I beg to move amendment No.100, in
clause 2, page 1, line 12, leave out from second 'warrant' to end of line 15 and insert
'which is issued by an authority of a category 1 territory and which contains—
(a) the statement referred to in subsection (3) and the information referred to in subsection (3A), or
(b) the statement referred to in subsection (4) and the information referred to in subsection (4A).'.
With this it will be convenient to discuss the following:
Government amendments Nos. 101 and 102.
Amendment No. 91, in
clause 2, page 1, line 21, at end insert—
'(c) contains a summary of the facts of the offence referred to in paragraph (a) above, including the date and place of the offence, the object and value of the property if theft is alleged, or the injury suggested by the victim if personal violence is alleged.'.
Government amendments Nos. 103 to 108.
I was remiss earlier in not welcoming you to the Chair, Miss Begg. I know that this is the first Standing Committee that you have chaired, and I am certain that your skills of chairmanship will equal the other skills that you have brought to the rest of your involvement in the House of Commons.
I am pleased to have the opportunity to present the Government amendments to the Committee. I know that some people, in the House and elsewhere, were concerned that clause 2 lacked detail about the
information to be contained in the warrant. That information would always be provided as part of the warrant, and the framework decision requires that. However, we thought that it would be sensible to summarise the key contents of the warrant in our domestic legislation, and the amendments have been drafted for that purpose.
Amendment No. 91, although tabled by the Opposition, appears to have been drafted to achieve the same aim. I will explain why I believe that amendment to be deficient. If I explain the reasoning behind the Government amendments, that should clarify why I believe that the Opposition amendment does not go as far as it should.
The substance of the group of amendments can be found in amendments Nos. 103 to 106, which clearly list the information that a warrant must contain to be accepted as the basis of a person's arrest. Amendment No. 103 deals with cases where a person is wanted for prosecution and amendment No. 106 applies when a person has been convicted, but is yet to be sentenced, or when a sentence has been imposed, but not yet served. It will not have escaped the Opposition's notice that amendment No. 91 does not deal with the latter scenario, addressing only accusation cases.
The Committee will agree that amendment No. 103 examines these cases in a more comprehensive and rational manner than the alternative. It is designed to seek the details of any other warrant that may have been issued in the requesting country for the extradition offence: amendment No. 91 does not. The amendment would also secure details of the potential sentence that could be imposed in the event of a conviction: again, the alternative amendment does not.
In the case of a convicted person whose extradition is sought so that he can be sentenced or serve a sentence, amendment No. 106 is clear in its effect. It requires not only details of identity, the conviction and other warrants, but information about the sentence that has been or could be imposed.
I am confident that these Government amendments go a long way towards meeting the concerns that have been expressed. The information would be a required part of the warrant, as set out in the Bill, making it clear to everyone exactly which person is sought, for what reason and what is likely to happen in the event of a conviction or sentence. These measures will ensure that the British courts can make the appropriate assessment of the relevant details without having to second-guess or prejudice the proper role of the judiciary in the requesting country. I commend amendments Nos. 100 to 108, and I invite the hon. Member for Surrey Heath to withdraw amendment No. 91.
I can be brief. As the Minister said, when we tabled amendment No. 91, to which the hon. Members for Orkney and Shetland (Mr. Carmichael) and for Torridge and West Devon (Mr. Burnett) added their names, we did so because, as the Bill stood on Second Reading, none of the required detail was
evident. The Government have responded to our and others' criticisms on Second Reading, endorsed by organisations such as the Law Society of England and Wales, that the detail needed to be included in the Bill. We are pleased that the Government have responded, and the Minister is right to point out that the Government amendments go further in some respects than amendment No. 91, which I will not press to the vote.
Can the Minister confirm that in cases of personal violence, the ''circumstances''—the term used in the Government amendments—would include the injuries suggested by the victim? In allegations of theft, would the date and place of the offence and the value of the property also be set out? If so, it would satisfy the Law Society of England and Wales, because it was those omissions from the original drafting that led to the precise wording of amendment No. 91. The wording in the Government amendments is wider, but less specific. If the Minister will tell us that his more general phraseology of the particulars of the circumstances and alleged conduct would definitely include all the points in our amendment No. 91, under the rule of Pepper v. Hart, a court will be able to examine the Minister's wording when it deals with such a case, which would satisfy everyone. If he does so, we will be prepared to withdraw the amendment and let the Government's wording stand in its place.
Of course, we would have to include details of the offence, specifying whether it was a violent offence or a theft, for example, as well as the circumstances in which the offence was committed, but it would not necessarily have to contain details of exactly what injuries had been suffered or a full list of every detail of the loss incurred. It is for the court to take those matters into account during the trial and, if the person is found guilty, during sentencing. An extraordinary amount of detail may not necessary for the purposes of extradition. However, the details of the offence—the what, when and where—would have to be provided. I hope that that reassures the hon. Gentleman.
Amendment agreed to.
With this it will be convenient to take the following amendments: No. 127, in
clause 2, page 1, line 15, leave out 'an' and insert 'a judicial'.
No. 10, in
clause 2, page 2, line 9, leave out subsection (5).
No. 11, in
clause 2, page 2, line 12, leave out subsection (6).
No. 131, in
clause 5, line 8, leave out 'an' and insert 'a judicial'.
No. 149, in
clause 63, page 30, line 12, after 'appropriate', insert 'judicial'.
No. 84, in
clause 65, page 33, line 16, leave out subsection (2) and insert—
'(2) The only authority to be recognised in a British court for the purposes of this Act from a category 1 territory is to be a judge of a High Court (equivalent to the High Court of England and Wales) in which the presumption of innocence applies in the same way as it applies in the courts of England and Wales.'
This is a substantive group of amendments, some of which were tabled by the hon. Members for Orkney and Shetland and for Torridge and West Devon, who will doubtless speak to them. It is fair to say that many concerns have been expressed by the Opposition and outside organisations, but especially by the Select Committee on Home Affairs in its excellent report about this part of the Bill.
Amendment No. 10 seeks to delete subsection (5). We want to ensure that there is a judicial safeguard for British citizens who may face extradition, not only the opinion of a designated authority. The Bill is silent about what a designated authority will be. The explanatory notes state that it is intended to be the National Criminal Intelligence Service and, in Scotland, the Crown Office. If that is what the Government intend, why is that stated only in the explanatory notes and not in the Bill? It would be helpful if the Minister were to say that he is prepared to include that in the Bill.
The main criticism of clause 2, to which the amendments refer, is set out in paragraph 58 and subsequent paragraphs of the Select Committee's report. It is a serious allegation, which is bald and strongly worded. Paragraph 58 states:
''Clause 2(5) 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. In the course of examining the draft framework decision, the Committee raised concerns about what authority would be competent, under the framework decision, to issue and execute the European Arrest Warrant . . . At the time at which the European Scrutiny Committee first considered the draft framework decision, the draft provided for the European Arrest Warrant to be issued and executed by a 'judicial authority'. The Committee was concerned that, without an agreed definition of 'judicial authority', it was not possible to ensure that orders made by police forces, with no recognisably judicial involvement in the making or approval of such orders, would be excluded from recognition and enforcement under the framework decision. Article 1 of the draft framework decision was subsequently amended to refer to the European Arrest Warrant as being a 'court decision issued by a member state'. The Committee inferred from this reference that the 'judicial authority' would have to exercise recognisably judicial functions in an independent manner.''
We tabled these important amendments to reflect precisely the concern that the European Scrutiny Committee and now the Home Affairs Committee have raised. The report continues:
''The European Scrutiny Committee asked the Parliamentary Under-Secretary if it followed from article 1 that the UK courts would not be obliged to recognise and enforce a warrant if it came from a body which they did not recognise as a court.''
We think that that is vital. It is part of the protection about which my hon. Friend the Member for Stratford-on-Avon has spoken powerfully.
The report goes on to say that the Under-Secretary
''responded that 'it will not be possible for authorities that clearly are not courts, that are not judicial authorities to issue requests for European Arrest Warrants as they will not be recognised', although he pointed out that it will be for each member state to designate a judicial authority competent to issue such warrants. He later 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 whole thing will need to be spelt out within the Bill' . . . He gave similar assurances to European Standing Committee B.''
In that case, those assurances were given to me and my hon. Friends the Members for Stratford-on-Avon and for Henley (Mr. Johnson), because we attended that Committee.
The report continues:
''Article 1 of the framework decision was subject to further amendment, subsequent to the European Scrutiny Committee report. Article 1.1 as finally adopted refers to the European Arrest Warrant as being a 'judicial decision issued by a member state', rather than a 'court decision'. Article 6.1 provides that the issuing judicial authority shall be the judicial authority of the issuing member state which is competent to issue a European Arrest Warrant by virtue of the law of that state.''
That having changed, the Home Affairs Committee says in paragraph 62:
''We consider that the effect of Clause 2(5) of the Bill is that, contrary to the Parliamentary Under-Secretary's assurances, the UK judicial authority will not have the ability to refuse to execute a European Arrest Warrant on the grounds that it does not come from a judicial authority in another member state.''
The Select Committee rightly drew that conclusion, because
''Clause 2(5) requires only that the issuing authority be an authority that has 'the function of issuing arrest warrants' in the category 1 territory. We consider that this definition could well include warrants issued by police forces, with no recognisably judicial involvement in the making or approval of such orders—the very authorities that the European Scrutiny Committee was concerned should not be able to issue a European Arrest Warrant. On the face of it, this appears completely to contradict the undertakings given in Parliament by the Parliamentary Under-Secretary.''
The Home Affairs Committee concludes in paragraph 63:
''We agree with the European Scrutiny Committee that the European Arrest Warrant should be able to be issued only by a judicial authority exercising recognisably judicial functions in an independent manner.''
That reinforces the points that I and my hon. Friend the Member for Stratford-on-Avon have made about the sort of countries that are likely to become members of the European Union and some existing members. My hon. Friend referred to his experience of dealing with constituents languishing in Spanish courts. There are also those who languish in Italian prisons without ever being brought before a court, a matter that the Select Committee and some organisations have raised. Italy is an EU partner country, for which many of us have a high regard in other respects, but those who know about the Italian system cannot have confidence that it will protect people who face charges before its courts, given our experience of trying to protect British citizens who languish in Italian prisons and our knowledge of what happens to Italian citizens before their own courts. That is why the Home Affairs Committee went on to say:
''We consider that this requirement should apply to all Part 1 warrants. We therefore recommend that Clause 2(5) be amended to provide that the UK judicial authority may not issue a Clause 2 certificate unless it believes that the Part 1 warrant was issued by such a judicial authority.''
The amendment would ensure that the judicial authority that issues the warrants is a high court judge and that British citizens have the protection of
knowing that the warrants had received detailed judicial scrutiny by the equivalent of a English High Court judge, that is in a superior court of a territory in which the presumption of innocence as applied in the courts of England and Wales applies. Organisations on the right and left in politics—all those concerned about civil liberties—have written to me and to other members of the Committee because they are worried that in other jurisdictions that may be covered by the proposal there would be no presumption of innocence.
We want the Bill to include reference to a judicial authority. Amendment No. 127, tabled by the Liberal Democrats, which I believe was drafted by Justice, would have a similar effect, as it would restore the words ''a judicial authority''. We go further because we want to ensure that there is protection for British citizens. The amendment reinforces the points made so powerfully by my hon. Friend the Member for Stratford-on-Avon.
It is extraordinary that the Minister is presenting a Bill that completely undermines his assurances to previous Committees. The Minister smiles but I do not regard it as a laughing matter; it is extremely serious. The Minister should take more notice of the strongly expressed views of the distinguished Home Affairs Committee, which is dominated by members of his party and chaired by a distinguished Labour Chairman, the hon. Member for Sunderland, South (Mr. Mullin). The Government, who usually take notice of the hon. Gentleman's views, seem completely to have ignored them on this occasion. The Minister may want to dismiss the matter with a smile and laugh now, but when the Bill as drafted goes to another place he will face the strictures of lawyers who are more highly qualified than I am and of parliamentarians who are far more senior than both of us. I strongly suspect that the Minister will not get the measure through Parliament unless the protections set out in the amendment are included at a later stage.
I add my voice to those who have welcomed you to the Chair, Miss Begg. You are a welcome addition to the Chairmen's Panel. I have already had the privilege of serving under your chairmanship of the Scottish Grand Committee, and I am confident that our proceedings in this Committee will be exceedingly well chaired.
I preface my remarks by reminding hon. Members that reference to the British legal system irritates me when I am feeling less patient than I am today. I agreed with much that the hon. Member for Stratford-on-Avon said, but there is more than one legal system in this country. I merely observe in passing that there are certain safeguards in Scotland: for example, the Scottish legal system insists that a person who is remanded in custody on a petition proceeding must be brought for trial within 110 days and on a summary complaint within 40 days. Thereafter the Crown must prove its case beyond reasonable doubt using corroborated evidence. Such safeguards are not given to all citizens in the United Kingdom, which I have
always found difficult to explain. The lesson from that is that when we speak of our legal system, we should do so with a fair measure of humility.
As the hon. Member for Surrey Heath has already said, amendment No. 127 is designed to achieve largely the same aims as the Conservative amendments. However, I will raise some questions about the Conservative amendments, and I suggest for reasons of simplicity and succinctness that the Liberal Democrat amendments, and the speeches proposing them, might be preferred.
The insertion of the words ''a judicial'' would give the proper amount of judicial scrutiny, which is an important protection, as the hon. Member for Stratford-on-Avon said earlier. Although the issuing of warrants is a judicial prerogative in the UK legal systems, the function is not solely performed by judges in other European countries. Investigating magistrates in countries that use the Napoleonic code often have the warrant powers that we reserve to the judiciary. However, especially considering the provisions in subsection (3)(a), some judicial scrutiny is important to ensure that all procedures have been observed and properly executed up to the point at which the warrant is issued.
My difficulty with the Conservative amendment No. 2 may just be a typographical point but I do not understand why ''High Court'' should be capitalised. I can understand why the High Court is capitalised, but I think that better terminology might have been ''a high court'' or ''a superior court''. The amendment would insert the words:
''a judge of a High Court of a category 1 territory in which the presumption of innocence as applied in the courts of England and Wales applies.''
Another difficulty is that that would require a Scottish court to determine how the presumption of innocence is applied in England and Wales. One would expect that it would be largely the same, but in Scotland the presumption of innocence is rebuttable only on the production of corroborated evidence, which is not the case in England and Wales. There is clearly a difference in which the presumption of innocence is applied in the different parts of the United Kingdom, and I do not think that the words
''in the courts of England and Wales''
are particularly helpful or should be included in the Bill.
That said, the Conservative and Liberal Democrat amendments both seek to achieve the same important aim. The function of the judiciary as the safeguard for individual liberty is important, as has been mentioned at length by others. It is perhaps something of a de minimis safeguard, but one that we should not abandon lightly.
I am grateful to hon. Members for tabling the amendments. The Committee knows that part 1 gives effect to the framework decision of the European arrest warrant. All hon. Members will have studied that document, Let us try to ensure that we examine the issue by reading those two documents together. The Committee will find that there is no huge issue of principle between us, but perhaps there will be.
It may emerge during the course of debate. I ask the hon. Member for Surrey Heath at least to accept that we have no intention of conning Committees at this or any other stage.
Article 1 of the framework decision states:
More pertinently, article 6 states:
''The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State.''
That could not be clearer. There is no suggestion, nor even the possibility, that a police officer can issue a European arrest warrant without being in breach of the framework decision. That ties in with the legislation quite clearly, because clause 2(5) states that
''the authority which issued the warrant has the function of issuing arrest warrants in the category 1 territory.''
The function takes us straight back to those authorities that have that function as laid out in the framework document being judicial authorities under the law of the issuing state. There is no attempt to renege on any commitments that were given in previous Committees. The framework document could not be clearer. We sought safeguards during the negotiation of the document to ensure that we protected rights in the way that the hon. Gentleman suggests we should.
A British court dealing with an application for the extradition of someone under part 1 would read the Bill, not the framework document. If the Government took the trouble to get ''judicial'' inserted into the framework document, why cannot they simply put it in the Bill? Subsection (5) is ambiguous. It says that the authority
''has the function of issuing arrest warrants in the category 1 territory''.
A police officer may well be one of the people or organisations that have a function of issuing arrest warrants in another territory. If the arrest warrant is to be acted on under this legislation, it should be issued by a judicial authority. The question of the presumption of innocence is different, but the insertion of ''judicial'' in these two places could solve the problem. I am not sure why the Minister resists it.
Let us discuss how we deal with extradition warrants currently and how we expect them to be dealt with under the European arrest warrant framework. If hon. Members are still not satisfied at the end of the debate they can make their views known. We expect that European arrest warrants will be issued in future by exactly the same authorities as issue warrants under the current arrest procedures. We intend to do that in the United Kingdom. There is no reason to suppose that our intentions are different from those of any other European country. The Bill is drafted in such a way as to include all those authorities that currently issue arrest warrants, as issuing authorities. I have yet to hear an argument that says that we should change that.
The Committee is well aware that we have enjoyed extradition arrangements with all EU member states
for many years. Extradition requests come from a variety of sources. Any Member who read the proceedings of European Standing Committee B would be aware of the wide variety of sources for current extradition requests—the examining magistrate in Liege, the magistrate at the public prosecutor's office in Amsterdam, the Court of Brescia, the county tribunal of Bobigny or even the magistrate judge Maria Teresa Palacios Criado in Madrid. That gives an idea of the span of arrangements used by our European partners and the sort of people who make arrest warrants today. We do not believe that that will or can change: the framework document insists on no widening outwith the judicial authorities in the part 1 countries.
We receive extradition requests from a variety of sources throughout the UK and we should recognise that other EU countries do not have exactly the same structure of criminal justice system as our own. As the hon. Member for Orkney and Shetland rightly pointed out, our system is structured in two different ways. The current system works well and has not given rise to any problems in the recent past stemming from an inappropriate request from a European partner for extradition. I see no reason to change the system.
By the time that countries start to operate the European arrest warrant, we will know which authorities will be competent to issue them. It will be reasonably straightforward for the issuing authority to be identified and it will be possible to cross-check them with the central record kept by the general secretariat.
Some of the Conservative amendments suggest that we should accept warrants only from a high court or its equivalent, which would be problematic. How would the UK authorities and judges decide which issuing authorities constitute a high court? Why should we stipulate that only a higher level of authority should be permitted to make extradition requests to the UK when we have been working with colleagues in other countries without problems for many years?
''presumed innocent until proven guilty according to law''.
All EU member states have signed up to and implemented the ECHR, so it is difficult to understand why Opposition Members have such a problem here.
As to convictions in absentia, the Bill makes it clear that extradition will take place only if the fugitive has a guarantee of a retrial or a review amounting to a retrial. A retrial for a person convicted in absentia begins with the presumption of that person's innocence, as guaranteed under ECHR provisions. If Opposition Members are suggesting that we should second-guess the approach of a foreign court, the Committee should view that as unrealistic. If the UK ever extradited only to countries where the courts operated an identical system—the amendments refer to the High Court or an equivalent—I cannot begin to imagine the damage that that would do to our international reputation. I do not believe that the
Committee would like the UK to be seen as a country that refuses to co-operate on serious criminal matters unless other states accede to our—quite unrealistic—demands that their legal systems should mirror our own.
If the Bill is read in conjunction with the framework document, the only people who are allowed to issue a European arrest warrant are those who have that function under the framework document. That document spells out that such people must be judicial authorities. I accept that the fears raised by Opposition Members are real, but I hope that if they are prepared to read the two documents together, they will be satisfied that the sort of abuses that they believe may arise cannot do so.
Mr. Maples rose—
Mr. Hawkins rose—
''The issuing judicial authority shall be the judicial authority of the issuing Member State.''
That is as it should be. However, subsection (5) does not state that the authority should be a judicial one, and does not refer to the framework document. It states that the authority
''has the function of issuing arrest warrants in the category 1 country.''
As the Minister said, there are several ways of issuing arrest warrants. It is possible that there are some people who can issue arrest warrants in a category 1 territory who would not qualify under the framework document, and others, such as judicial authorities, who would. I do not understand, therefore, why the Minister resists the insertion of ''judicial'' in the appropriate places, or why he does not include a cross-reference back to the framework document stating that the authority for the function of issuing arrest warrants is given under the framework document. That might be a cumbersome way of covering it, but it would probably do so.
I stress to the Minister the importance of inserting ''judicial'' in the appropriate places. That would ensure that the protection that he claims that the Government built into the framework document by insisting on the use of the ''judicial'' in three or four places is reflected in the legislation. It is the legislation under which people will be extradited, and not the framework decision itself. It seems to me that it is an easy concession for the Minister to make. I cannot see that it would create problems for the Government, and it would set the minds of several of us at rest.
I echo what my hon. Friend has said, but would like to go a little further. It is extraordinary
that we, as parliamentarians, are listening to a Minister saying that there will never be a problem, and that we do not need to refer in the Bill to the framework document, but merely have to read the two documents in conjunction.
As I said in relation to the wider issues covered by the Bill during the debate on clause 1, the Minister's attitude is that this historic House of Parliament is now just a rubber stamp. We have to accept what Ministers of his or any other Government negotiate in Europe, and so there is no point in having a Parliament.
We are concerned, as Members of Parliament, to protect British citizens with British law. I accept the point made by the hon. Member for Orkney and Shetland that we must bear in mind that there are two systems of law in the UK. However, whether a constituent is from Scotland, Wales, Northern Ireland or England, our job as Members is to ensure that the legislation is right, and that only legislation that is proper should govern British citizens. The Opposition feel strongly that our job as Members is to ensure that UK legislation is right. That is the purpose of the Committee system, and that is why we scrutinise the detail of the legislation line by line, word by word and clause by clause.
It is not acceptable for the Minister to say that we must read the Bill in conjunction with the European framework document, nor is it acceptable for him to say that there have never been any problems with an extradition request or with the sort of person issuing it. Does the Minister not remember the acres of newsprint generated by the Pinochet case? One of the issues that the Law Lords had to consider, not once but several times, was the status of the Spanish magistrate—I think he was called Garzon. That magistrate was seeking to extradite someone, who was resident temporarily in this country to receive medical treatment, back to another country for offences committed in a third country that was nothing to do with the EU.
I feel passionately about that because my constituency in Surrey had to face the outrageous police costs that the then Home Secretary, who is now the Foreign Secretary, said on television would not fall on my constituents. Surrey police had to spend £1.2 million on the extra security for Pinochet while he was under house arrest, but the Government reimbursed them only to the tune of £600,000, so the cost of the Pinochet shambles fell on my constituents. For the Minister to say that there have never been issues in recent times about the issuing of extradition warrants or the status of the person seeking to issue them is an attempt to rewrite history in the most extraordinary way.
I am saying that the Minister was wrong to suggest that there have not been recent problems about the status of a person issuing extradition warrants. In fact, that issue has consumed hours of judicial, political and television time and acres of newsprint. The Minister cannot
rewrite history. The Opposition have said that, precisely because of the problems that have arisen. We want to protect our citizens by ensuring that a superior court is involved and that the presumption of innocence applies. We want our citizens to be protected by our historic traditions, such as habeas corpus and the presumption of innocence. That is why we feel so passionately.
It is simply not acceptable for the Minister to brush all that away and say, ''Well, it doesn't matter that that is not in our legislation. You have to look at the European directive.'' He blithely says that if the issuing or requesting country does not use a judicial authority, it will be in breach of the framework decision. Is he really saying that other countries never breach framework decisions and always act in line with every dot and comma of every European decision?
Our constituents complain to us all the time that we are forced to comply with every dot and comma of European legislation, whereas people in other countries are not. Many of our constituents are concerned that we gold plate European legislation, whereas other countries blithely ignore it where it does not suit their citizens. I want to ensure that British citizens are protected by what is in the Bill—our legislation. That is our job in Parliament.
If the issuing authority were not a judicial authority as designated in the framework document, the National Criminal Intelligence Service would not accept the warrant—it would not be dealt with. The position is as simple as that.
We must be clear on what sort of European document we are debating. It is not European legislation, but a framework decision that is being translated into British law through the Bill. It is therefore the Bill that applies. An authority could issue a warrant that was in breach of the framework decision but that complied with clause 2. That is what concerns us.
If the framework decision were a piece of European legislation that was automatically incorporated into British law, I could see the Minister's point, but it is not. I may be wrong, but as I understand it, the framework decision has no validity as a piece of UK legislation. The Bill will have that validity when it becomes an Act, so it would be possible for an arrest warrant to be issued in breach of the framework decision but in compliance with the Bill. Inserting ''judicial'' in a couple of places would solve the problem, and I cannot see the difficulty with doing that.
I entirely agree with my hon. Friend: he reinforces my point. We must ensure that the Government take these concerns seriously. If it were only Conservative Members expressing concerns, that would be one thing, and the Minister might be able to wave them away, but as I said, Liberty, Justice and the Labour-dominated Home Affairs Committee make the same points. That Committee, in very strong wording, says that the Minister has not acceded in the wording of the Bill—the legislation that he proposes
should govern our citizens—with what he promised previous Committees.
It is simply not good enough for the Minister to say that the Bill must be read with the framework decision, as my hon. Friend said. We feel extremely strongly about that, so I shall press the amendment to a vote.
I beg to move amendment No.3, in
clause 2, page 1, line 17, leave out 'is accused' and insert 'faces charges'.
I shall be brief, but my brevity is not intended to suggest that we are not serious about the amendment. My hon. Friend the Member for Stratford-on-Avon referred to the issue earlier and said that he hoped we would deal with it by amendment, which is what we are doing. We want the Bill to state clearly that the person accused, who may face extradition from this country to another, has been subject to the formal process of facing charges rather than merely being accused. Again, organisations such as Justice, Liberty and the Law Society feel strongly about the issue. I reinforce what my hon. Friend said, that it is essential that the Bill includes reference to someone actually facing formal charges rather than merely being accused. That is necessary for the protection of British citizens, for the reasons we have set out. I do not need to say more.
I, too, can be brief. I have every sympathy with the point that is made by means of the amendment, but I have difficulty with its wording. I suspect that the difference is that when the police charge someone in England and Wales, that is the start of criminal proceedings. In Scotland, caution and charge is a procedural formality. Proceedings are taken only at the instance of the procurator fiscal when he or she decides to put matters to court. While there is great deal of force to the arguments of the hon. Member for Surrey Heath, it would have been preferable had he framed his amendment in terms of facing charges in court or court proceedings. I have sympathy with his aims, but not the means.
The framework document is clear about this. Article 1 states:
''for the purposes of conducting a criminal prosecution''.
However, the Bill talks of someone being accused of something, which is a much looser term. I cannot understand why the Minister resisted the insertion of ''judicial''. The Government do not get everything right. It may be surprising, but Governments make mistakes. Some of our amendments would wreck the proposed legislation and I can understand him resisting those. However, I cannot understand why the Government resist a technical amendment that would improve the Bill. I have the feeling that that will be the Minister's problem with the House of Lords. Will he return to the House of Commons in this issue?
I do not know whether my hon. Friend's wording achieves his objective, but our objective is to ensure that the procedure can be used only where someone will be prosecuted and charged with an offence, whatever the correct term would be. Being accused is much vaguer than being charged. I would be happy to use the words in the framework document, which are
''for the purpose of conducting a criminal prosecution''.
Presumably both that phrase and the judicial authority point, which are both in article 1 of the framework decision, were pored over by Government lawyers, and presumably the Government claim some credit for having got those things in to tighten things up. Why then loosen them up in our legislation? I cannot understand why we insist on what is essentially a treaty commitment being fairly precise, yet have a vague piece of legislation that is capable of wider interpretation. The Government should consider the amendment seriously. If the Minister does not think that the wording works, I would be happy for him to return with something on Report or in the House of Lords that achieves the objective. If every genuine attempt to improve the Bill is to be rejected because the Government did not think of it, we will end up with a bad Bill and a raft of House of Lords amendments that the Minister will have to deal with later.
Having failed to convince Opposition Members that what was in the Bill effectively meant judicial authority, I will have to try a little harder now. I do not think that there are any substantial differences between us on this issue. We are both clear that in an accusation case, which is a case where a person has yet to be convicted, extradition
should be possible only for the purpose of putting the person on trial. It should not be possible for the purpose of interrogation or evidence gathering. Clause 2(3) is drafted to achieve that result. It does not talk about a person being ''suspected'' of an offence or of having evidence to give about the offence. It is quite clear that the person must be accused of the offence.
I am advised that the wording proposed by the hon. Gentleman would make no material difference.
If the hon. Gentleman will allow me to continue for just a minute. If hon. Gentlemen feel strongly that that is a better form of words, I should be happy to consider whether any differences would arise from it. I have been assured that it would make no difference, but it would necessitate an awful lot of amendments. The phrase occurs repeatedly. We have to take into account the point raised by the hon. Member for Orkney and Shetland. The words in this amendment may not be suitable for the Scottish jurisdiction, although they may well be suitable for the English and Welsh jurisdictions. I shall consider whether there is any material between the phrases ''accused'' and ''faces charges''. I have been assured that there is no difference, but I shall be happy to examine the point again.
I am grateful to the Minister for taking that approach, and I am happy for him to re-examine the point. Oppositions often table amendments that have technical defects but try to achieve a purpose, and I should be grateful if he would look a little wider and consider using the words that are in the framework decision
''for the purpose of conducting a criminal prosecution''.
I would be perfectly happy if that terminology were incorporated. It is clear what we are concerned about, and I want the Minister to consult his advisers on both the amendment and the words in the framework decision.
I hope that I am making that clear. I am not sure that the amendment contains the appropriate words, but I do not think that there is any difference in principle—as was true in the last case, despite the bluster—or that there is any intention for us to allow arrest warrants to be issued by anyone other than judicial authorities. On whether we have the right words or there is a better phrase, I assure Opposition Members that I will take into account the points that they have made, including those of the hon. Member for Orkney and Shetland, and the wording of the framework document when considering whether we could improve on the current wording. With that assurance, I ask the hon. Member for Surrey Heath to withdraw the amendment.
The Minister is being splendidly reasonable on this amendment. I do not hang my hat on a particular form of words, and as my hon. Friend the Member for Stratford-on-Avon said, by tabling an amendment we are alerting the Government to the extent of our concerns. I accept entirely the comment of the hon. Member for Orkney and Shetland that there may be better wording that is more appropriate for the law north of the border.
The Minister's undertaking to re-examine the matter and incorporate something along the lines of our proposals, the framework decision wording or, as mentioned by the hon. Member for Orkney and Shetland, an expansion of our wording to include what is appropriate to Scots law is entirely reasonable and sensible. However, other bodies share our concerns, and I hope that the Minister and his officials will bear in mind the fact that if he is unable to come up with something satisfactory, he is likely to face similar arguments in the other place. I hope that, treating the matter seriously as he has done on this amendment, he will return with an improvement that includes the protection that we feel is vital in the legislation.
In light of the Minister's approach, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: No. 102, in
No. 103, in
clause 2, page 1, line 21, at end insert—
'(3A) The information is—
(a) particulars of the person's identity;
(b) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;
(c) 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;
(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it.'.
No. 104, in
clause 2, page 2, line 2, after second 'the' insert 'Part 1'.
No. 105, in
clause 2, page 2, line 5, after first 'the' insert 'Part 1'.—[Mr. Bob Ainsworth.]
I beg to move amendment No. 8, in
clause 2, page 2, line 7, leave out 'or another form of detention'.
Amendment No. 8 also concerns a matter that we feel is serious and important. It would reintroduce what was contemplated in the framework decision, which is that offences for which someone may be extradited should be serious enough normally to attract a sentence of three years' imprisonment rather than the 12 months that is detailed in the Bill. We are not the only ones saying that—many organisations agree, including Justice and Liberty. The Labour-dominated Home Affairs Committee also agree, as do some of the Government's Back Benchers who spoke on Second Reading. The hon. Member for Clwyd, West (Gareth Thomas) spoke at length and made the point that because we are talking about a new regime with much more draconian measures, it is not good enough for the Minister to defend the figure of 12 months, as he did at Second Reading and during Tuesday's debate on clause 1, by saying simply that it was the figure under the previous legislation. That is not an effective argument, and I hope that the Minister will not bother us with it this morning.
I will quote again the Select Committee report. Paragraph 48 says:
''Both JUSTICE and Liberty expressed serious concerns 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.' ''
We have already discussed the vagueness of some of the 32 offences set out in the framework decision. The report continues:
''Liberty pointed out that, in the 13 years since the Extradition Act 1989''—
itself a consolidation measure of legislation dating from late Victorian times—
''was enacted, UK courts have intervened to refuse extradition 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 or unjust.''
Paragraph 49 continues:
''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.''
However, ''some seriousness'' is inappropriate for something serious enough to warrant the extradition of a British citizen. The Home Office stated that
''a three-year threshold has never previously featured in extradition law''.
The Labour-dominated Home Affairs Committee retorted:
''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 seek clarification. Is the hon. Gentleman speaking to amendment No. 8, which would leave out
''or another form of detention''?
Yes, I am. We believe that the amendment is necessary because the wording added to the provision is not good enough. It should refer not only to three years imprisonment, but to imprisonment as such and not to ''another form of detention''. The change from three years to 12 months and the reference not only to imprisonment but to ''another form of detention'' are part of the same slippery slope.
In some jurisdictions, a distinction is made between imprisonment and detention. In my experience, detention means custodial detention for people under 21 and imprisonment is appropriate only for those over 21. Another distinction is that detention usually takes place in a young offenders institution. Does the hon. Gentleman want to remove such distinctions from the scope of the Bill?
I do not suppose that the hon. Gentleman is suggesting that we should extradite juveniles to other countries. As the Home Affairs Committee said, extradition should be reserved for the
most serious offences. Extending the scope further by changing three years to 12 months and including ''another form of detention'' cannot be justified.
Is the hon. Gentleman suggesting that a 16-year-old alleged to have committed murder should not be made the subject of extradition?
No, I am suggesting that we should reflect carefully on the Government's policy of taking us down a slippery slope whereby less serious offences can lead to extradition. We are sent to Parliament to protect British citizens, who might be sent abroad for not particularly serious offences that do not attract serious custodial sentences. The Minister may return later with alternative wording to deal with the problem. For now, I want the Committee to be aware of the slippery slope. In earlier responses, we heard the Minister say that he would re-examine the framework decision. In this instance, however, the Government are not adopting the words of the framework decision, but moving away from them. I stress our concern that we should return to the protection on which British citizens historically have been able to rely.
I am grateful for that clarification, Miss Begg, as I was confused when the hon. Gentleman started to talk about other, admittedly important, issues such as whether we should implement the framework decision minimally or whether we are prepared to go further. Those issues have nothing to do with the amendment.
The approach suggested by the hon. Gentleman would create pitfalls, which the hon. Member for Orkney and Shetland rightly exposed. UK courts send young people to young offenders institutions, not to prison. Equally, in appropriate cases, people may be detained in mental institutions rather than imprisoned. One size does not fit all in the UK, and there is no reason why the situation should be any different in any other country. I do not know the different titles that different European countries give to their detention facilities, and we cannot be over-prescriptive. Bearing that in mind, if we were to remove the words
''or another form of detention'',
we would create a loophole for a criminal to exploit, and we would make it impossible to extradite a person detained in an institution called something other than prison.
The amendment is not appropriate. It would create a loophole for serious offenders in some circumstances, and the hon. Gentleman should withdraw it.
I do not accept the Minister's argument. However, I have alerted him to the strength of our feelings about the matter, and I
understand that our suggested deletion may not cover the point. Again, I suspect that the other place may consider the issue again, and that the final wording may be different to that used by the Minister. However, I have probed the matter and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: No. 106, in
clause 2, page 2, line 8, at end insert—
'(4A) The information is—
(a) particulars of the person's identity;
(b) particulars of the conviction;
(c) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;
(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence;
(e) particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence.'
No. 107, in
clause 2, page 2, line 10, after second 'the' insert 'Part 1'.
No. 108, in
clause 2, page 2, line 12, at end insert 'Part 1'.—[Mr. Bob Ainsworth.]
I beg to move amendment No. 13, in
clause 2, page 2, line 16, leave out subsection (8).
I draw hon. Members' attention to a point I made earlier that the Opposition and some organisations believe that the Bill should specify which bodies will deal with extradition. It is not acceptable to specify them only in the explanatory notes. The Government say that they intend the bodies to be NCIS in the UK and the Crown Office in Scotland. If British citizens are to be affected by the legislation, they should be able to see plainly from the Bill which bodies will deal with extradition. They should not have to face the open-ended power of a Government who can, at a later stage, designate more than one authority or different authorities for different parts of the UK by Order in Council. Legislation should be clear. If the Government can specify in their explanatory notes which organisations will be used, why can that not be included in the Bill? We feel very strongly about this issue, but I will not take up any more of the Committee's time in stating our beliefs even more baldly.
It is our intention that NCIS should be the UK's main designated authority, with the Crown Office performing the role in Scotland. It makes good sense for NCIS to perform that role as it will be the home of the UK's Schengen bureau, and we expect most requests to be transmitted by the secure Schengen system. Similarly, it is entirely appropriate for the Crown Office to perform the role in Scotland, providing administrative assistance to the judiciary north of the border. Designating an additional authority for Scotland will allow swifter transmission of the relevant warrant when it is known, for example, that the individual being sought is actually in Scotland.
I fail to see the harm in designating an additional authority. As to whether that should be in the Bill, I ask hon. Gentlemen to think back and remember that not so long ago NCIS did not exist. It has an administrative function, and if someone were at some point to change the arrangements north or south of the border or retitle NCIS, primary legislation would be needed if the authorities had been designated in the Bill. There is no need for that, because our intentions are clear, sensible and known to everyone. However, there may be a structural change in the future as there has been in the recent past—not that any is planned—and I ask Opposition Members to accept that it would be nonsense to have to rewrite primary legislation in order to cope with such a situation.
I do not accept what the Minister says. It is entirely appropriate that British people should be able to see in the Bill which bodies they are. Vague phrases such as ''designated authorities'' are simply not good enough. It is essential that they should be stated in the Bill.
I suggest that the envisaged defect could be rectified by including the words ''or their successor bodies'', or something equally appropriate.
I am happy to consider whether there is a form of words that covers such an eventuality as I have described. I am happy to give the Committee an assurance that I will consider whether such a proposal would be sensible. I oppose the amendment as drafted because I want to avoid the need to return to Parliament if such a change should
take place. I thought that the hon. Gentleman would see that as common sense.
In response to the helpful intervention of the hon. Member for Orkney and Shetland and to my strong views, the Minister is now wondering whether to reconsider the matter and perhaps bring forward Government amendments. I was about to press the amendment to a Division, but as the Minister is starting to change his position I shall not do so. If the Minister does not table a proposal that puts a reference to NCIS and the Crown Office or their successor bodies in the Bill, we shall return to the matter at a later stage. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Motion made, and Question put, That the clause, as amended, stand part of the Bill:—
The Committee divided: Ayes 8, Noes 3.