Clause 2 - Part 1 warrant and certificate

Part of Extradition Bill – in a Public Bill Committee at 10:00 am on 9th January 2003.

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Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath 10:00 am, 9th January 2003

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.