EUROPEAN FRAMEWORK LIST (Hansard, 25 March 2003)

HC Deb 25 March 2003 vol 402 cc218-28 218

1 Participation in a criminal organisation.
2 Terrorism.
3 Trafficking in human beings.
4 Sexual exploitation of children and child pornography.
5 Illicit trafficking in narcotic drugs and psychotropic substances.
6 Illicit trafficking in weapons, munitions and explosives.
7 Corruption.
8 Fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities' financial interests.
9 Laundering of the proceeds of crime.
10 Counterfeiting currency, including of the euro.
11 Computer-related crime.
12 Environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties.
13 Facilitation of unauthorised entry and residence.
14 Murder, grievous bodily injury.
15 Illicit trade in human organs and tissue.
16 Kidnapping, illegal restraint and hostage-taking.
17 Racism and xenophobia.
18 Organised or armed robbery.
19 Illicit trafficking in cultural goods, including antiques and works of art.
20 Swindling.
21 Racketeering and extortion.
22 Counterfeiting and piracy of products.
23 Forgery of administrative documents and trafficking therein.
24 Forgery of means of payment.
25 Illicit trafficking in hormonal substances and other growth promoters.
26 Illicit trafficking in nuclear or radioactive materials.
27 Trafficking in stolen vehicles.
28 Rape.
29 Arson.
30 Crimes within the jurisdiction of the International Criminal Court.
31 Unlawful seizure of aircraft/ships.
32 Sabotage.'.

§ Mr. Hawkins
This is the biggest issue in the Bill for us, and I make it clear to the Minister that we intend to divide the House on it. As my right hon. Friend the Member for West Dorset (Mr. Letwin) said on Second Reading, if part 1 applied only to terrorist offences we could, albeit in some ways reluctantly, accept it, because the unique threat of terrorism in our view alone justifies the draconian measures that the Government have proposed. The link between new clause 1 and amendments Nos. 1 and 2 would do that. Amendment No. 3 returns to the issue of the framework list, which we have already debated today. Amendment No. 16 refers back to the question of which countries have signed up to the ECHR.
In their amendments Nos. 89 and 90, the Liberal Democrats seek to take out countries that have the death penalty. In this House, the death penalty is a free-vote issue, on which hon. Memberscan express their personal views. I shall not detain the House on the matter this afternoon. I expressed my view in Committee, and I refer hon. Members to that.
Several hon. Members in Standing Committee expressed the concern that, if it turned out that the Liberal Democrat amendments opened up a further loophole in respect of other countries that have retained the death penalty, people who should be extradited for very serious offences should not continue to be a burden on the British taxpayer by remaining in our prisons. In addition, Conservative Members understand entirely the reasoning of the Chairman of the Select Committee, the hon. Member for Sunderland, South (Mr. Mullin). I am pleased to see him in his place, as he has tabled amendments 25 to 31, and new schedule 1, in association with Liberal Democrat Members. The proposals would put the whole of the European framework list of offences on the face of the Bill. They would also include in the Bill a reference to Schengen.
We believe that what those amendments propose would be better than having no parliamentary scrutiny at all. As I explained, however, Conservative Members have not followed the route chosen by Liberal Democrat Members and the hon. Member for Sunderland, South. 220 We do not agree with the framework list of offences. Many organisations outside the House do not agree with it. They include, on the left of politics, organisations such as Justice, and Liberty. Opponents on the right of politics include the Freedom Association, and the Democracy Movement.
We believe that many of the offences in the framework list are far too vague and undefined. I made that point in the debate on the last-but-one group of amendments, and I shall not waste the House's time by staging a reprise. However, the Liberal Democrats have not added their names to amendment No. 24, tabled by the hon. Member for Sunderland, South. Doubtless, the hon. Member for Torridge and West Devon (Mr. Burnett) will say why he does not support that amendment.
Finally, Government amendments Nos. 34, 36 and 48 also deal with the death penalty and put on the face of the Bill what the Home Affairs Committee wanted. EU member states Norway and Iceland are the only countries that the Government have said that they intend to designate. Neither of those countries retains the death penalty, so there is no difference in practice.
Before I end this brief contribution, I want to adopt everything that my right hon. Friend the Member for West Dorset said on Second Reading. He noted that this part of the Bill was justified only in respect of terrorist offences. He said that the very draconian measures in part 1 were not needed, given that part 2 will do so much to speed up extradition proceedings. The sole exception is terrorism. I am sure that all hon. Members will agree—especially in the current international situation, which concentrates all our minds—that terrorism poses a unique threat.
It is for the Government to justify the huge change that they are making. We feel that, despite the many hours in Committee and the warning that they received on Second Reading, the Government have signally failed to justify the change. That is why we intend to divide the House on what is a central matter in the Bill. It is undoubtedly a matter that will concern those in another place, as well as hon. Members in the Chamber this afternoon.

§ Mr. Chris Mullin (Sunderland, South)
I shall not follow the hon. Member for Surrey Heath (Mr. Hawkins) in speaking about new clause 1. I wish to speak to amendments Nos. 24, 28 and 29, which are in my name. I thank the Government for their amendments Nos. 34, 46 and 48, which prevent any countries that retain the death penalty from becoming category 1 countries, to which fast-track extradition could apply. That removes one of the Select Committee's major areas of concern.
Apart from the proposals in connection with countries' retention of the death penalty, however, the Bill does not define which territories should fall into the two categories. It lays down no guidelines or principles governing the choice. Apart from the belated exclusion of the death penalty countries, the Bill contains no limits on which countries the Government can, by Order in Council, designate either as category 11 or as category 2 countries. Which countries appear in which categories, and on what basis a category country could be promoted to category 1, seemed to the Select Committee 221 to be issues that are absolutely fundamental to the Bill. Future Orders in Council could dramatically change what Parliament understood to be the intention of the Bill at the time of enactment. We believe that Parliament should know clearly what policy and what principles it is being asked to agree, and we have therefore attempted to lay down some limits to the powers that Ministers are seeking for themselves.
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Amendment No. 24 would insert in clause 1 a provision that only countries that are signatories to the framework agreement may be category l countries—in effect, that means only EU states plus the Schengen countries, Norway and Iceland. Since we have been assured that those are the only countries that the Government intend to designate as part 1 countries, that should not pose the Government any problems.
Amendment No. 28 would amend clause 68 so that part 2 countries are either those with which we have bilateral or multilateral treaties governing extradition arrangements.
If none of that is acceptable to the Government—I cannot rule out that possibility, as they made it clear in their reply to the Select Committee that it was not—at the very least clause 205 should be amended to provide that Orders in Council to designate new countries or to move them from one category to another should be laid on an affirmative procedure so that they can be subject to proper scrutiny in Parliament. In his reply to the Select Committee, the Minister said that he would be prepared to consider that if a strong case for change could be made, but that he had yet to be persuaded. The case seems to me to be self-evident. It is to prevent countries, some of which may have very dubious human rights records, from being added solely at the whim of Ministers. I suggest that if the Minister is not minded to concede the point today, he should at least undertake to have another look at it when the Bill goes to another place.
Amendments Nos. 25, 26, 27, 30 and 31 and new schedule 1 would amend clause 65 to incorporate in the Bill the 32 offences listed in article 2(2) of the framework document—again, in line with the recommendations of the Select Committee. I tabled the amendments because I consider it highly undesirable that Parliament should have no say in future changes to the categories of offences listed in the framework decision, just as I consider it highly undesirable that Parliament should have no say as to which countries fall into which categories. Amendment No. 27 proposes, for the same reason, that any future amendment to the list of offences should be subject to an affirmative resolution.
As with previous amendments tabled in my name, this is an argument about whether Parliament or Ministers in some future Government who might not be as benign as this one should decide what should constitute an offence. Faced with that choice, I back Parliament every time. As matters stand, Ministers will be able to change domestic law by signing up to proposals from the EC for the creation of new offences without reference to Parliament. With all due respect, it is not good enough for the Minister to say, as he does in his—very useful, by and large—reply to our report: The Government does not know of any plans to amend the list". 222 Nor is it good enough to say, as he did, that they need the flexibility to deal with any changes that are proposed. The Minister can have all the flexibility that he likes, provided that he takes Parliament with him. I hope that even at this late hour he will recant on this point.

§ Mr. Burnett
We have signed up to a number of the amendments that the hon. Member for Sunderland, South (Mr. Mullin I has mentioned, particularly those that deal with the issue of which countries can fall into category 1. We believe that there should be a more tangible definition, and we have said that such countries should be European Union countries that have abolished the death penalty in all cases. As the hon. Member for Sunderland, South said, we have won half that battle. We are not satisfied, however, that the Government should have carte blanche to decide exactly which countries should be category 1 countries. The negative resolution procedure is inadequate for such decisions, and we should have liked them to be subject to the positive resolution procedure. At least, we want there to be a clearer definition, and we should have liked that to include only European Union countries that qualify for category 1 status.
The simplification of the extradition procedure and the consequential removal of traditional safeguards such as the dual criminality requirement mean that the EU member states and Britain will be operating under a new arrest warrant system that will involve mutual recognition. Mutual recognition rests on the presumption that judicial systems are equal across the European Union, and there is no justification for extending the principle of mutual recognition and relinquishing many procedural safeguards in the case of non-EU member states that are not part of the European arrest warrant scheme. I understand that the Commission has recently published a Green Paper on procedural safeguards for suspects and defendants in criminal proceedings which, once adopted, will further substantiate mutual trust between member states. That adds a more compelling argument to our amendments Nos. 89 and 90.
I want to say a few words about amendments Nos. 25, 26, 27, 30 and 31, and new schedule 1. We have talked about new countries coming in, and the amendments deal with the corollary to that, in the form of new offences. We have discussed the existing nebulous and unsatisfactory nature of the offences, and I shall return to that point on Third Reading if I am fortunate enough to catch your eye, .Mr. Deputy Speaker, because the Minister made some points with which I would like to take issue. He suggested that, when in Rome, we should do as the Romans do, and of course we should obey the laws in other countries, but the provision of a schedule listing 32 nebulous offences in the Bill ensures that any extension of the list to include further types of offence would be subject to parliamentary control. If there are to be further offences, let us get them right this time.
The Conservatives have talked about not joining in with these amendments because they do not approve of the list. We do not approve of the list—or of a lot of its drafting, which has led to a lack of clarity—but unfortunately the Government have signed up to it. Our amendments would provide damage limitation. If the 223 Government were to propose any further offences, at least Parliament would have some say in the matter. For that reason, we wholeheartedly support the new clause.

§ Mr. Rosindell
My hon. Friend the Member for Surrey Heath (Mr. Hawkins) made it clear that it matters not what our views on the death penalty are. What matters to me—and what should matter to the House—is that we respect the laws and punishments of sovereign nations. The Bill will undermine that principle. Indeed, the Government appear very confused over this particular aspect of it, and I am sorry to see that happen. There appears to be a level of hypocrisy coming through in relation to this part of the Bill, because they are proposing one thing to be right for Europe but not for the rest of the world. That is unacceptable.
On Second Reading, during a challenge from my hon. Friend the Member for New Forest, West (Mr. Swayne) about whether the famous plane spotters could have been extradited from the United Kingdom to Greece for their so-called crime, the former Home Office Minister, the right hon. Member for Southampton, Itchen (Mr. Denham), revealed that hypocrisy in spectacular style.
He said:
If a country has a crime of espionage and wishes to charge people with that, that must be its right … We expect that anybody in the UK who breaks our laws can be brought before British justice and that the extradition system should enable those people, if necessary, to be brought back to face British justice."—[Official Report, 9 December 2002; Vol. 396, c. 47.] On serious charges relating to crimes such as terrorism or murder, I agree: sovereign states should be free to set their own laws. Equally, however, they should be allowed to set their own punishments when those laws are broken. Under the Bill, a murderer could not be extradited to the United States of America because that country continues to apply the death penalty, which is condemned under the European convention on human rights.
The Government defend the sovereignty of Greece and its right to prosecute British citizens under Greek law, yet they say that we cannot help to bring a murderer to justice because American policy on capital punishment does not conform to the ECHR. Either Britain respects the sovereignty of other nations or it does not.
I oppose the proposals.

§ Mr. Bob Ainsworth
I shall confine my comments to the two broad themes of what constitutes an extradition offence and what are the criteria for designating countries under part 1 or part 2 of the Bill.
New clause 1 and amendments Nos. 1, 2 and 3 would limit the relaxation of dual criminality to terrorist offences only. After comments made on Second Reading and in the Standing Committee, the hon. Member for Surrey Heath (Mr. Hawkins) will not be surprised to learn that I do not accept the amendments. They are neither desirable nor workable.
There is a need to modernise our extradition law, by putting in place a fast-track regime to govern our extradition relations with countries in whose criminal 224 justice systems we have faith. A major plank of that attempt to fast-track extradition is the relaxation of dual criminality for the 32 categories of offence on the list. I make no apology for that. In previous exchanges, I have made it clear that British citizens who go abroad and break the law of another EU country should expect to face justice, just as we would want to prosecute people who come to the UK and break our law. The lack of an exact equivalent offence in the home country does not excuse illegal conduct; nor should it be a means of avoiding extradition.
No one, least of all a Home Office Minister, underestimates the awful threat posed by terrorism, but nor can we ignore the menace of non-terrorist serious criminality and international crime. I do not believe that is what the hon. Member for Surrey Heath wants, but it would be one effect of his amendment.
Indeed, the effects of the amendment would go further. The provision would implement two routes for extradition, according to intent. The courts would be required to make a judgment about a criminal's motive. However, defining a terrorist is often problematic. It is not always possible to distinguish between, for example, drug trafficking that is carried out for personal gain and that undertaken for another purpose. Some organisations in different parts of the world are involved in drug trafficking for their own gain. Sometimes the same organisations undertake drug trafficking to fund terrorism. If we accepted the Opposition's argument, we would open up an avenue for legal challenges and arguments not about the offence committed, but about the motives of the individual who committed it.
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The Opposition will say that they have defined terrorism according to the Terrorism Act 2000, but that raises another problem. The definition of terrorism to be used for this purpose is based on a list of terrorist offences contained in UK legislation. In other words, according to the Opposition, the only circumstances in which we should be prepared to do away with the dual criminality requirement is where the conduct is an offence in UK law. That is an interesting back-door way to end up with the entire dual criminality requirement intact, which would be the effect of new clause 1. The hon. Member for Surrey Heath seeks to sneak in by the back door complete opposition to the relaxation of dual criminality, in effect, in terrorism cases, as well as in others, so I am opposed to new clause 1. It would effectively do away with the dual criminality proposals, for terrorism, as well as the other serious offences.
I turn now to the other amendments. I am grateful to my hon. Friend the Member for Sunderland, South (Mr. Mullin) for tabling amendments Nos. 25, 26, 27, 30 and 31 and new schedule 1. Those amendments are relatively clear in their effect. They would place in the Bill the list of offence categories set out in the framework decision in article 2.2.
Clause 65 deals with what constitutes an extradition offence and makes it quite clear that the list of generic offences for which dual criminality will be abolished is that in the framework decision, so I suggest that no ambiguity or doubt will be occasioned by the present formulation. The list can be amended only by a unanimous decision of the Council. That would require 225 very broad consensus, so it would be most unlikely that over-controversial or trivial offences would be added to the list.
As I said in my written reply to my hon. Friend, I am not aware of any plan to amend the list, but if it were amended, the effect would be that the Bill would be updated automatically. We need to be able to retain the flexibility to deal with changes to the list, so I am not at present persuaded that there is any need to make the change that the amendments would bring about. I recognise, however, that my hon. Friend still holds very strongly the views that he has expressed today on the point raised by the Home Affairs Committee. It remains to be seen whether Members of another place feel the same way.
I now turn to the designation of territories and amendments Nos. 16, 24, 28 and 29, tabled by the hon. Member for Surrey Heath, and amendments Nos. 89 and 90, tabled by the hon. Member for Torridge and West Devon (Mr. Burnett). The effect of amendment No. 16 is that, if a country were party to the European convention on human rights, it would be automatically designated as a category 1 country. That amendment would put a huge and disproportionate amount of trust in countries that have signed up to the convention with absolutely no say domestically about whether or not they should be included in that category of streamlined extradition. The mere fact of ratifying the ECHR should not in itself lead to those countries being included in category 1. That suggestion seems to me to be a radical step, and I do not really believe that that is what the hon. Gentleman intended.
Amendments Nos. 24, 28 and 29 lay out an alternative way in which states can be designated in primary legislation. On the face of it, there would seem to be nothing wrong with those amendments. However, they would restrict our ability to add new countries to either part 1 or part 2. This is a useful opportunity for me to offer some reassurance to the House by explaining our intentions with regard to part 1 and part 2 designations.
We intend to designate all existing EU member states as part 1 countries. In the short term, it is possible that we will designate Norway and Iceland as part 1 countries. Further down the road, we will need to designate new members of the EU. Beyond that, there are no plans to add any country to part 1. It is possible, however, that at some time in the future it would be desirable to add some other country, such as a trusted Commonwealth country or regular bilateral treaty partner, to part 1. We do not believe that we should remove the flexibility to allow for that. I do not believe that there would be any great objection in the House to, say, putting Australia or Canada into part 1 if they desired it. As I have indicated, we have no plans to do so, but, equally, we do not see why our future flexibility should be unnecessarily limited.

§ Mr. Mullin
If my hon. Friend can see no particular objection to adding any of the countries to which he has just referred, why do the Government not let the House in on the act, too?

§ Mr. Ainsworth
I hear what my hon. Friend says, but, as I have said, his amendment effectively limits part 1 designation to EU countries and other Schengen 226 countries. We need that flexibility, and there may be countries that do not fall into that category which ought, in the future, to be designated as part 1 countries, if they and we are desirous of that.

§ Mr. Letwin
This point will be relevant on Third Reading. The exchange between the Minister and the Select Committee Chairman is a fascinating one. Is the Minister's general principle that the Government want to maintain the flexibility to use the prerogative power to set British criminal law? Is that the principle that the Government seek to enunciate?

§ Mr. Ainsworth
To be honest, I am not at all sure of all the ramifications of the right hon. Gentleman's question. I am talking about the Extradition Bill and what is in it at the moment. I want to maintain the ability, which I would have thought he would think reasonable, to designate as part 1 countries those countries with which we have regular extradition communication and traffic and in whose legal systems we have a high degree of confidence.

§ Mr. Letwin
I am sorry to delay the House, but this is a point of cardinal importance. The discussion between the Minister and the Select Committee Chairman is not about whether those countries should be added, but about whether the Government should be able to do that by prerogative power, or whether the House is the place in which such decisions about British criminal law are made.

§ Mr. Ainsworth
I hear what both my hon. Friend the Member for Sunderland, South and the right hon. Gentleman say on that, and, clearly, we will have to reflect on those comments and on others that may be made as the Bill progresses through the House. Clearly, if Members are not satisfied with the arrangements that are currently in the Bill, they will continue to make their views known, and we will continue to open our ears to those arguments. If I may, I shall move on to what may be an even bigger problem: the situation that faces us in relation to what will become part 2.
It is currently possible for any country with which we do not have standing extradition relations to make an ad hoc extradition request to the UK. We would not want to lose that facility, not least because the reciprocal nature of extradition means that losing it would put in doubt the UK's ability to make ad hoc outgoing requests. Clause 1 gives us flexibility within a defined designation process that is subject to parliamentary approval. However, I know that some people were especially worried that we might want to add the USA—a country with the death penalty—to part 1. We tabled the amendments necessary to render that impossible, and I know that many hon. Members are pleased that it is beyond doubt that we will not allow a country with the death penalty to be designated under part 1.

§ Lady Hermon
I am pleased that the Minister has clarified the wording of Government amendment No. 34. It says: A territory may not be designated for the purposes of this Part if a person found guilty in the territory of a criminal offence may be sentenced to death for the offence". 227 I am deeply concerned by the opening words. Why did he Government choose to use the phrase
A territory may not be designated rather than stating that a territory shall not be designated if it has the death penalty?

§ Mr. Ainsworth
I have heard people arguing about the difference between the words "may" and "shall" in this House and other places in many different circumstances over many years. I hope that our intention is clear, and, in case it is not, I shall clarify it: we do not intend it to be possible for any country that retains the death penalty to be designated as a category 1 country.

§ Annabelle Ewing
I welcome the Government's actions but I wonder why the provision on category 1 countries appeared in the Bill in the first place. Will the Minister elucidate on that point?

§ Mr. Ainsworth
All I can say is that it was never our intention to designate the USA as a category 1 country. That is the obvious example because the USA is one of our main extradition partners. Indeed, the USA has no desire to be designated as a category I country. I hope that we are putting that fact beyond all doubt to the satisfaction of the hon. Lady and other hon. Members.
The amendments tabled by the Liberal Democrats would provide that only EU countries could be designated under part 1. As I said, in common with other EU member states and in accordance with normal practice, we intend to designate Norway and Iceland in the near future. I hope that Liberal Democrat Members will not object to that in principle, and I am sure that there was simply an oversight.

§ Mr. Hawkins
The Minister made a fascinating speech, not least when he responded to interventions made by my right hon. Friend the Member for West Dorset (Mr. Letwin), the shadow Home Secretary. His responses revealed that he has not thought through the full implications of the Government 's proposals, and we shall return to that point on Third Reading and, to a greater extent, in another place.
We entirely understand why the Minister is giving interesting signals to Conservative Members and the Chairman of the Home Affairs Committee, the hon. Member for Sunderland, South (Mr. Mullin). To summarise his soft words, he is signalling that after one more push in another place, the Government will probably give way with limited grace to the suggestion of including the framework list in the Bill. I encourage the hon. Member for Sunderland, South to keep talking to his friends in another place to try to ensure, as we will, that one more push will be forthcoming and we may yet get exactly what we and the Select Committee want—indeed, we may get a good deal more than we need.
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On the crucial issue of part I applying only to terrorism, we are not going to agree. The Minister is not going to agree with those of us on the Opposition 228 Benches and we will have to divide the House. The central issue is the unique threat of terrorism. We had seriously hoped that including in the amendment the Government's definition of terrorism as drafted in their legislation might have concentrated their mind and persuaded them to accept that we are right to say that part 1 should apply only to such a unique set of offences. I am sorry that that attempt has failed. There is still a clear division between Government and Opposition, and we will therefore press amendment No. 1 to a vote.
I beg to ask leave to withdraw the motion.

§ Motion and clause, by leave, withdrawn.