not good enough, and it is something about which the Conservatives feel passionately.

Amendment No. 1 would restrict the ambit of part 1 to terrorist offences, and I have set out the reasons why we feel so strongly about that. Amendment No. 90, which has received support from the Law Society, would restrict the operation of part 1 only to countries that are signatories to the European convention on human rights. My hon. Friend the Member for Stratford-on-Avon (Mr. Maples), who was a last-minute addition to the Committee and is unable to be with us today because of his duties on a Select Committee, has a long-standing interest in the issue. He spoke about it on Second Reading, and the Minister will remember that he and I have often queried various aspects in European Standing Committees when debating the European arrest warrant.

My hon. Friend expressed his concern about the fact that the Government, particularly in introducing such vague offences, are giving judicial authorities in, for example, Greece—who caused so much concern over the British plane-spotters in Kalamata—many powers to instruct people to be arrested and extradited from this country, while the courts in Australia will not be able to use those powers. They will be able to use only the part 2 powers. As my hon. Friend said, if asked, most British citizens would say that they had more confidence in the courts in Australia than in Greece to do things properly according to traditional principles of English law and civil liberties. However, the Government are doing things the other way round and saying that countries such as Greece will have the power to have draconian provisions applied to British citizens without a British court having the right to intervene. That is not acceptable.

My hon. Friend the Member for Stratford-on-Avon went further, and pointed out that it will not just be current members of the European Union that will have the powers, but it will be open for the powers to be extended to future members. He drew attention in particular to his concerns if Turkey were allowed to accede to the EU. I have extremely strong views about the appalling human rights record in Turkey because of my experience of the Cyprus problem, which is a concern that I know you share, Mr. O'Hara. I do not think that Turkey is ever likely to be considered appropriate for accession to the EU. That is a personal view, and I have no hesitation in expressing it, but we must recognise that Turkey wants to accede and may one day become an EU country. I think that British people would be appalled if they realised that the Government were allowing countries such as Turkey, if they became members of the EU, to have their so-called judicial authorities impose arrest warrants on British citizens who would then be hauled off to a Turkish court without any judicial or parliamentary scrutiny.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

I shall in a moment, but I want to make one further point, which is the final point from my hon. Friend's speech on Second Reading.

My hon. Friend also had a grave concern about the former Soviet or Warsaw pact states that may accede to the EU, which have no tradition of liberty of the subject. Many judges previously operated in the communist state, which had no tradition of the freedom of the individual. My hon. Friend noted that if the Bill is passed unamended, once again there will be no parliamentary scrutiny and those countries will have the same rights as current EU countries to issue arrest warrants without any British court being able to protect the liberty of the subject.

Photo of Tom Harris Tom Harris Labour, Glasgow Cathcart

I am disappointed that the hon. Gentleman sees the enlargement of the EU as a negative move about which we should be careful. Does he not understand and agree that, with the enlargement of the EU, the Bill will enable us to tackle crime, especially given the international nature

of crime and the number of criminals from this country who currently live abroad, not only in the EU, but in the accession countries?

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath 5:00 pm, 7th January 2003

I do not want to give the hon. Gentleman the impression that I am against the expansion of the EU. Far from it. I am simply pointing out and I should have thought that he would be concerned about it on behalf of his constituents, that some of the countries that may be joining the EU simply do not have our traditions of the protection of the subject. Throughout my ten and a half years in the House and for many years before that, I have known that Labour Members are concerned about civil liberties and the freedom of the individual. That is quite right. If they are so concerned, they should consider having proper parliamentary scrutiny over which countries will be allowed to operate the provisions before us.

It would be quite different if we were talking only about terrorists. The threat from terrorism is so exceptional that one could just about accept draconian powers. But we are faced with a vast undefined list of vague offences. There are 32 categories of offence, many of which are not offences under UK law, and we are talking about courts that have no tradition of the protection of the subject. I am sure that if the hon. Gentleman asked his constituents, he would find that they share our concerns.

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

Is not the difference between European states and, for example, Australia the fact that the European states signed up to the European convention on extradition in 1991, when we had a Conservative Government? Whatever the workings of the courts in individual nation states, the principles in the convention govern the way that they must deal with extradition. That is the difference between those states and Australia.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

On paper, they do. I do not know whether any of the hon. Gentleman's constituents were involved in the appalling Kalamata British plane-spotters case. [Interruption.] He shakes his head. If his constituents had been involved, I doubt whether they would have been terribly happy with the protection that they felt they were given by the Greek courts. Yet Greece is one of the EU countries that have signed up to all the principles in the convention. The British citizens who were quite improperly arrested were acquitted in the end, but only after 37 days during which they had to be in Greece, either in custody or waiting for the case to be concluded. I do not think that those people would be at all happy at the thought that Greece having signed up to anything would provide them with sufficient protection.

Photo of Tom Harris Tom Harris Labour, Glasgow Cathcart

Is the hon. Gentleman saying that he and his party are now opposed to the European convention on extradition, which a Conservative Government signed in 1991, or are they simply opposed to the new measures in the Bill?

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

We oppose the Bill because it combines the draconian measures of a vague, undefined list and provides an opportunity to allow a

whole raft of new countries in without proper parliamentary scrutiny or judicial protection for the subject. We certainly do not resile from the previous convention, but it operated in a different climate of opinion.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

Surely the hon. Gentleman is aware that the 1991 legislation, agreed to by his Government, did away with any ability to examine a prime facie case with regard to those countries. He has said that he is happy with that and does not demur from that at all.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

The Minister is trying to disguise the very different effect of the Bill. If we were talking simply about the Bill's restating what has operated in the past under the 1991 provisions, we would not have a problem. The Minister knows perfectly well, and need only read the Select Committee's severe criticisms to remind himself, that the Bill contains far more draconian proposals. That is why the Select Committee is so unhappy about it. Those draconian provisions could apply to a whole raft of new countries without proper parliamentary scrutiny, and the Minister knows that as well as I do.

Amendment No, 116, tabled by the Liberal Democrats, would have a similar effect to amendment No. 90, which is supported by the Law Society. It appears to show that, unlike those of us on the Conservative Benches, the Liberal Democrats believe in the concept of the European arrest warrant. We shall hear from the hon. Member for Torridge and West Devon (Mr. Burnett) whether that is correct, but I am surprised that he has tabled his amendment in those terms.

Amendments Nos. 68 and 75 are intended to introduce two crucial safeguards by making the requirement for senior judicial scrutiny in the requesting country apply at least to the equivalent of a High Court judge. One problem that arose with the British plane-spotters and the magistrates in Greece, and with the Spanish magistrate or junior judge in the Pinochet case—one of the more embarrassing cases in this Government's dealings with the law in European matters in recent years—was that no one equivalent to a British High Court judge carried out the judicial scrutiny. One issue raised by the Home Affairs Committee, and by me and other hon. Members with the Under-Secretary of State during various Standing Committee debates on the European arrest warrant, was that if British subjects are to feel they have the right degree of protection, a senior legal figure in the requesting country must look at the request. That provision would provide a degree of protection. The Bill needs all the other safeguards we have already talked about, but the procedure would be safer for British subjects if there were senior judicial scrutiny. In attacking the Government's proposals, commentators have concentrated on the vagueness of the words ''judicial authority''. The Minister has come under criticism from the Select Committee for failing to deal with that point, as he promised to do.

I hope, Mr. O'Hara, that you will bear with me if I touch briefly on clause 2. Paragraphs 58 to 63 of the Home Affairs Committee's report are phrased in strong terms. The report states that the way in which the Bill is drafted

''appears to be incompatible with undertakings given to the European Scrutiny Committee by the Parliamentary Under-Secretary at the Home Office, Mr. Bob Ainsworth MP, in January 2002.''

Paragraph 59states that the European Scrutiny Committee inferred from what the Minister had said that

''the 'judicial authority' would have to exercise recognisably judicial functions in an independent manner.''

The Minister, according to paragraph 60,

''gave similar assurances to European Standing Committee B.''

Those assurances were actually given to me because I was the shadow Minister. The Minister confirmed that under the Extradition Bill the UK judicial authority will not only have the ability but will certainly not execute a European Arrest Warrant that comes from anything other than a judicial authority in another European state.

The amendment does not seek simply a judicial authority—the Home Affairs Committee pointed out that that was not required as clause 2 would require a non-judicial authority—but the equivalent of a High Court judge. That is an important safeguard.

The second safeguard in amendments Nos. 68 and 75 would be to reintroduce the requirement for a possible sentence—for an offence for which someone is to be extradited—to be a minimum of three years. We should recognise that it always used to be three years: that was the minimum sentence specified in the framework directive. Instead, the Government want the sentence to be 12 months in accordance with previous extradition legislation, but the comparison is false because the previous extradition legislation was less draconian.

Members of the Home Affairs Committee and various Labour speakers, such as the hon. Member for Clwyd, West, referred on Second Reading to gold plating. He said that the Government had gold-plated what the framework decision wished to do. The framework decision called for extradition under the EU arrest warrant only if the sentence were for at least three years—in other words, for serious offences. In changing it back to 12 months, the Government are trying to have the best of both worlds. They want to introduce a more draconian regime, while keeping the 12-month sentence as the lower limit in accordance with earlier less draconian legislation. Many Labour Back Benchers and members of the Select Committee feel strongly that that is wrong.

Paragraph 51 of the Select Committee report appears in bold type as a firm recommendation:

''We can see no justification for eroding the basic level of protection provided by the framework decision and we are dismayed that the Home Office is seeking to do so. We recommend that the three-year limit specified in the framework decision should be retained in UK domestic law.''

A Labour-dominated Select Committee could not get much firmer than that. It believes that what the Government are trying to do is simply wrong. It wants the level of protection to be a three-year sentence—and so do we.

As to the dual criminality threshold, the Select Committee said in paragraph 45 that

''Article 2.2 of the framework decision provides that surrender of a suspect under a European Arrest Warrant will not be subject to the dual criminality requirement where the offence for which extradition is sought . . . falls into the list of 32 offences, and . . . carries a maximum penalty of at least three years' imprisonment in the issuing state.''

Paragraph 46 shows that

''Clause 63(2)(c) of the Bill requires only that the offence be punishable under the law of the issuing state with imprisonment or another form of detention for a term of 12 months or more. Consequently, Clause 63(2)(c)'',

which I want to amend,

''lowers the maximum penalty threshold from the three years specified by the framework decision to 12 months.''

The Select Committee continues in paragraph 47:

''This significantly reduces a protection provided for by article 2.2 of the framework decision. The dual criminality requirement provides an important protection for a suspect in respect of whom an extradition request has been made. It ensures that the UK will scrutinise the fairness or otherwise of any request for extradition. Article 2.2 is careful to provide that, if an offence falls into one of the 32 categories of offence, then the dual criminality requirement ceases to apply only if the offence is punishable by imprisonment for a maximum period of at least three years.''

The ''at least three years'' requirement was put in italics to emphasise the point. The report continues:

''By reducing the maximum period from three years to 12 months, the Bill disapplies the dual criminality safeguard in relation to a number of considerably less serious offences.''

The Select Committee also points out, and I have had personal experience from submissions to confirm it, that:

''Both JUSTICE and Liberty expressed serious concern about this proposal. JUSTICE supported the three-year maximum penalty being retained, on the grounds that 'this would go some way to avoid the abusive use of the coercive measure of extradition for minor offences that do not constitute crimes in this country.' Liberty pointed out that, in the 13 years since the Extradition Act 1989 was enacted, UK courts have intervened to refuse extradition in a significant number of EU cases''.

In other words, that has happened in cases in which the extradition request came from fellow EU countries, which have also signed up to the European convention on human rights. That relates to the intervention made by the hon. Member for Knowsley, North and Sefton, East (Mr. Howarth). The paragraph adds that

''the Home Secretary has refused to extradite in a significant number of other cases where extradition would have been plainly wrong or unjust.''

Under the previous regime, EU countries, in which people are supposed to have all the protections to which the Minister refers, made requests that our courts turned down for proper reasons.

The report further notes:

''We asked the Home Office why they proposed to reduce the dual criminality protection threshold. In response, they told us that they believed that applying a 12 month threshold is appropriate because the threshold is still sufficiently high to ensure that the conduct in question must be regarded as a matter of some seriousness in the criminal justice system of the country making the request.''

The phrase

''a matter of some seriousness''

does not strike me as strong enough for these incredibly draconian powers. We should be talking about terrorist offences to justify such powers, not simply about matters ''of some seriousness.''

The Committee said:

''We consider that the Home Office's response fails to deal with the obvious point that, although a 12-month threshold may ensure that the offence is a matter of 'some seriousness', the framework decision clearly envisages that only offences serious enough to warrant a three year maximum penalty should be exempt from the dual criminality requirement.''

I strongly pray in aid the Labour-dominated Home Affairs Committee, the members of which have expressed their views in very strong terms about how much the Government have got this wrong.

Amendment No. 74—and amendment No. 83 to clause 64, which is to similar effect—seeks to allow judicial discretion. We say that a British judge should consider how other countries' laws interact with ours, which is vital. It is crucial to preserve the so-called dual criminality test, and I hope that, even if the Government do not accept something similar to our amendments, they may be persuaded to do so in response to views that will no doubt be expressed by Law Lords and others in another place. They may end up having to introduce amendments of their own that are similar to ours.

Amendment No. 85 to clause 65 brings us to the crucial point about European framework decisions. We do not want our laws simply to refer to what is set out in a framework decision. I am not sure whether the Minister will be able to say that there are any precedents for that, but it seems to us and to organisations across the political spectrum, such as Justice, Liberty, the Freedom Association and the Democracy Movement, that it is completely inappropriate for the Government to propose corpus juris by the back door and not include such matters in the Bill.

We believe that there should be only one category—terrorism for part 1—and not 32, but if the Government are going to introduce corpus juris by the back door and have a list of 32 offences, they should be listed in the Bill. The British people should be able to see clearly what the Government are up to. Vague headings such as xenophobia and computer-related crime, which are not crimes under British law but are listed in the framework, should be specified in the Bill. It is outrageous—I use that word carefully—that the Government are not including them. They are increasingly treating this sovereign Parliament as a rubber stamp.

We want everything to be included in the Bill. It is not good enough for the Government to say that there has been a European framework decision and we shall simply go along with it. That framework might be expanded in the future, which will would simply be passed on the nod. It is because of the incredibly strong feelings on this matter across the political spectrum that we have had such strong support from organisations as varied as Liberty and Justice on the one hand, and the Freedom Association and the Democracy Movement on the other. That is what

Parliament is for. I cannot stress too greatly how strongly my hon. and right hon. Friends and I feel. If Parliament is not going to be able to scrutinise such proposals because they are not in the Bill, there is not much point in having a Parliament.

The Minister is extremely diligent and tries hard to get on top of his brief, but I wonder whether in the long watches of the night he sometimes asks himself what he is opening the floodgates to when he is asked by his lords and masters at the top of Government to introduce something to allow a framework decision that is not included in the Bill to be expanded in the future after going through on the nod without affirmative resolutions of both Houses or interventions by British judges to protect British people. That is not what Parliament is for.

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South 5:15 pm, 7th January 2003

Before we proceed, I should point out that I was listening carefully to the hon. Gentleman, whom I know from experience to be a decent and reasonable Committee member. He was honest enough to point out that he was alluding to later clauses at some points. I was very tolerant, but there was more detailed discussion than was appropriate of matters that will be subject to debate under later groups of amendments and clauses. I make the general observation, not only to the hon. Gentleman, but to the Committee as a whole, that although Members may allude appropriately to matters of later debate, they should not go into excessive detail.

Photo of Mr John Burnett Mr John Burnett Liberal Democrat, Torridge and West Devon

I should declare at the outset that I am a lawyer, but I do not practice as such. That statement is not necessarily designed to endear oneself to any particular audience. I am delighted to be joined in our endeavours by my hon. Friend the Member for Orkney and Shetland. He is also a member of my profession, although he is a Scottish lawyer. As he will demonstrate in the course of our proceedings, he is a wise and able advocate.

I will speak particularly about amendment No. 116, but it might be wise for me to say a few words about the Conservative amendments, which have been described in considerable detail by the hon. Member for Surrey Heath. As a party, the Liberal Democrats believe in co-operation between states and swifter appropriate extradition, but not at the cost of jettisoning civil liberties. That said, I agree with amendment No. 1 insofar as it refers to the affirmative resolution of both Houses.

I shall not dwell too extensively on quoting from the admirable Home Affairs Committee report, although the Committee and its chairman should be applauded for the swift way in which they produced the report in time for the Bill's Second Reading. Paragraph 43 refers to the importance of an affirmative resolution before any territory is defined as a category 1 territory. Our stance differs from that of the Conservative party, because subject to appropriate safeguards, which we will debate, we believe that extradition to category 1 territories should take place for offences other than terrorism. It would make a mockery of what I said at the outset to say otherwise.

That said, clause 1 is unacceptable because it gives far too wide a discretion to the Secretary of State to designate territories as category 1 territories by Order in Council with little or no accountability. There must be clear, open and transparent criteria for the allocation of states between categories 1 and 2. Part 1 of the Bill provides for a particularly expeditious extradition procedure, albeit with inadequate safeguards, which we hope to remedy.

Part 1 also implements the European arrest warrant, but the procedure requires only cursory or superficial information about the allegation or evidence. We are relying completely on the fairness and openness of the justice systems prevailing in the category 1 countries, but some members of the Committee might be surprised to learn of the shortcomings that exist even in other European Union jurisdictions. I shall not trespass on other clauses at this stage, but I alert the Committee to the fact that we will introduce other amendments to try to make the Bill fair and to make it reflect the standards of justice that we are used to in this country.

Even in some EU jurisdictions, there is little or no legal aid. Defendants can be discouraged from contacting lawyers. There is a regular denial of consular assistance and no presumption of innocence until proved guilty. Often, no information about detention is given to family or next of kin. Another serious matter is the lack of interpreters. We must therefore be careful about the way in which we approach the clause and the rest of the Bill. We must ensure, in so far as we can, that we import into the Bill the type of safeguards and protections to which we, quite rightly, are accustomed.

Regrettably, basic principles and frameworks of justice are absent in other jurisdictions, including other EU jurisdictions. However, amendment No. 116 would provide minimum safeguards in respect of which countries could fall into the definition of a category 1 territory. I remind the Committee that that is a territory in which there are swift and superficial safeguards in respect of the individual whose extradition is sought.

I do not want to go over the ground covered by the Home Affairs Committee. The hon. Member for Surrey Heath covered it in detail and was right to draw particular attention to paragraphs 41, 42 and 43 of its report, which I hope hon. Members have read. I simply remind them that paragraph 41 is absolutely clear. In bold type, it recommends that

''Clause 1(1) be amended to specify that only those countries that are signatories to the framework decision may be designated territories for the purposes of Part 1 of the Bill, and that Clause 68(1) be amended to specify that only those countries with which the UK has general extradition arrangements may be designated territories for the purposes of Part 2 of the Bill.''

We shall return to the latter part of the sentence in due course. We do not believe that any country should be able to be included in category 1 just by ministerial fiat. These territories must meet basic standards, which is what our amendment is intended to do.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department 5:30 pm, 7th January 2003

I not only feel that I am replaying the Proceeds of Crime Bill, I have a definite sense of

déjà vu. I listened extensively to arguments that ranged across the whole of the Bill, but heard very little about the amendments. In fairness to the hon. Member for Surrey Heath, he spoke with considerable passion about the need for an affirmative rather than a negative resolution. He hardly touched at all on any justification for his contention that the amendments should apply only to terrorism. It just is not good enough simply to say ''draconian''—no matter how many times—without attempting to prove to the Committee that the proposals are draconian. Having done that repeatedly, the hon. Gentleman trotted out the same old threats that if we cannot sort the matter out here, the noble Lords will certainly do so.

I am sure that you would lose patience with me, Mr. O'Hara if I ranged over all the issues raised by the hon. Member for Surrey Heath, many of which will be picked up in clauses that we will come to shortly. I will address most of my remarks to the amendments, with one exception. As the hon. Member for Surrey Heath said, this is a front-loaded Bill. The contentious issues are early on. He made great play of that in an attack that I have heard from him before, and was joined by the hon. Member for Torridge and West Devon. I was a little more surprised to hear that from the Liberal Democrat Benches, but it would be just my luck to get the Eurosceptic wing of the Liberal Democrats, such as it is. I think that the hon. Gentleman is the sole member.

Photo of Mr John Burnett Mr John Burnett Liberal Democrat, Torridge and West Devon

I hope you will be patient with this intervention, Mr. O'Hara. I am certainly not Eurosceptic. I do not think that many hon. Members are. Most seek to scrutinise legislation on its merits. As I said earlier, we understand that there is reason for a more swift extradition procedure, but it must not be at the cost of jettisoning or sacrificing long-held principles and civil liberties.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

That is good, and I am glad to hear it. I hope that we can do precisely that. The one point that I wanted to pick up on was that the hon. Member for Torridge and West Devon said that he was gravely concerned about our extraditing people to jurisdictions that were far from fair and far from open. The hon. Member for Surrey Heath has made his views on our extraditing people to other EU states pretty clear in other Committees at which I have been present. He expressed concern that entirely innocent British citizens could

''be wrongly sent abroad at the instigation of a corrupt judicial authority abroad.''—[Official Report, European Standing Committee B, 10 December 2001; c. 37.]

That is our problem. That is why I asked him the specific question about whether he accepted that when the European convention on extradition was approved by the House under a Conservative Government in 1991, all ability to examine the prima facie case against the defendant subject to an extradition request to a European convention country had been removed.

He agreed that he knew that that was the case, and did not demur from the fact that it should remain so. That is a problem, because the issues that he raised with such passion concerned not wanting to send

people to corrupt judicial authorities abroad without an examination. He said clearly that British citizens needed to feel that there would be senior judicial scrutiny in the issuing state, but he does not feel that that would be the case. He does not believe that those are the sort of jurisdictions to which we should send people, and therefore he surely does not believe, in his heart of hearts, that we should ever have dropped the prima facie case.

He has repeatedly prayed in evidence, as have some sections of the press, the issue of the plane-spotters in Greece. I remind the Committee that that was not an extradition case. Over time in the Home Office I have asked officials, and discussed with them at length, what would have happened if that case had related to an extradition offence under current legislation. The only difference between the way in which that case would have been dealt with under the European arrest warrant as proposed in the Bill and under our current extradition law was a matter of time. As Home Office Ministers, we would have been confronted with a request, called an ''authority to proceed'', and would not have been able to refuse that request. If we had refused it because we did not accept that the evidence was sufficient or appropriate, our decision would have been subject to judicial review and we would have found ourselves outwith the current legislative framework of this country. The matter would then have been referred to the Bow street magistrates court, which would have found itself in exactly the same position. It could not have examined the prima facie case against people who were accused of espionage. Those people were not accused of a list of generic and vague offences, but of espionage. The case would then have returned to a Minister for a final decision, and that Minister would again have been unable to do anything about it, on pain of judicial review and being found outwith the legislative framework agreed by the House in 1991.

The hon. Gentleman therefore raises an issue that has nothing to do with the clause or the amendments. The issue that he raises relates to the fact that he does not trust European jurisdictions—those of current members of the European Union, never mind those in the past—to deal with people appropriately and to operate within the framework of the European convention on human rights, and that he does not believe that people should be extradited to those countries.

The hon. Member for Surrey Heath should not have agreed to the Single European Act or to the European convention on extradition. It is understandable that some members of the Conservative party are ashamed of their past record in that area. The hon. Member for Surrey Heath has made his position clear, but I was slightly surprised that the hon. Member for Torridge and West Devon joined in the hon. Gentleman's strong criticism of those jurisdictions and the way in which they do their business.

Photo of Mr John Burnett Mr John Burnett Liberal Democrat, Torridge and West Devon

I hope that the Minister will concede that it is essential, when scrutinising a Bill, to ensure that the rights of individuals in this country are upheld.

I drew attention to inadequacies in some of the states that are currently in the European Union. I hope that those states will improve. The point of my doing that was to alert the Chairman and the Committee to the tenor of some of the amendments that we shall table. They will be constructive.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

I hope that they will be. The argument that those jurisdictions are unfair, cannot be trusted and are not open is surely an argument against ever accepting to drop a prima facie case in extradition proceedings. If it were an issue for decision in 1991 it could be reopened, but the hon. Member for Surrey Heath denies that he wishes to reopen it. I have tried to show that the amount of latitude to question the underlying fairness of those jurisdictions has nothing to with the European arrest warrant; it has to do with accepting the non-admittance or non-requirement of a prima facie case for extradition to those countries.

The hon. Member for Surrey Heath said that corpus juris is being introduced by the back door. We are members of the European Union. Some of us are more comfortable with that than others, but it is a fact of life. As members of the European Union we have freedom of movement across the continent in Europe, which is unparalleled in our history. That brings many benefits to us, but also many problems. There are only three ways in which to respond. First, we could say that, irrespective of the fact that people can move freely between our country and our European neighbours, we are going to stick with our long-winded, cumbersome extradition arrangements that are incapable of being used in many cases of criminality, and we will ignore the fact that crime has an international dimension and that people can move freely between our countries. If people escape justice, that is tough. That is the price we pay for open borders—we are prepared to take the economic benefits from having open borders and we accept that criminals will escape justice. We will not bring the law up to date to cope with that ability to move freely between different countries.

Secondly, we could do what the hon. Member for Surrey Heath is frightened of, and what he says we are trying to do by the back door, and we could apply corpus juris across the European Union. A European Union legal framework would subsume British, French and German law.

The only alternative to those two extremes is mutual recognition. The Government have not been led by the framework decision or bullied by other Governments in the European Union. In proposing mutual recognition as an alternative to the establishment of a corpus juris across Europe we have led, because we recognise that a corpus juris would be extremely difficult and painful and would have severe consequences for our legal traditions.

Amendment No. 1 would introduce the affirmative resolution procedure for designating part 1 countries. It echoes the Home Affairs Select Committee's report. Its adoption would mark a key departure from current extradition procedures. Under the system laid out by the Extradition Act 1989—when the Conservative Government were in office—the designation of UK-

European partners by the negative resolution procedure was established.

Eight years after the Conservatives came to power they accepted that the negative resolution was appropriate and should be continued with, but now they see it as a means to do things by ministerial fiat. They rubbish the negative resolution procedure, which provides Parliament with an opportunity to reject an order for designating a country. I do not know of a single instance where Parliament has chosen to exercise that right. The Home Affairs Select Committee argued that the precedent was not strong enough and that we should overturn it, but it did not give any reasons or examples of when it had created a problem in the past. I ask hon. Gentlemen to accept—it is not a partisan point—that all Governments are confronted by the problem and that parliamentary time is limited.

If Opposition Members feel that a huge point of principle is at stake, which makes an affirmative resolution essential, I will be happy to discuss it with colleagues, but clearly no huge point of principle is at stake because we do not propose to go round designating countries willy-nilly for part 1 procedures. We intend to designate existing members of the European Union as part 1 countries, together with, in all probability, Iceland and Norway. I do not know how controversial that will appear to the House. I do not know how many people in Committee or elsewhere will oppose the designation of Iceland or Norway, but I suspect that it will not be contentious. If we extend the European Union to the states of eastern Europe, we plan to designate such new members in the same way. That is the full extent of our plans.

Some fears were expressed about designating the United States as a part 1 country, but the United States has no desire to be so designated. We are discussing extradition arrangements with that country, but I repeat that we have no intention of designating it as a part 1 country.

If people believe that it is of stupendous importance to replace the negative procedure for the designation of new countries with the affirmative procedure—apart from extensive quotation from the Home Affairs Committee report in respect of parts of the Bill that we have not yet reached, most of the bluster and argument were about that—I will be happy to discuss with business managers whether that change should be made. However, no problem existed in the past, and we have no plans to introduce contentious proposals, so I am not convinced that all the bluster is warranted.

Amendment No. 90 came as a surprise to me and I doubt whether people realise what would result if we adopted it. I shall explain its effect and argue that amendment No. 116 is also inappropriate. Under amendment No. 90, category 1 countries would be determined in a different way. If a country were party to the ECHR, it would automatically be a category 1 country. That places a huge and disproportionate amount of trust in countries simply because they have signed the convention, and it would give Parliament no domestic say over whether a country should be

accepted into the streamlined extradition procedures. I ask the Committee to regard amendment No. 90 as far too inclusive and to view amendment No. 116 as unnecessarily restrictive in the light of our intention to adopt the part 1 categorisation only for existing EU member states, Norway and Iceland. We presently have no intention of going beyond that. I have given assurances about not designating the United States.

Opposition Members contend that part 2 would be sufficient to deal with all non-terrorist-related offences, which I find a little strange. They are happy to use the fast-track system for those who are accused of the most serious crimes, but for other crimes—I do not know whether they would consider some crimes as routine, but that might include drug or people trafficking, non-terrorist murders or war crimes—they want the more protracted system of extradition.

It strikes me that there is an element of political opportunism in the Opposition's proposals, because in the aftermath of 11 September they dare not propose anything terrorist related, but instead want to block any EU measures. Their judgment has been clouded by their belief that the EU has foisted the proposals that underpin the European arrest warrant on us, when the opposite is true. In the Justice and Home Affairs Councils of the European Union we have pushed for the acceptance of the principle of mutual recognition, so many of the ingredients contained in the European arrest warrant arise from our consultation on the need to review our extradition arrangements.

Part 1 is designed to respond to that by establishing a fast-track regime for our extradition arrangements with countries in whose criminal justice systems we have faith. The Opposition do not believe that we can trust those countries, and that is the basic reason behind their objection to extending part 1 to anything other than terrorist offences.

Given that the Opposition believe that part 1 procedures are appropriate for terrorist crimes, there must surely be no objection to them being used in other serious crimes. I have yet to hear any argument from the hon. Member for Surrey Heath that there is a distinct difference between a bank robber in Spain who commits a robbery for personal gain and one who commits the same robbery to fund, for example, the terrorist organisation ETA. Why on earth should we have two completely separate arrangements for our extradition procedures with the Spanish depending on the motive of the criminal, rather than on the crime that is committed? What problems would that present us in taking a decision about which arrangement should be used for a certain offence?

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East 5:45 pm, 7th January 2003

Has my hon. Friend had the opportunity to read House of Commons Library research paper on the Bill? Page 8 covers the question of what is a political offence and quotes the case of Cheng v. Governor of Pentonville Prison. It says:

''The UK has a very substantial body of case law. Improper motives on the part of the requesting state automatically makes the offence one of a political character. Political motives on the part of the offender do not make an offence one 'of a political character'.''

If we followed the Opposition's proposals, terrorism would be the sole offence that could be considered—my hon. Friend has argued against that anyway—and it would be almost impossible for any terrorist-related offence to be considered under the procedures. That would make the system almost inoperable.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

My hon. Friend is right. The problems would be insurmountable. One would have to be able to challenge not the crime of which the person was accused, but their motives, to decide which procedure to use. My example of a Spanish bank robber goes straight to the point. If exactly the same crime were committed in exactly the same way, with the same degree of violence or financial gain, a decision on which jurisdiction or extradition legislation should be used to decide whether that person should go back to Spain would have to be based on the robber's motives. I ask the hon. Member for Surrey Heath to explain to the Committee exactly how we would deal with that or to drop this completely ridiculous amendment that would make part 1 apply to terrorist offences and nothing else. I did not hear him attempt to justify it when he was speaking to the amendment.

The amendments also suggest that the European arrest warrant should be limited to countries that apply the presumption of innocence, which the right hon. Member for West Dorset also suggested on Second Reading. Despite it being clearly set out in the European convention on human rights that everyone charged with a criminal offence shall be presumed innocent under an inquisitorial system, he contends that the presumption is reversed because the examining magistrate starts from an assumption that a suspect deserves investigation. I do not see how that argument is sustainable. If we accepted it, we would operate the European arrest warrant only with other countries that operated a common-law system. It would therefore operate only with the Republic of Ireland. His contention is untrue, because the police investigate someone in this country for a crime committed in this country. There is no presumption that they are guilty when that investigation commences, yet the right hon. Member for West Dorset and the hon. Member for Surrey Heath suggest that an inquisitorial system somehow denies the presumption of innocence. The presumption of innocence is enshrined in the European convention on human rights, as the hon. Member for Surrey Heath knows.

I ask the Committee to accept that the amendment is inappropriate and should not be supported. I also ask the Committee to reject all the Opposition amendments to this clause, but with the proviso that, although I have yet to hear an argument in favour of the Home Affairs Committee's recommendation that the affirmative rather than the negative resolution procedure should be applied, I am happy to consider it. However, I must tell the hon. Gentleman that I am far from convinced that that is necessary. If I am prepared to reflect on that, perhaps the hon. Member for Surrey Heath, when he responds to the debate, will justify his proposal based on what has happened in the past, and will think about what I said about the

Government's intention not to extend the application beyond Iceland, Norway and other European Union countries. He should think seriously about whether he wants to bog down parliamentary procedures on issues that will not be contentious or contended.

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

Before I call the hon. Member for Surrey Heath to respond to the debate on the amendments, I must point out that I am minded not to allow a separate clause stand part debate in view of the full and discursive nature of the hon. Gentleman's previous remarks. He might like to bear in mind this and my previous counsel about detailed discussion of matters that are open to debate in our consideration of later parts of the Bill when he responds.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

If I respond extremely briefly, Mr. O'Hara, by dealing with just one or two of the Minister's points, may I, in anticipation of what the Government Whip may propose, try to persuade you to have a clause stand part debate when we sit again? We may have a clause stand part debate at that stage, so I shall leave things there at this point. Even before you spoke, Mr. O'Hara, I genuinely intended to be extremely brief. I have tried to set out the central issues because, as you accepted earlier, many of them are encapsulated in the front part of the Bill. The Minister also helpfully accepted that this is very much a front-loaded Bill.

I am grateful to the Minister for being prepared to consider further the question of affirmative resolution. I am pursuing my point seriously. It would not be a case of bogging down Parliament; it is essential to have that parliamentary safeguard. I am therefore glad that the Minister is happy to reflect on what the Select Committee and I have said. Perhaps we can have constructive discussions based on its views, which I share, before the Committee stage is finished.

I would be delighted if the Government tabled their own amendment to provide for the affirmative resolution procedure. As the Minister said, my right hon. Friend the shadow Home Secretary has also made a case for that.

I wish to press amendment No. 1 to a vote. I also wish to vote on some of the other amendments in this group, but they are to later clauses, so I think that I am right in saying that those votes will take place later. However, I flag up now the fact that, unless the Government change their mind, I will seek to vote on amendments Nos. 74 and 83 to clauses 63 and 64 respectively, and on amendment No. 85 to clause 65 and its counterpart.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department 6:00 pm, 7th January 2003

May I seek clarification as to what the hon. Gentleman is trying to do? I have made him an offer. If he is prepared to think seriously about whether he actually needs the affirmative resolution procedure, I will do the same, but now he says that he wants to press the amendment to a vote. At this stage, I ask my colleagues to vote him down, although that is not in the spirit of the offer that I have just made.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

The Minister puts me in a slightly difficult position, but only by pressing the amendment to a vote now can I show him how strongly Conservative

Members feel about it. We always said that we would vote on the amendment. My right hon. Friend the Member for West Dorset made that clear, and the fact that I have spoken at such length indicates how strongly we feel about it. The Minister knows that perfectly well. We want to leave the door open for further discussion, but only by voting on the amendment can we flag up this matter. I genuinely welcome what he said, however. He is an open-minded and fair-minded Minister, as I said in my opening remarks, and I know that he takes these matters seriously.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

My hon. Friend the Member for Torridge and West Devon said that we were of one mind on the question of affirmative resolution, but he also made it clear that there were reservations and, indeed, downright opposition to the restriction of this part of the Bill to terrorist offences. In addition, the Minister cogently suggested some serious practical problems that would arise from its application to terrorist offences only. To secure my vote, therefore, the hon. Member for Surrey Heath would need to provide something rather more substantial than we have heard hitherto on to the inclusion of that part in the amendment.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

I am grateful for that intervention, because the hon. Gentleman highlights part of the difficulty. As amendment No. 1 deals with both the restriction to terrorism and the affirmative resolution, if I did not press it to a vote, I would be doing less than justice to my whole case. I recognise that as those two aspects are in one amendment, I will probably forfeit his support and I would also forfeit the support of the hon. Member for Torridge and West Devon were he here. That may be unfortunate, but perhaps these matters will be considered in a different way in another place. Perhaps we can return to the matter of affirmative resolution.

One reason why I need to press the amendment to a vote is that Conservative Members feel strongly not only about the affirmative resolution aspect, but about restricting part 1 purely to terrorist offences. I have made that clear. Despite the Minister's strictures, I have set out all the reasons why the aspect of the Bill that we are discussing is draconian.

Photo of Mr Kevin Hughes Mr Kevin Hughes Labour, Doncaster North

If the hon. Gentleman feels that strongly about it, can he tell us why only two Tories are present? His other two colleagues have not put in an appearance.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

The hon. Gentleman may not have been listening when I explained why my hon. Friends are not with me this afternoon: in one case there is family illness and in the other a distinguished and senior former shadow Cabinet member has to sit on the Select Committee on Defence this afternoon. We are all well aware that family illness must be given priority over even our important duties. Mr. O'Hara is aware of the circumstances.

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

May I put the same question to the hon. Gentleman that I put to my hon. Friend the Minister? I do not know whether in his detailed scrutiny of the Select Committee report he has had to time to read the Library research paper. I refer him to the comments of Lord Diplock in the case that I

quoted earlier. Does he not feel that restricting the provisions purely to terrorism would render them inoperable?

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

No. That was one of the two points that I wanted to deal with briefly, and partly in response to what the Minister said. One must remember that in addition to the draconian provisions in part 1, there is the part 2 procedure. My right hon. Friend the Member for West Dorset said that the part 2 procedure would be fine for everything but terrorism. We shall come to some detailed points, but one of the reasons why we will have only one Committee session on part 2 is that it is relatively uncontroversial. Part 1 contains the new draconian provisions that are so controversial.

The Minister in responding to the debate appeared to be saying, ''Under the current law there will never be any opportunity for anyone to intervene to stop extradition. Why on earth should anyone worry about what happens now?'' The Minister has obviously completely ignored what the Labour-dominated Home Affairs Committee says in paragraph 48, which is that

''in the 13 years since the Extradition Act 1989 was enacted, UK courts have intervened to refuse extradition in a significant number of EU cases,''—

since the 1989 Act, there has been the opportunity for judicial intervention

''and the Home Secretary has refused to extradite in a significant number of other cases where extradition would have been plainly wrong or unjust.''

In other words, the current system, contrary to the impression that the Minister gave with his weasel words about prime facie cases, offers the opportunity for both judicial intervention and political intervention to stop extradition. The Home Secretary is responsible to the House. That is what the Government want to take away.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

As the hon. Gentleman knows, that is not exactly what I said. I was talking about the specific case of the Greek plane-spotters and what they were accused of. Will the hon. Gentleman to return to the point raised by my hon. Friend, a a serious point to which he must respond? It is not good enough for him to say, ''But there is part 2.'' That is simple and fair enough where we say clearly that a country is designated as a part 2 or part 1 country. An extradition case to Spain will be dealt with under part 1and an extradition case to the United States will be dealt with under part 2. He suggests that part 1 be used for some offences and part 2 for others in which, as I think I demonstrated, the offences can be identical but the difference is in the motives. That is why my hon. Friend asked him whether he accepts that his amendment is simply inoperable. It is not good enough for him to say that part 2 exists. That is a completely different argument.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

We are not going to agree. I have of course seen the research paper and have read Lord Diplock's remarks. Lord Diplock was discussing pre-existing law. We are dealing here with the Government's proposal, which the Minister's own party colleagues have said—in strong language in the Select Committee report—is in appropriate.

Before pushing the matter to a vote, I must return to the plane-spotters in Greece. The Minister said that he took advice from Home Office officials on what would have happened had that been an extradition case, but he once again ignored what his colleagues said in strong terms about that case. The Home Affairs Committee deal with it specifically at paragraph 28, proving that I am not alone in using the plane-spotters as an example and that it is not only Eurosceptics from my party who are concerned about it. The Select Committee, which is Labour-dominated, said:

''To use the example of the recent case of the British 'plane-spotters' charged with spying in Greece, under the new arrangements there would be nothing to prevent the Greek authorities from determining that such contact amounted to 'sabotage'—

one of the new plane crimes—

''or, if the plane-spotters had recorded their observations on a laptop computer, 'computer-related crime'''—

that is, another plane crime. The report continues:

''If the Greek authorities were to classify the offences with which the plane-spotters were charged as falling into one of the 32 offences listed in article 2.2,''—

which the Government are introducing—

''then the UK would not be able to refuse to extradite them on the grounds that their conduct would not constitute an offence in the UK.''

The abandonment of the dual criminality protection, parliamentary protection and judicial scrutiny is at the heart of the mischief. That is why I want to push amendment No. 1 to a vote.

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

The hon. Gentleman said that he had studied the Diplock judgment and he felt that Lord Diplock was addressing a different set of circumstances. Let me quote from the Library research paper, because Lord Diplock was not talking about the state of the law as it currently exists either here or anywhere else, but about legal principles. The hon. Gentleman should be aware of that. Lord Diplock said:

''I would hold that prima facie an act committed in a foreign state was not an 'offence of a political character' unless the purpose sought to be achieved by the offender in committing it were to change the government of the state in which it was committed, or to induce it to change its policy or to escape from the jurisdiction of a government whose political policies the offender disapproved but despaired of altering so long as he was there.''

The instances to which the Minister referred fall outside that category. The way in which the law was interpreted by a senior member of the judiciary means that the amendment would render clause 1 inoperable and would do nothing to help the extradition of terrorists.

Question put, That the amendment be made:—

The Committee divided: Ayes 2, Noes 10.

Division number 1 Adults Abused in Childhood — Clause 1 - Extradition to category 1 territories

Aye: 2 MPs

No: 10 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

Before we proceed to the next business, I must note that the hon. Member for Surrey Heath raised the question of deferred votes on other amendments. We will have a look at those votes. It is difficult to judge categorically in advance, but, taking the similarities between amendments into account, it may be possible to vote on amendments Nos. 68, 74 and 85. However, we need to examine that matter closely, and those decisions would be deferred to the appropriate time.

Having listened carefully to a debate on three amendments to a clause that is four lines long, together with 10 more amendments on related issues, I have to say that, in all conscience, I am not minded to allow a separate clause stand part debate.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

On a point of order, Mr. O'Hara. Were you to allow an intervention from the Government Whip, who was seeking to catch your eye, you might find more time to consider the matter and I might be able to persuade you to reconsider on Thursday.

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

Whether or not we adjourn now, the decision on a clause stand part debate has still to be taken.

Further consideration adjourned—[Mr. Derek Twigg.]

Adjourned accordingly at fifteen minutes past Six o'clock till Thursday 9 January at twenty-five minutes past Nine o'clock.