Clause 193 - National security

Extradition Bill – in a Public Bill Committee at 9:25 pm on 21st January 2003.

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Question proposed, That the clause stand part of the Bill.

The Chairman: With this it will be convenient to discuss the following:

New clause 6—Unconscionable delay—

'(1) This section applies if the Secretary of State believes that the conditions in subsections (2) and (3) are satisfied in relation to a person.

(2) The first condition is that the person's extradition is sought or will be sought under Part 1 or Part 2 in respect of an offence.

(3) The second condition is that there has been unconscionable delay between the time when the offence for which extradition is sought was committed and the extradition request.

(4) The Secretary of State may certify that the conditions in subsections (2) and (3) are satisfied in relation to the person.

(5) If the Secretary of State issues a certificate under subsection (4) he may—

(a) direct that a Part 1 warrant issued in respect of the person and in respect of the offence is not to be proceeded with, or

(b) direct that a request for the person's extradition in respect of the offence is not to be proceeded with.

(6) If the Secretary of State issues a certificate under subsection (4) he may order the person's discharge (instead of or in addition to giving a direction under subsection (5)).

(7) These rules apply if the Secretary of State gives a direction under subsection (5)(a) in respect of a warrant—

(a) if the designated authority has not issued a certificate under section 2 in respect of the warrant it must not do so;

(b) if the person is arrested under the warrant or under section 5 there is no requirement for him to be brought before the appropriate judge and he must be discharged;

(c) if the person is brought before the appropriate judge under section 4 or 6 the judge is no longer required to proceed or continue proceeding under sections 7 and 8;

(d) if the extradition hearing has begun the judge is no longer required to proceed or continue proceeding under sections 10 to 25;

(e) if the person has consented to his extradition, the judge is no longer required to order his extradition;

(f) if an appeal to the High Court or House of Lords has been brought, the court is no longer required to hear or continue hearing the appeal;

(g) if the person's extradition has been ordered there is no requirement for him to be extradited.

(8) These rules apply if the Secretary of State gives a direction under subsection (5)(b) in respect of a request—

(a) if he has not issued a certificate under section 69 in respect of the request he is no longer required to do so;

(b) if the person is arrested under a warrant issued under section 70 or under a provisional warrant there is no requirement for him to appear or be brought before the appropriate judge and he must be discharged;

(c) if the person appears or is brought before the appropriate judge the judge is no longer required to proceed or continue proceeding under sections 71, 73, 74 and 75;

(d) if the extradition hearing has begun the judge is no longer required to proceed or continue proceeding under sections 77 to 88;

(e) if the person has given his consent to his extradition to the appropriate judge, the judge is no longer required to send the case to the Secretary of State for his decision whether the person is to be extradited;

(f) if an appeal to the High Court or House of Lords has been brought, the court is no longer required to hear or continue hearing the appeal;

(g) if the person's extradition has been ordered there is no requirement for him to be extradited.

(9) These must be made under the hand of the Secretary of State—

(a) a certificate under subsection (4)

(b) a direction under subsection (5);

(c) an order under subsection (6).

(10) The preceding provisions of this section apply to Scotland with these modifications—

(a) in subsection (8)(a) for ''he has'' substitute ''the Scottish Ministers have'' and for ''he is'' substitute ''they are'';

(b) in subsection (8)(e) for ''Secretary of State for his'' substitute ''Scottish Ministers for their''.

(11) In subsection (2) the reference to an enactment includes an enactment comprised in or in an instrument made under, an Act of the Scottish Parliament'.

New clause 7—Political reasons—

'(1) This section applies if the Secretary of State believes that the conditions in subsections (2) and (3) are satisfied in relation to a person.

(2) The first condition is that the person's extradition is sought or will be sought under Part 1 or Part 2 in respect of an offence.

(3) The second condition is that the extradition request has been made for political reasons.

(4) The Secretary of State may certify that the conditions in subsections (2) and (3) are satisfied in relation to the person.

(5) If the Secretary of State issues a certificate under subsection (4) he may—

(a) direct that a Part 1 warrant issued in respect of the person and in respect of the offence is not to be proceeded with, or

(b) direct that a request for the person's extradition in respect of the offence is not to be proceeded with.

(6) If the Secretary of State issues a certificate under subsection (4) he may order the person's discharge (instead of or in addition to giving a direction under subsection (5)).

(7) These rules apply if the Secretary of State gives a direction under subsection (5)(a) in respect of a warrant—

(a) if the designated authority has not issued a certificate under section 2 in respect of the warrant it must not do so;

(b) if the person is arrested under the warrant or under section 5 there is no requirement for him to be brought before the appropriate judge and he must be discharged;

(c) if the person is brought before the appropriate judge under section 4 or 6 the judge is no longer required to proceed or continue proceeding under sections 7 and 8;

(d) if the extradition hearing has begun the judge is no longer required to proceed or continue proceeding under sections 10 to 25;

(e) if the person has consented to his extradition, the judge is no longer required to order his extradition;

(f) if an appeal to the High Court or House of Lords has been brought, the court is no longer required to hear or continue hearing the appeal;

(g) if the person's extradition has been ordered there is no requirement for him to be extradited.

(8) These rules apply if the Secretary of State gives a direction under subsection (5)(b) in respect of a request—

(a) if he has not issued a certificate under section 69 in respect of the request he is no longer required to do so;

(b) if the person is arrested under a warrant issued under section 70 or under a provisional warrant there is no requirement for him to appear or be brought before the appropriate judge and he must be discharged;

(c) if the person appears or is brought before the appropriate judge the judge is no longer required to proceed or continue proceeding under sections 71, 73, 74 and 75;

(d) if the extradition hearing has begun the judge is no longer required to proceed or continue proceeding under sections 77 to 88;

(e) if the person has given his consent to his extradition to the appropriate judge, the judge is no longer required to send the case to the Secretary of State for his decision whether the person is to be extradited;

(f) if an appeal to the High Court or House of Lords has been brought, the court is no longer required to hear or continue hearing the appeal;

(g) if the person's extradition has been ordered there is no requirement for him to be extradited.

(9) These must be made under the hand of the Secretary of State—

(a) a certificate under subsection (4)

(b) a direction under subsection (5);

(c) an order under subsection (6).

(10) The preceding provisions of this section apply to Scotland with these modifications—

(a) in subsection (8)(a) for ''he has'' substitute ''the Scottish Ministers have'' and for ''he is'' substitute ''they are'';

(b) in subsection (8)(e) for ''Secretary of State for his'' substitute ''Scottish Ministers for their''.

(11) In subsection (2) the reference to an enactment includes an enactment comprised in or in an instrument made under, an Act of the Scottish Parliament'.

New clause 8—Trivial offences—

'(1) This section applies if the Secretary of State believes that the conditions in subsections (2) and (3) are satisfied in relation to a person.

(2) The first condition is that the person's extradition is sought or will be sought under Part 1 or Part 2 in respect of an offence.

(3) The second condition is that the offence for which extradition is sought is trivial.

(4) The Secretary of State may certify that the conditions in subsections (2) and (3) are satisfied in relation to the person.

(5) If the Secretary of State issues a certificate under subsection (4) he may—

(a) direct that a Part 1 warrant issued in respect of the person and in respect of the offence is not to be proceeded with, or

(b) direct that a request for the person's extradition in respect of the offence is not to be proceeded with.

(6) If the Secretary of State issues a certificate under subsection (4) he may order the person's discharge (instead of or in addition to giving a direction under subsection (5)).

(7) These rules apply if the Secretary of State gives a direction under subsection (5)(a) in respect of a warrant—

(a) if the designated authority has not issued a certificate under section 2 in respect of the warrant it must not do so;

(b) if the person is arrested under the warrant or under section 5 there is no requirement for him to be brought before the appropriate judge and he must be discharged;

(c) if the person is brought before the appropriate judge under section 4 or 6 the judge is no longer required to proceed or continue proceeding under sections 7 and 8;

(d) if the extradition hearing has begun the judge is no longer required to proceed or continue proceeding under sections 10 to 25;

(e) if the person has consented to his extradition, the judge is no longer required to order his extradition;

(f) if an appeal to the High Court or House of Lords has been brought, the court is no longer required to hear or continue hearing the appeal;

(g) if the person's extradition has been ordered there is no requirement for him to be extradited.

(8) These rules apply if the Secretary of State gives a direction under subsection (5)(b) in respect of a request—

(a) if he has not issued a certificate under section 69 in respect of the request he is no longer required to do so;

(b) if the person is arrested under a warrant issued under section 70 or under a provisional warrant there is no requirement for him to appear or be brought before the appropriate judge and he must be discharged;

(c) if the person appears or is brought before the appropriate judge the judge is no longer required to proceed or continue proceeding under sections 71, 73, 74 and 75;

(d) if the extradition hearing has begun the judge is no longer required to proceed or continue proceeding under sections 77 to 88;

(e) if the person has given his consent to his extradition to the appropriate judge, the judge is no longer required to send the case to the Secretary of State for his decision whether the person is to be extradited;

(f) if an appeal to the High Court or House of Lords has been brought, the court is no longer required to hear or continue hearing the appeal;

(g) if the person's extradition has been ordered there is no requirement for him to be extradited.

(9) These must be made under the hand of the Secretary of State—

(a) a certificate under subsection (4)

(b) a direction under subsection (5);

(c) an order under subsection (6).

(10) The preceding provisions of this section apply to Scotland with these modifications—

(a) in subsection (8)(a) for ''he has'' substitute ''the Scottish Ministers have'' and for ''he is'' substitute ''they are'';

(b) in subsection (8)(e) for ''Secretary of State for his'' substitute ''Scottish Ministers for their''.

(11) In subsection (2) the reference to an enactment includes an enactment comprised in or in an instrument made under, an Act of the Scottish Parliament'.

Photo of John Maples John Maples Conservative, Stratford-on-Avon

My criticism of the Bill from the start has been that it removes a series of protections that have been built into our extradition law over a long period. One of those has been the Home Secretary's discretion to refuse to allow a case to proceed or the extradition to take place at the end of it. I understand what the Government are trying to do. I have to square my comments with my criticism of cases such as that of Rachid Ramda, who has strung out his extradition case for seven or eight years by means of the Home Secretary's discretion. It is right to reduce the number of times the Home Secretary becomes involved from two to one. As I understand it, the clause removes the

initial stage in which the Home Secretary's fiat is required to proceed with extradition. It is also right to narrow down the circumstances in which the Home Secretary can refuse to allow someone to be extradited. However, the Government have gone too far. In narrowing down to this extent, they are removing a protection that is not only valuable, but essential. This is not just a judicial, but an administrative procedure in that the Government would forcibly move a British citizen to another country. People are entitled to expect the Government to be democratically accountable for the way in which they exercise that power. The Home Secretary is responsible to Parliament for the way in which he exercises his powers, and it seems to me that that would be the correct way to provide protection in this system.

If I understand clause 193 correctly, it limits the circumstances in which the Home Secretary can exercise his discretion to cases in which either

''the person was acting pursuant to a function conferred or imposed by or under an enactment, or . . . as a result of an authorisation given by the Secretary of State the person is not liable under the criminal law of any part of the United Kingdom for the conduct constituting . . . the offence''.

The third condition that must be met is that the person's extradition

''would be against the interests of national security.''

That restriction is far too narrow. I reiterate that I understand why the Government want to narrow this down, but I should like to suggest a couple of circumstances in which that should not apply. My hon. Friend the Member for Surrey Heath (Mr. Hawkins) has tabled some new clauses that deal with cases in which there has been unconscionable delay, an offence could be considered to be trivial or there are political reasons behind the request for extradition. That seems reasonable, but I shall leave my hon. Friend to argue the case for those new clauses.

The national security restriction should be expanded to include two circumstances: first, when it is clearly in the national interest not to extradite someone or when the Home Secretary believes that it is not in the national interest to extradite someone, and secondly when he believes that it would result in a manifest injustice. I do not pretend to be able to draft such a provision. The circumstances should certainly be narrowed down to those in which it would clearly be an injustice to extradite someone. I am not referring to cases similar to that of Mr. Ramda, who claims that as a Muslim he cannot get a fair trial in Paris. He seems to have convinced the House of Lords, but I believe that he would have great difficulty convincing many British and French citizens.

I certainly do not want to close off the avenue of extensive appeals to people whose extradition was being sought. However, there may be circumstances in which there could be manifest injustice and/or it would not be in the national interest to extradite someone. We saw an example of that in the Pinochet case, when a Spanish magistrate attempted to extradite a Chilean citizen from Britain for offences that he was alleged to have committed in Chile. Regardless of the rights and wrongs of General Pinochet's actions, that was an interesting development in extradition law. One

country sought to enforce extraterritoriality against the citizen of another, who happened at the time to be a resident in a third country.

Some of the subsections to clause 63 deal with such situations. I am especially concerned about the possibility of this procedure being applied against British officials, whether they are British Ministers or, dare I say it, the Prime Minister—I mean any future Prime Minister, not the present one. I shall take the Kosovo war as an example. I do not need to go into detail, but I can posit a hypothetical case in which illegal international action has been taken. Most international lawyers would argue that the bombing of Serbia was illegal, whatever the necessity or the rights and wrongs of that humanitarian action. The bombing was carried out without a United Nations resolution, but was sanctioned by the British Parliament and a democratically elected Government. Regardless of whether one thinks that that was the right thing to do or not, I am not arguing for a moment that the Prime Minister was not right to do what he did.

I am concerned about the possibility that, if the Kosovo war became a political issue in a country friendly to Serbia, such as Greece, a Greek magistrate might seek the extradition of the British Prime Minister, the Defence Secretary, a military officer, a civil servant or a diplomat who had been involved in the decision to bomb Serbia, had then retired and happened to be in Romania or somewhere that had become a category 1 country. The Greek magistrate might seek that person's extradition under one of the various international conventions, or even under the international criminal court convention, for an offence committed outside the category 1 territory, which is one of the conditions in clause 63(4), (5), (6) and (7). Those subsections attempt to cover cases in which extraterritoriality applies.

As I understand it, under clause 63(4), if the alleged offence were committed in the UK, it would be up to the UK Government to deal with it by claiming jurisdiction and stating that they would not pursue the case. Subsections (5), (6) and (7) deal with cases in which the conduct occurred outside the category 1 territory and outside the UK, but it would have been an offence if it had been committed in the UK.

In the scenario that I described, British forces took international action that the British Prime Minister sanctioned. I am concerned that the extradition of people in government associated with that action might be sought, not from the UK but from a third country in which they happened to be on Government business, on holiday or for whatever reason, to a third country that was not involved in the initial dispute. I am not talking about a Serbian magistrate seeking extradition, but a Greek magistrate or another magistrate from a category 1 country in which the offence, if it were an offence, did not take place.

The Minister may be able to convince me that this could not possibly happen under the legislation. However, it would be appalling if, as in the Pinochet case, the Prime Minister had retired, was on holiday in Romania, Slovenia, or some category 1 country of the future and had to be extradited from the UK or from

some other category 1 territory because his extradition was sought by a Greek magistrate with Serbian relatives who had been killed in the bombing. There must be a safeguard against such a situation. The Home Secretary would be such a safeguard. He should have the discretion to say that he does not believe it to be in the national interest for the extradition to take place. The only fall-back is the lack of security, which would be very difficult to substantiate in the case of a retired diplomat, Prime Minister, military officer or civil servant. There is nothing else to fall back on, and what worries me is that there will be no defence, either administratively or at law, to such an extradition.

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

Is the hon. Gentleman referring to Greece as a category 1 country seeking extradition to Greece rather than to the country in which the offence was committed?

Photo of John Maples John Maples Conservative, Stratford-on-Avon

Yes, I am. There must be many circumstances in which that would apply. I am anxious about what would happen if an event on which an allegation of an offence was based had taken place outside the United Kingdom and would have been an offence in the United Kingdom if it had taken place here. That takes us into clause 63. There are several circumstances in which a person's extradition could be sought either from the United Kingdom or from another category 1 territory to the category 1 territory that seeks that person's extradition.

In the case of the Kosovo bombings, it could be argued that all the decisions were taken in the United Kingdom, so it is not an issue. However, I suspect that some of the meetings, especially those that planned the bombing missions, took place outside the United Kingdom, in NATO headquarters. The Secretary of State was at NATO headquarters on many occasions. At that time, I was shadowing him closely, politically and physically, and I know he was there. I am not discussing the rights and wrongs of those policy decisions. We do not need to concentrate on Kosovo; I use it just as an example of a situation in which Ministers of this Government might be vulnerable. Our Ministers are accountable to Parliament and to the electorate for the exercise of their functions, and not to magistrates in other countries, especially when what constitutes the alleged offence did not actually take place there.

I want the Minister to deal comprehensively with this issue, because if he cannot satisfy the Committee, there is an overwhelming argument for building in a further discretion for the Home Secretary. That might even appeal to some of the Minister's Cabinet colleagues. If I could think of other examples I could stretch the area of national interest considerably further than the provisions of clause 193, which restricts it to national security in two pretty precisely defined sets of circumstances.

The second issue I want to raise is that of manifest injustice, which my hon. Friend's three new clauses attempt to deal with. If the Government are resistant to the idea, is it because of a drafting problem? Do they feel that it would not be possible to define manifest injustice tightly enough to prevent Rachid

Ramda and people like him from spinning out their cases for a long time? If so, it would be worth having a go at it. I cannot believe that it is not possible considerably to restrict the Home Secretary's discretion without eliminating it completely.

The third area, which relates to clause 63 and a point made by critics of the Bill, is the absence of a requirement for dual criminality in a category 1 extradition. The Home Affairs Committee report suggested that in such cases the Home Secretary might be allowed to use his discretion. The summary of conclusions and recommendations on part 1 of the Bill states:

''We recommend that, in order to provide some safeguard against clear abuses of the new procedure introduced under the framework decision, the Home Secretary give consideration to the following proposal: that in each case the district judge should look at the terms of the offence specified in the European Arrest Warrant and make a statement as to whether dual criminality applies. In cases where the alleged offence is not a crime in the UK a separate decision about whether to extradite should then be made by the Home Secretary, who is responsible to Parliament.''

The gist is clear. If a case involving a category 1 territory in which an extradition is sought concerns an offence that falls within the list of offences in the framework decision but which would not constitute a criminal offence in the United Kingdom, the judge could so certify and the Home Secretary would have the final say. That would remove many of our objections to the vague descriptions of offences, such as ''computer-related crime'' and ''xenophobia'', which is not an offence in the United Kingdom but is in other countries. If the Home Secretary had residual discretion in such cases, it would not set my mind completely at rest but would deal with many of the difficulties I have with the removal of the dual criminality requirement.

Will the Minister respond to the shared concern, which the Home Affairs Committee expressed better than I, that the list of offences in the framework document is too vague? I do not want to repeat my criticisms of that list—I have mentioned just a couple of the offences—but merely to point out that the definitions are too vague and could include acts that are not offences in the United Kingdom. There is common ground, as the Minister says that we should be prepared to live with the criminal jurisdiction systems and law of our European partners. I agree up to a point, but a British citizen is entitled to have some concern about being extradited to another country, and we must remember that category 1 territories do not consist of only present EU members, but will include any country that accedes to the treaties. There is a long list of such countries, not all of which have a wonderful record of objective and independent judiciaries or of treating people accused under their criminal law with the respect to which they have become entitled here and in many western European countries.

If the Home Secretary had that discretion it would give people a safeguard. It is a reasonable suggestion, as it is a unanimous recommendation of the Home Affairs Committee, and it would go a long way towards meeting the concerns of people like me who

are worried about the dual criminality requirement being overridden.

I want the Minister to answer three points. The first is about manifest injustice. The second point is that the national security provision should be widened to cover national interest, so that we protect Ministers and officials who have acted in the name of the Government and democratic authority but who might find themselves caught up in the system for alleged extraterritorial offences under the latter subsections of clause 63. The third point is about the Home Affairs Committee recommendation that the Home Secretary should have discretion in cases in which the judge certifies that, although the offence qualifies for extradition under the new law, it would not meet the dual criminality requirement if it were still in force.

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

First, I apologise to the Committee. As Members will tell from my voice, I am recovering from a heavy cold. I hope that my voice will hold up, but I may not find it as easy to speak at length, as I would normally do. Having said that, this is perhaps the most substantial debate that we have left in Committee, so I hope that I will be forgiven if I go into a little detail.

I associate myself with every word said by my hon. Friend the Member for Stratford-on-Avon (Mr. Maples). I agree with each of his three points, and will listen in detail to the Minister's response, although other members of the Committee may want to contribute before we come to that. I want to amplify some of the issues, as well as introduce our new clauses. We tabled the new clauses with great assistance from the helpful Committee Clerk. The new clause on trivial offences would include a de minimis provision in the Bill, and the other two new clauses relate to political reasons, which was mentioned by my hon. Friend, and unconscionable delay.

I must stress the point made by my hon. Friend that we are not trying to damage the Bill. We understand entirely what the Government are trying to do, so I hope that the Minister will not say that we are trying to drive a coach and horses through the Bill. I will be happy if he tells us that our proposals are the wrong way to act, because they would open up the loopholes that Ramda has used, but the Government will examine these issues to see whether there is another way to deal with them. I hope that they will take the proposed new clauses in the spirit in which they were intended, which is seriously, and that the Minister will tell us say that he and his officials will continue to examine these matters. We are not trying to weaken the Bill, but there are substantive points to address, and I agree entirely with everything that my hon. Friend said.

I want to make some points additional to those made my hon. Friend about manifest injustice. Like the debates on part 1, this debate on clause 193 stand part and associated new clauses goes to the heart of the Bill. We are always indebted to individuals and organisations that send us briefing material, and it is particularly helpful when former hon. Members, who

know how Committee procedures work, take an interest and offer advice.

Yesterday, I received an urgent briefing from the former hon. Member for Ludlow, Mr. Christopher Gill, who, after long and distinguished service here, retired at the last election. He is now chairman of the Freedom Association, which has provided useful material relating to the manifest injustice issue. I hope that the Minister and his officials will listen carefully to what I say and reflect further on it before Report. I do not expect a detailed answer today.

This issue affects our new clause because the fairness or otherwise of other jurisdictions could count as a political reason to act. My hon. Friend the Member for Stratford-on-Avon spoke about the possibility of a Greek magistrate attempting to arrest a former Minister or an official. The way in which the procedures of other part 1 countries work is important. We need to assess the risks in order to decide whether to widen the Secretary of State's discretion to act for political reasons.

I shall present a detailed case involving the operation of procedures in Italy. I am indebted not only to Mr. Gill, but to Mr. Torquil Dick-Erikson, an expert on continental legal procedures, and Leolin Price, QC, a distinguished jurist and lawyer. Those three experts point to the Government's genuine misunderstanding of how Italian investigatory procedures work, which bears significantly on the European arrest warrant.

The Government said on Second Reading and in Committee that the European arrest warrant could not operate in Britain for interrogation or evidence gathering. We were assured that a continental jurisdiction would be unable to go on a fishing expedition. However, as laid down in Italy's criminal law, suspects accused of serious crimes are customarily arrested at the start of an investigation before any interrogation takes place. The concern is that, unless we widen the Secretary of State's discretion, the Bill will not prevent the Italians from having British people arrested in Britain and transported to Italy for investigative purposes.

According to the expert jurists, the Bill is currently drafted with a view to English or perhaps Scottish criminal law. In our procedures, if a crime has been committed, suspicions may be formed against an individual or individuals, but the position is not formalised, as the investigators—usually police officers—view the person only as a possible suspect. During the investigation, the gathering of evidence and the questioning of the suspect, witnesses or others, people are said to be helping the police with their inquiries. If, and only if, sufficient evidence against the suspect has been gathered during the first step will a formal accusation, charge and arrest take place. Shortly afterwards, the defendant will appear in a public hearing before a magistrates court, be charged with an offence and the prosecution will have to produce prima facie evidence to assist the court to decide on bail, whether to remand the accused in custody or commit him for trial. Enough evidence has

to be produced to establish whether there is a case to answer.

In English and Scottish procedures, various safeguards, such as rules against hearsay evidence, apply, but they do not necessarily apply in foreign jurisdictions. The procedure in Italy is very different. The first step is to establish that a crime has been committed. A suspicion is formed against someone—or more than one person—who is considered a suspect. That position is formalised and notified to the person concerned. The investigators are not police officers, but members of a career judiciary. The policemen merely carry out the orders of the career judiciary.

Suspects are considered suspects on the basis of ''indizi'', an Italian word that corresponds roughly to the areas of meaning covered by the English words ''clue'' and ''evidence'', although not strong evidence. For that, the Italian word ''prova'' is used, although it also means ''proof''. Therefore, Italian has only the two words ''indizio'' and ''prova'' whereas English has three, ''clue'', ''evidence'' and ''proof''.

A person against whom the investigators have some ''indizi'' is formally notified that he is ''indiziato di reato'', which roughly means that he is suspected with evidence, ''indizi'', of having committed a crime, ''reato''. The verb ''indiziare'' could be translated as ''accuse'', on the basis of ''indizi'', and consequently the person is to be ''indagato'', which means investigated. The suspect is invited to name a defending lawyer. If he does not, one will be chosen by the prosecutor and appointed for him. However, the defendant will have to pay that person if he wants to be defended properly. That is the opposite of our system, in which the defendant can choose and the state pays under legal aid.

Let us say that the charge on which the person is being investigated is serious—for example, an offence that might lead to a European arrest warrant—and that the ''indizi'' against him are serious and not mutually contradictory. The Italian procedural law says ''indizi gravi e concordanti'', but they do not need to have acquired the status of ''prova'', which is formed at a much later stage. Let us also say that it is considered in an arbitrary assessment, made then and there by the issuing authority, that the person may try to abscond, commit more offences or tamper with the evidence. If all those conditions are fulfilled, the formal notification is given to him, together with a warrant for his arrest, so he will be arrested at this stage and put straight into prison.

In an earlier sitting I talked about the danger of people languishing in Italian prisons for months. Some of us have had constituents who have suffered that in the past, and we have asked the Government to make representations. It is one of the differences between our procedure and the Italian procedure. Someone may be merely a suspect on what is very bare evidence or a bare suspicion. At the point that I have described, the Italian investigating judicial authority will write out an arrest warrant, and if the suspect is in the United Kingdom, the UK will receive a European warrant for his arrest. When the UK receives the

EAW—the request—it will in effect ask Italy, ''Has the prisoner been accused and do you want him in order to prosecute him?''

My next point explains how the Bill is defective and why we may need a wider discretion for the Secretary of State. The Italian judicial authority will translate ''accuse'' as ''indiziare di reato'' and so reply, ''Yes, he has been accused of a crime''—that is, criminal proceedings have been opened against him. As for the aim of prosecuting him, that will be translated as ''perseguire penalmente''. That term covers the whole procedure, from the formal notification to the individual that he is an ''indiziato di reato—a suspect—to his final conviction or acquittal.

This is where clause 193, and the new clauses that we suggest should be incorporated into the Bill as a protection, overlap with part 1, in particular clause 2(3). The experts advising me say that the Italian system will undoubtedly translate and interpret the Bill as drafted in the way that I have described.

In recent Italian judicial history, clues considered sufficient to arrest someone have included the say-so of a confessed criminal who was being questioned elsewhere. However, Italian law says that although that is enough to arrest someone, it is not enough to convict. For that, corroborating evidence—''riscontri oggettivi''—must be found. Sometimes the say-so of a second criminal who has turned state's evidence is considered sufficient evidence to corroborate that of the first.

Investigation, gathering of evidence and questioning of people who may be able to give useful information take place in an attempt to gather sufficient ''prove''—the Italian word for evidence. The major difference from the UK procedure is that that gathering of evidence normally takes place with the suspect already in custody, so that is what would happen to someone who was taken away from this country under a European arrest warrant and put in an Italian prison.

Another major difference is that, before interviewing anyone, the investigating magistrate must tell them whether they are being interviewed as a suspect or a witness, because different procedures apply. That ''freezing in advance'' of the positions of all those involved with a crime makes the investigation much more difficult than it is using British methods.

The suspect, while in prison, may be interrogated again. The Italian legal procedure is based on the hope that the suspect in prison may be persuaded to confess. Italian law schools teach the maxim ''La confessione e' la regina delle prove''—confession is the queen of evidence.

Prison conditions may often be an inducement for a suspect to confess and to collaborate with the investigators. While the suspect remains in prison, the investigation can continue, for six months or more in serious cases, and extensions of that time limit can be requested by the investigators. That period is reflected in the time limit laid down by the original proposals for corpus juris that we discussed at an earlier stage in the Bill. Up till the framework decision that led to the Bill, the UK Government had always

objected to similar proposals. In 1999, a report by a House of Lords Committee rejected the proposals for corpus juris, and the hon. Member for Vauxhall (Kate Hoey), who was a Minister at that time, promised to veto any corpus juris proposals as incompatible with British systems and traditions.

As the Italian equivalent of the British charging of a suspect will already have taken place by that stage in the procedure, albeit on the basis of far flimsier evidence, the decision will then be taken as to whether there should be committal for trial. The Italian phrase for that is ''rinvio a giudizio.'' The person responsible for that, the ''Pubblico Ministero'', could be described in English as an investigating and prosecuting judge. That judge continues to collect evidence—''prove''—against the suspect until he thinks that he has enough evidence to try the defendant in a public court.

Unlike in British magistrates courts, the committal decision is taken in a private hearing, behind closed doors, by a colleague of the prosecutor, known as the judge of the preliminary investigation. The investigation is referred to as ''preliminary'' even if it takes place six months after the arrest and imprisonment of the suspect, because it brings to an end the first part of the investigative process. The investigation then continues with what the Italians call a public debate phase, which is what we would call the trial proper. The Italians regard the investigation and the trial as a single procedure—the Italian word for ''trial'' is ''processo'', meaning process—even though that procedure may take months or longer.

Apart from the recording clerk and other attendants, the only other persons present at the preliminary hearing, which is not held in public, are the defendant and his lawyer. The latter belongs to a separate profession from the prosecutor and the judge, but the prosecutor and the judge are colleagues from the same career path and may work in tandem on case after case. They can swap functions, and their offices may be in the same corridor. It is because of such potential for injustice due to the differences between our procedure and that of Italy or other part 1 countries that have different judicial traditions that we stress the need for the Secretary of State's decision to have wider scope.

I am sorry to have taken a little while on this complex point, but it is important for all this information to be on the record. The three commentators who have sent me this brief quote what the Minister said earlier in the proceedings of this Standing Committee:

''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.''—[Official Report, Standing Committee D, 9 January 2003; c. 054.]

The Italian procedure is, of course, merely one example. My hon. Friend the Member for Stratford-on-Avon points out there are many other countries with procedures that are completely different from ours, and possibly more similar to those of Italy.

The commentators who briefed me say that it is clear that the Minister has not been sufficiently briefed about the details of Italian criminal procedure, if we take that as an example of the 13 current part 1 countries. They say that the current wording of the Bill will not achieve the outcome that the Minister says that he is expecting, and that he wants hon. Members to believe may be expected, when people are taken to Italy from Britain under the terms of the Bill.

The distinction between an arrest ordered by a police authority and arrest by a judicial authority, which members on both sides of the Committee were keen to establish, becomes meaningless when faced with a system such as that in Italy, in which a judicial authority directly carries out police functions in a criminal investigation—in effect, policemen wear judges' robes. We have always had that concern about the Bill, which is why it is essential to introduce the wider discretion to prevent manifest injustice to our citizens, but without driving a coach and horses through the legislation.

I want to deal with the other two aspects of the new clause. Many of us—Liberal Democrats as well as the official Opposition—have talked about the need for a de minimis provision to prevent people from being extradited for trivial matters. Again with great help from the Clerk, we tabled a new clause that would mirror clause 193 but would apply it to trivial cases, which I hope the Minister will be prepared to consider. We talked about the need to ensure that people will not be extradited for offences that carry a sentence or period of detention of, say, only four months.

There are political exceptions. My hon. Friend the Member for Stratford-on-Avon rightly outlined, probably better than I could, the need to ensure that in an equivalent of the Pinochet case, in which Senator Pinochet was—

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department 10:00 am, 21st January 2003

Before the hon. Gentleman goes on to that issue, I must point out that extradition is not possible for offences that do not carry a 12-month sentence, as he knows. Is that not de minimis? Where would he set the threshold? How else would he define triviality other than by the length of sentence carried by an offence that is alleged to have been committed?

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

It is difficult to set a specific limit when we do not know how the legal systems of all the other countries will work. [Interruption.] As my hon. Friend the Member for Stratford-on-Avon just said sotto voce, 12 months is the maximum sentence that someone could receive in theory. The problem is that, even under United Kingdom law, the maximum sentence might be set at 12 months for a defendant who is appearing before the UK courts in ordinary circumstances and who is not subject to extradition. All of us, especially those who practise in the courts, know that people who are convicted of such a crime usually receive no more than a small fine.

I do not believe that the Minister will want to hang his hat on the argument that we will extradite every British citizen who might face a charge just because the

maximum sentence available is 12 months in some foreign jurisdiction. The term should be three years, as the Opposition suggest and as the Labour-dominated Select Committee strongly recommended. That would be our primary approach to the extradition of people from this country, and would be some safeguard. We would also give the Secretary of State the discretion to state that an offence was trivial, even if it carried a maximum sentence of three years under some strange foreign jurisdiction.

I referred to cases that Robert Roscoe, the specialist extradition solicitor, drew to our attention, in which people were extradited under the current law for offences that were later deemed to be so trivial that they were released without charge and were able to return. The Government went through all the expense of arrest and extradition. That was under the current law, so there is concern about the need for a de minimis threshold. We contend that it should be three years in the main part of the Bill, but the Secretary of State should have a residual discretion. We are trying to put that back. I do not think that unreasonable, and I hope that the Government will consider it seriously.

The next point is about political reasons. My hon. Friend the Member for Stratford-on-Avon uses the very good example of Pinochet. That case involved a request not from a Chilean magistrate—a magistrate from the country where the crimes were alleged to have been committed—but from one of our European Union partners, a Spanish magistrate called Garzon. I think it bizarre that someone in another country should request, even under our current law, that the United Kingdom arrest someone for alleged crimes in a third country that is not a European country and that is on another continent.

I was very critical at the time, and have been ever since, of a range of decisions that the then Home Secretary, who is now the Foreign Secretary, took in that case. I think that I know why there was that knee-jerk reaction against this man whom we all demonstrated against as students. Some who are now Cabinet Ministers were student activists, and I remember from when I was at university all the demonstrations led by the left against Chile and Pinochet. Someone said, ''Senator Pinochet is in the UK for medical treatment. We've got to do something about him. He's a bad man.'' That is the reason for the knee-jerk reaction to put him under house arrest. It cost my local police authority in Surrey a fortune, which in the end was taxpayers' money down the drain.

Our concern is that the Bill opens up a great deal more opportunity for people who have been Heads of State, Ministers or even officials, as my hon. Friend said, to be arrested on a political basis. However much I disagree with Labour Ministers, I do not think that any Minister properly carrying out his or her functions should be open years later to the risk of being arrested—[Interruption.] The Minister says, ''Oh, come on,'' but I am trying to protect him. Who knows? In the next reshuffle, he might be transferred

to the Foreign Office. I am sure that he would do a very good job there, hard-working as he is.

We can all smile about that, but there is a very serious point. During the fighting in former Yugoslavia it was suggested by many people, not least Milosevic—he said it again in his war crimes trial—that those who should be put on trial were not people such as Milosevic, but the western leaders. It is not beyond the bounds of possibility for a magistrate or judicial authority, using a bizarre procedure such as the one in Italy that I have described, to request a warrant against a UK political leader, as Magistrate Garzon did against Pinochet. We want to retain a wider discretion.

The Minister must think about how much taxpayers' money could be wasted to deal with a formal request from a Greek magistrate for an arrest warrant against a British Minister. That is not a matter to dismiss with a smile, as the Minister seems to; it is a serious point, and I hope that he will take it more seriously than he seems to have done so far.

My final point is very important: it is about unconscionable delay. Again, I refer to the cases such as those to which the extradition solicitor Robert Roscoe drew our attention and to which I referred earlier. I shall not repeat them, but in a number of cases there have been huge delays. If such delays had affected someone in the constituency of any member of the Committee, they would regard them as leading to manifest injustice. Whether the Italian or the Belgian courts are involved—those two have caused problems in the past under the existing law—if there has been a huge delay in the request for extradition, the Secretary of State should surely have an unconscionable delay discretion. That is what the third of our new clauses would provide.

I have taken time to set out my position, but I hope that I have made an important series of points and that the Minister will take them seriously. I know that he cannot give detailed responses today to all the details that I have given of the Italian procedure, but I hope that he will respond to all those concerns seriously. Even if he cannot accept our new clauses as they stand, I hope that he will at least give continuing thought to whether the Government might introduce something along those lines on Report or in another place, because it is very important to have something like those provisions in the Bill. I rather suspect that, particularly in another place, where there are many distinguished lawyers who are able to comment on this, they will share some of the concerns about dual criminality and the safeguard against abuses that the Home Affairs Committee set out in paragraph 31 of its report. Unless the Minister is able to address all those matters, he will have problems in another place. I believe that by the time the Bill becomes an Act, it will include something to take account of delay, political reasons and de minimis. I hope that the Minister will take that seriously.

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

I do not want to dwell too long on this matter, but that is not to belittle its importance. I strongly commend to the Minister the wise words of the hon. Member for Stratford-on-Avon and the

compelling arguments from the hon. Member for Surrey Heath. None of us in the Opposition—I include my Liberal Democrat colleagues, and colleagues in the Conservative party—are being xenophobic. We seek to bring to bear on the Bill a measure of equity and justice.

I am indebted to an outstandingly good organisation, Fair Trials Abroad, for a briefing on the issue of manifest injustice and on retaining the Secretary of State's discretion, not just in this matter but, as the hon. Member for Stratford-on-Avon rightly said, for reasons of national security.

I hope that the Minister has read work by Fair Trials Abroad. It is, apparently, a unique organisation concerned with the rights of European Union citizens to due process in the administration of justice abroad. It is particularly concerned with the implementation of current law, and any proposed changes to domestic or international law or practice that might have adverse effects for EU citizens facing trial in a foreign country.

Fair Trials Abroad has years of experience of criminal advocacy through the combined experience of its lawyers. It has accumulated experience from the monitoring of and involvement in many hundreds of cases involving European citizens without access to justice during criminal procedures abroad, and through comprehensive investigations into specific issues of fair trials. It continues to draw on that experience of monitoring and actual involvement in trials. Thus, when Fair Trials Abroad refers to the plight of the foreigner, the plight of individuals sought for extradition, or its experience in trials abroad, it is incumbent on all of us to learn from those experiences.

We have discussed at length some of the more nebulous offences in the list of 32, and have focused particularly on xenophobia and racism. Not the least of the problems that the foreigner faces in the legal systems of the European Union are xenophobia and racism, which occur all too frequently. There are not many references to the ugly side of criminal justice in a debate on judicial standards. However, I would like to put forward one or two arguments that I believe the Minister should hear. I shall not be anti-French, anti-Spanish or anti-Belgian in the examples to which I shall refer. They are drawn from the experience of Fair Trials Abroad, and I cite them as evidence of the pitfalls to which individuals in this country could be subject.

In Belgium, a young black British mother was travelling with an acquaintance she had met while in Bonn. They had met at an embassy reception, when she had been staying in Bonn on a short holiday as the guest of a kinsman, who was an ambassador to Germany. On passing through passport control at the entrance to the Eurostar terminal in Brussels, her companion was stopped. It transpired that she was travelling on a false passport. The Briton was immediately charged with people-trafficking, and in due course convicted and sentenced to three years' imprisonment.

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

Does the hon. Gentleman have first-hand personal experience of those cases, or is he just quoting an outside

organisation? I would like to be clear about where he is coming from.

Photo of Mr John Burnett Mr John Burnett Liberal Democrat, Torridge and West Devon 10:15 am, 21st January 2003

I think and hope that I made it clear that I was not citing personal experience. I referred to Fair Trials Abroad, which is a unique organisation that is concerned with the rights of European Union citizens in the process of the administration of justice abroad. I have not taken part in such cases: my specialisation as a lawyer was tax, commercial and corporate matters. I have never been involved in extradition matters. I thought that I had made that clear, but I make it clear again. I am citing the experience of what is held to be an exceptional organisation. It refers to a case in Belgium. If the Minister requires me to cite the name of the case, the date and in which court it was held—

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

Yes, the citation. I would be happy to provide the Minister with that information.

I also offer example from France—again from Fair Trials Abroad. A ship docks with more than 20 crew on board and a small consignment of cocaine in a ventilation shaft. A crewman confesses that he was responsible, and he is held with one other member of the crew. In due course, the pair of them are convicted. On appeal, the second man is acquitted with the observation that there was never any evidence against him. He was the only black aboard. In that case, justice was eventually done.

Another important case from Spain was also cited by Fair Trials Abroad. A British tourist was convicted of one of a series of armed robberies. He was not in the country when the other robberies were committed, and the sole Spanish witness against him was adamant that the robber spoke Spanish as a mother tongue. The tourist spoke no Spanish. All six Britons who testified in the tourist's favour were cross-examined by the bench in a xenophobic manner, and that poor man's appeal failed.

I am not suggesting that those cases are examples of the general rule of justice in those countries, but I am saying that justice can break down in such nations, and that we must ensure that there are some safeguards for the British citizen, or for the person in this country whom another country seeks to extradite.

In the cases that I have mentioned—and for the reasons mentioned by the hon. Member for Stratford-on-Avon—where a democratically elected Government Minister acts in good faith with the support of Parliament and the authority of the state, there should be a discretion on the part of the Secretary of State to refuse extradition. In our view, there should be wider discretion, and that discretion should be incorporated in the Bill.

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

I had not intended to speak on clause 193 or on the new clauses that are listed, but having listened to the hon. Member for Torridge and West Devon (Mr. Burnett), I feel compelled to speak because the third case that he quoted from the briefing that I presume he received

from Fair Trials Abroad is the case of Kevan Sloan, who is a constituent of mine.

In my view, Kevan Sloan was wrongfully convicted. He was arrested, charged, tried and convicted in Tenerife. At the time, although he was a tourist, he was visiting his mother, who is resident there. All the facts that the hon. Gentleman quoted are correct. Fair Trials Abroad is an excellent organisation—it has been trying to establish that the proceedings relating to Kevan Sloan were unfair.

I initiated a debate about the case in Westminster Hall last October, I have met with Kevan's parents and the Foreign Secretary has raised the matter with the Spanish authorities. Last week, his mother and father and some supporters presented a letter to the Spanish embassy in London, and his lawyers in Tenerife have made a deportation application. Kevan intends, ultimately, to take the matter to the constitutional courts in Madrid. I believe that he is innocent, and he intends to establish that. Kevan Sloan was arrested, charged, convicted and is now serving a sentence on what in my view is an unsafe decision of the court. He never came to this country. The whole process has taken place in Tenerife.

The cases that the hon. Gentleman quoted were not cases in which people managed to get to this country and were then subject to extradition application from the country in which the crime was allegedly committed—

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

The object of citing those cases was to refer to the fact that there have to be minimum standards of justice in order for us to allow the fast-track procedure relating to category 1 countries to apply.

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

I appreciate the hon. Gentleman's point. I was merely saying that some cases—certainly the case that he cites—were never the subject of extradition applications because the whole process has taken place abroad. I am coming to his general point. The hon. Member for Stratford-on-Avon made a similar point some sittings ago. I believe that Kevan Sloan is innocent, that he should never have been convicted, and that the legal proceedings on which he was convicted were flawed. To that extent, I go along entirely with the hon. Member for Torridge and West Devon and others.

However, we live in the 21st century. I do not want to quote it at any length, but does anyone remember from O-level history the Don Pacifico case in which Palmerston, as Foreign Secretary, was involved? In those days, as an imperial power, if we did not like the legal proceedings in another country, we felt quite at liberty to exercise all our imperial might and to defend the rights of British citizens abroad, sometimes with gun boats. Even at the time of the Don Pacifico affair, other members of the Government of the day were a little unhappy about the lengths to which Palmerston went. Surely, hon. Members of today's official Opposition and Liberal Democrats are not arguing that it is up to us in every case to make judgments about the proper legal proceedings.

When the hon. Gentleman and I had an exchange a few sittings ago, I made the point that while we might not like the legal proceedings in another European country—Spain has been quoted repeatedly—we accept that if somebody has been tried and convicted, there is nothing that this country can do, apart from making representations through our consular services. I wish that we could do more in the case of Kevan Sloan. The hon. Gentleman accepted the point that, if somebody is apprehended, charged, tried and convicted, they should serve their sentence. That principle is correct, even if I do not like the legal system in another European country. Once one accepts that principle, one must therefore accept that there ought to be reasonable grounds on which extradition can take place. The arguments of Opposition Members seem to imply that, although they accept one principle, they refuse to accept the other.

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

The hon. Gentleman makes a sensible and helpful point. He talks about a constituency case that, to my way of thinking, supports our argument. Will he consider the point that our job as British Members of Parliament is to safeguard our constituents' interests? The hon. Gentleman is an extremely diligent constituency MP and has quite rightly taken up the case of one of his constituents who has suffered an injustice. By giving the British Secretary of State wider discretion, we would prevent future injustices happening to more of our constituents. I do not think that the matter with Spain has anything to do with our being in the 21st century. I want the hon. Gentleman to consider whether it is right that we, as British Members of Parliament, should ensure that British legislation operates to give the maximum protection to British citizens. Is not that our job?

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

Of course it is. There are approaches that we as Members can take. In respect of the case in question, I think that I have covered all bases as a constituency MP. Kevan Sloan's family and I intend to continue campaigning for him to be brought home as quickly as possible, by whatever means possible. However, that is not the point that I am making. Opposition Members and the official spokesman appear to be saying that the Committee should judge some legal systems to be so defective that there should be almost no circumstances under which we would ever consider it possible to extradite someone.

Mr. Burnett rose—

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

That is the burden of their argument. I shall give way to the hon. Gentleman, although I do not want to detain the Committee for too long.

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

I am extremely grateful to the hon. Gentleman. The position that he describes is not our position. However, we want to see minimum standards of justice. The hon. Gentleman has helped me considerably, because he has quite rightly said that the legal proceedings under which Kevan Sloan was convicted were flawed. We want to get it through to members of the Committee that we want to see minimum standards of justice before the category 1 procedure can apply.

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

The point that I am making is that I also want the principle of minimum standards to apply. However, it is not the Committee's job to design the legal system that applies in Spain. Opposition Members are arguing that we should legitimately be able to say, ''Well, in the case of extradition, there may be some circumstances in which it is unsafe to go ahead.'' I do not believe that it is our job to do that. I accept their right to advance that argument, but it is not our right to do what they describe.

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

I suggest to the hon. Gentleman that he is putting our case too high in his argument. I passionately believe that, in order to provide a safeguard, we should widen the Secretary of State's discretion, so that in future cases such as that of Kevan Sloan a British Home Secretary would be able to say, ''Let's stop this extradition. I've got a concern. I think there might be a risk of injustice.'' If the Secretary of State had that wider discretion, perhaps hon. Members would not need to have Westminster Hall debates or to keep pursuing every angle as a constituency MP, because the person would not have to be extradited. I realise that the Sloan case was not an extradition case. However, the hon. Gentleman has said that he thought that the foreign judicial procedure was flawed. We should build in safeguards. We are not criticising every foreign jurisdiction, and we are not trying to stop all extradition. The Secretary of State should be given a wider discretion to protect against further cases such as that of Kevan Sloan, in which someone might be unjustly extradited. Surely, the hon. Gentleman can understand that he is putting our case much higher than we are putting it ourselves.

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East 10:30 am, 21st January 2003

No. I am making a distinction between the right of sovereign states to make decisions about their own legal systems and our role. Is it appropriate for us to be making such judgments? I have quoted one case, but I would not say that it could never happen. However, that seems to be the hon. Gentleman's point as regards whether one can trust a Spanish or Greek court to reach a proper legal decision by due process. He has repeatedly quoted the Pinochet case. As a junior Minister in the Home Office at the time, I was aware of the lengths to which the then Home Secretary went in order to judge that case. The hon. Gentleman went on to state his concern for the Parliamentary Under-Secretary of State for the Home Department, my hon. Friend the Member for Coventry, North-East (Mr. Ainsworth), who, at some point in the dim and distant future, might be called upon to account for his actions by some foreign court, when he happens to visit Paris or somewhere else and becomes the subject of extradition proceedings. I cannot imagine that happening, but if my hon. Friend the Minister were to fill Coventry football stadium with political opponents and butcher them, I would hope that he would be extradited at some point. The hon. Gentleman's example is not an edifying one. Although the Pinochet case was far more complicated, it does not serve his argument well.

Photo of Boris Johnson Boris Johnson Conservative, Henley

I am grateful for the chance to speak in this debate and apologise for my earlier absence. I want to say how much I agree with

my hon. Friends the Members for Surrey Heath and for Stratford-on-Avon, as well as with the Liberal Democrats, on their lucid exposition of the differences between our judicial system and the Italian system. I plant my flag firmly on all the arguments about Pinochet and the risk to Ministers. I do not know why the hon. Member for Knowsley, North and Sefton, East (Mr. Howarth) underestimates the chances of the Minister acceding to some great office of state in which he might be vulnerable to future prosecution. After all, not only Pinochet but Ariel Sharon and many others have been sought by European magistrates.

All hon. Members on this side of the argument are making fundamentally the same point: the Bill raises difficult questions about what constitutes a crime in this country and abroad and makes conflicting assumptions about what constitutes a fair trial in this country and abroad, in category 1 countries. The Government's answer is that all the problems will be miraculously resolved by adopting the principle of mutual recognition. I want to mount a four-square attack on the use of that phrase in this context, because I do not believe that it can logically be applied to the criminal justice system, and I propose to explain why.

Let us suppose that this side of the Committee is Britain and the other side is Belgium or, as I do not want to be xenophobic, let us suppose that this side of the Committee is Greece and the other side is Germany.

Photo of Boris Johnson Boris Johnson Conservative, Henley

All right; the hon. Gentleman can be Spanish. Let us suppose that the other side of the Committee is Spain. There is an ancient law on this side of the Committee, in Greece, that water should be served to Members gently carbonated. An ancient law in Spain provided that water should be served to members still. The principle of mutual recognition, which those hon. Members who have studied the European Community will know well, is that we will recognise their still water if they recognise our fizzy water. There should be free circulation of both types of water within the great area of this Committee Room. I hope that I am making myself clear.

That is the principle of mutual recognition established by Cassis de Dijon, the famous European court physician in 1971. It is an important law, but we cannot readily transpose that doctrine to the criminal justice system. Nor should we; it would be a manifest absurdity. The Minister wants us to accept that mutual recognition should mean our accepting the Spanish law on xenophobia, but he neglects the corollary, as it is generally understood in the European Union, which is the duty of the Spanish to recognise our law on xenophobia. If we say that something is not criminal, the Spanish should accept it, just as we have to accept it when Spain says that it is criminal. That produces a singularity and a contradiction. Both assertions cannot be simultaneously true. It cannot be true that mutual recognition requires criminality to exist in this country and in Spain at the same time. Mutual recognition cannot therefore be readily transposed to the criminal justice system.

Mutual recognition means that if there are two standards on the same question, both must be accepted—that if the German Government say that something is a vegetable and I say that it is chocolate, then we must both be right. That is the principle of mutual recognition. However, if someone says that something is criminal and I say that it is not criminal, we cannot both be right. It is not possible for both standards to operate throughout the territory of the EU. I hope that my purpose is clear.

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

I ask the hon. Gentleman a simple question that goes to the heart of the differences between us. If he goes on holiday to Spain—I know that he often goes to more exotic places, but I shall follow his example—which law should he obey while there? Does he believe that he ought to abide by British law or Spanish law while in Spain? If he believes that he should abide by Spanish law, what huge principle says that he should be immune from prosecution for breaking Spanish law when crossing the border and returning to the UK?

Photo of Boris Johnson Boris Johnson Conservative, Henley

There are several obvious retorts to that question. The first, which has been well rehearsed in Committee, is the case of the plane-spotters, who according to a common-sense application of British law were doing something entirely legal. The second is the contention that the person need not be in Spain to do something in breach of Spanish law that might, as I understand the Bill, make him liable to extradition. One could commit a computer crime or a xenophobic offence in this country that had an effect in Spain, and under Spanish law one might be liable to extradition to that territory for an offence that was either not an offence in Britain or not even committed in Spain.

Photo of Anne Begg Anne Begg Labour, Aberdeen South

Order. I remind the hon. Gentleman that we heard much of that debate when we considered part 1. I appreciate that he was not able to be present for that, but I am reluctant to allow him to spend too long going over what has been thoroughly debated. Clause 193 relates to the powers of the Secretary of State and I would be grateful if the hon. Gentleman would address those issues.

Photo of Boris Johnson Boris Johnson Conservative, Henley

I am grateful to you, Miss Begg. Unless I am much mistaken—you will correct me if I am wrong—I do not believe that the point about mutual recognition has been made. I do not believe that anyone has said that the principle of mutual recognition has been wildly misapplied and is a logical absurdity in this context. It is important to get that on record. Here I am; I am meant to apply my brain to these questions. I do not understand how one can honestly and logically call the concept ''mutual recognition''. We are not invoking mutuality between two systems of criminal justice and saying, ''We'll recognise your law on the age of consent if you recognise our law on xenophobia.'' That is not what mutual recognition means. Mutual recognition means saying, ''We'll recognise your law on xenophobia if you recognise our law on xenophobia.'' It is meaningless when applied to criminal justice cases.

As the Minister said, there might be good reasons why we would want to import different standards of

law and make our citizens subject to a higher standard of criminality. However, that principle is not mutual recognition. We operate under the principle invoked by the Bill that if there is a cross-border criminal case and there is disagreement between the two legal systems, it will always be assumed that criminality is present. I do not know whether this has already been demanded—if so, you will have to forgive me, Miss Begg—but I would like the Minister and the Government to produce the following for the benefit of the people of this country who will be obliged to take cognisance of this law: an exhaustive list of the possible offences for which they could be done under the 32 generously drawn categories. That would allow British people to know which law is likely to apply to them, because it is not the law that would have been passed by Members of this House. That is the least that the Government could do.

Photo of Anne Begg Anne Begg Labour, Aberdeen South

Order. Before the hon. Member for Surrey Heath speaks, may I remind him that the hon. Member for Henley (Mr. Johnson) has ignored my instructions? We are straying very wide of the clause.

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

I entirely understand that, which is why I was intervening on my hon. Friend. Does my hon. Friend agree that it is for the reasons he set out that Conservative Members believe we need a wider set of safeguards to protect against injustice for the Secretary of State? That is the relevance to the debate of what he said.

Photo of Boris Johnson Boris Johnson Conservative, Henley

I am grateful to my hon. Friend who has led from the front throughout our proceedings. He leads me directly to the conclusion of my remarks, something you will be delighted to hear, Miss Begg.

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

The hon. Gentleman is also promoting two very important principles: first, the minimum standards of justice; and, secondly, how anyone can know whether they are committing an offence overseas that forms part of the 32 offences because it is almost impossible to define the offences and no one knows what they mean.

Photo of Boris Johnson Boris Johnson Conservative, Henley 10:45 am, 21st January 2003

Hear, hear. The hon. Gentleman puts his finger on it. I hope that the Government are taking note and that they will produce a list of the possible offences. They are taking legal certainty away from the British people, which is wrong. To echo my hon. Friend the Member for Surrey Heath, that is why we need the Home Secretary's final decision in these matters, why it is not enough simply to leave it to the district judge to decide whether to extradite in cases where no dual criminality exists, and why we want the extra safeguard of the people's representative in the form of the Home Secretary who has a democratic mandate. I hope that the Minister will give us the necessary assurances and expunge from the Bill any reference to mutual recognition that has been wildly misconstrued.

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

I am greatly entertained by the hon. Gentleman. Does he believe that there have been miscarriages of justice in this country?

Photo of Boris Johnson Boris Johnson Conservative, Henley

I accept that there have been grave miscarriages of justice. It is not my purpose to extol our system of justice above all others, but to attempt to preserve the integrity of the British system and to assure the British citizen that the laws under which he or she lives are those made by his or her elected representatives, not by some foreign democracy that may produce laws further to those under the 32 categories.

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

I am sure that I will incur the wrath of my hon. Friend the Member for Halton (Derek Twigg) by continuing to debate with the hon. Gentleman, but I will take that risk. Does he believe that it should be left to the Home Secretary to determine whether allegations of miscarriages of justice in this country are true or false?

Photo of Boris Johnson Boris Johnson Conservative, Henley

No. I believe that the ultimate jurisdiction should rest with the higher courts. There is no particular reason to invoke the Home Secretary. I am not sure what the purpose of the question is. This is not a matter of some final appeal, but of deciding prima facie whether the offence is extraditable.

I hope that the Minister will assure us that he will produce a list of all the offences that might fall under the 32 categories, that the Home Secretary will be given final authority in cases where no dual criminality applies, and that he will exterminate the term ''mutual recognition'', which is not applicable in the criminal justice system. I will be interested to know what his officials have been telling him.

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

I thought I understood what the debate was about, but I am not quite sure now that I have listened to the hon. Member for Henley. I am tempted to try to pick up some of his argument, but I will resist the temptation. In the interests of brevity, if nothing else, I simply make it clear to the Committee that the working definition of mutual recognition and extradition to which I seek to return is the one that we were dealing with up to that point.

Like the hon. Member for Knowsley, North and Sefton, East, I was not minded to take part in the debate. I do so, however, because I have listened to it with growing unease. It is an old saw that hard cases make bad law. At the risk of offending my hon. Friend the Member for Torridge and West Devon, I fear that we may lose sight of the point by concentrating on individual cases. From my experience in the criminal courts, with my hand on my heart I cannot say that the Kevin Sloan case could never happen in this country. We cannot exclude the possibility of a capricious judge taking a particular view of the credibility of a witness or witnesses, especially when dealing with summary procedure. Courts of appeal are very reluctant to overturn such judgments.

Other cases that spring to mind include the case of the Birmingham Six. Many people in many parts of the world would say that it was impossible for the Birmingham Six to get a fair trial in this country, but that should not be taken as a criticism of the legal systems within this jurisdiction. It is unhelpful to concentrate on individual examples, because every jurisdiction can produce bad cases. The key point is that we must observe minimum standards, and the

proper assessment of such standards is surely the function of the Home Secretary. The new clauses are not intended to design the legal system in Spain or any other jurisdiction, but to allow the Government in this country to say that if the minimum standards are not met—we should not distinguish between category 1 and category 2 countries in that respect—we should adopt a different approach. That is what the new clauses are about.

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

A sobering input from the moderate wing of the Liberal Democrats has brought us back to some issues of real import. I am grateful to the hon. Gentleman for tabling the new clauses in order to have a wider debate. I shall deal with them in turn before making some more general observations and dealing with clause 193. We are not having a separate stand part debate, and important issues are at stake.

I do not understand why new clause 6 should be added to the Bill. How does an unconscionable delay differ from a bar to extradition by reason of the passage of time? The provision already exists in clause 81 in part 2, and we debated the bar on 9 January when we considered new clause 1. I agreed to consider whether it would be appropriate to mirror the part 2 provisions in part 1. As I said, I see no difference, other than in language, between an unconscionable delay and a bar to extradition based on the passage of time.

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

I entirely take the Minister's point, and he was right to say that we tabled the new clauses to have a wider debate. He reminded us that he had already undertaken to reflect further on the mirroring of part 2 and part 1, but we felt that the issue should be put before the Committee at this point, together with the other new clauses. We have not detained the Committee on ''unconscionable delay'', so I accept the Minister's point, but I am glad that he is still thinking about it.

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

I repeat that it would have been perfectly legitimate, for ECHR considerations, to raise these issues without the import of the part 2 provisions into part 1. We agreed to reflect on the problem to see whether it would make people feel happier about the proposals. I have heard no substantive argument to the effect that the unconscionable delay clause would differ from the import of part 2 provisions into part 1.

New clause 7 would require the Secretary of State to duplicate the decision already taken by the district judge under clauses 13 and 80 as to whether there would be a bar on surrender for extraneous considerations. The new clause states that he must decide whether the request was made for political reasons. I am not sure how that differs from the wording in clauses 13 or 80, under which extradition must be barred if the warrant or the request is issued for the purpose of persecuting or punishing the person on account of his race, religion, nationality or political opinions, unless the argument is that we should have a full-scale bar for offences committed for political motives. I am not sure whether the hon. Gentlemen are arguing for that. If not, I sincerely ask them to consider whether there is any difference between the provisions in clauses 13 and 80 and what is being sought in new clause 7.

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

I am grateful for the way in which the Minister puts the matter. My hon. Friend the Member for Stratford-on-Avon and I made it clear that we did not want to open up another loophole for people like Ramda to slip through in future. We put the case in a certain way because we think that new clause 7 would provide protection if a Minister, senior official or military person in any Government faced extradition. We think that that is different to the bar on race or political opinions. We were trying to get something into the Bill that would specifically protect people on grounds of national interest.

With the helpful advice of the Clerk, we tried to mirror clause 193, and that may be why we were not able to narrow the matter down sufficiently. As the hon. Minister will understand, we have to be guided by what will make an amendment selectable by the Chairman. I would be quite happy if the Minister said that he would consider the matter and table a Government amendment later. I have said what we are trying to do under the new clause, and that vital protection is different to what is in the Bill.

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

Having had that clarification, I can deal with the matter. The hon. Gentleman accepts—and I am glad that he does—that many horrendous crimes that should be extraditable are committed for political reasons.

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

Yes, allegedly, and that should not be a bar to extradition. On the other hand, seeking extradition for the purposes of political persecution most certainly should be a bar on extradition. The issue that the hon. Gentleman is concerned about was raised by the hon. Member for Stratford-on-Avon. The hon. Gentleman followed up, off the back of a particular case, the matter of whether a Minister or an official in this country could be extradited and persecuted by a magistrate in a third country.

The Bill does absolutely nothing to affect the position on state immunity. International law has established that actions taken by the Heads of Governments or officials acting in that capacity are not extraditable. The Bill could not be used to extradite an official, the Foreign Secretary or the Prime Minister. The State Immunity Act 1998, the Diplomatic Privileges Act 1964 and international law cover those points. Nothing in the Bill affects either international law in that regard or the protection given by those Acts.

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

It is helpful to know that, but I vividly recall the matter of Pinochet having to come back before the House of Lords a second time following the embarrassment of Lord Hoffmann having to withdraw because of his connections with Amnesty International. Admittedly, Pinochet was not a British Minister, but international law did not prevent the detention or the issue of whether Pinochet should be extradited to Spain at the request of Magistrate Garzon going as far as our highest court. I do not really think that the Minister can pray in aid international law. I have not had the chance to go into the same detail as he and his officials, and he may tell us that British Ministers are better protected

by existing Acts. However, in the light of what happened to Pinochet, I do not think that the Minister can say that international law protects them from risk.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department 11:00 am, 21st January 2003

The hon. Member for Stratford-on-Avon raised a serious point in a serious manner. I sought advice rather than answering off the top of my head. I could do no other than report that advice to the Committee. The circumstances that the hon. Gentleman mentioned would be covered, and nothing in the Bill makes the position any weaker than it already is. The hon. Gentleman seems to be arguing that we should strengthen that position by putting a provision into the Bill. However, nothing in the Bill detracts from the protections that already exist. Those protections cover officials who are acting in an official capacity, diplomats who are acting on behalf of the Government, and Heads of State. Nothing detracts from the existing ramifications of international law.

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

The Minister wonders about putting a provision in the Bill, and I argue clearly that we should. For the foreseeable future, people in this country will look to this Bill to cover the whole law of extradition. In the light of lessons learned from what happened to Pinochet, the protection available ought to be clearly stated in the Bill, even if other Acts offer greater protection to British Ministers and officials than was available to Pinochet. This Bill, in whatever final form it takes before becoming an Act of Parliament, will be our extradition legislation. Everything to do with extradition ought to be in it.

The Bill already contains provisions to do with the Secretary of State's decisions on national security. It ought also to contain something—perhaps along the lines of our proposed new clause—that sets out what protection is available for people who are acting in the national interest. That ought to be put into the Bill before it becomes an Act. I hope that the Minister will consider that point very seriously.

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

The hon. Gentleman is entitled to his view that there is a real danger and that his suggestion is a priority for legislation. However, unless he has supporting evidence, he should not suggest that, with this Bill, we are damaging the present situation and putting British officials, diplomats or Ministers in danger. We are not.

Photo of John Maples John Maples Conservative, Stratford-on-Avon

Of the three points that I raised, I probably consider this to be the most important. I will read carefully what the Minister has said, and I will consider the Bill. However, subsections (6) and (7) of clause 63 specifically refer to offences under the International Criminal Court Act 2001 and to

''genocide, crimes against humanity and war crimes''.

Almost by definition, those crimes are committed by officials or functionaries of the state.

If I remember the Pinochet case rightly, the third decision of the House of Lords was that Pinochet's immunity as a Head of State would not have overridden the international convention against torture, had that convention been in operation at the

time of the offences that he was alleged to have committed. The offences with which the Spanish magistrate wanted to charge him occurred before the international convention against torture had been signed. If it had been the other way round, and the offences that he was alleged to have committed had occurred after the international convention against torture had been signed, his immunity as a Head of State would not have protected him from extradition. I seem to remember that that is what the House of Lords said.

I feel that there is a problem in that war crimes or crimes against humanity can be widely interpreted, especially if there is a political motivation for doing so. We may or may not approve of the political motivation in the Pinochet case, but we would not approve if a foreign magistrate were trying to get hold of one of our Ministers or officials. I am concerned that naming those offences in this Bill means that people who are charged with them will not necessarily be protected by the Acts that have been mentioned. I pray in aid, or at least ask the Minister to consider, the judgment in the Pinochet case, which seems to bear out what I am saying and not what he is arguing.

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

The hon. Gentleman has made his point well. He has made it in a serious manner and I can only respond to him by explaining what I understand the situation to be. We are not altering that position in the Bill, and that is something for him to consider, as I will.

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

I am grateful that the Minister said that he will continue to consider the point, because I agree with what my hon. Friend just said and want to add one point. The Minister quoted an Act from 1998 in his first response. The Pinochet case post-dates that, and we should consider how the Bill works in relation to war crimes, which as my hon. Friend the Member for Stratford-on-Avon pointed out are widely defined. The way in which the Law Lords examined the international conventions has to bear on both the Bill's drafting and effects and how the 1998 Act was thought to protect people pre-Pinochet.

We know that the Government do not intend to weaken the protection, but they have included provisions that, as my hon. Friend noted, might cause a problem in the light of the Law Lords' wide interpretations in the Pinochet case. I am glad that the Minister has said that he will examine the point seriously, because we think that it is important. We are not suggesting that the Government intend to weaken the position, but that they might do so inadvertently unless the national interest safeguard with the Secretary of State's discretion is included in the Bill. Even if we might be wrong, the fact that we might be right is a good reason for including it for the avoidance of doubt. I hope that the Minister will consider that.

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

The hon. Gentleman should not try to push what I said further than I did. Also, I should clarify that I meant to refer to the State Immunity Act 1978. I apologise if I misread that.

Another point that the hon. Member for Stratford-on-Avon raised and majored on was the need to include a definition of ''manifest injustice'' in the Bill.

All I would ask is how would we define such a thing? He saw the problem in his presentation to the Committee. He was raging about how a particular case had taken an inordinate length of time, and the argument could be made in such cases that it would be manifestly unjust to extradite. How would we define such an issue? By giving responsibility to the Secretary of State to define such a matter, we would leave the matter open to judicial review and delays.

I do not think that the hon. Gentleman has fully expanded his reasons for his proposal, because in some categories of persons he would like us to go further and be more robust in our dealings, but for others he is extremely reluctant and wants to build in safeguards. He wants to draw the Secretary of State back into extradition proceedings that lead to the delays that he complains about, and I do not know how we could define the law so that it applied more robustly in some cases than in others, which appears to be his desire in pushing for the inclusion of a safeguard of manifest injustice that the Secretary of State could use to overrule some extraditions. He is right to say that it is a drafting problem, but it is an insurmountable difficulty unless we accept consequences that he would not want.

On the de minimis requirements and trivial offences, I rest on what has been said repeatedly in Committee. There is an argument that we have to settle. For someone to be extraditable both under existing law passed by the hon. Gentleman's party when it was in power and operated without a difficulty and with what we are proposing in parts 1 and 2 of the Bill, the offence will have to attract a maximum penalty of at least 12 months' imprisonment in the requesting state. That is a significant threshold.

I know that the Home Affairs Committee said that we should go for three years and asked why we were going further than the framework decision requires us to do. Why? The reason is that under both parties we have been prepared over a number of years to behave in an outgoing and fairly internationalist way. We have been prepared to co-operate with other jurisdictions and to allow them to seek extradition where they thought it was appropriate above a certain threshold. The threshold has been 12 months. In return, we would ask others to be prepared to extradite to our jurisdiction where we thought it appropriate.

The issuing state has to decide whether it is worth the candle to seek extradition, because the offence is so trivial. Some hon. Members disagree with us and think that we should not be prepared in any circumstances to extradite people for less than three years. That is not what the Home Affairs Committee argued, by the way, as the hon. Member for Torridge and West Devon appears to think. It argued that dual criminality should not be dropped for less than the three-year sentence. He should not misinterpret the Home Affairs Committee report.

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

The hon. Gentleman is being quite robust in his response. Will he seriously consider two of the points? He says that there have not been any significant problems under the current legislation where the 12-month maximum sentence applies. With great respect to him, that is not right. I refer

him again to the evidence. I will not go through all the cases again, but experienced specialist extradition solicitors—the firms that deal with these cases day in, day out—advise us through the Law Society that there have been a number of cases where requesting states such as Belgium and the Czech Republic have used the current law in a way that was quite wrong and led to manifest injustice because the offences were too trivial.

The second point is that where one is talking about a maximum sentence of 12 months, even in UK law that can be a minor crime. It can be the kind of crime that none of us in Committee would think would lead to extradition. There is a serious concern here when we are talking about the protection of British citizens. I hope that the Minister, even if he does not do so today, will think quite seriously about that. It would be different if the Bill said that the threshold would be where the normal practice is for a sentence of at least 12 months' imprisonment, but it says it is when the maximum sentence is 12 months.

There are many crimes in UK courts where the maximum sentence is 12 months' imprisonment but where a fine of £50 is normally imposed. Most of us would think that the kind of offence that regularly attracts a fine of £50 should not be extraditable. The Government are in fact putting forward that kind of threshold if we translate UK law into foreign law.

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

The hon. Gentleman deviates in one element from what is actual fact. He does so in his last sentence when he refers to what we are putting forward. That is what is already in law and has been in law for some considerable time. We are saying that we have not heard an argument yet to say that we should narrow this. I do not think that that is the drift of needs. There is no obligation on us to do that. As travel becomes easier and more common and as people flow more freely across the borders, the criminal justice system needs to behave in response to that, not the reverse.

Photo of John Maples John Maples Conservative, Stratford-on-Avon 11:15 am, 21st January 2003

I take the Minister up on the point that this has been the law for several years. He may be suggesting that we introduced it. Surely the difference is the European framework document and the introduction of automatic extradition. If the protections of dual criminality and the Home Secretary's discretion were in place, we would not be making the point so strongly. Because of the European framework document, and the automatic extradition that will now take place, we are looking closely at its terms. That is the difference. I am not saying that it is wrong but there is a difference, and that is what it is.

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

The basic difference is that we shall be removing the ability to delay and prevaricate in extradition proceedings to other ECHR countries. The hon. Gentleman appears to be arguing that delay and prevarication have provided a safeguard that is being removed and that we should, therefore, introduce other safeguards. He, more than any other member of this Committee, has railed against prevarication and

undue delay in extradition proceedings. There is a bit of a circle to be squared in his argument.

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

The Minister is being unfair to my hon. Friend the Member for Stratford-on-Avon. He has spoken about toughening up in certain respects, but also about safeguards. But it is not just my hon. Friend or me—the Select Committee has also made the point that when one is redrafting the whole of extradition law and making many more things automatic, and removing some safeguards and some of the dual criminality provisions, one needs to look again at thresholds. The Minister does his cause no service by making a simplistic attack on our detailed arguments.

When we have discussed extraditing people back to this country, the Minister has put a lot of stress on making sure that we get back the big villains—the bank robbers, the kind of people who flea to the costa del crime. We agree that there ought to be an easier way to get serious criminals back to this country. However, they are the sorts of people who have committed offences that will attract sentences not of three years but of 20 years or life imprisonment. We do not want situations to arise, as has happened under existing law, in which people are extradited to places such as Belgium and the Czech Republic for trivial offences that attract no sentence. Under pressure from British solicitors such cases are dropped because the offences are so trivial. However, in the meantime, British citizens have wrongly been in custody for lengthy periods. That is what we are talking about.

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

This is well-trodden ground. It does not need to be gone over at great length. The hon. Gentleman's rhetoric says that we should be dealing with serious criminals, not with trivial matters. His position on the Bill, as we discussed earlier, would have the effect of imposing a lengthier system on serious criminals unless they are terrorists or can be proven to have a terrorist motivation for the serious crimes that they commit. We have tried to explain the problems of definition, but to no avail; that is his position, even if his rhetoric says something slightly different.

I should like to address one other specific point. The hon. Member for Surrey Heath made a detailed intervention about extradition to Italy. He has had representations from people about the way in which the Italian justice system operates, which is very different from ours. I would remind him that I have already made a commitment to see whether we can find new wording for clause 2(3)(a) to make it clearer, if possible, that extradition can be sought only for an accusation, not for the purposes of investigation or interrogation. We are extraditing people to Italy now and have been doing so for a long time. All the arguments that he puts forward suggest that we ought not to be able to do that, and that we should not do it, because people are treated in an inappropriate way in Italy and it is not a jurisdiction that can be trusted to deal properly with people. If that is so, why have we been extraditing people and why have we dropped the requirement for prima facie evidence to be available in this country? The framework document is clear about the purposes of extradition. We have tried to draft the

Bill to make it clear; we shall look again at the purposes of clause 2(3)(a) to see whether we can pick up on the point raised by the hon. Gentleman's amendment.

I turn briefly to the question of mutual recognition, in response to the hon. Member for Henley. He seems to be saying that British citizens cannot be expected to have detailed knowledge of the law when abroad, and said that we will expose people to legal uncertainty. I have never heard Conservative Members seriously argue, in debates on this or other Bills, that ignorance of the law is an excuse for breaking it. The hon. Gentleman did not give a direct response to my question about whether, when in Spain or France, he should abide by Spanish or French law or whether he ought to ignore it and abide by British law instead. His argument was that he should be able to do exactly that—that he was a British citizen and that he should be obliged only to know the British law—and that those pesky foreigners should not expect him to understand their laws or expect him to abide by them.

We could go into detail about extra-territoriality. Indeed, the hon. Gentleman seemed to suggest that we are able to claim it. We have increased the areas where we seek to claim extra-territoriality—for instance, in computer crime as a result of changes in technology, and in other areas of criminality as a result of a widening in the international nature of crime. However, the hon. Gentleman said that we should be able to claim them, but that other jurisdictions should not; and that we should never have accepted them. He would not even answer the basic question about whether he ought to be subject to another set of laws when in another country, which goes to the heart of the Bill.

Conservative Members seem to be saying that the mere fact of being able easily to cross a border somehow changes the principles of justice. When in Spain, people should abide by Spanish law; but if they can escape back to Britain, we would say that Spanish law does not meet certain minimum requirements, and we are not prepared to extradite people to Spain to face the charge that they had broken the law while there.

Photo of Boris Johnson Boris Johnson Conservative, Henley

I do not mean that criminals should be able to flee back to England after having committed crimes in Spain. I mean only that they should understand that the crime is also an offence in Britain. We are asking for dual criminality, and for the Home Secretary to be able to arbitrate in cases where dual criminality does not exist.

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

I do not think that that was the purport of most of the hon. Gentleman's argument. In response to my hon. Friend the Member for Knowsley, North and Sefton, East, he said that he would not expect the Home Secretary to be the final arbiter of what was just or unjust. We would expect the High Court to decide that, yet he is not prepared to accept the Spanish high court as the final arbiter for crimes committed in Spain—or that a French high court should so act for crimes committed or alleged to have been committed in France. I ask the Committee to reject the new clauses, and to agree that clause 193 stand part of the Bill.

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

We have had a thorough debate. I do not seek to take up more of the Committee's time. We do not accept the Minister's arguments. We maintain all the points made by my hon. Friends the Members for Stratford-on-Avon and for Henley, which were amplified by the hon. Member for Torridge and West Devon and, to an extent, paradoxically supported by the hon. Member for Knowsley, North and Sefton, East. We shall press for a Division. If I may, Miss Begg, I ask for separate votes on new clauses 7 and 8 and on clause 193 stand part.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 8, Noes 4.

Division number 19 Adults Abused in Childhood — Clause 193 - National security

Aye: 8 MPs

No: 4 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly agreed to.

Clause 193 ordered to stand part of the Bill.

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

On a point of order, Miss Begg. May I ask whether the votes that I have asked for on new clauses 7 and 8 start immediately we return in the afternoon?

Photo of Anne Begg Anne Begg Labour, Aberdeen South

No, they will come in the normal way, at the end.

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.