Extradition Bill

– in the Scottish Parliament at 11:35 am on 21st November 2002.

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Photo of Murray Tosh Murray Tosh Conservative 11:35 am, 21st November 2002

The next item of business is consideration of motion S1M-3608, in the name of Mr Jim Wallace, on the Extradition Bill, which is proposed United Kingdom legislation. I call on Jim Wallace—now that he has got his breath back—to speak to and move the motion.

Photo of Jim Wallace Jim Wallace Liberal Democrat 11:36 am, 21st November 2002

Last week, the Queen's speech set out the United Kingdom Parliament's legislative programme for its current session. My colleague Richard Simpson reassured MSPs that we would update them on the necessary Sewel motions as soon as possible. This debate focuses on the first Sewel motion to arise out of the Queen's speech, which is on the Extradition Bill.

It has been suggested by some that the effect of Sewel motions is somehow to shift boundaries between reserved and devolved matters, thereby allowing legislative competence to drift back to Westminster. That is a complete misconception. Sewel motions have no bearing whatever on this Parliament's legislative competence, which remains exactly as it is set out in the Scotland Act 1998.

I refer to the Scottish National Party's amendment. I do not agree that the

"provisions implementing the European Framework Decision on the European Arrest Warrant in the Extradition Bill", which the amendment cites, should be devolved. Following the lodging of the amendment, the matter was given further consideration. Extradition is a reserved matter under schedule 5 to the Scotland Act 1998, and it is reserved without any exception. The subject matter of the framework decision, which sets out the due process for the return of a fugitive from justice from one sovereign state to another, relates to extradition as it is commonly understood.

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party

I hope that I am not pre-empting the minister, but he referred to the motion in his name as a Sewel motion, which I understand gives this Parliament's permission for the UK Parliament to legislate, in part, on a devolved issue. Given what the minister has said about extradition, can he tell me on what devolved issue the Extradition Bill legislates?

Photo of Jim Wallace Jim Wallace Liberal Democrat

I think that the purpose—and perhaps "Sewel motion" is not the proper term— [MEMBERS: "Oh!"] If members listen, I will give the reason why we are debating the motion before us. Sewel motions were not to be only on issues concerning devolved matters; we have understood and agreed that, if functions are conferred on Scottish ministers—albeit on reserved matters—it is important that this Parliament is aware of what is happening and is content that those functions be conferred on them.

The Extradition Bill confers executive functions on Scottish ministers in relation to extraditions to and from Scotland. I think that it is only right that MSPs are fully informed about the functions that Scottish ministers are being asked to exercise on behalf of the people of Scotland, for which we will be accountable to the Parliament. It is precisely to ensure that MSPs have the chance to scrutinise what Scottish ministers are about to do that the scope of the Sewel convention also covers bills such as the one that is before us today.

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party

I am grateful to the minister for that explanation. There is a provision in the Scotland Act 1998 for functions that are exercisable by UK ministers to be transferred to the Scottish ministers by order. Is he saying that, when any Westminster statutory instruments are laid in future, they too will be brought before the Scottish Parliament for consideration? That would strike me as totally analogous.

Photo of Jim Wallace Jim Wallace Liberal Democrat

I am not saying that; I am talking about provisions in bills. The present extradition powers that are exercised by Scottish ministers are, I think, governed by way of order. It might have been possible for that arrangement to have continued, but the view that was taken was that it was better to have all the provisions in the body of one bill. That is why the provisions are contained in the Extradition Bill and why we have lodged the motion before us. This relates, in fact, to a section 63 order under the Scotland Act 1998.

I am sure that members of the Scottish Parliament would agree that the handling of the extradition of fugitives to and from Scotland within the Scottish legal framework is something that ought to be done by Scottish ministers. Hence the reason for today's Sewel motion.

Let me set out in more detail how the bill will work. We all recognise that crime, and serious crime in particular, is becoming increasingly international in nature. International travel makes it easier for criminals to seek to evade justice by fleeing from one country to another, so improved judicial co-operation between nations is needed to tackle such developments. Reform of the United Kingdom's extradition law is designed to contribute to that process.

When enacted, the bill will replace the Extradition Act 1989 with an updated and more streamlined framework for extradition while safeguarding the fundamental human rights of fugitives. It will establish a framework consisting of two separate and distinct categories for the UK's extradition partners. Each partner country will be placed in a particular category that will depend on the extradition procedures that the UK negotiates with each partner. Movement from one category to the other will be possible.

The bill implements the framework decision on the European arrest warrant to create a fast-track process with member states of the European Union as well as with Norway, Iceland and Gibraltar, which will all comprise the category 1 countries. With some important modifications to reduce duplication and complexity, the bill retains the current arrangements for extradition to all category 2 countries. Category 2 countries are those countries that are outwith the category 1 states and with which the UK has mutually agreed extradition arrangements. The bill also simplifies the rules governing the authentication of foreign documents and creates a simplified single avenue of appeal for all cases.

An order under section 63 of the Scotland Act 1998 already means that most current Scottish casework has been executively devolved to the Scottish ministers. However, specific executive functions will be conferred on Scottish ministers in the bill that will replace the existing section 63 order. That will ensure that decisions about the extradition of individuals to and from Scotland will continue to be taken by Scottish courts and by Scottish ministers as appropriate.

In category 1 cases, if another EU country wishes the return of a fugitive from Scotland, a judicial authority in that country will issue a European arrest warrant and send it to the designated authority in Scotland. It has been agreed that the designated authority in Scotland will be the Crown Office. If the warrant has been completed satisfactorily, the designated authority will certify the warrant, which will then be passed to the police for enforcement.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

I draw the minister's attention to section 182 of the Extradition Bill that has been tabled at Westminster. That section places additional burdens for legal aid on the Scottish financial provision. Given the fact that the minister's motion has no corresponding financial resolution and that this Parliament may not spend money without such a resolution, is it possible to proceed with his proposal?

Photo of Jim Wallace Jim Wallace Liberal Democrat

The position is that legal aid is already available to people in the appropriate circumstances and the bill will continue that. This Parliament's predecessor, for which this Parliament takes on responsibility, has approved the provision of legal aid in such cases. The basis of the statute that gives rise to extradition cases should not vitiate the general principle that has been agreed that legal aid should be available in such circumstances.

Photo of Jim Wallace Jim Wallace Liberal Democrat

I have already been generous in doing so, but as it is Mr Gallie, I will give way.

Photo of Phil Gallie Phil Gallie Conservative

Does the minister's example not show that the reverse would be the case? Given the fact that the purpose of the bill is to speed up the extradition process, will that not mean that the level of legal aid that is paid could be reduced?

Photo of Murray Tosh Murray Tosh Conservative

This debate will be a bit tight, so I ask the minister to make that the last intervention that he accepts.

Photo of Jim Wallace Jim Wallace Liberal Democrat

Mr Gallie is probably right in that. The bill will streamline the extradition process, so it may give rise to a lesser call on legal aid funds than exists at the moment.

The fugitive would be arrested and brought before a sheriff of Lothian and Borders for an initial hearing. The sheriff would then have to decide whether the person arrested was the person for whom the warrant was issued. If so, the sheriff would then fix a date for the extradition hearing. At the extradition hearing, the sheriff would decide whether the offence that the fugitive was alleged to have committed was an extradition offence and whether any bars to extradition applied. Those bars include the rule of double jeopardy and the fugitive's age. If the sheriff ordered the fugitive's extradition, the fugitive could appeal to the High Court of Justiciary. If the appeal was refused, the fugitive would be returned to the requesting state.

The aim is to return a fugitive within 60 days of receipt of the warrant or within 90 days if he or she appeals. It should be noted that the decision on extradition under the bill's arrangements is a matter for the judiciary in Scotland rather than for the Scottish ministers. Indeed, the bill provides the kind of simplification to which Mr Gallie referred.

There are some major advantages to the new European arrest warrant procedure. It will deliver justice more rapidly for victims at home and abroad. It removes the time bar, as it will no longer be possible automatically to refuse extradition if the alleged crime is well in the past. That will be particularly beneficial for those who, when children, were the victims of serious sexual crimes but who have only now felt able to come forward as adults. In addition, it will no longer be possible for one European country to refuse to extradite a person to another European country, regardless of the seriousness of the crimes, solely because the individual sought is a national of the state concerned.

In category 2 cases, the decision on whether to extradite will remain with Scottish ministers as at present. The procedure will remain broadly the same; the main changes that will be made will be to the appeal process. Under the present rules, where a sheriff orders the committal of a fugitive to await the decision of the Scottish ministers as to his return, the fugitive can appeal straight away to the High Court. If the appeal is lost, the case passes to the Scottish ministers for their decision. If Scottish ministers order the fugitive's extradition, he can appeal again. That is not the best use of court time so, if a fugitive appeals against the decision of the sheriff, the appeal will be suspended until after the Scottish ministers have considered the case. If Scottish ministers order extradition, the fugitive can then appeal to the High Court.

The bill also makes provision for the opposite way round, so that any sheriff in Scotland could issue a European arrest warrant for the return of a fugitive from Scottish justice.

The bill contains specific provisions that will ensure that the distinctive roles of Scottish ministers, of the Crown Office as the designated authority and of the Scottish courts are safeguarded in relation to extradition.

I see that the Presiding Officer is signalling, so I will bring my speech to its conclusion.

We recognise that the bill will modernise the UK's cumbersome statutory extradition framework. It will put in place arrangements that will make the process more efficient, while respecting the human rights of those who are the subject of extradition requests. Notwithstanding the fact that extradition is reserved, we support the conferring of executive functions on the Scottish ministers that is provided for by the Extradition Bill.

I move,

That the Parliament notes the provisions of the Extradition Bill and agrees that those provisions conferring Executive functions on the Scottish Ministers in relation to extradition should be considered by the UK Parliament.

Photo of Murray Tosh Murray Tosh Conservative

I advise that, as we have received more bids to speak than we had notice of, the debate will be much tighter than anticipated. I ask members to keep within their speaking limits.

Photo of Christine Grahame Christine Grahame Scottish National Party 11:48 am, 21st November 2002

The SNP has not automatically amended the motion in the name of the minister. Not all Sewel motions are bad, although we have had too many. There have been, I think, 38 Sewel motions to date. That flies in the face of the late Donald Dewar's words on devolved matters. He said:

"there is a possibility ... of the United Kingdom Parliament legislating across those areas, but it is not one which we anticipate or expect."—[Official Report, House of Commons, 28 January 1998; Vol 305, c 402-3.]

How wrong that turned out to be.

However, the SNP amendment has not been lodged for that reason—it is not a wrecking amendment—but because the basis on which the minister seeks the Parliament's support is fundamentally flawed. The Executive motion states:

"conferring Executive functions on the Scottish Ministers in relation to extradition should be considered by the UK Parliament."

The SNP amendment would add to that:

"with the exception of provisions implementing the European Framework Decision on the European Arrest Warrant in the Extradition Bill which should be dealt with by the Scottish Parliament".

I know that members in the chamber have looked at the bill, but I am referring to part 1, not part 2. Part 1 deals with the new creature that is the European arrest warrant. There is a crucial distinction to be made. Extradition orders lie within the jurisdiction of politicians and politicians take the final decisions on them; European arrest warrants would lie within the jurisdiction of the courts alone—in this case, the Scottish courts—and no political fingers would poke into that particular jurisdictional pie.

Photo of Pauline McNeill Pauline McNeill Labour

I welcome the SNP's approach to this morning's debate because the SNP does not seem to be taking its usual approach of opposing Sewel motions on principle. However, I question the SNP amendment, which states that Scotland has the power to legislate in relation to the European arrest warrant. Is it not the case that Scotland cannot legislate against a European Union decision because such a decision is paramount?

Photo of Christine Grahame Christine Grahame Scottish National Party

No, we are talking about the implementation of warrants and I will develop the argument. The SNP is not accepting the Sewel motion as it stands because it is not competent. Under the European framework decision, it is not a Sewel motion and I will develop that argument.

In the EC framework decision, from which I will now quote, it is plain that the European arrest warrant is a substitute for extradition and therefore a completely different creature. Recital (5) of the EC framework decision states:

"The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures."

We are therefore talking about the implementation of warrants, not extradition. Extradition is dealt with in part 2 of the Extradition Bill. It is therefore my contention that we are not dealing with a wholly reserved matter. It is a core distinction, because extradition is completely reserved. Processes and procedures such as shrieval and judicial warrants are not reserved.

There is also another distinction between those two legal creatures. There is no requirement that the crime alleged in the European arrest warrant by the state issuing that warrant is a crime in the state executing that warrant. That is a requirement of extradition.

Under the Sewel convention, the consent of the Scottish Parliament is required to any provisions of a UK bill that confer executive functions on Scottish ministers. The Extradition Bill does more than that and makes provision for wholly devolved matters relating to criminal procedures that have remained clear and independent in Scots law, despite the Treaty on European Union, such as the implementation of the European arrest warrant.

We cannot simply glide over that distinction and argue that extradition has been redefined and therefore brought within the reserved areas of the Scotland Act 1998. One cannot amend legislation, certainly not constitutional legislation, by inference or import. It would require primary amending legislation. In support, I will quote Lord Sewel's statement on Sewel motions. He said:

"we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament.

If problems do arise the solution is for the Scottish executive and the United Kingdom Government to resolve the matter through political dialogue ... If this Parliament thought the situation had got to a stage of total impasse, it would be possible to look again at the Bill and enact primary legislation affecting the reserved matters."

My argument is that the European arrest warrant is not reserved. Lord Sewel went on:

"There should be mature political dialogue to resolve a difference, which is better than legislative tennis. If an impasse results there is the ultimate fallback position of looking at Schedule 5 and changing the devolved powers."—[Official Report, House of Lords, 21 July 1998; Vol 592, c 791.]

Primary legislation can be used to alter the Scotland Act 1998 in this regard.

I have a few more points to make, Presiding Officer, because these are important constitutional arguments that underpin the SNP amendment. We also have civil liberty concerns. I quote:

"The Eurowarrant is based upon the presumption that EU countries all have fair systems of justice which should remove the need for any country to scrutinise the fairness of extradition to such a country. This presumption is seriously open to question."

One only has to consider the recent case of the plane spotters in Greece.

"With the current European arrest warrant, any one of the English planespotters could have been arrested in England on a warrant from an English court at the request of a Greek prosecutor and sent to Greece for trial, without the current political protections or the safeguard of habeas corpus" or, in a Scottish case, without the protection of the 110-day rule. Those issues were raised by Neil MacCormick at the European Parliament.

The Liberal Democrat response at Westminster to the draft Extradition Bill said:

"we believe it would be wrong to implement changes on extradition before the European Commission's review of minimum procedural safeguards for suspects and defendants has been completed ... Common standards in relation to the presumption of innocence, the right to legal advice and representation, rules of evidence and the practice of custodial remands should be established and applied before common judicial procedures are adopted." "The European Commission has not completed its review of minimum procedural safeguards and common standards."

I come to my final point, Presiding Officer. The bill has been published only for a week and there is no immediate need for the Executive to pursue the motion. If the SNP amendment is not acceptable—as it will probably not be—I respectfully submit that the Executive should seek the leave of the chamber to withdraw its motion, examine the constitutional issues that have been raised and either give the Parliament or the justice committees the opportunity to examine the issues raised or return to the chamber with a revised motion to reflect what is really happening.

I move amendment S1M-3608.1, to insert at end:

"with the exception of provisions implementing the European Framework Decision on the European Arrest Warrant in the Extradition Bill which should be dealt with by the Scottish Parliament, and calls upon the Scottish Executive to bring forward legislation implementing the Framework Decision that reflects the particular nature of the Scottish legal system."

Photo of Lord James Selkirk Lord James Selkirk Conservative 11:56 am, 21st November 2002

We will vote for today's Sewel motion because we believe that the United Kingdom Parliament should have the right to determine issues relating to extradition. The United Kingdom Parliament should exercise its jurisdiction in a way that serves the public interest and pursues the ends of justice without being desperately unfair to the accused.

The matter is reserved under schedule 5 to the Scotland Act 1998. We therefore believe that the Sewel motion is necessary because of the delegated functions that come under the Scottish Parliament, such as all policing matters.

The bill seeks to speed up the process of extradition and removes the need for the Home Secretary to be involved in every application. According to information from the Home Office, it takes approximately one year to return a suspect to the United Kingdom and some six years to send a suspect for trial abroad. Under the provisions in the bill, which is due to come into force in April 2004, overseas police forces will be able to seek the arrest of British citizens inside the United Kingdom. Alleged fugitives will have an initial hearing in front of a district judge or sheriff in the United Kingdom, and will be able to appeal to the High Court.

In some cases, there will also be appeals to the House of Lords. Some rights of appeal will be removed as the Government tries to cut the average time taken to hand over suspects from 18 months to 3 months. The Government says that there is no reason why alleged criminals should not be sent for trial in countries that have fair justice systems.

I understand that the Conservative front bench at Westminster agrees that reform to the extradition process is needed, particularly in cases of alleged terrorists. However, under no circumstances should the arrest warrant be used to arrest a British citizen for an action that is not a crime in the United Kingdom, nor should a British citizen be sent to face trial in a country that has the presumption of guilt. In other words, the Conservatives accept that the authorities must have the power to detain terrorist suspects in one country for crimes that they have committed in another. However, Conservatives will oppose any new powers to arrest and deport British citizens for activities that are not crimes in the United Kingdom, and any measures that compromise the presumption of innocence.

The bill will make certain that Scottish ministers can fulfil their full ministerial role in relation to extraditions to and from Scotland. It will enhance their role in certain instances. For example, for the first time, they will handle extradition requests from the United States of America. Those changes acknowledge the reality that there is a different criminal justice system in Scotland and that will be reflected in the bill.

In response to Christine Grahame's speech, I say that I have no doubt that the Scottish MPs at Westminster will consider the points that she has raised when the matter is debated in the United Kingdom Parliament. It also has to go to the second chamber, where it will undoubtedly be considered for amendment.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

The Chambers dictionary, which I have just consulted, states that extradition is the "delivering up of accused" persons

"by one government to another".

Would the member accept, therefore, that the surrendering of a person by a Scottish Government to a Westminster Government is extradition?

Photo of Lord James Selkirk Lord James Selkirk Conservative

It is an important constitutional point. The United Kingdom Parliament is sovereign and, in theory, the United Kingdom Parliament could step in on any issue that is devolved. The delegated powers are devolved to here, and I do not envisage that there will be any conflict between this Parliament and the United Kingdom Parliament over extradition. I have no doubt that if any particular issues have to be referred to this Parliament, in due course the minister will come back to us, but I do not think that that is at all likely to happen.

We support the motion, as we believe it to be in the national interest. The matters involving terrorism should be accorded the highest priority and be dealt with speedily whenever possible.

Photo of Angus MacKay Angus MacKay Labour 12:01 pm, 21st November 2002

So far, this has not been a terribly surprising debate, although in some respects it has been astonishing, in particular in relation to the speeches from the SNP benches. It took two or three interventions before we got even remotely near anything that addressed the substance of the debate, which is extradition and crime. Even in the substantive speech by Christine Grahame, we heard another series of obsessional tartan-underpants observations that focused exclusively on the difference between Scotland and the Scottish Parliament and the UK position. Not a single word was devoted to addressing serious and organised crime. People outside Parliament will find that absolutely astonishing.

Let us consider the substance of what the Extradition Bill will deliver. The European arrest warrant is just one aspect of it, and the SNP has picked up on it for party-political reasons.

Photo of Angus MacKay Angus MacKay Labour

No, certainly not yet. Perhaps I will do so in a moment. I wish to make a number of points and we are not given much time.

The bill deals with the current practice of evasion from, and delaying of, criminal prosecution by serious and organised criminals across international borders. It deals with—[Interruption.] Members should re-read what the bill seeks to do, because that is what it seeks to do. The bill deals with—[Interruption.]

Photo of Angus MacKay Angus MacKay Labour

The bill deals with fiscal offences throughout the European Union and elsewhere, although it does not—sadly—deal with people who pretend to have a fiscal policy. It deals with another important issue, which perhaps has not been addressed so far: the rights of defendants—the rights of the accused—to be heard in court earlier rather than later, and to the opportunity to clear their name or be convicted earlier rather than later.

Most important—for people everywhere but on the SNP benches—the bill deals with the kinds of criminals who increasingly take up police time and court time. They are the criminals who traffic drugs, who commit sexual assaults and who commit murder, not only throughout the European Union, but around the globe.

Photo of Angus MacKay Angus MacKay Labour

Not yet.

The present system, as Lord James Douglas-Hamilton mentioned, allows for up to six years in some cases to achieve extradition. The SNP's proposal, in calling for legislation on the matter here in Scotland, seeks in effect to create a further giant hiding place for those who are accused of serious criminal offences. It seeks to do that by taking the existing system and flying directly against what is being attempted today, what is being attempted by the European framework, and what is proposed by Westminster, which is the simplification of procedures, the simplification of legislation, and greater transparency across international borders—[Interruption.]

Photo of Angus MacKay Angus MacKay Labour

The SNP position proposes more legislation, more opportunities for criminals to appeal and nil concentration on achieving the objective of extradition of those who are accused of serious organised crime.

Photo of Fiona Hyslop Fiona Hyslop Scottish National Party

Has Angus MacKay read the motion that we are debating? All it says is that we should note the provisions of the Extradition Bill. The question that Parliament must vote on, which is the substance of the debate and the substance of the amendment that Christine Grahame lodged, is about the powers of Scottish ministers. The debate is about whether part 1 of the Extradition Bill is about extradition or domestic warrants which are, we argue, a devolved matter.

Photo of Angus MacKay Angus MacKay Labour

I have read the motion and the SNP's amendment, which clearly

"calls upon the Scottish Executive to bring forward legislation" in this Parliament. That confirms what I said—the SNP is asking for another layer of law, which will allow those who are accused of such criminal offences, and whose extradition is sought, to appeal further under more layers of legislation. That will merely further extend the appeal process and will do nothing to simplify it. It will not work in the interests of those who are accused and it certainly will not work in the interests of those who are alleged to be the victims of such criminal offences.

The truth of the matter is that the purpose of the Extradition Bill is to make the system faster, clearer and more transparent. The SNP proposal flies directly against that, directly against what has been agreed by the European Union, directly against what is proposed by the Westminster Parliament and directly against what is proposed by Scottish Executive ministers today.

I realise that I have only five minutes, Presiding Officer—Fiona Hyslop has taken some of that time—but I conclude by saying that I do not think that the SNP is even remotely interested in extradition, given its contribution today. We have said this before and we repeat it again: the SNP is far more interested in taking Scotland out of Britain than it is in getting criminals into court.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party 12:06 pm, 21st November 2002

That was quite the most disgraceful speech that I have heard for some considerable time. The member knows perfectly well that we will have one piece of legislation on the matter; we are debating only where it will be passed. I do Angus MacKay the honour of saying that he cares about crime, because I know that he does, but we care about crime every bit as much as he does.

In more moderate terms, I say that I do not think that we have double jeopardy in Scotland—we thole the assize—but I understand that the minister may be fair trachled after his exertions today.

I raised the question of extradition with Lord James Douglas-Hamilton, because we have a system of warrants with other legal systems within the United Kingdom. The European framework directive seeks to cover the whole of Europe with a similar system. We adhere to the view that we are not dealing with extradition, because one of the fundamental proposals in part 1 of the Extradition Bill is the substitution of decisions by ministers with decisions by courts. That is fundamental; it is not incidental. It is only through the choice of the drafters of the bill that the process is called extradition; the bill is about European arrest warrants.

The real issue is that in the Justice 2 Committee we are at stage 2 of the Criminal Justice (Scotland) Bill, and there are a number of crossover points that will cause difficulties. Richard Simpson's amendment 16 to the Criminal Justice (Scotland) Bill, on electronic communications and electronic storage, for example, interacts in an adverse way with clause 62 of the Extradition Bill, which relates to the use of facsimiles and the way in which they may be used. That is an unhelpful interaction.

There are also interactions on legal aid. I believe that the provisions in the Extradition Bill, whether enacted at Westminster or here, will speed things up—I hope that they do—but they will also increase the number of cases and therefore, potentially, the burden on the legal aid system. It appears to be entirely improper for us to address clause 182 of the Extradition Bill.

Sections 54 and 55 of the Criminal Justice (Scotland) Bill contain measures that are not entirely dissimilar to measures in the Extradition Bill, and so will interact in an adverse way, in particular in relation to age. Sections 54 and 55 relate to offences that are committed by agents of Scottish companies, persons, partnerships and so on, and who may be prosecuted. We now have a curious situation which, because there is legislation at Westminster and legislation here, we might be unable to resolve satisfactorily. Someone could be extradited—I use the minister's term for the sake of argument, but in our terms it is transfer under a European arrest warrant—from the Scottish jurisdiction to elsewhere in Europe based on a crime that has actually been committed in, for example, Thailand without necessarily having the kind of protection that we have in our criminal justice system.

If my speech raises a series of complex, technical issues, it does so because separating out a significant change to the criminal justice system while we are legislating on criminal justice is a recipe for confusion and disaster.

Photo of Pauline McNeill Pauline McNeill Labour 12:10 pm, 21st November 2002

The Extradition Bill, which was introduced on 14 November 2002, will bring about a wide-ranging review of the law of extradition. It will incorporate into UK law the adoption of a framework decision on the European arrest warrant, which will create a fast-track arrangement for extradition between member states of the European Union, together with Norway, Iceland and Gibraltar.

More legislation is being introduced to toughen up on the serious and organised crime that occurs more than ever across national borders. The Government is committed to doing that. It is essential that we continue to deal with crime on an international basis through bilateral treaties, protocols and European Union legislation. Extradition and the transfer of fugitives are a UK power, and rightly so. It is important that we have a uniform approach—not just throughout the European Union, but with as many countries as possible—to ensure that we deal with criminals wherever we find them and that we send them to the country in which their crime was committed.

Part 4 of the bill, which deals with the powers to obtain search warrants and to seize and retain evidential material, will reflect the differences between the Scottish and English systems, because the provisions of the Criminal Procedure (Scotland) Act 1995 will be relied on. It is important to note that the bill protects Scottish provisions.

The European Union arrest warrant raises an issue that ministers must address this afternoon. Framework decisions in the European Union are not understood as well as they should be. I understand that a framework decision must be adopted by the member states and therefore constitutes European Union law. Scotland cannot legislate against European Union law, so the SNP amendment, although it is helpful, is flawed. However, I urge ministers to be cautious about the way in which the Parliament deals with framework decisions.

The Justice 2 Committee has dealt with framework decisions relating to civil law. We have been asked to examine a framework decision that was initiated by France, under which we would adopt the French way of proceeding, rather than the Scottish way. If we regard the Scottish way of proceeding as preferable, we should be able to bring influence to bear on the normal decision-making process. I am not talking about legislation. The Justice 2 Committee urges other committees to consider the issue of framework decisions, which often sneak through. I am not shy about saying that we need to protect Scottish principles and I want Scottish ministers to address the issue that I have raised.

As I said, the European arrest warrant is part of an important framework decision. The judicial authority in each European Union state will issue a common form of arrest. The Crown Office will handle warrants that seek the extradition of persons who are believed to be in Scotland. A person may be arrested when there are reasonable grounds for believing that a warrant might be issued shortly. That is an important change and a very strong power, which we need because it reflects the serious nature of the crimes that require persons to be extradited. The Labour party is committed to dealing with that issue.

Photo of Murray Tosh Murray Tosh Conservative

No—the member is in her last minute.

Photo of Pauline McNeill Pauline McNeill Labour

It is crucial that decisions will be made by Scottish sheriffs, Scottish procurators fiscal and the Scottish police force. If we leave aside the note of caution that I have sounded, I do not believe that the bill will have a detrimental effect. The European arrest warrant is fundamental to making the way in which member states proceed the same on every front. It is a necessary power throughout Europe.

As Angus MacKay said, it is important that we continue to build on bilateral treaties with other countries to ensure that we tackle serious crime. When we need extra strong powers, those should be taken. I hope that Scottish ministers acknowledge the important point that I have made about framework decisions. I support the motion.

Photo of Donald Gorrie Donald Gorrie Liberal Democrat 12:15 pm, 21st November 2002

If the Italian court wishes to pursue a Mafia boss who comes to Scotland because he prefers the climate, under the European arrest warrant the matter would come to Scottish courts, which would decide whether the case was bona fide and whether he should be sent off to Italy. In my language, that is extradition, but I wonder what the SNP thinks it is. The European arrest warrant is a speeded up and, we hope, improved system of extradition. If someone speeds up and improves their motor car, it is still a motor car. I ask for Christine Grahame's explanation.

Photo of Christine Grahame Christine Grahame Scottish National Party

I thought that I had expounded my explanation fairly thoroughly when I began. I take the opportunity to rebuke one of the speakers for attacking the SNP on its views on catching criminals, which was outrageous.

Photo of Christine Grahame Christine Grahame Scottish National Party

My answer to Donald Gorrie is that there is no political involvement in European arrest warrants; there is an entirely efficacious warrant and arrestment procedure, which is not extradition. Extradition is defined narrowly in the Scotland Act 1998. It cannot be redefined retrospectively.

Photo of Donald Gorrie Donald Gorrie Liberal Democrat

In my language, the situation that I described is still extradition. I do not see what other word can be used. If courts in Scotland, at the request of the Italians, go through a process and agree that someone should be sent off to Italy, that is extradition in my view and it is therefore a reserved matter. The peculiarity is that although the matter is reserved, the bill will give powers to Scottish ministers and authorities. There has to be an arrangement whereby if there is a big hoo-ha when somebody is extradited and there is great public feeling that it is wrong, Scottish ministers have to be answerable to this Parliament and not in some obscure way to the London Parliament. I hope that there will be an assurance that the process can be organised democratically and correctly. I do not agree with the SNP and, although I am sure that everybody is acting in good faith on the matter, I think that the SNP is mistaken.

Photo of Phil Gallie Phil Gallie Conservative 12:17 pm, 21st November 2002

I have to say that the SNP's arguments are on a shoogly peg—apologies to St Ninian's Primary School—on the matter, although Christine Grahame raised issues that will have to be addressed in this Parliament after legislation is cleared at Westminster to allow the process to go ahead. There are implications for the Scottish courts and the Procurator Fiscal Service that need to be addressed. The ministers are well aware of that and can bring issues back, if need be, through statutory instruments in this Parliament. I do not see a problem with that.

I see a need for haste; we must address this important issue quickly. The Government has already fallen behind on the programme that David Blunkett agreed in Europe on the matter and we should do nothing in this Parliament to slow the process up. We will give the Executive's motion full support and we hope that things will move ahead quickly.

There are issues around the European arrest warrant that I would love to address, but sadly I lost the right to do that when I failed to win a seat at Westminster two years ago. The fact is that there are 72 members of Parliament from Scotland who are there to represent Scotland on UK issues. Some members here voted for the Scotland Act 1998, which acknowledged that extradition is a reserved matter.

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party

Does Mr Gallie accept that the curious procedures at Westminster meant that most of the individual provisions within the Scotland Bill were not voted on?

Photo of Phil Gallie Phil Gallie Conservative

The point is that the member supported the Scotland Bill when it went through Westminster. On that basis, he endorsed everything that it contained. That is the point that I am making and that is the assertion to which I will stick.

There are one or two issues that concern me. I am pleased to say that Conservative colleagues at Westminster will undoubtedly act on those concerns. We are in danger of allowing acts that are seen as criminal law acts in other countries to be incorporated into our laws.

The three-year rule refers to the sentencing period. In Scotland, we might find that our mandatory sentencing or the sentencing options were much less than three years. We wish to query many issues in the detail of the bill and we have confidence that our one representative at Westminster will make our views well known.

Photo of Fiona Hyslop Fiona Hyslop Scottish National Party 12:20 pm, 21st November 2002

The debate is serious, because it addresses a wide range of issues—not least, crime and the provision of international arrest orders. The SNP is not against the proposals for European arrest warrants, but it is concerned about where it is legitimate to hold the detailed consideration of, and debate on, the legislation.

In the European Parliament, Sir Neil MacCormick moved a constructive amendment to the framework decision on the European arrest warrant, in an attempt to build the 110-day rule into the general provisions. Sir Neil MacCormick is now calling for Eurojust—the European prosecution agency—to come to Edinburgh.

Let us turn to the nuts and bolts of the SNP's amendment and to the substantive issues that have been raised. Our argument is that, if we are to debate a Sewel motion, it should cover relevant areas. We are particularly concerned about whether the issue in part 1 of the bill is about extradition or whether it is about domestic warrants. If it is about domestic warrants, it is a judicial matter, which means that it is a matter for the Scottish Parliament, rather than for Westminster, to address.

Our understanding of extradition is that it requires a decision by a minister in executive Government in order to proceed. No such decision is necessary for the execution of a European arrest warrant. The fact that the execution of a European arrest warrant is entirely a judicial process means that part 1 of the Extradition Bill should be considered in Scotland.

I refer members to the council framework decision of 13 June 2002, which states:

"The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities."

I draw Donald Gorrie's attention to that point. The framework decision abolishes extradition in European Union member countries and replaces it with

"a system of surrender between judicial authorities."

The judicial authorities are the court system in Scotland, not Executive ministers. That is the important distinction.

The issue of deferral has been raised. It is only seven days since the publication of the bill so, bearing in mind the constitutional points that have been made, is not it reasonable to ask for a deferral so that those points can be considered? If it is decided that matters relating to the judicial system should still be dealt with by Westminster, the Executive should come back with a Sewel motion that is about all of part 1 of the bill, rather than just the functions.

If Pauline McNeill thinks that it is important for the Justice 2 Committee and other committees to consider framework decisions and their implementation in relation to civil law, does not she think that it is equally important that the Justice 2 Committee, and other committees, should examine framework decisions and their implementation in relation to criminal law? Would not the Parliament be setting a good example by taking responsibility for the criminal justice system issue? Should not that issue be examined by the committee that is responsible for such consideration?

There are other general problems with the Extradition Bill; for example, there are some civil liberties arguments about implementation. The Liberal Democrats' submission to the consultation raised important points about civil liberties arguments and the importance of considering the European Commission's report. That issue is worthy of consideration. I am sure that Members of Parliament from all parties will engage in such consideration at Westminster.

We must consider how the European arrest warrant will be implemented by the criminal justice system here. We must have a fair system. A concern that has been raised is that executing the bill's provisions should not create a problem in relation to the European convention on human rights.

One of my concerns is supported by the case of Ramda v Secretary of State in 2002, when the High Court said that it was no answer for the Secretary of State to invoke France's status as a signatory to the ECHR as a complete answer to complaints about the fairness of the trial.

We are dealing with big issues that cannot necessarily be addressed in a short Sewel debate, so we must deal with them again. I am particularly concerned that the renaming of the extension of domestic warrants to be interpreted as extradition will mean that powers can be transferred from the Scottish Parliament to Westminster. That would be a serious initiative to take and one that might come back to haunt us.

I ask the minister to withdraw his motion or to accept our amendment, which would allow part 1 of the bill, at least, to be legislated for. The Criminal Justice (Scotland) Bill is at committee stage currently, so we could be legislating now on the issues that I mentioned. At the very least, I ask the minister to consider our request because of the serious concerns that we have as parliamentarians in the Scottish Parliament. By lodging our amendment, we seek to protect powers under the Scotland Act 1998; I hope that the minister respects our right and responsibility to do so.

Photo of Richard Simpson Richard Simpson Labour 12:26 pm, 21st November 2002

We have had a lively debate. I would like to call it interesting, but I find the approach of the SNP members difficult. Donald Gorrie put it well when he said that a car is still a car whether it has three wheels or four. Extradition is still extradition. If a fugitive surrenders and the process is undertaken through the EAW, I do not see the difference—the SNP is straining at a gnat.

SNP members have put the arguments—I cannot say that they put them well. Extradition is a reserved matter. Processes that enact extradition are reserved. In this case, I simply do not follow the SNP's arguments.

However, we should welcome the fact that, on this occasion, the SNP has not opposed the Sewel motion. That is a heartening development. The SNP has crossed a threshold. In the context of the Scotland Act 1998, Sewel motions are an important way to get ahead with business rather than clog up the Parliament by dealing with a series of issues. Some 34 such motions have been passed, dealing with important legislation that it was appropriate for us to undertake in that way, either because of time or because we were seeking continuity throughout the United Kingdom. I am pleased that, for the first time, the Scottish National Party has recognised that Sewel motions provide an appropriate way to deal with matters. I hope that it will continue to do so.

The bill is designed to set a flexible framework for extradition procedure in the future. The new Extradition Bill presents the end of a lengthy process. I understand Pauline McNeill's point, but in this context, we are dealing with a reserved matter. Where the implementation of a framework decision relates to a devolved matter, it is appropriate for the Scottish Parliament to implement it through an act of the Scottish Parliament. Where the implementation of a decision relates to a reserved matter, comment can be made. Next week, I will attend the European justice and home affairs council as part of the United Kingdom delegation, to talk about issues that are of importance to Scotland. That is appropriate and that is how it should be done.

Photo of Pauline McNeill Pauline McNeill Labour

The minister raised framework decisions. Does he agree that the framework decision being dealt with in Parliament at present should be scrutinised properly if it refers to devolved matters? The flaw in the SNP's amendment is that, even if the framework decision were on a devolved matter, we could not legislate against the European Union.

Photo of Richard Simpson Richard Simpson Labour

I agree with the first point: it is entirely appropriate that the Parliament should scrutinise issues if they relate to devolved matters and European framework decisions.

The new Extradition Bill is the end of a lengthy process. In 1999, the European Union announced its intention to build an area of freedom, justice and security based on mutual recognition of fellow member states' judicial decisions and infrastructure. Part of the fruit of that approach is seen in the bill. In particular, the bill implements the framework decision on the European arrest warrant, adopted by the Council of the European Union on 13 June 2002. Shortly, we will consider a Sewel motion on the Crime (International Co-operation) Bill, which implements a range of other EU decisions on judicial co-operation across national boundaries. That is entirely appropriate.

At the domestic level, the Government set out its proposals to reform the law on extradition in a consultation document, "The Law on Extradition: a review", in March 2001. Those proposals were given fresh impetus by the terrible attacks on the United States last September, and they were modified to reflect the adoption of the framework decision on the European arrest warrant. The Extradition Bill represents a significant step towards closer and more effective co-operation with our extradition partners, but I stress that it does not represent a move towards the introduction of a European justice system by the back door. It is fully based on the principles of mutual respect and co-operation between judicial systems.

As crime becomes more transnational, we need to work together more closely. International borders are not barriers to increasingly sophisticated criminals, and it is vital that those borders do not become barriers to the implementation of international criminal law. The bill will undoubtedly help to ensure that criminals can be tracked down and extradited on the basis of a speedy, open process that is consistent with the ECHR and duly overseen by the courts and, as is appropriate, by ministers. In that respect, the bill contains specific provisions that will ensure that the distinctive roles of Scottish ministers, of the Crown Office as a designated authority, and of the Scottish courts are safeguarded in relation to extradition.

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party

This is a genuine inquiry. On my reading, there is an appeal from the High Court of Justiciary to the House of Lords. Will the minister confirm whether that sets a precedent, or does that happen already?

Photo of Richard Simpson Richard Simpson Labour

That will not occur in the Scottish context, and that is part of the respect for Scotland's individual judiciary. There will not be an appeal to the House of Lords in Scotland. I hope that that answers Alasdair Morgan's point.

The powers, including provisions relating to the courts and to the functions of the prosecutor, are in the correct form for Scotland. There is, as I have said, no appeal to the House of Lords on criminal matters, so English provisions in relation to such appeals are disapplied. Part 4 of the bill deals with powers to obtain search warrants and to seize and retain evidential material, again applying Scots law.

Photo of Richard Simpson Richard Simpson Labour

I have already taken interventions.

Photo of Richard Simpson Richard Simpson Labour

I am just about in the last minute of my speech.

Photo of Murray Tosh Murray Tosh Conservative

It is up to you, Dr Simpson.

Photo of Richard Simpson Richard Simpson Labour

I will not take Christine Grahame's intervention.

In England, those functions are initiated by the police, and English law in that area depends on the Police and Criminal Evidence Act 1984. However, that act does not apply in Scotland, where case management is firmly under the control of the procurator fiscal. Accordingly, a number of clauses in part 4 of the bill that depend on the 1984 act do not apply to Scotland, and we consider that we can rely on existing common and statute law here.

We recognise that the bill will modernise the UK's outdated and cumbersome statutory extradition framework and will put in place arrangements that will make the process more efficient, while respecting the human rights of those who are the subject of extradition requests.

Phil Gallie referred to a point made by Stewart Stevenson about the costs of the proposed arrangements. The current cost of an extradition is around £125,000 per case. By shortening the process to an expected 60 days without appeal, or 90 days with appeal, we confidently expect those costs to be reduced significantly, so that any additional cost burden to the Scottish Parliament would be outweighed by savings. Therefore, there are no financial implications. As I understand it, there are already provisions for legal aid in respect of extradition, so there is no need to introduce new measures. Therefore, a financial resolution is not required.

Photo of Richard Simpson Richard Simpson Labour

No. I am now well beyond my time limit. This time, the Deputy Presiding Officer will not allow me to accept an intervention.

I urge the Parliament to support the motion and to reject the SNP amendment.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

On a point of order, Presiding Officer. I request a ruling on the necessity for a financial memorandum to the Extradition Bill. In doing so, I draw attention not only to legal aid, but to other matters in the bill, under the following headings: clause 59 on "Costs where extradition ordered"; clause 60 on "Costs where discharge ordered"; clause 61 on "Costs where discharge ordered: supplementary"; clause 130 on "Costs where extradition ordered"; clause 131 on "Costs where discharge ordered"—in particular clause 131(5), which states:

"An order under this subsection in favour of a person is an order for a payment of the appropriate amount to be made to the person out of money provided by Parliament"; clause 132, on "Costs where discharge ordered: supplementary"; and clause 182 on "Legal aid: Scotland".

Before we vote at decision time, it would be of great assistance if you could advise us whether those clauses have financial implications that will require payment from the Scottish consolidated fund, which would invalidate our voting on the motion.

Photo of Murray Tosh Murray Tosh Conservative

I think that the answers that were given by the ministers who opened and closed for the Executive indicated the Executive's view that the existing financial provisions cover those circumstances. However, I will seek advice on whether Mr Stevenson's question raises any issues for the chair. The Parliament will be advised on the matter later.