§ (Seventh Day)
§ Tuesday, 8th July 2003.
§ The Committee met at half past three of the clock.
§ [The Deputy Chairman of Committees (Viscount Allenby of Megiddo) in the Chair.]
§ The Deputy Chairman of Committees (Viscount Allenby of Megiddo)
It may be helpful to remind your Lordships of the procedure for today's Committee. Except in one important respect, our proceedings will be exactly as in a normal Committee of the Whole House. We shall continue to go through the Bill clause by clause; Members of the Committee will speak standing; all noble Lords are free to attend and participate; and the proceedings will be recorded in Hansard. The one difference is that the House has agreed that there shall be no Divisions in a Grand Committee. Any issue on which agreement cannot be reached should be considered again at Report when, if necessary, a Division may be called. Unless, therefore, an amendment is likely to be agreed to, it should be withdrawn.
I should remind your Lordships of what will happen if a Division is called in the Chamber while we are sitting. The Committee will adjourn as soon as the Division bells are rung and it will resume 10 minutes later.
§ Clause 65 [Extradition offences: supplementary]:
§ Lord Goodhart moved Amendment No. 140:
§ Page 35, line 19, leave out from "in" to the end of line 20 and insert "Schedule (European framework list)"
§ The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 142, 143, 263 and 268. Amendment No. 269, which is also in this group, will be spoken to by the noble Baroness, Lady Anelay.
§ The group of amendments raise two separate issues, both of which are of considerable importance. Because of the form of the amendments, they must be taken as a single group. The first issue is whether the present European framework list should be included in the Bill. That is covered by Amendments Nos. 140, 143, 263 and 268. The second issue is whether there should be some form of special treatment for the category of racism and xenophobia, which is one of the 32 items on the European framework list. That is covered by Amendments Nos. 142 and 269. The problem arises—I do not complain about this or suggest that it could or should have been done differently but simply place the point on the record—because Amendment No. 269 is 54GC not free-standing; it amends Amendment No. 268, so the two amendments must obviously be grouped together.
§ The purpose of the first sub-group, if I may call it that, is to ensure that there is parliamentary control over any additions to the European framework list. Under Clause 65(3), the European framework list is the list of conduct as set out in Article 2.2 of the European framework decision. That means, or is assumed to mean, the list as it is enforced at any given time. Under Article 2.3, the European Council may add new categories of offence to the list. The decision must, of course, be unanimous but, so far as the United Kingdom is concerned, that decision is taken by the executive, not by Parliament. As the Bill stands, there is no provision for the involvement of Parliament in the addition of new offences.
§ We believe that it would be entirely wrong for the executive to be able to extend the exclusion of dual criminality without approval by Parliament.
The Home Affairs Committee of the House of Commons stated in paragraph 55 of its first report of 2002–2003 that:
We consider it highly undesirable that Parliament should have no say in regard to future changes to the categories of offence listed in the framework decision. We therefore recommend that list of offences be imported directly into the Bill".
The Select Committee went on to state at paragraph 56 that:
The Bill should also provide that any statutory instrument made under this delegated power should be subject to the affirmative resolution procedure".
§ The Government have conceded that exclusion of the need for prima facie evidence in category 2 cases requires an order in council approved by both Houses. We believe that the same should be the minimum requirement for any addition to the European framework list.
§ The amendments will achieve this by, as a first step, putting the existing contents of the list into a new schedule. That is dealt with by Amendments Nos. 140 and 268. We then provide that that list can be amended by an order in council using the affirmative resolution procedure. That is covered by Amendment No. 143 and, as a minor consequential amendment, by Amendment No. 263.
§ I turn now to the second issue of racism and xenophobia. We are not hostile to the principle of including this as one of the categories in the list. We already have in the United Kingdom several offences which are based on racism or aggravated by it. Xenophobia is perhaps more contentious because it is a word which, up until now, has not been recognised as having any specific meaning in the United Kingdom criminal law. It means, I suppose, hatred of foreigners irrespective of their race. There is uncertainty as to what it means as a legal concept.
§ In introducing the list, Article 2.2 refers to offences in the list as they are defined by the law of the issuing member state. That means that the actual terms of the law must be covered by legislation in the member state. But that expression surely cannot mean that the state 55GC can exclude dual criminality by creating a new criminal offence and labelling it xenophobia even if it has no real connection with xenophobia. We therefore still need to consider whether any particular offence can reasonably be regarded as falling into the category of racism and xenophobia and will therefore be excluded from the dual criminality requirement.
§ It now happens that the European Council has before it a draft framework decision on racism and xenophobia. The European Union Committee has reported on that new draft framework decision. Although agreed, the report has not yet been published. I understand that it will be published very soon, within the next day or two. It would have been helpful if it had been available for today. It will of course be available on Report.
§ I understand that the current draft framework decision does not include a specific definition of racism and xenophobia for the purposes of the European arrest warrant. I regret that. It includes, I understand, a list of offences which would be regarded as offences of racism and xenophobia. Those offences include some that would not normally be regarded as coming within the meaning of racism and xenophobia—for example, offences related to discrimination on grounds of religion.
§ The list is important because, in the absence of a specific definition of racism and xenophobia in the draft framework decision, the question whether any offence is an offence of racism and xenophobia is likely to be decided on the basis of whether the offence is on the list which will appear in Article 1 of the draft framework decision, or is at least similar to an offence on that list. In the absence of any definition or list, it will he very difficult to decide what "racism and xenophobia" means. Progress on the framework decision on racism and xenophobia has slowed down. Therefore, it is inappropriate to consider including racism and xenophobia on the list for the European arrest warrant when a framework decision on racism and xenophobia is pending but has not yet been agreed.
§ After the events of last week, I can understand why the Italian presidency might not wish to get involved with the question of what constitutes xenophobia. I recognise that we are, of course, supposed to implement the framework decision by 1st January 2004. In practice, it is pretty clear that that is not going to happen. So far, only three states—Spain, Denmark and, I think, Sweden—have yet ratified the framework decision and implemented it in their domestic laws. That process is almost certainly unlikely to be completed by 1st January 2004. Austria has an opt-out, and there are problems with Germany and Poland, where there are constant issues about the constitutional propriety of implementing the framework decision because of the tradition in their laws against extraditing their nationals.
§ It seems perfectly reasonable for us to say that we will not treat "racism and xenophobia" as included in the list until we have the framework decision, which will at least give us some guidance as to what that is 56GC intended to mean. For that purpose, I tabled Amendment No. 142, the effect of which is to delay the application of the list to racism and xenophobia until the new framework decision is agreed.
§ Amendment No. 269, tabled by the noble Baroness, Lady Anelay, goes somewhat further in one respect and less far in another. It permanently leaves out "and xenophobia" from the list in the proposed schedule, and therefore leaves "racism" on its own but does not defer the implementation of the list as so amended. I am not altogether happy with Amendment No. 269. I am sure that she will not put it in this way, but some support for it seems dependent on the belief in some quarters of the right of the true Brit to go abroad and make grossly xenophobic remarks about foreigners. However, it is important that dual criminality should be excluded from racism and xenophobia offences only where, first, those offences are serious, and secondly, where it is reasonably clear as to what they are. I beg to move.
§ Baroness Anelay of St Johns
I added my name to Amendment No. 143 to support the noble Lord, Lord Goodhart. As he mentioned, Amendment No. 269 is my amendment to his Amendment No. 268. Like him. in one sense one regrets that we have to complicate matters by having the two debates together, but I am afraid that that is how things had to fall within the context of how the Bill is drafted.
My original notes refer to the fact that there are a number of very important matters in this group of amendments, and that I shall take some time to set out my argument. I am changing that, as I shall not take some time. The noble Lord, Lord Goodhart, has more than adequately covered not only the principles but many of the arguments that have to be made. He said admirably much of what I would say, and I agree with him substantially.
I shall skip some of my remarks and refer to what was said by the noble Lord, Lord Goodhart, towards the end of his remarks. He raised the issue of definitions of xenophobia and racism, pointing out that either we should define what these offences are or there ought to be a list of offences by which we can recognise them, thus introducing clarity. He is quite right; I do not argue in any way that people from this country should be able to travel elsewhere and make what I would consider to be serious xenophobic comments. While I understand that, having watched England play and having drunk a few too many beers, someone might make certain unwise minor remarks, I certainly would not commend any comments such as those made by Signor Berlusconi, or anything of that ilk.
We need further clarity in this area, and it is because of that concern for clarity that I turn to the shadowy list of 32 offences not currently included on the face of the Bill. Not all of those offences are yet clear and, of course, not all are offences in this country. The issue here is that, although it grieves us. we would rather see the list set out in the Bill than introduced off the face of the Bill, if only so that others can see exactly what we are being saddled with. So although we do not like 57GC the list and we shall never like it, while we are being forced to accept all 32 offences, we see merit in what the Liberal Democrats are trying to achieve.
I recall. when reading the Hansard report of the debate in another place, that the Minister said in response that if, between the Bill leaving another place and being debated here, concerted pressure to see the list was maintained, the Government would consider again whether the list should be put in the Bill. I hope that, when she responds to the amendments, the Minister will be able to bring us up to date on the Government's consideration of this matter.
The noble Lord, Lord Goodhart, has already quoted extensively from the House of Commons Home Affairs Select Committee. Like him, I agree entirely with those views, in particular, for the sake of reference, with what is set out in paragraphs 53 to 56 of the proceedings.
I turn now to the issue of xenophobia itself. I noticed that the noble Lord, Lord Goodhart, was unhappy with my Amendment No. 269 as it stands. Of course I have tabled it as a tool with which to open consideration of the general issue of xenophobia. In any case it must be in the nature of a probing amendment since we are debating it in Grand Committee. I want to make it clear that whatever the Government's response, I shall want to consider my position on the matter of xenophobia in that light before we return to the matter on Report to consider how the Bill might be amended.
At this point it is right that I should put on the record the fact that we support the thrust of Amendment No. 142 tabled by the noble Lord, Lord Goodhart, which, as he explained, would place a form of embargo on including the offences of racism and xenophobia in the list until the member states of the European Union have adopted a framework decision on them. The noble Lord has made an important point and I am grateful to him for today putting on the record what he understands is the updated status of the debate on those matters. It is important that we learn from the Minister how far those discussions have progressed.
§ 3.45 p.m.
§ The Minister of State, Home Office (Baroness Scotland of Asthal)
I am grateful to both the noble Baroness and the noble Lord, Lord Goodhart, for tabling these amendments, thus giving us the opportunity to consider again—as the noble Baroness has invited us to do—how we define what would constitute an extradition offence under Part 1.I believe that I am in a position to give noble Lords some good news as regards including the list of generic offence categories on the face of the Bill.
As the noble Baroness has just indicated, this is a topic which has been raised a number of -times during the passage of this Bill through another place and in this House. There is no doubt it is clearly and rightly a matter of considerable interest. Perhaps I may first consider the effect of Amendments Nos. 140, 143, 145, 263 and 268 which pertain to the list of offences as set 58GC out in Article 2.2 of the framework decision on the European arrest warrant. I intend then to turn to Amendments Nos. 142 and 269, which focus specifically on the racism and xenophobia offence categories. I understand that there is great interest in these matters and therefore I shall seek to explain fully our reasoning in relation to the amendments. In that way I hope to satisfy the probing nature of the amendments and to give both the noble Baroness and the noble Lord no just cause to return to these issues on Report.
The effect of the first of these amendments is relatively clear. They import the list of 32 generic offences categories set out in Article 2.2 of the framework decision on to the face of the Bill and provide that any changes to those categories would be subject to approval by both Houses under the affirmative resolution procedure. As I am sure your Lordships are aware, these changes were recommended by the Home Affairs Select Committee and were tabled in similar terms for debate in another place. It has been our contention that the Bill makes it clear that the list of offence categories to which the dual criminality test is sometimes disapplied is contained in Article 2.2 of the framework decision. Clause 65 makes this quite clear, and we do not believe that it gives rise to confusion or ambiguity.
Furthermore, we want to ensure that the Bill contains the necessary flexibility to deal with any changes in the list. Although there are no plans afoot to alter the list, it is worth stressing that any changes would require a unanimous decision of the Council. That has been mentioned, rightly, by the noble Lord, Lord Goodhart, and noble Lords will know that that means each and every state being in agreement. I do not think there is any danger that changes which would add items to the list which were contentious or trivial would come about with any degree of ease. Nevertheless, we recognise that there are strong feelings on this matter. In the light of that, we intend to bring forward government amendments, at a later stage, which will set out on the face of the Bill the 32 offence categories listed in the framework decision. We will also need to find some way to accommodate any changes to the list—unlikely though I believe such changes to be—without the need for further primary legislation. We are still considering how best this can be achieved. I hope that noble Lords will welcome this as good news.
I should now like to turn briefly to Amendments Nos. 142 and 268 which seek to amend the racism and xenophobia category. I am very grateful to the indication given by the noble Lord, Lord Goodhart, that he is not hostile to the inclusion of xenophobia in this clause per se.
The list is significant, for it sets out the categories of offences—and they are broad headings, not specific crimes—for which the dual criminality test is disapplied. This is in line with one of the fundamental principles of Part 1—that a person should not be able to escape justice just because they manage to skip 59GC across the border. I was very grateful to hear that echoed in the comments of the noble Baroness, Lady Anelay.
I recognise, as did the noble Lord, Lord Goodhart, that the United Kingdom does not use the term "xenophobia" in its legislation. However, I respectfully suggest that it is not for us to pass judgment on the type of offences contained in other EU countries' legislation. That is not in the spirit of mutual recognition and co-operation. We have traditionally respected each other's cultures, laws and traditions and have understood why things are framed differently.
Removing xenophobia from the list, as Amendment No. 269 would do, reinstates the dual criminality test for offences classed as xenophobic in other member states. This means that a person who has committed a xenophobic offence such as Holocaust denial in Germany could not be extradited because that is not recognised as an offence in this country. We really do not see why that should be so.
Before any noble Lord seeks to pick me up for drawing on the example of Holocaust denial, which I shall be using again in a moment, perhaps this might be a convenient moment to draw your Lordships' attention to the annexe to the report of the Home Affairs Committee on the Bill, which was published last December. It contains the Government's response to some questions which the Committee had earlier sent. Included in these is the list of responses from certain other EU member states to the question of which offences in their countries fell within the definition of racism and xenophobia. I think noble Lords will find it quite illuminating.
It also explains why we so often draw on the Holocaust denial example. There are quite simply very few offences in the racism and xenophobia category that we would not recognise under our own law. We call the offences by a different name, but the substance of the issues are very clearly spelt out in our legislation. It is right to remind ourselves that in relation to racism and issues involving culture of that nature, Britain has a very proud tradition and a very fine legislative framework with which to deal with them.
Amendment No. 142 seeks to restrict the removal of dual criminality for racist and xenophobic crimes to those covered by the framework decision on combating racism and xenophobia when it is approved. In the mean time, all offences which fall under the racism and xenophobia category will be subject to a dual criminality test. While I can appreciate that it is desirable to seek some measure of commonality in law on racism and xenophobia across the EU, the framework decision on combating racism and xenophobia is a separate instrument from the framework decision on the European arrest warrant, which I think the noble Lord, Lord Goodhart, fully recognised. Not only that, but the framework decision is designed to set only some minimum standards. If a member state feels the need for a law which goes above and beyond those covered by the framework decision on combating racism and xenophobia and a British 60GC citizen goes to that country and, while there, commits the offence, he or she should not be exempt from extradition.
I am sure all Members of the Committee can understand why, for all sorts of historical reasons, Germany feels that it must have an offence of Holocaust denial on its statute book when most of the rest of Europe does not. If a British person goes to Germany with deliberate intent to deny the Holocaust—and we can all think of a certain historian, although I use that term in the loosest possible sense, who might want to do that—I see no reason of principle why we should refuse extradition if he manages to come back to Britain before the German police can arrest him.
In addition, I fear—and this has been hinted at by the noble Lord, Lord Goodhart—that there is a logjam on the measure to combat racism and xenophobia and progress could be stalled indefinitely. I made reference to this at Second Reading. That being the case, I am sure noble Lords will agree that it is not desirable to reinstate the dual criminality test for all offences which fall under the racism and xenophobia heading on the off-chance that a separate EU instrument may be approved.
No doubt we shall return to these issues, but in the mean time, I repeat that we intend to bring forward amendments to put the list of 32 generic offences categories on the face of the Bill. I hope I have said enough about the clauses in relation to xenophobia to reassure your Lordships in relation thereto.
§ Baroness Anelay of St Johns
Before the noble Lord, Lord Goodhart, speaks to his amendment and naturally, as we are in Grand Committee, withdraws it, perhaps I may add a couple of remarks and questions to the Minister.
She referred specifically to the arguments that we have had many times about xenophobia being included in the list of offences for which dual criminality will no longer be a requirement. One of our arguments is that if such a narrow band of offences comprise xenophobia, it would be far better if the Government were to define them. We could then at least have a debate about whether specific offences should be included. That refers back to a comment made by the noble Lord, Lord Goodhart, in introducing his amendment: that at least if there were a list of the offences, there would be greater clarity.
The Government always refer to Holocaust denial as being an important offence in Germany—and it is. The problem is that it appears that that item on the list of 32 is being designed against one particular writer—like the noble Baroness, I shall not dignify him with the name of "historian"—who has taken a particular course, as he considers his right. We are trying to achieve a system whereby the Bill can operate satisfactorily not just for individuals now but for the whole of its future. We are still concerned that it will not do so while xenophobia appears on the list, unless 61GC we also include Amendment No. 142. I hear what the Minister says about Amendment No. 142 and shall of course listen carefully to what the noble Lord, Lord Goodhart, says, but I give notice that during the summer I shall carefully consider what progress is made on that because he has raised a matter vital to this part of the Bill.
§ 4 p.m.
§ Lord Stoddart of Swindon
Before the noble Lord, Lord Goodhart, rises to reply, like other noble Lords, I welcome the fact that the 32 offences are to be included in the Bill. That is essential, but I am not quite so pleased about how they may be altered. I should have thought that the Minister could have given us an assurance this afternoon that any alteration would be made, if not by primary legislation, at least by affirmative resolution. I did not hear her give that assurance. I should have thought that that was an easy—and essential—assurance to give us at this stage, to save our time on Report.
With regard to racism and xenophobia, I think that every one of us knows what racism is. We can define racism quite easily. For example, I am Welsh. When I came to England, I got used to being described as a Taffy—and a Taffy who went into a butcher's shop and stole a leg of beef. As it happens, we were able to shake off that sort of racism in those days. We laughed it off and gave back as good as we got. But times have changed. So I think we understand what racism means. But I am not at all sure that anyone in this room—including me—really knows what xenophobia means.
Before I came out, I looked in my dictionary. It states that xenophobia means dislike, hatred or fear of foreigners. People can be imprisoned for disliking a foreigner, for hating him—not doing anything about it; just hating him, as far as I can see—or even for being afraid of him. There are some foreigners of whom I have had experience in my lifetime of whom I am still afraid. How are we to define xenophobia given those dictionary terms?
The noble Baroness, Lady Anelay, instanced the disgraceful remarks of Signor Berlusconi, but I would not describe them as xenophobic. I would describe them as insulting and unnecessary and, if I had been Mr Schultz, I should have replied that Signor Berlusconi was giving a good imitation of Signor Mussolini. But I am not at all sure that I would have said that he was being xenophobic. It is extremely difficult to define that crime—because that is what it will be, a crime—of xenophobia.
I could go on at great length so could we all—but that word does not have a place in the Bill. Nor, indeed, should it have a place in the law of any other nation of the European Union because it smacks of the withdrawal of freedom of speech. It is essential in a free society that you should be able to speak freely—without the intent to hurt or insult people but to give your view on virtually everything.
I therefore do not believe that that word, which can have so many definitions and which is viewed in different ways in different cultures, should be part of 62GC any Bill passed in this country. Indeed, I recommend that the Government say, "No, no, no, no", to its inclusion in any list. Having said that, I hope that the views of the Committee will be taken into account before we reach Report.
§ Baroness Carnegy of Lour
I endorse what the noble Lord said. I have said more than once during our proceedings—I apologise for saying it again—that what most people who understand the Bill are frightened about in it is that they may make a mistake and commit a crime without knowing it. The noble Lord—and my noble friend Lady Anelay— reflected the British attitude to such matters. People often make a casual half joke, which in this country is understood as a joke that is perhaps a little near the edge but which would in another country be regarded as xenophobic. That could easily happen. That is a real risk if we include the offence and make it possible for people to be extradited for it.
I think that the noble Baroness said that the Government are trying to find a way of adding a new offence to the list. Does she mean other than by order or simply that they are wondering whether to do so by affirmative or negative resolution? Are they contemplating another way? If so, can we know what the alternative is so that we are prepared when she tables her amendment at the next stage?
§ Baroness Scotland of Asthal
Perhaps I may first deal with the question asked by the noble Baroness, Lady Carnegy. We are still considering how we should deal with any alteration to the list, so I cannot tell her whether it will be by affirmative or negative resolution. We are at present considering how to respond. We have taken on board what has been said in Committee about the importance of changing the list. As I said earlier, we think it unlikely that any significant changes will be made to the list very soon. The noble Baroness will know that when enlargement takes place, there will be 25 or 27 member states, and there are hugely important issues for us to address
The work on the framework decision involved many hours, months and years of deliberation to reach this stage. Your Lordships will see that the list is fairly comprehensive. It covers the majority, almost to the exclusion of the offences that should be covered. At present, we do not see the need to increase the number of offences, not least because your Lordships will see that the list deals with generic types of crime as opposed to specific crimes. That leads to what I said earlier—we have not defined them and we use different names. I also say to the noble Lord, Lord Stoddart, who rightly raised the same issue, that we shall continue to consider the matter. I can assure him that everything said in the Committee will be taken into account.
However, I must say as gently as possible that we cannot really define the nature of other countries' offences and how they craft offences within their own states. I believe that the noble Lord, Lord Stoddart, said that these laws should not have a place in any other nation in the EU. As is the case with other 63GC countries, we are not subject to anyone else's diktat. I know from the many contributions that the noble Lord has made to our debates in a very energetic and thoughtful way that he would be absolutely appalled if anyone else in Europe sought to tell us what should be on the face of our statute book.
§ Lord Stoddart of Swindon
Unfortunately I have to deal with things that are. It is true that I not only would resent but would always resent being told by other countries what we should do. But, of course, the whole essence, and indeed the whole concept, of belonging to the European Union depends on democracy and free speech. If you do not believe in that, you really should not be in the European Union. It was in that sense that I said that the term "xenophobia", which is difficult to interpret, should not be part of any free and democratic state which believes in free speech. If it is, then that state should not be in the European Union in the first place.
§ Baroness Scotland of Asthal
I believe that takes us down a very difficult and thorny path. Of course, implicit in the debate that we have had is a recognition that certain forms of xenophobia are illegal in our own legislation and are also illegal in the legislation of other states. However, the issue is whether we can confine how this generic term should be used.
I believe it is right to say that the countries which at present have crafted their laws while pursuing the generic term "xenophobia" have all created laws which pertain to the needs of their particular state. Of course, I recognise the sympathy that has been shown and the acknowledgement that has been expressed in this Committee and, indeed, elsewhere with regard to the nature of Holocaust denial in relation to Germany. We are not including this generic term on the face of the Bill for any one writer. I believe we all know that that is simply an example of the problem that we might need to face.
Therefore, we cannot have a definitive list because we cannot force any other EU partner to say that it will never seek to change its law. As I said earlier in Committee, the whole premise upon which this issue is founded is that we work in comity with our partners and we respect their traditions and their ability as democratic states to craft laws which meet the needs of their systems. Provided the offences fall within the criteria set out in the framework decision, we believe that we should properly respect that agreement. I do not believe that we will be able to give the noble Baroness, Lady Anelay, the definitive list that she seeks, because that is simply not within our control. We can say what it is now and where there is dissonance or difference, but we would not be able to say that for all time. Certainly, before the list changes, we could determine what each European Union state believed to be included within the generic term. I hope that Members of the Committee will understand the limitations that we face in relation to these matters.
§ 4.15 p.m.
§ Lord Goodhart
I am, of course, grateful to the Minister for telling us that the framework list will now be brought into the Bill. That is plainly a major step forward and one that I certainly applaud.
I agree, somewhat unusually, with the noble Lord, Lord Stoddart of Swindon, and, perhaps less unusually, with the noble Baroness. Lady Carnegy. Like them, I am puzzled as to why the Government are not prepared to take the obvious course in relation to adding new offences to the list, which would be through an Order in Council approved by the affirmative resolution procedure. It seems to me that anything less than that would be entirely inappropriate.
On xenophobia and racism, the Government are, of course, much less accommodating and indeed have not moved at all. I understand the difficulties that the Government face, but the issue certainly worries us. If I might hark back to a debate that we had at our previous sitting, I think that our concern would be that much greater if the Government were to insist on applying the abolition of the dual criminality rule to offences that carry—to use an oxymoron—a minimum maximum sentence of 12 months, when they could perfectly legitimately stick to the minimum maximum sentence of three years, which is the sentence that is required by the European framework decision.
In light of that, the inclusion of racism and xenophobia in its present and entirely undefined form becomes increasingly objectionable. That will have to wait for another occasion to be further debated, as I have every expectation that it will be. Meanwhile, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 141 had been withdrawn from the Marshalled List.]
§ [Amendments Nos. 142 and 143 not moved.]
§ [Amendments Nos. 144 to 145A had been withdrawn from the Marshalled List.]
§ Baroness Anelay of St Johns moved Amendment No. 145B:
Page 35, line 25, at end insert—
(7) Where an alleged offence is the subject of an arrest warrant but the offence was committed by a participant in an international sporting event, that warrant must be referred to the Home Secretary who must make a decision separate to any decision of a United Kingdom court as to whether extradition to the requesting country would be proper in all the circumstances.
§ The noble Baroness said: I tabled Amendments Nos. 145B and 268A to respond to a specific concern that was raised with me a couple of weeks ago. I gave notice to the noble Baroness's Bill team that the matter would be raised.
§ As we have said repeatedly throughout the debate on Part 1 of the Bill, significant safeguards are being removed. We have concerns about that. The Bill has also provoked concerns from many people who feel that they may be vulnerable to arrest under the European arrest warrant for extradition where 65GC currently they feel they are not so exposed. Those fears are, perhaps, nowhere more acute than in the international sporting community.
§ As a matter of course, accidents abound in international sport, whether in motor racing, equestrian sports, yachting, rugby or football—all those sports lead to players sustaining serious injuries. Depending on who is found to be at fault in accidents of that nature, it is possible that extradition may be sought under the category of murder or grievous bodily harm. More concern will be voiced, especially among the motor-sports community, if legislation is introduced for corporate manslaughter and that becomes a category of offence in the list of 32.
§ Lord Clinton-Davis
The noble Baroness mentioned a number of points in connection with international sporting events. Is there anything that is not caught by the criminal law in any event?
§ Baroness Anelay of St Johns
The Deputy Chairman has every right to think that, after the intervention by the noble Lord, Lord Clinton-Davis, I had completed speaking to my amendment. I had not; I had actually spoken to a quarter of a page. There are four pages and perhaps the noble Lord, Lord Clinton-Davis, will excuse me if I complete the rest, as that will answer his question. I raise the issue because members of the motor-sports community in particular are concerned by exactly the point that he raises; that is, under the Bill, they would be exposed to extradition where currently they feel they are not. They feel that something new is developing; hence the amendments. Members of the sporting community want to ask the Government to put on the record whether their fears are properly grounded.
§ I have previously referred to the fact that, in debates in another place on the Criminal Justice Bill, the Home Secretary said that the Government plan to introduce a new law on corporate manslaughter, although we do not yet know what kind—
§ [The Sitting was suspended for a Division in the House from 4.20 to 4.30 p.m.]
§ 4.30 p.m.
§ Baroness Anelay of St Johns
I was referring to the fact that we know that the Government are considering introducing a specific offence of corporate manslaughter, although we do not know as yet in what form. The issue will become topical because it is anticipated that certain arrests will be made tomorrow in regard to the Hatfield train crash. So it will certainly be in the forefront of our minds.
We are all aware of the horrors of the Ayrton Senna case. It fuelled a massive inquiry which, it has been rumoured, may well be re-opened. On 1st May 1994 Ayrton Senna was killed when his car spun off the Imola race-track in northern Italy. He was negotiating a fast bend, one that he and other drivers had previously taken at top speed with great ease. He did 66GC not collide with another car and there seemed to he no reason for him to veer off the road. However, a unique set of factors, I am advised, combined to cause the fatal accident.
There was an immediate investigation into the accident. Motor racing experts believed that the cause must have been mechanical failure. They believed that Ayrton Senna could not have lost control of his vehicle for any other reason. An inquiry concluded that the accident was caused by a snapped steering column. As a result, manslaughter charges were brought against six members of Senna's Williams racing team, including Frank Williams himself. All were eventually acquitted and, in 1997, the prosecutor's appeal was rejected.
But the snapped steering column theory gave way to a new explanation at that time that Senna's death was simply a freak accident, a tragic consequence of a unique combination of factors. Given Ayrton Senna's status within Formula 1 and given that there had been two deaths at Imola over that weekend in May 1994, it is hardly surprising that it took no time at all for journalists, motor-racing experts, fans and others to come up with possible reasons for the accident.
I have spent some time referring to that specific case because it has focused the mind of the international motor sport industry on the issue of extradition. It has highlighted the complexities of fatal or near fatal accidents in that industry, one where it is hard, if not impossible, to ascertain who is to blame. We know that inquiries are often long and controversial but it is absolutely clear that accidents such as that involving Ayrton Senna are not infrequent.
Not only the motor sports industry is concerned about this issue. We should bear in mind that the Olympics are to be held in Athens in 2004. We have brought forward the amendments to probe this complicated issue. We feel that the motor sports industry has a right to be wary of the implications of the European arrest warrant. It is concerned that every case involving accidents or injuries could lead to the possibility of numerous arrest warrants being issued for the prosecution of those involved.
As to the earlier intervention of the noble Lord, Lord Clinton-Davis, the difference between the extradition system in the Bill, which will be used in the future, and the extradition system that has pertained until now is that the existing arrangements have a back-stop in that the Home Secretary is able to decide whether or not an extradition should go ahead. That falls within Part 1. As we have discussed this matter on previous occasions, I shall do no more than outline that point telegraphically.
We have been told several times by the Minister and her predecessor, the noble Lord, Lord Filkin, that the purpose of the European arrest warrant is to fight international crime—not only terrorism but drugs trafficking, fraud and so on. Everyone is wholeheartedly behind the Government in that fight. But we would argue that an accidental death or injury in an international sporting event resulting from a combination of unfortunate circumstances, such as in 67GC the Ayrton Senna case, is in a different vein. It is important that the Government should set out why they believe that such cases should be included in the extradition procedure.
The position of sport within the international community is unique and my noble friend Lord Moynihan, who has recently been appointed as our Shadow Minister for Sport, covering both Houses, will deal later with that specific issue.
The amendments seek to ask the Government to put assurances on the record as to why international sport should not be concerned. If they are able to put such assurances on the record, no one—apart from the international sporting community—will be happier than we.
The first amendment would ensure that the Secretary of State retained discretion in matters relating to international sport where extradition was being sought. The second amendment would make an exception in the category of events of murder and grievous bodily harm in circumstances where the offence was committed by a participant in an international sporting event.
I accept that my amendments are not perfectly drafted. They are a tool for debate. I appreciate in particular that participants in sporting events raise specific problems. I look carefully at the noble Viscount in saying that because I am sure that he will tear apart the drafting. As the Minister often tells us, it is a small thing, but my own. It is my fault entirely. I could not think of any other way. I understand full well that they could be thought to include fans in the terraces cheering on their teams. I know they are faulty. They are brought forward in an attempt to raise the issue and to give the Government the opportunity to satisfy the international sporting community that it has nothing to fear, because at the moment that fear is real. I beg to move.
§ Lord Clinton-Davis
I raised an objection earlier to the amendments we are now considering. Everything the noble Baroness has said supports my objection. I understand why she raises the issue and she is entitled to adduce some sort of evidence—I emphasise the words "some sort of evidence"—before the Committee, but there is nothing in this. I have a real objection to debating issues merely for the sake of debating them. I understand why she does it, but I believe that she is wrong.
§ Baroness Anelay of St Johns
Before the noble Lord goes any further, perhaps it might assist if I give him some of the background. I shall be a little indiscreet in so doing.
This matter was raised behind the scenes in another place with my honourable friend. There was an attempt to seek assurances from the Government on the record. Those reassurances were not given on the record. We are sure that the Government made serious and concerted attempts to give the assurances behind the scenes. Those were not accepted. What I am doing, therefore, is perfectly proper in the circumstances. We 68GC want to give a significant part of the public—those involved in international sports—the opportunity to be heard.
I made clear in my opening remarks that the fear is that Part I removes safeguards. We have discussed the safeguards in great detail in the past and I do not feel that it is proper for me to do so again. If the noble Lord, Lord Clinton-Davis. wants me to rehearse those arguments once more, I shall—but I suspect that I will try the patience of the Committee.
§ Lord Clinton-Davis
Never. Impossible. The noble Baroness, Lady Anelay, knows that I have the highest regard for her, but I believe—and I am prepared to emphasise the point—that it is possible to achieve her aims in another way—for example, by tabling Questions or by seeing the Minister privately. If she cannot do that, there are other ways—for example, the newspapers, the broadcasting media and so on. It is wrong in principle to address an issue here which can be addressed in other ways.
§ Baroness Anelay of St Johns
I need to intervene at this point because the noble Lord is going to the heart of what I consider to be the principle of parliamentary democracy—namely, the right of the people to have their issues raised here. If the noble Lord, Lord Clinton-Davis, believes that that is not proper, then I am afraid that he and I have completely opposite views on the function of Parliament.
§ Lord Clinton-Davis
Nothing the noble Baroness, Lady Anelay, has said alters what I said before. I have the highest regard for her, notwithstanding her intervention. However, I believe that addressing issues on the basis that "It is not really material but we want to do it" is wrong. I have made my objection very clear, but nothing will alter my friendship for the noble Baroness notwithstanding that.
§ Lord Mayhew of Twysden
These are moving interventions but perhaps we might speed matters up so that we can hear whether the Minister is prepared to go a little further in public than her colleague in the other place. A clear explanation has been given by my noble friend as to why she has brought the amendments forward—it seems entirely proper—and we look forward with keen anticipation and some optimism to a positive response from the Minister.
§ Viscount Bledisloe
Before the Minister responds, I cannot resist the temptation cast before me to draw attention to the many defects in the drafting and to say something about the substance.
As to the drafting, it is amazing that, first, it applies only if an act has been committed—so it is no good for someone who is innocent, only for someone who is guilty. Secondly, it governs only a participant in a sporting event—so the various manufacturers and managers to whom the noble Baroness referred would not be affected. Thirdly, and even more curiously, it is not limited to offences committed in an international sporting event. If the fight Mr Tyson had in his hotel 69GC had been an international sporting event, it would have applied to him in relation to his rape. But it does not. The drafting is, if I may say so, miles out.
Secondly, and much more importantly, I simply see no substance to the amendment. Why on earth should those who consciously go to a foreign country to take part in a sporting event have greater protection than casual visitors to that country if it is said that, in the course of that sporting event, they killed or injured someone grievously by going miles outside the sport? What criteria is it suggested that the Home Secretary apply? In the case cited by the noble Baroness, the Home Secretary is seemingly to investigate matters of high mechanical technology and first-guess the court of the country as to what the real cause of the accident is.
Why on earth should those who choose to indulge in the noisy and tiresome sport of motor racing have greater protection than those who take their car to a foreign country and merely drive it around? The amendment seems misdrafted, misconceived and altogether undesirable.
§ 4.45 p.m.
§ Baroness Carnegy of Lour
I am sorry that the noble Viscount is quite so critical of my noble friend. The amendment is probing, and we are all sorry that it is not better drafted, but the fact remains. It occurs to me that people get extremely worked up at sporting events, feel rather nationalistic, and do not always play absolutely fair. In the high dudgeon of a sporting event, it is possible that someone might be charged with corruption, swindling or fear of foreigners. That seems a very good example of the problems of the Bill, albeit that the solution may not be such an amendment.
§ Lord Moynihan
I am reeling and recovering from the idea that anyone could describe motor racing as noisy and tiresome. It is, of course, one of the finest sports in the land, and we should be very proud of our success in it. Equally, we should have a duty associated with that pride in supporting our motor-racing teams and all those associated with motor racing in international sport when they travel to Grand Prix around Europe and the world.
One of the important arguments levelled against the amendment is that there is nothing in it—that we should simply raise the issue with the press because it has no basis in legislation. That is totally misguided. My noble friend Lady Anelay was wise to focus on the extraordinary implications of the Senna case. That case goes right to the heart of a widespread concern in British sport as to the safeguards that exist in the context of extradition that will be lost with the passage of the Bill.
There is no doubt that it is wise for the Committee to focus, first and foremost, on the fact that there is widespread concern, and not only in motor racing. The amendments address that concern. There .5 knowledge and awareness that there could be a costly government penalty, not only in the pit lanes of every motor-racing team in the land, but for all those involved in motor 70GC sports, cycling, boxing and all sports in which there is an element of danger and. in extreme circumstances, in which someone can be injured or killed.
In particular, the Bill will damage the high standing of motor racing, and will render the United Kingdom less likely to be the leading home to the sport. A s has been expressed by other Members of the Committee, we are worried that it will severely deter voluntary officials from taking up assignments, not to mention those who are asked to be responsible for licensing or to accept the job of a steward in a European event. If the Bill is passed, they may simply say no.
That is not only my view. In the first week in which I have been back in this job, I have spoken to Frank Williams, discussed the subject with Bernie Ecclestone in the House, talked through the implications with Max Mosley, as well as seeking advice and support from a range of governing bodies. I have to report—I would like the Minister to reflect on this before the Bill returns to the Floor of the House—that no one in sport sees anything but damage to the organisation and management of international sport, the support staff, volunteers and employees if the Government's legislation is passed unamended.
Members of the Committee have asked what is so special about sport—what makes it different from other areas in European law. The position of sport in the international community is unique. The noble Lord, Lord Stoddart, and I had the opportunity to review and reflect on that in some detail when it came to the Nice treaty, when I was on the Front Bench in a different capacity. To use a phrase that he used earlier, different issues are seen in different ways in different countries and cultures. For that reason, and because there is no legal basis for sport within European treaties—sport is on the whole self-regulating through international bodies—sport is rightly subject to the subsidiarity principle and is a matter for member states.
EU states agreed a declaration on sport in Nice in 2000, however. Again, I urge the Government to have another close look at that before Report, subject to the wisdom of the Minister in accepting in principle the thrust of what is behind opposition amendments today. I fully appreciate, however, that they are probing amendments, in the true practice of the House and, indeed, another place. The idea is to probe government thinking and, if necessary, come back at a later stage with more polished amendments to address the valuable contributions that Members of the Committee have made.
That is essential. If the matter is not addressed, there will be very genuine concern across British sport about the grey area between the laws of different member states and the self-regulation at the heart of sport. That is especially so in sports where there is a high level of danger such as those that I mentioned, sometimes leading to injury or very regrettably to death, despite the highest standards of safety applied by the international and national governing bodies. Unless the problem is addressed, there will be real concern that the Government have let down British sport by 71GC taking away the safeguards that it has at present. From all those to whom I have spoken in my first week back in the job, that view is unanimous. If that voice is misplaced, it is incumbent on the Government to address it in detail and allay the concerns that exist outside this House.
§ Lord Hodgson of Astley Abbotts
I ask the Minister to address in her remarks a more modest aspect of international sporting events. She or her officials may be aware that a number of school sporting tours to the continent are having to be cancelled because of the difficulty—the impossibility in terms of costs—in obtaining insurance cover for people participating. In particular, the problem revolves around rugby tours in France, where there have been accidents and where, regrettably, people have been left not dead but paraplegic because of difficulties in the scrum.
Referees and coaches have been involved by the government in France—I am not quite sure at what level of government—in the inquiries and prosecutions following that. Referees have been involved because they are responsible for controlling the game, so the fact that that happened in scrums is believed to be their responsibility. The coaches have been involved because they are alleged to have engendered an overaggressive attitude towards the playing of the game that has led to undue physical violence, leading to the paraplegic and other damages to which I have referred.
So far, the problems have been with insurance—the costs of dealing with the inquiry and providing cover for it. Supposing that the Bill were passed unamended, when members of the opposing team were inadvertently injured—no one properly suggests that there has been an attempt to injure them deliberately; indeed, some of the injuries have been among those from English schools—would coaches and referees from schools in this country fall to be extradited under Part 1?
§ Lord Goodhart
In listening to the speeches of the noble Baroness. Lady Anelay, and the noble Lord, Lord Moynihan, I have been reminded of the immortal words of the legendary Bill Shankly, who said, "Football isn't a matter of life and death—it's more important than that". Looking at the amendment, I can see no reason whatever why sport in general, or motor racing in particular, should be given an exemption that does not apply across the board.
Why should people involved in sporting accidents who are accused of manslaughter be entitled to an exemption that does not apply to the United Kingdom manufacturer of a product sold to some other country of the European Union where there is an allegation of defects so serious and negligence so great that it amounts to manslaughter? No exemption is entitled to the manufacturer in such a case. and I can see no reason for making a special exemption for sport. After all. when it comes to a choice between justice and sport. justice is the more important of the two.
§ Lord Stoddart of Swindon
For the same reasons as the noble Lord, Lord Goodhart. I cannot support the 72GC amendment. It is too narrow. One immediately has to ask whether international sport covers professional or amateur events. If it covers both, what about the entertainment industry? A lot of ballet dancers can get badly hurt when dancing on stage, for example. Circus performers are certainly at great risk. Why should the provision not apply to them? Scouts on a jamboree could be at risk, and could have just as deserving a case as an international sportsman.
If the amendment were differently worded and applied to all people who might be at risk of extradition, and if the appropriate Minister had the last say, that would be a different matter. We had a discussion about that earlier in our deliberations. By taking away the political judgment in the high court of Parliament. if I can put it that way, we now have one of the laws of unintended consequences. As I said earlier, I believe that there are circumstances when the political authority has the right to intervene to defend the interests of a British citizen.
Before Report, I hope that people will reflect on that. Perhaps we can table an amendment to ensure that, in certain circumstances, all citizens will in the ultimate degree have the benefit of the protection of the political authorities in Parliament.
§ 5 p.m.
§ Baroness Scotland of Asthal
We have had a very full debate and I have rarely heard such sporting contributions to an amendment. I hope that what I have to say in response will give a modicum of satisfaction to all Members of the Committee. Before I do so, however, perhaps I may warmly welcome the noble Lord. Lord Moynihan. back to a much more familiar place on the Front Bench. I congratulate him on his new role as the shadow Minister for Sport in both Houses. I shall be very interested to see how he exercises his duties in the other place, although they will not have the pleasure that we have had this afternoon.
§ Baroness Scotland of Asthal
But never as good. We have first-team players here.
I should say straightaway to the noble Baroness, Lady Anelay, that, notwithstanding the imperfections which were so graphically and succinctly outlined by the noble Viscount, Lord Bledisloe, I accept absolutely that she tabled the amendment in order for us to debate it. I do not seek to make further sport of the issue at her expense.
We have some interesting issues to discuss here, although if this were a sporting event then I have to say to the noble Lord, Lord Moynihan. that I think he would lose. But this is far more important than a mere game and therefore I say to him that I really do not think there is much to fear; we are not changing the system so as to make sportsmen and women and those engaged in sporting activities more disadvantaged than they are at present.
73GC I listened with great care to all that was said by the noble Lord, to seek to ascertain from him the basis of his concerns. He explained that he thought that damage would be caused to sport—he made many assertions to that effect—but I had a little difficulty in getting a clear statement from him on exactly what those concerns were based. Having said that, I hope that I shall be able to give a definitive response, but if there are other matters of particular concern to Members of the Committee, I hope that, after my explanation, they will say so.
It will probably not surprise the Committee to learn that I do not think we can single out sporting activities in the way suggested, which was the point made by the noble Lords, Lord Goodhart and Lord Stoddart, and in a different way by my noble friend Lord Clinton-Davis. I am sure that the Committee will recall that we touched on this issue when we considered Amendments Nos. 112 and 126, relating to conduct which may have occurred in the United Kingdom. On that occasion I sought to deal with some of the anxieties that had been raised by people in the sporting world. The noble Baroness was kind enough to indicate those anxieties at the time and I sought to address them.
I pointed out then that the Bill as now amended provides that if any part of the conduct occurs in the United Kingdom, we can extradite only if that conduct would be seen as illegal over here. On that basis, I do not believe that those who run the United Kingdom-based Formula 1 teams need have any concerns about the introduction of the European arrest warrant. The amendment provides that where death or serious injury has resulted from a sporting event, the case should come to the Secretary of State for him to decide whether extradition would be proper. I have to ask what the word "proper" means for these purposes. I can foresee all kinds of legal challenges turning on that point. I mention this element because I know that it is very much a part of the plea which has been made—that the Secretary of State should remain engaged.
I also do not believe that it would be sensible to single out sport in this way. Tragically, sporting activity can lead to serious injuries and deaths, but it is not the only such activity. If we were to accept the amendment, presumably we would then face pressure for an equivalent provision from every UK mining company engaged in work overseas and from every construction company undertaking jobs in other countries. They would pursue the same theme. No doubt airlines would join the queue for a special exemption, as would almost any British company which owned or ran a factory outside these shores. Quite simply, I do not believe that that would be workable.
Those individuals whose specific actions lead to death or injury will continue to be liable for extradition, as they are at present. Those who have not been directly involved, but who perhaps set the general company policy and direction from the United Kingdom, will be able to establish that part of their action took place in this country, so they will be safe from extradition as long as their conduct was not 74GC deemed criminal over here. If their conduct would constitute an offence in the United Kingdom, there is then no reason why they should be exempt from extradition, but so long as the United Kingdom does not regard their conduct as criminal, they are protected from the possibility of extradition.
I hope that the noble Baroness will be content with that assurance, but it is right that I touch on the other position she raised because, as she pointed out, there is an issue as regards what would happen if. in due course, corporate manslaughter became a matter of criminal consequence here in the United Kingdom. If corporate manslaughter were to become a criminal offence in this country, punishable with a term of imprisonment in excess of one year, it would become an offence which could be capable of extradition.
Of course, as I am sure the noble Baroness will agree, it is the function of Parliament to decide whether corporate manslaughter is a proper offence that should appear on our statute book. If it should, the conditions on which it should be established and any safeguards that are necessary will, I know, be anxiously and creatively debated—if in no other place, then right here. I have enjoyed the company of noble Lords on a number of Bills and I do not anticipate that they will stray very far when that issue comes to be debated. At that point all the vigour and verve brought by noble Lords to the consideration of this matter will be heard.
As I have said, individuals directly responsible for death or injury will be extraditable, as they are at the moment. Let us look at the position of the Secretary of State in this. One has to ask whether the Secretary of State would have a reason to refuse an extradition request where it involved death or injury, whether or not it occurred in a sporting context. I ask that because these are extremely serious matters which need to be resolved in a court of law.
The noble Lord, Lord Hodgson, asked what would be the position in terms of school sports and pointed out the fears that have arisen in relation thereto. I can respond to the noble Lord by saying that that self-same matter has become an issue for the playing and maintenance of sporting conditions in this country. I refer to claims properly made by those who have been injured that rely on lack of proper regulation, lack of proper instruction or lack of proper opportunity. Such issues are now a feature of sport, in particular those sporting activities perceived to be dangerous. Rugby, boxing and a number of other sports would be so classed.
Here we face a challenge, not only internationally but in this country, to ensure that the way in which we regulate sport—the noble Lord pointed out that sport is self-regulated and it is right that it should be—means that the regulations in place enable our young people and all those who engage in sport to do so safely, in accordance with the law, and to ensure that there are no breaches. I say that because the knowledge that there are justiciable consequences for negligence and failure have enabled us to maintain very robust 75GC conditions of safety which have greatly enhanced the opportunities available to people to engage in sport in a safe and secure fashion.
§ Lord Hodgson of Astley Abbotts
While I accept all that the noble Baroness has said, the point I sought to make is that it is not clear exactly what are the justiciable conditions she has just referred to in France and Italy in relation to, say, a British football referee taking a school sporting event in which an injury occurs. I understand that until now there has been the failsafe of the Secretary of State. Under this procedure, that failsafe will no longer be available, so that such a referee, perhaps a schoolmaster doing his best, could be extradited to France, Spain or Italy without being able in any way to hold back the procedure in order to discuss the justiciable conditions in that country vis-?-vis the ones in place here.
I cite here people who are not engaged in any form of commercial activity. They are only endeavouring to improve the educational experience of schoolchildren. Notwithstanding the points made in the Minister's response, it seems to me that what is needed here is clarity and knowledge of how those countries treat these kinds of events. At present there is a great fear that what goes on in those countries is quite different from our approach; it is a much more legalistic and less insurance-based process.
§ Baroness Scotland of Asthal
I understand the fears expressed by the noble Lord, but I should say to him that that is the position now. I say that because at the moment countries can seek the extradition of sports coaches and referees. Whether they are extradited would depend on the offence for which extradition is sought. If it is an offence of serious injury or manslaughter, those people will be extraditable, as they are now.
It is important for us to remind ourselves of and understand the process that is to he adopted both in relation to Part 1 and Part 2 applications. It is a judicial process during which the skilled district judge will have an opportunity to consider whether the grounds have been made out. Earlier in Committee we were able to explore the way in which that can be done. It is not proposed that there should be ministerial involvement in Part 1 cases. However, as the Committee knows, in Part 2 the Home Office will satisfy itself, first, that the request comes from a bona fide source; secondly, it is for the court to consider; and thirdly, the Home Secretary will make the surrender decision and consider the basis for extradition.
Nothing that we have done in this part will impinge on the need to go through the same legal process. We would argue strongly that those who are anxious about the changes should be no more anxious than they are at present—and we hope that they are appropriately anxious about the way in which they discharge their duties.
§ Baroness Anelay of St Johns
I thank the Minister for her full and clear explanation of the Government's position. She has quite properly recognised the 76GC concerns that have been expressed by representatives of the motor-sport industry as well as by people involved in other sporting activities. It is right that, for our part, we should go back to those who have expressed anxiety and seek their view on the position as the noble Baroness has laid it out today.
There is one point that I should have made in opening this wide-ranging debate which has covered many different sports I do not have any personal interests to declare here. Perhaps that is more of an embarrassing admission than anything else, but with regard to motor sports, I have to say that as yet I have not even been to a motor race. My noble friend the shadow Minister for Sport looks a little shocked at that revelation, but I have to say that the closest I have ever come to a Formula I car was when Team McLaren was kind enough to hold a British Heart Foundation charity event in Woking. We were allowed to get as close as possible to the car, but not close enough to spoil the paintwork.
I raise these questions not out of personal interest but out of interest in all matters raised with Members of this House by individuals and organisations outwith this House. I understand the points made by the noble Viscount, Lord Bledisloe, and the noble Lord, Lord Goodhart, that they do not see sport as something special that needs different treatment. However, the noble Lord, Lord Stoddart, really got to the core of my difficulties in this part. He said that I have drawn these amendments too narrowly and that we should he concerned about the generality of people who will be affected by Part 1. He is right in saying that we lose the protection of the backstop of the Secretary of State's decision.
When the Minister was answering my noble friend Lord Hodgson about the impact on school sports, she referred, quite rightly, to the fact that in Part 2, the Home Secretary's position remains. We support that entirely, as we have said in the past—we simply lament that it is going from Part 1.
We shall consider the position very carefully between now and Report. I assure the noble Lord, Lord Stoddart, that I will look carefully at drafting an amendment that will not fall foul of the very proper chiding that I received on this drafting from the noble Viscount, Lord Bledisloe. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 65, as amended, agreed to.
§ 5.15 p.m.
§ Clause 66 [The appropriate judge]:
§ Baroness Anelay of St Johns moved Amendment No. 146:
§ Page 35, line 28, at beginning insert "subject to subsection (1A),"
§ The noble Baroness said: In moving Amendment No. 146, I should like to speak to Amendments No. 147, 232, 233, 237 and 238 as well. This is the last group of amendments to Part 1—pause for cheers, I think.77GC
§ The amendments are intended to probe the issue of who should be "the appropriate judge' in Parts 1, 2 and 3 respectively. Extradition cases in England and Wales are handled by Bow Street Magistrates' Court. I am sure that all those who have been working on the Bill realise the complexity of extradition law. I certainly admired the way in which it was handled by the judges at Bow Street when I was observing them.
§ The Bill allows the Lord Chancellor—while he still exists—to designate as the appropriate judge in England and Wales any district judge (magistrates' courts) and in Northern Ireland any county court judge or resident magistrate. In Scotland. the sheriff of Lothian and Borders will be the appropriate judge. That seems a somewhat curious state of affairs. I was grateful to the noble Lord, Lord Filkin, who wrote to us after we had a meeting on Scotland. Let me say again that it was a most useful departure to have that meeting on Scottish law matters. The letter written subsequently answered so many questions that my noble friend Lady Carnegy was able to withdraw several amendments.
Paragraph 2.2 of the letter made it quite clear on what basis the appropriate judge had been so named in Scotland:
Part 1 makes reference throughout to the appropriate judge. For Scotland this is defined in clause 66 as the Sheriff of Lothian and Borders. This continues the exclusive jurisdiction of the Sheriff of Lothian and Borders to hear extradition cases as provided for under the 1989 Act. It makes sense to do so for two reasons. Firstly it will build the experience of extradition gained by sheriffs in Lothian and Borders since the enactment of the 1989 Act and secondly there is insufficient extradition business in Scotland to justify hearing extradition cases in more than one Sheriffdom".
§ I would like to pick up on the two reasons and say why I think they could be argued to apply equally well to England, Wales and Northern Ireland.
§ Bow Street Magistrates' Court has considerable expertise in hearing extradition cases. I have some concerns about the implications of designating other district courts which have never before dealt with extradition cases.
§ How many courts is the Lord Chancellor intending to designate for this purpose? What criteria will be followed in so designating them? Our amendments would ensure that no court could be designated under Parts 1, 2 or 3 unless the judges have undertaken the required course of training and development in extradition procedure, as introduced by this legislation.
§ With due humility, I made sure that the Bow Street magistrates knew I was tabling this amendment. I made it clear that I appreciated that they would not need any training and that I was not seriously saying that they would all have to troop off for a specified course of training but was trying to probe the Government's intentions. I was intrigued by their response that it is quite difficult to provide training in this matter because of its rarity and the fact that it has been concentrated in the hands of so few people. If the Government are going to roll cases out to other courts, it will be quite difficult to provide training, much of which has to be done on the job, especially since the 78GC Government tell us that they expect an expansion of extradition business, if I can call it that, as a result of the Bill.
§ The second reason given by the noble Lord, Lord Filkin, was that there are not many extradition cases in Scotland. I should have thought there might be even fewer in Northern Ireland, although I have not looked at the figures recently. As for England and Wales, we know that figures average at about 100 cases a year. Could the Minister clarify how many district judges are likely to be designated? We accept that the Government have a responsibility to ensure that the courts are properly funded and resourced to carry out these cases. Have they assessed the costs for ensuring that more courts deal with these cases, rather than just Bow Street?
§ I observed the difficult conditions under which Bow Street operates. It is not the most lavishly equipped court. I am trying to be diplomatic—I do not mean to be too offensive to the Government. I realise that some money has been spent on Bow Street Magistrates' Court, but not a lot. It still operates under very difficult conditions. What estimate have the Government made of future budgetary needs to ensure that Bow Street is fully able to deal with cases in the appropriate conditions without sitting cheek by jowl, as happens in Court 3 at the moment? I beg to move.
§ Lord Bassam of Brighton
I am grateful to the noble Baroness for having tabled the amendments; they provide us with the opportunity to set out more clearly how we see this aspect of extradition working in the future.
As the Bill is drafted, Clauses 66 and 139 define the appropriate judge for hearing extradition cases under Parts 1 and 2 of the Bill. The appropriate judges are as follows: in England and Wales it is any district judge designated by the Lord Chancellor—while he exists. In Scotland. it is the sheriff of Lothian and Borders and in Northern Ireland any county court judge or resident magistrate designated by the Lord Chancellor.
I do not think anyone has any doubt that cases in Scotland will be handled well by the sheriff of Lothian and Borders. What may in due course change is how cases in England, Wales and Northern Ireland are dealt with. At present, anyone arrested for extradition purposes anywhere in any of those three countries is brought to London for the case to be heard at Bow Street Magistrates' Court. Although Court 3 may not be the most salubrious of settings, it is nevertheless a very sensible location.
There is a good reason for this central location. Extradition law is very specialist and Bow Street has a cadre of district judges and clerks who have a great deal of expertise in this area. It has been very helpful that the noble Baroness, Lady Anelay, has spent time there, although I am not sure that it was something she delighted in doing. I spent a bit of time there some years ago for other reasons—I cannot remember when or why, but it was not the most gratifying experience. I pay tribute to her for her particular interest in this matter and for taking the time to understand how things work.
79GC The Government believe they need to examine whether it is sensible for every extradition case in England, Wales and Northern Ireland to be heard in London. It is commonly understood that there will be an expansion in the numbers of cases heard. While at the moment it is a tiny handful, we all accept that there will be an increase. For that reason, we think there should be or will be a small number of judicial centres outside London where these cases can be dealt with.
There are sound practical reasons for this. If a fugitive is arrested in Carlisle, Cornwall, Cardiff or Coleraine, it does not really make sense for them to be transported all the way to London for the extradition hearing. For that reason, we envisage having district judges presiding over extradition hearings in a handful of judicial centres outside London. What is a handful? There will be perhaps three or four, all of which will need several district judges to make sure they can provide year-round service and cover. So it will be a small number of people. We believe that they will need to be trained but we do not expect the demand to be immediate. I suspect that it will be a slow and incremental process, with the new locations dependent upon the number of requests received, the balance of where the cases fall, the areas in which they fall and where arrests are made.
The other reason why the development of regional centres dealing with extradition cases will be a slow and gradual process is because, as I have already indicated, extradition law is complex and specialist. Clearly, before any place could begin operating as a regional extradition centre, there would need to be a sufficient number of district judges and clerks based there who were fully conversant with our extradition law and the requirements it imposes.
That brings me to the heart of the amendments. I agree absolutely with the spirit behind them. District judges must receive proper, effective and skilled training and development before they can expect to preside over extradition cases. I can give the assurance that the noble Baroness is after—the Lord Chancellor is very seized of this point and no district judge will be designated to handle extradition cases unless he or she has been properly trained for that role. We believe that to be very important. They will need to be very skilled and to include in their CV much relevant experience, perhaps based on practice.
It would not be in the United Kingdom's interest, the fugitive's interest, the requesting state's interest and certainly not in the interests of justice to have a person who was unqualified and ill prepared in charge of an extradition case. I can give the assurance that that will not happen.
Amendments Nos. 237 and 238 are concerned with who can issue outgoing extradition requests. If your Lordships care to look at Clause 149, you will see that the field is rather that for hearing extradition cases wider since it includes any JP or, in Scotland, any sheriff. The reason is that issuing an outgoing European arrest warrant is very similar to issuing a normal domestic arrest warrant, with the same 80GC considerations applying. Nevertheless, I can assure your Lordships that we will be issuing guidance to JPs—the noble Baroness has experience in that field—on the exercise of this new function.
I hope that, having heard what I have said, and, in particular, the firm undertaking that no district judge will be designated without proper training, the noble Baroness will agree with my earlier suggestion that we are at one on the point and withdraw her amendment with some comfort.
§ Baroness Anelay of St Johns
I am grateful to the Minister for his assurance that no district judge will be able to hear a case unless he or she has been properly trained prior to that. It is important to consider that when these complex cases are rolled out to this handful of centres they are not only properly dealt with but the courts are properly resourced.
I referred—not too flippantly, I hope—to Court 3; I do not want to be flippant about the circumstances under which its operates. Court 3 is probably the smallest court that one could get into, so the number of interpreters necessary and the interest of the press makes things quite difficult. I suspect that it is used less frequently than the others, because people whose cases are heard in Court 3 are on bail—it is not a secure court. The other courts also labour under difficulties, and I hope that the Government can take on board the budgetary implications of rolling out these cases to other courts nationwide.
Just before I withdraw the amendment, I notice that yet again, as the Minister mentioned, the clause refers to the Lord Chancellor. It therefore crosses my mind again what a torrent of legislation we shall face if the Government persist in wanting to abolish the post of Lord Chancellor. We shall need to change every reference to that post in our legislation. I must say that I look on that task with dread. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 147 not moved.]
§ Clause 66 agreed to.
§ Clause 67 agreed to.
§ Clause 68 [Extradition to category 2 territories]:
§ [Amendment No. 148 not moved.]
§ On Question, Whether Clause 68 shall stand part of the Bill?
§ Baroness Anelay of St Johns
This is one of very few clause stand part debates in Part 2 to which I have given notice that I should like to speak.
Part 2 retains some of the protections that will now be excised from Part 1. We generally welcome what is in Part 2 and have said several times that we feel that Part 2 would do the job for extradition in total; we do not need Part 1. But that does not mean that we have no problems with Part 2; there are still matters that we need to scrutinise and probe—most importantly, the provisions laid out in Clause 83. We still wonder which countries will be in category 2. When I read the record 81GC of proceedings on Part 2 in another place, I noticed that my honourable friend Nick Hawkins remarked on that point:It would be even more helpful if the Government were to produce a comprehensive list, because this afternoon the Minister was able to refer only to countries such as Canada, Switzerland and Australia".— [Official Report, Commons, 14/1/03; col. 141.]
The Minister gave an evasive response. but we have subsequently managed to discover a little more about which countries might be designated as category 2. The Home Affairs Select Committee report in another place showed that of the 139 extraditions from the UK during the three years from 1999 to 2001, 57 were to non-EU member states and 23 of those 57 were to the USA, while the others were to Australia. Canada, Cyprus, the Czech Republic, Hong Kong, India, Lithuania, Norway, South Africa, Switzerland and Uganda.
Furthermore, on 20th May—after the Bill had left another place—the then Minister, Mr Robert Ainsworth in answering a Written Question listed all the countries with which the UK has extradition agreements, falling into four categories: Commonwealth countries, British Overseas Territories, parties to the European Convention on Extradition and those with which we have bilateral extradition treaties. Countries in the fourth category include not only the USA but Iraq, Colombia and Liberia, to name a few.
It is important that the Government give us some idea of which countries we are referring to when we discuss Part 2 procedures. It struck me that countries which would fall into category 2 territories range from those which could indeed guarantee a just and fair trial to those with appalling records on human rights and corruption. For that reason, it is imperative that the Order in Council for designating category 2 countries should be made by affirmative resolution. We are grateful to the Government for conceding that point early on.
However, perhaps this is the appropriate time for the Government to put on record why they dropped the idea of having four tiers of designated countries, as suggested in the draft Bill. It is clear that there is a great disparity between Canada and Liberia in the quality of their justice systems. On that note, the creation of a sub-tier is what really worries us in Clause 83. In that clause, we learn that some category 2 count ries—we do not know which—will be exempt from the requirement to provide prima facie evidence and that that will be done by Order in Council. A sub-tier seems to us a worrying thing to create, being neither one thing nor the other.
In response to a previous amendment, the noble Baroness answered the remainder of the questions that I should otherwise have asked now. However, I look forward to hearing from the Minister the Government's thoughts behind the Part 2 procedure in general, and, in particular, which countries it will cover.
§ Baroness Scotland of Asthal
It may be for the convenience of the Committee if I answer the noble 82GC Baroness. I am sure that she gave notice that she intended to speak to clause stand part, but that fact did not seem to permeate down to me. Because of our work schedule, I accept that that is probably entirely my fault.
As the noble Baroness said, category 2 will break down into three broad categories: those with whom we have a bilateral treaty—our bilateral treaty partners— Commonwealth partners and the non-EU members of the European Convention on Extradition. ECE partners are all listed. Perhaps the Committee would find it helpful to read the Home Office publication, The Law of Extradition: a review, in the March 2001 edition. It sets out all the countries that are within the European Convention on Extradition. If it would assist the Committee, I am happy either to read them into the record now or provide the list in due course. Perhaps it is easier if I read them now.
As the Committee will know, the ECE was opened for signature in 1957. It came into force in the United Kingdom in 1991 and all ECE extraditions are governed by Part 3 of the Extradition Act 1989. The following countries have been designated by Order in Council under Section 4(1) of that Act: Albania in 1999; Austria in 1991; Estonia in 1997; and Finland, France, Germany and Greece in 1991. Hungary was designated in 1993; Iceland, Israel and Italy in 1991; Latvia in 1997; Liechtenstein in 1991; Lithuania in 1995; Luxembourg in 1991; Malta in 1997; and Moldova in 1998. The Netherlands and Norway were designated in 1991; Poland in 1993; Portugal in 1991; Romania in 1998; Slovakia and Slovenia in 1995; Spain, Sweden, Switzerland and Turkey all in 1991; and the Ukraine in 1999.
The Commonwealth partners with whom the United Kingdom has extradition arrangements encompass most Commonwealth countries under the Commonwealth scheme that was first adopted in 1966. The arrangement relies on parallel legislation supported by a formal undertaking on speciality—or specialty; I am never quite sure which we decided on in the end—perhaps I shall stick with specialty and hope that Members of the Committee will forgive me if they disagree.
As the Committee will know, in the United Kingdom extraditions are governed by Part 3 of the Extradition Act 1989 and the prima facie requirement applies, although the scheme was amended in 199 I to allow for alternative arrangements to be reached on a bilateral basis. The United Kingdom still applies the prima facie requirement to all requests from Commonwealth partners on which I know that we shall touch later. The noble Baroness has tabled an amendment to which I telegraph that I shall say that she has forgotten the Commonwealth. This may be an opportune moment for us to include it.
The provisions of the Extradition Act relating to requests from Commonwealth countries differ in some respects from those relating to foreign states. There is no provision for making representations prior to surrender, although the provisions are applied in practice. A person convicted in absentia must be 83GC treated as an accused person and there is no provision for special extradition arrangements with Commonwealth countries. Specialty provisions are slightly different; a certificate is issued by the Secretary of State confirming the existence of specialty arrangements.
§ [The Sitting was suspended for a Division in the House from 5.40 to 5.53 p.m.]
§ Baroness Scotland of Asthal
Before the break, we were dealing with the issue of Commonwealth partners. I believe that I can short-circuit the list of Commonwealth countries by saying that all members of the Commonwealth designated by Order in Council under Section 5(1) of the Act are included, save Pakistan, Namibia, Cameroon and Mozambique, which have not been designated under Section 5(1). In September 1992 an extradition treaty was agreed between the Government of Great Britain and Northern Ireland and the Government of the Republic of India. In saying that, I remind your Lordships that the Human Rights Act 1998 provision would apply in relation to all the countries about which I now speak.
The bilateral treaty partners are to be found in Schedule I. Schedule 1 to the Act applies where bilateral treaties signed before 1989 under the Extradition Act 1870 are the basis for extradition arrangements. Most bilateral treaties date from the late 19th or early 20th century and are seldom used. The United States is the only treaty partner with which the United Kingdom has regular extradition traffic.
The dates when the bilateral treaties were signed are as follows: Argentina, 1894; Bolivia, 1898; Chile, 1898; Columbia, 1889; Cuba, 1905; Ecuador, 1886; El Salvador, 1882; Guatemala, 1886; Haiti, 1876; Iraq, 1933; Liberia, 1894; Mexico, 1889; Monaco, 1892; Nicaragua, 1906; Panama, 1907; Paraguay, 1911; Peru, 1907; San Merino, 1900; Thailand, 1911; Uruguay, 1885; the USA, 1876; Yugoslavia, 1901; and Brazil in 1997. In addition, extradition between the UK and its overseas territories takes place under Order in Council made under the Fugitive Offenders Act 1967. I believe that noble Lords are familiar with our overseas territories and therefore I shall not list them.
The reason that we did not proceed with the four categories is that we thought there was no point in doing so. Three fell into the three categories and we had very similar conditions in relation to all the category 2 countries. I hope that that is a sufficiently comprehensive explanation to satisfy the noble Baroness as to why we have so defined this issue.
§ Baroness Anelay of St Johns
I am grateful to the Minister for her comprehensive answer. She has rectified the omissions made by her honourable friend Mr Robert Ainsworth in another place.
At this stage, it may be helpful if I refer back to the clauses on which I have given notice of my intention to speak on the question of clause stand part. I believe that the confusion may have arisen in the Government's mind because, when we dealt with Part 84GC 1, I had to lodge stand part objections to each and every clause because they were included in the second or third group of amendments that we discussed when I sought to delete Part 1 from the Bill.
I subsequently gave notice of about only three or four clauses in Part 1 to which I wanted to see stand part objections left on the Marshalled List. I wanted to be sure that other noble Lords could participate if they so wished and I did not want to prevent them from having their rightful opportunity to speak.
However, from Clause 68 onwards—we now reach Part 2 of the Bill—where notice of intention to oppose clause stand part is printed in the Marshalled List, as is the case for Clause 68, I shall indeed speak to those clauses. The next one will be Clause 83, which I have grouped with amendments in order to reduce the time spent on it. I notice that Clause 148 appears at the end of the groupings list, but we shall certainly not reach that today. I shall not pursue Clause 68 further.
§ Clause 68 agreed to.
§ Clause 69 [Extradition request and certificate]:
§ Lord Bassam of Brighton moved Amendment No. 148A:
§ Page 37, line 6, leave out subsection (10).
§ The noble Lord said: I hope that I can be brief in dealing with these amendments and that your Lordships will not have too much difficulty in accepting them. They all refer to the Secretary of State's role in the certification process of a Part 2 extradition request and, in particular, to the documents that will be required to be sent to the district judge.
§ When a request from a Part 2 country is received, the Secretary of State is required to certify that it has come from a bona fide source and that it contains the requisite information—the same role that NCIS and the Crown Office will perform for Part 1 requests. As the Bill is drafted, if the Secretary of State certifies a request, he is obliged to send all documents that he has received from the requesting state in connection with the request to the district judge, who will, in turn, disclose them to the fugitive. In turn, the district judge will disclose the documents to the fugitive.
§ At first glance, all that appears to be completely harmless, but potentially it has some unsatisfactory and perhaps unintended consequences. The requesting state may, for example, provide the Secretary of State with highly sensitive intelligence information detailing how to locate the fugitive. That would then have to be shown to the fugitive after his eventual arrest.
§ I am sure your Lordships would agree that that information could include details of informants or other intelligence material that has been obtained by means that we would certainly not want put in the public domain. That could of course have the potential, if revealed, to put individuals—and, by extension, perhaps, their families—at risk.
§ The effect of the amendments that the Government are proposing would be that the Secretary of State would be required to send to the judge only the request, the certificate that he issues (certifying that the 85GC request has come from a bona fide source and contains the necessary information) and a copy of any Order in Council designating the country as an extradition partner.
§ I should perhaps also add, for completeness, that the Secretary of State will retain discretion to send any other relevant papers. That would clearly include all those that may be of use to the fugitive.
§ In normal practice, it is our assumption that all the papers received by the Secretary of State will be sent to the district judge. However, it is important that some discretion must be available to protect sensitive intelligence material. That is why we have removed the automatic requirement.
§ I realise that that may offer some disquiet but, in the circumstances, noble Lords will probably find a way to agree with the amendments because they cover a very sensitive area of intelligence materials. I beg to move.
§ On Question, amendment agreed to.
§ Clause 69, as amended, agreed to.
§ 6 p.m.
§ Clause 70 [Arrest warrant following extradition request]:
§ [Amendment No. 149 not moved.]
§ The Deputy Chairman of Committees (Lord Burnham)
If Amendment No. 150 is agreed to, I cannot call Amendment No. 151.
§ Baroness Anelay of St Johns moved Amendment No. 150:
§ Page 37, line 29, leave out subsection (4).
§ The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 167 and 197 and the Question whether Clause 83 stand part. I have already drawn attention, when speaking to the Question whether Clause 68 stand part. to the fact that, whereas we welcome most of Part 2, there are some issues about which we need to raise questions and probe.
§ I shall begin with Amendments Nos. 150 and 167. Amendment No. 150 would remove subsection (4) from Clause 70, and Amendment No. 167 would remove subsection (5) from Clause 72. Those subsections allow for an Order in Council to designate specific category 2 territories so that when they issue an arrest warrant or provisional warrant they need supply only information, not evidence. Our problem with that is that it effectively involves the removal of the prima facie case requirement on the face of the arrest warrant for certain unspecified category 2 territories. Clause 83(6) goes further. Clause 83(1) requires the judge to decide whether there is sufficient evidence for a case to be answered by the defendant on trial. Subsection (6) provides for the judge to pass over that consideration in the case of specified category 2 territories and to move on to the next stage of the proceedings.86GC
§ We have some concerns with that. We asked the Government to set out their justification for the exemption from prima facie evidence both for the warrant and for the judge's consideration at the hearing by an Order in Council which will not be subject to parliamentary scrutiny. I welcome the guarantee given by the Minister with regard to a designation of a country as a Part 2 extradition partner. He said that any orders designating a country as a Part 2 extradition partner will also, if appropriate, contain provisions removing the prima facie requirement.
§ Yet there still seems to us to be a potential for a new sub-tier of category 2 territories to be created. which essentially have one more safeguard for the British citizen removed. We are concerned about that. We have had plenty of debates in relation to Part I about the protection which the prima facie requirement provides. The country must provide information and we feel that it is important that there should be as much evidence as possible before someone is extradited. I believe that I can ignore some of my notes, given the Minister's response to the previous clause stand part debate.
§ Our concern with category 2 countries that have no guarantee of the European Convention on Human Rights is that if we relax the safeguard with regard to prima facie rules, we have no assurance that. when extradition takes place, it will happen only when there is enough evidence for the prosecution to go ahead safely.
Amendment No. 197 picks up on a point made by the Home Affairs Select Committee of another place. It stated:
We consider that the power delegated by Clause 83(6) is too broadly defined. As currently drafted, Clause 83(6) would allow any territory whatsoever to be designated as exempt from the prima facie case requirement.
We recommend that the power delegated by Clause 83(6) should be specifically limited to a power to make Orders in Council to exempt from the prima facie case requirement only: …those European states that are signatories to the European Convention on Extradition but that are not EU members … [and] any other state with which the UK has a bilateral agreement which requires that state, in making an extradition request, to meet evidential requirements equivalent to those set out in the Convention".
§ We tabled Amendment No. 197 on the basis of that recommendation. I hope that the Minister will consider the amendment to be a viable alternative to the current unspecified exemption in the Bill as drafted. I beg to move.
§ Baroness Scotland of Asthal
I am grateful for the opportunity to respond to these amendments but on this occasion I cannot support them because they would put the United Kingdom in breach of its international obligations and be a great step backwards.
Clauses 70 and 72 deal with, among other matters, requirements of prima facie evidence to be produced in category 2 cases. Clause 70(4) and Clause 72(5) provide that a request from a country specified by Order in Council need be accompanied only by information rather than evidence.
87GC Amendments Nos. 150 and 167 would remove those provisions with the effect that all Part 2 requests would have to be accompanied by prima facie evidence. I know that that is what the noble Baroness seeks to achieve. However, I am somewhat perplexed that she should do so on behalf of Her Majesty's Opposition, for reasons that I shall explore.
The provisions in question hardly represent a new or startling development. If noble Lords look at Section 8(3) of the Extradition Act 1989, they will see that very similar wording can be found; in particular, the substitution of evidence by the word "information". We are not doing anything new by preserving the status quo. Those subsections are designed to meet our existing obligations under the European Convention on Extradition, the ECE, which we have now been operating for about 12 years.
The UK ratified the ECE in 1991. It is hardly for me to make this point, but I am sure that the noble Baroness well remembers the complexion of the government who were then in being. Perhaps I need not remind noble Lords of the identity of the then Chancellor of the Exchequer, whose company we have had on a number of occasions, or of the venerable and much loved then Attorney-General, whose company we may have this afternoon. Under the terms of the ECE, we cannot demand prima facie evidence and if we were to seek to refuse a request from an ECE partner on the grounds that it lacked prima facie evidence, we would be in breach of our international obligations. That change was one with which the Government were content and, sparing the blushes of the noble and learned Lord, Lord Mayhew, I am in total agreement with the stance he took on that change. As on so many occasions, he and I seem to be at one.
Were the amendments to be made, we would require prima facie evidence to accompany every single Part 2 request. The UK would have to withdraw from the European Convention on Extradition and seek to negotiate a new bilateral treaty with every single non-EU Council of Europe country, which I had the pleasure of listing earlier. At best, there would be a gap while those treaties were renegotiated; at worst, other ECE countries might not take it entirely kindly that we had withdrawn from the ECE and refuse to negotiate, leaving us with no extradition relations with the countries in question. Removal of the prima facie requirement has caused us no difficulties with ECE countries during the past 12 years. To go back on that now would be a retrograde step.
Perhaps I may say something about the wider world outside the ECE. The Bill, like the Extradition Act 1989, allows for the removal of the prima facie requirement for any country in the world. However, there is one important difference. Following the recommendation of the Select Committee on Delegated Powers and Regulatory Reform, we have agreed that orders removing the prima facie requirement all be subject to the affirmative resolution 88GC procedure, giving Parliament increased scrutiny opportunities. I know that the noble Baroness acknowledges that.
Until now, no non-ECE country has had the prima facie requirement removed. We do not intend to change that generally; we intend to go slightly further, but only in a limited way. As the Committee will be aware, the new bilateral extradition treaty that we have negotiated with the United States will remove the prima facie requirement in respect of requests made by that country. I know that the noble Lord, Lord Goodhart, is especially exercised and spoke strongly of his opposition to that withdrawal. I am sure that we shall read of that issue in due course.
However, we feel strongly that because of the history and nature of our long and well-established partnership with the United States, that will not cause us difficulty because it has faithfully honoured each and every agreement that we have ever had and given us no cause to believe that it will renege on the conditions that we have jointly set and agreed. I reiterate that we do not currently require prima facie evidence for a whole host of European countries, including places such as Latvia, Turkey and Albania. We can see no case for imposing a more stringent requirement on an established, mature democracy, such as the USA.
I know that the noble Lord, Lord Goodhart, is also concerned about the question of reciprocity. I must confess that I am a little puzzled about that concern. It is of course the job of this Parliament to decide what barriers and hurdles to extradition there should be. That includes setting the evidential test. If we take the view that for a country such as the USA, with a proper judicial system and where the rule of law is respected, the ECE standard is the appropriate one, that is an objective decision. So we must ask: why is that decision affected by what the other country decides to do? I cannot see how a decision to remove the prima facie evidential requirement from incoming USA requests becomes any more or less correct simply because, for constitutional reasons, the US cannot do the same.
Beyond that, I assure the Committee that we have no current plans to remove the prima facie evidential requirement for any other of our bilateral treaty partners. There is a case for removing the prima facie evidential requirement for a small number of Commonwealth partners whose criminal justice systems can be trusted and with whom we have a significant volume of business. No final judgments have been made, but we have in mind, as I mentioned the last time that we discussed the issue in Committee, countries such as Australia, Canada and New Zealand.
I am sure that noble Lords would not object to any of those three countries being exempted from the burden of having to supply prima facie evidence. Our relations with those countries are based on the Commonwealth extradition scheme—the London Scheme for Extradition Within the Commonwealth, to give it its full name. The Commonwealth scheme does not take the form of a binding agreement. Rather, it is 89GC a set of model principles around which all Commonwealth countries are expected to base their legislation. They can then designate all other Commonwealth countries that operate extradition on a similar basis as extradition partners. That is precisely what the United Kingdom has done, with the result that we have extradition relations with almost every other Commonwealth country.
If the amendment were made, that would become impossible, which would be a very unfortunate step. Knowing the warmth of feeling that exists within Her Majesty's Opposition for the Commonwealth, I should be surprised if they sought that. I also know of the long tradition of communication with and support for the Commonwealth among Liberal Democrats.
I hope that I have clearly stated the Government's intentions and that that has been useful. I remind the Committee that all Orders in Council designating countries as exempt from the prima facie requirement will be subject to the affirmative resolution procedure. so Parliament will have the fullest involvement.
The amendments are not desirable. The first two would result in the UK being forced to withdraw from the ECE, while the last would deny us the opportunity to treat trusted Commonwealth partners on a par with our Council of Europe partners. Having heard what I have said, I hope that the noble Lord will feel able to withdraw his amendment and that the Committee will recognise that Clause 83 effectively preserves the status quo. It is an important clause and I hope that the Committee will recognise that it should stand part of the Bill.
§ 6.15 p.m.
§ Lord Goodhart
The noble Baroness raised the question of reciprocity and spoke to it at some length, so I hope that the Committee will not object if I deal with my argument on that now. I intended to raise it by my next amendment, Amendment No. 151 A, but if I speak to that now it will save us having the same debate again then.
I should say that Amendment No. 151 A is probably in the wrong place; it should have been tabled as an amendment to Clause 83 rather than Clause 70. As I understand it, Clause 70 deals with the information that must be provided to obtain an arrest warrant, but the actual hearing is dealt with under Clause 83. It is at that point that the question of the need to produce evidence arises.
Having said that, it seems to me that it is inappropriate for the Government to have agreed to dispense with reciprocity in the new treaty with the USA. The United States gets from the agreement the benefit of the easier extradition of people it wants to have back in order to try them, but what does the United Kingdom get from it? I appreciate that other aspects of the treaty will simplify the extradition process on both sides and are unobjectionable, but I am concentrating on reciprocity. As far as that is concerned, the United Kingdom gets more or less nothing.
90GC In some limited sense it is an advantage to the United Kingdom that we can now extradite alleged criminals to the USA more easily and therefore do not have to keep them in prison here, but that is a fairly minimal advantage. We lose something of considerably more advantage—namely. the bargaining power to get the Americans to change their laws to enable us to get defendants back here more easily.
There are other reasons for objecting to making extradition to the USA easier—for instance, the low standards of criminal justice in some states. While the noble Baroness refers to the observance in the United States of the rule of law—which is in general true—I am deeply concerned about agreeing a treaty of this kind at a time when the present Administration are showing their contempt for due process and the right to fair trial in relation to the prisoners in Guantanamo Bay.
It is correct as a general principle that rights under extradition agreements should be reciprocal. As 1 understand it, the Minister said that there is no other agreement to which the United Kingdom is a party in which we have dispensed with the need for evidence except where there is equal and reciprocal dispensation the other way. In that respect the American treaty is unique. If that is so, it creates a bad precedent.
§ Lord Clinton-Davis
I support the arguments of the noble Lord, Lord Goodhart. 1 am very concerned about the present situation, particularly in regard to reciprocity. Like the noble Lord, I believe that we obtain very little advantage in the present arrangements. As he rightly said, at the moment there is a variety of standards of justice and in some states it is very minimal indeed.
There is very little we can do about it. My noble friend should take into account what the noble Lord, Lord Goodhart, has said because he is not without support on this side of the Committee. I want him to know that.
§ Baroness Scotland of Asthal
I say straightaway that I understand the concerns that the Committee has raised in relation to the issues now pertaining at Guantanamo Bay. Members of the Committee will remember the recent good and thorough debate on that issue which was answered by my noble friend Lady Symons of Vernham Dean. It is right that those strongly held views should be expressed and noble Lords will have heard the Government's robust response in relation to them.
I can assure the Committee that there is no question of the Government agreeing to extradite individuals to Guantanamo Bay. Any extradition to the mainland would be subject to the agreement that we have already in relation to capital and other punishments, and the human rights provisions contained in Clause 86 would prevail.
Noble Lords will remember that we have discussed issues such as the right to trial, the right to representation, the right to interpretation and so on. I know and hear what the noble Lord, Lord Goodhart, 91GC says in relation to the standards that may pertain in some states in the United States of America, particularly in the deep south—Texas featured very clearly in that discussion—where all is not as it should be.
All I would say in response is that no country, including the United Kingdom, has a perfect criminal justice system. We still believe that the quality of justice in each of the states is on par with those to be found in the Council of Europe countries. As a result of our agreement there are some who would say that we are able to secure for those persons who are extradited from this country to the United States a better system of provision and protection than is available to United States citizens, particularly in relation to the application of the death sentence: capital punishment. To date, that part of the agreement with our US partners has, without exception, been honoured. If we compare what would happen to a person extradited from here with what would happen to an individual American facing the same charges and found guilty, in some states that person could not avoid capital punishment in the way that we have been able to secure avoidance for persons extradited from here.
We are not looking at the individual concerns that we have about several countries, but at whether it is right and just for the United States to be treated in a way similar to that in which we treat other countries, with all the caveats and hedges we have put around it. We say that it is because we are able to ensure that our concerns are expressed and dealt with in a way that bites upon the operation. Clause 86 is a powerful instrument in helping us to do so.
With the Committee's tacit consent, I hope that I have merged these answers with those 1 had intended to give to the next amendment. It will not help if I repeat much of the ground. I simply say that the prima facie requirement is not necessary in relation to this issue.
I said earlier that, for constitutional reasons, the United States of America was in difficulty in providing reciprocity. I need to explain that further. For constitutional reasons the Americans are unable to remove the prima facie evidential requirement from a request made to them. If noble Lords look with care at the relevant provision enshrined in Article 4 of the Bill of Rights, they will see why that is so. It is not that they do not wish to; constitutionally they are not able to do so.
Changes to the US Constitution are made very rarely and only with the greatest difficulty, so there was never any question that the US would be able to lift the prima facie burden from the United Kingdom. We are not in the same position. The Extradition Act 1989 enables us to remove the prima facie evidential requirement—as will the Bill if enacted—and the question for the United Kingdom was whether we should let the constitutional inability of the United States to remove the prima facie requirement influence 92GC the evidential standard that we set for requests made to the United Kingdom by the United States. We do not believe that it should.
It is up to Parliament to determine the appropriate level of protection for people in this country whose extradition has been sought. We need to consider what evidence and safeguards there should be. If we conclude that in respect of a particular country there need be no requirement for prima facie evidence, we fail to see how that position suddenly becomes inappropriate if that country, for wholly understandable reasons, is unable to reciprocate.
I hope that with that further and fuller explanation noble Lords will feel more content than they have been hitherto.
§ 6.30 p.m.
§ Baroness Anelay of St Johns
The noble Baroness was right to say that it is no part of the view of Her Majesty's Opposition that the status of Commonwealth countries should be brought into question. We have the highest regard for them.
The reason for this series of amendments is linked to our whole concern about the removal of prima facie evidence from Part I and our worry that in Part 2 we might end up with a system whereby the prima facie evidence requirement is also gradually whittled away. The amendments were tabled with that in mind. They were also intended to he a warm-up act for Amendment No. 151A, tabled by the noble Lord, Lord Goodhart, which we knew would be winging its way onto the Marshalled List.
I am grateful for the Minister's indication that there are no plans to remove prima facie evidence from our bilateral partners except in the case of the United States. Our concern is that we might go further in future because the number of exceptions could increase.
I am grateful to the Minister for setting out the Government's position on this matter. I have no doubt that we will need to look at the issue again, although in a more refined form, when we get to the Report stage. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 151 to 152 not moved.]
§ Lord Bassam of Brighton moved Amendment No. 152A:
§ Page 37, line 33, after "constable" insert "or customs officer"
§ The noble Lord said: I again hope to be brief in dealing with the amendments. I am confident that the Committee will have no difficulty in accepting them as they were trailed at an earlier stage and welcomed by the noble Lord, Lord Hodgson of Astley Abbotts.
§ The amendments are concerned with the power of customs officers to carry out arrests in Part 2 cases. As the Committee will be aware, the Bill was amended on Report in another place to make it absolutely clear who had the power of arrest in Part 1 extradition cases. 93GC This put it beyond doubt that foreign police officers will have no power of arrest in this country in those matters.
§ Among those given powers of arrest in Part I cases, as well as constables and service police forces, are officers of Her Majesty's Customs and Excise. These amendments to Clauses 70 and 72 make corresponding changes to Part 2 of the Bill and give Customs officers powers of arrest in those cases. I should remind noble Lords that the definition of a "Customs officer" can be found in Clause 203(6).
§ The Committee touched briefly on this subject on day three—it seems a long time ago—during our debate on the definition of a constable. I gave notice at that stage that these amendments had been tabled, as reported in Hansard at col. 304. Let me say a little more about how we envisage things operating in practice.
§ We intend that when we receive a request from a Part 2 country the police will carry out the arrest in the United Kingdom even if the person is wanted for a Customs offence. However, there may be instances where, in pursuit of his or her normal duties, a Customs officer comes across someone who is wanted for an extradition offence. This is a perfectly plausible scenario because Part 2 arrest warrants will be entered on the police national computer, to which Customs officers have access.
§ So Customs officers may raid premises looking for a Mr Jones, who is wanted for alleged VAT fraud, and encounter a different person, Mr Smith, who, when checked out through PNC, is found to be wanted for an extraditable offence. If the Bill were to remain unamended, customs officers in such a circumstance would be unable to hold or detain Mr Smith unless they had a Customs reason to do so. Thus Mr Smith, having committed an alleged indictable offence, could simply walk away. I am sure the Committee would agree that that would be most unsatisfactory. The amendments have been tabled to remedy the situation and to give Customs officers powers of arrest in Part 2 cases.
§ Perhaps for the sake of completeness I should answer a question that may be asked. As I have indicated, in Part 1 of the Bill a European arrest warrant can be executed by a police officer, Customs officer and service policeman. Part 2 the Bill provides that any police officer will be able to execute an arrest warrant and, if these amendments are made, any Customs officer. The Committee may ask why there is no reference to the service police forces. The answer is quite simple. Clauses 75 and 72(6) allow the warrant to be directed to a specific person, which would enable them to deal with a situation where the person was known to be on a military base. However, service police officers will not, unlike Customs officers, come across those who are wanted for extradition by random chance, so there is no need to make explicit provision for them in this way. I hope that with that explanation the Committee will agree to the amendments.
§ On Question, amendment agreed to.
§ Clause 70, as amended, agreed to.94GC
§ Clause 71 [Person arrested under section 70]:
§ [Amendments Nos. 153 to 161 not moved.]
§ [Amendments Nos. 162 and 163 had been withdrawn .from the Marshalled List.]
§ [Amendment No. 164 not moved.]
§ [Amendments Nos. 165 and 166 had been withdrawn from the Marshalled List.]
§ Clause 71 agreed to.
§ Clause 72 [Provisional warrant]:
§ [Amendments Nos. 167 to 169 not moved.]
§ Baroness Scotland of Asthal moved Amendment No. 169A:
§ Page 39, line 20, after "constable" insert "or customs officer"
§ On Question, amendment agreed to. Clause 72, as amended, agreed to.
§ Clause 73 [Person arrested under provisional warrant]:
§ [Amendments Nos. 170 to 175 not moved.]
§ [Amendments Nos. 176 and 177 had been withdrawn from the Marshalled List.]
§ [Amendments Nos. 178 and 179 not moved.]
§ 6.45 p.m.
§ Baroness Scotland of Asthal moved Amendment No. 179A:
§ Page 40, line 31, leave out "40" and insert "45"
§ The noble Baroness said: In moving the amendment, I also want to speak to the two amendments on the same topic tabled in the name of the noble Baroness, Lady Anelay. The area is complex and it would be appropriate if I set out the background and what happens at present. I apologise in advance if I have to speak at some length. I hope that I shall be able to present the framework so that Members of the Committee can understand how everything fits in. It is a difficult little journey on which we have to go.
§ What we are concerned with here is provisional arrest in Part 2 cases and what happens immediately following it. In cases where the person has been provisionally arrested, he must be brought before a district judge for an initial hearing as soon as practicable. At the initial hearing, the judge must decide whether to grant bail or remand the fugitive in custody and give the fugitive information about consenting to extradition. He must also set the date by which the requesting state has to produce the full papers, and that is what the amendments are concerned with. Failure to meet the deadline leads to the fugitive's discharge.
§ That is all fairly familiar as it is similar to what happens under the present system, but there is one important distinction. The Extradition Act 1989 is essentially silent on how long the period should he. By seeking, as we do in Clause 73, to set a firm time limit, we are providing a degree of clarity and certainty that has always been lacking. I trust that Members of the Committee will welcome that.95GC
§ Given that the Extradition Act 1989 contains no defined periods, it is worth looking at what the established practice is, not least because it determined how we went about framing Clause 73(10). In deciding how long to give the requesting state to produce the full papers, the district judge will look at which requesting state it is.
§ Requesting states fall into three broad categories. The first is those countries which are parties to the European Convention on Extradition—the ECE—about which we have already spoken. In the case of a provisional request involving an ECE country, the district judge will apply the ECE procedures. Article 16(4) of the ECE states that following provisional arrest the requesting state has 40 days in which to produce full papers, and that, therefore, is the figure which our district judges will apply.
§ The second group of countries is our bilateral extradition partners, and here the picture is much more mixed. Quite simply, our bilateral extradition treaties contain a wide variety of figures and the district judge will use whatever figure is in the relevant treaty.
§ I shall give a few examples. Our treaties with Argentina and Ecuador put the figure at 30 days. Our treaties with the USA and Brazil put the figure at 60 days. Our treaties with Monaco and Iraq refer to two calendar months, while our treaties with Peru and Chile set the time limit at 90 days. I should make clear that, in relation to Monaco and Iraq, the two calendar months are not chosen. Therefore, we do not know whether those months will be February and December or whether some other arrangement will apply.
§ Incidentally, it gives me great pleasure to refer to our extradition treaty with Brazil. Thanks to the escapades of a certain Mr Biggs, the myth that the United Kingdom has no extradition relations with Brazil appears to be a very persuasive one, which I am happy to knock down. That is a digression.
§ The third group of countries which may be involved in provisional arrest cases is our Commonwealth partners. Here, the situation is even messier as our extradition relations with those countries are based on the Commonwealth extradition scheme, which does not contain any figure at all. The normal practice of our judges, when faced with a Commonwealth provisional arrest case, has been to set a 60-day deadline for the production of the papers, although it is fair to say that that has not been so in absolutely every case. Therefore, I hope that the Committee will see that at present we have a rather complex situation of which we must try to make some sense.
§ However, there is one further, but very important, factor which I need to throw into this delightful mix. When the judge sets the deadline, he sets the time by which the papers must be received by the Secretary of State. He is not setting the deadline by which he, the judge, must have them before his court. So long as the Secretary of State receives the full papers at the end of the period which the judge has set, the judge can then set a further deadline for the papers, accompanied by 96GC the Secretary of State's authority to proceed, to come before him. Again, rather unhelpfully, the Extradition Act 1989 is silent on how long that second period should be. The normal practice is for it to be seven days, but there have been plenty of cases where longer periods—of 14 days or more—have also been set.
§ Therefore, having looked at what we have now, perhaps I may set out the approach that we have sought to adopt and say why we now believe that an amendment to the Bill is required. As I have already indicated, we took the view that it would be beneficial to spell out, so far as possible, on the face of the Bill the time allowed for the production of full papers following provisional arrest.
§ Accordingly, Clause 73(10) sets the limit at 40 days. Perhaps I may explain why we have gone for that figure. As I indicated, that is the figure in the ECE and we anticipate that a significant volume of Part 2 requests will come from ECE countries. For those countries, stating the 40-day limit in the Bill will make no difference in practice.
§ By contrast, for Commonwealth countries, which are used to having 60 days in which to produce papers, this represents a very real change. They may find it an unwelcome change. But I am sure that Members of the Committee agree that, in the interests of the fugitive, we should try to reduce the period so far as we can. A period of 40 days is all well and good but, as will be appreciated, for some of our bilateral treaty partners it is longer than the treaty allows. However, for the great majority of them, it is shorter than the treaty permits. That is why we included Clause 73(10)(b). It allows us to vary the period to reflect the terms of the particular bilateral treaty so that when we come to designate, for example, Brazil as an extradition partner, the order will provide that Brazil will have 60 days rather than 40 days to provide full papers, to conform with our treaty with Brazil. I remind Members of the Committee that, following an earlier government concession, all the orders will be subject to the affirmative resolution procedure.
§ If we did not have Clause 73(10)(b)—I am aware that one of the opposition amendments seeks to remove it—we could be faced with the situation where Brazil supplies full papers on the 55th day, fully in accordance with its international treaty obligations, only to find that the UK, contrary to its treaty obligations, has already discharged the person. I am sure that Members of the Committee would agree that that would be unsatisfactory. Equally, I am sure that they will recognise that seeking to renegotiate all our bilateral extradition treaties simply to deal with the issue would not be a sensible or practical approach. I hope that the Committee recognises that we need the flexibility provided by Clause 73(10)(b), and that the noble Baroness will not seek to press her amendment which removes it.
§ Having set out the case for 40 days—one rather feels that that is appropriate for being in the desert—let me explain why we seek to amend it and substitute 45 days. The key point is that the Bill specifies that at the end of the period the papers must be with the district 97GC judge, having first been certified by the Secretary of State. We have deliberately sought to avoid the situation of the 1989 Act, where there is first a deadline for papers to get to the Secretary of State, and then a further deadline for him to get the papers to the district judge. Instead, there is a single deadline by which all the necessary documentation has to get to the district judge.
§ The problem arises if, say, an ECE country provided the full papers on the 40th day—as it would be fully entitled to do under the terms of the ECE—it is most unlikely that we could get the papers certified by the Secretary of State and to the court before the fugitive had to be discharged. Accordingly, the Government seek to build in an extra five days to allow for the Secretary of State's certification function. That is similar to the second period allowed for in current legislation. The Committee will recall that I said a few minutes ago that the practice is for that period to be set at seven days or longer, so again we are shortening the process to the benefit of the fugitive.
§ That is the case for the Bill and the amendment to it which we are proposing. I have already dealt with Amendment No. 181 from the noble Baroness, and explained why it would not be desirable in the circumstances. Let me turn to Amendment No. 180, which would remove the figure of 40 days and put in its place 28 days. It will not surprise Members of the Committee to know that I am not in favou7 of it. I have explained that we are bound by a number of international obligations. The shortest of those give our international partners 30 days to produce full papers, while most set a significantly longer period than that. Specifying 28 days in the Bill would lead to a large number of fugitives being released and the UK regularly breaching its treaty obligations. Neither of those would be desirable.
§ I apologise for having spoken at such length, but the issues are important. I hope that the Committee will feel that I could not have explained the complexities without going through the issues step by step. The Government's approach brings a measure of certainty to what I hope all Members of the Committee will accept has been a somewhat confused area. It allows the United Kingdom to comply fully with its international obligations, while, at the same time, in a number of cases significantly reducing the time that countries will have to produce full papers. For the reasons that I have given, we do not believe that we need to extend the period in the Bill further than 40 days, but extending the period to 45 days simply copies the seven or more days that exist in current legislation. If noble Lords are not totally exhausted by that explanation, I beg to move.
§ Baroness Anelay of St Johns
As the Minister said, I have tabled amendments in this group. I put them forward in order to probe the Government's intent in fixing the 40-day period. The noble Baroness has no reason to apologise for the length of her answer today because she has been able to give an explanation that was missing in the debates in another place. I appreciate the Government's concern to try to provide 98GC just one time limit within which all papers should reach the district judge in one fell swoop while reflecting the difficulties that may arise in different countries in so doing.
When we looked at the Bill and saw the 40-day time limit, the first matter that came to mind was that there were no comparable limits within the 1989 Act. We then considered the matter further and thought that surely, in those 10 years, things must have improved with technology so that tighter time limits could he considered. Therefore, we chose our limit simply as a tool to open up the debate.
I accept entirely the explanation given by the Minister. Therefore, she will be pleased to know that, because of her lengthy explanation, I do not intend to return to this matter on Report. However, I believe that it was important for her explanation to be placed on the record.
§ Lord Goodhart
I concur entirely with the noble Baroness, Lady Anelay. I quite understand what she said but I want to make one or two comments. Given the age of some of the treaties and the length of time provided, it sounds as though they go back to the days when documents were transmitted by steamer, if not by sail—long before the days of air mail, let alone fax or e-mail. While I entirely understand why the Government chose that time limit, I want to express the hope that, when they negotiate new treaties, they will go for a somewhat shorter period.
§ Lord Mayhew of Twysden
I congratulate my noble friend Lady Anelay on these probing amendments. Seldom can a probe have disclosed so much. The only question that I want to ask, arising out of what I found a fascinating exposé by the Minister, concerns the extradition treaty with Brazil. If it could not get Biggs back for us, what went wrong?
§ Baroness Scotland of Asthal
The noble and learned Lord may remember that when I read out the list, I said that the Biggs extradition treaty was signed in 1997. Therefore, fruit came from the trouble that I know the noble and learned Lord may have had in relation to this issue when he was Attorney-General. We did get Brazil to agree. Those who sit beside me—indeed, I would include myself if the Government were so minded—would be quite happy to travel the world renegotiating these treaties.
§ On Question, amendment agreed to.
§ [Amendments Nos. 180 to 182 not moved.]
§ [Amendments Nos. 183 and 184 had been withdrawn from the Marshalled List.]
§ Clause 73, as amended, agreed to.
§ Clause 74 [Date of extradition hearing: arrest under section 70]:
§ Baroness Carnegy of Lour moved Amendment No. 185:
§ Page 41, line 2, leave out "2 months" and insert "40 days"99GC
§ The noble Baroness said: In moving Amendment No. 185, I shall speak also to Amendment No. 211. These are probing amendments and, again, concern the subject of time limits, although the argument is slightly different. I shall be brief.
§ Amendment No. 185 concerns the time limit within which an extradition hearing on a Part 2 warrant must commence. Clause 76, which we are about to come to, states that in the case of such a hearing in Scotland, the judge's powers will be substantially the same as if the proceedings were summary proceedings. In such proceedings, according to the Criminal Procedure (Scotland) Act 1995, a person awaiting trial must not be detained for more than 40 days after the complaint has come to court.
§ If summary powers are being exercised, the Law Society of Scotland sees no reason to depart from the time limit set in Scotland. Indeed, the society suggests that, for the rest of the United Kingdom, a period of 40 days might be better than the two months proposed in the Bill. The society has asked how many days would constitute a period of two months. Would that be two calendar months? The amendment therefore proposes a limit of 40 days for the whole of the United Kingdom.
§ Amendment No. 211 makes the same suggestion for the same reasons in relation to Clause 98. It would reduce the period during which the Secretary of State must respond with his decision on a person's extradition from two months to 40 days. After discussion with the Law Society of Scotland, I beg to move Amendment No. 185.
§ 7 p.m.
§ Lord Goodhart
I rise briefly to say that the name of my noble friend Lord Mar and Kellie has been added to this amendment. On his behalf, I confirm that noble Lords on these Benches support the amendment.
§ Baroness Anelay of St Johns
I rise to endorse what has just been said by my noble friend Lady Carnegy. I recall that, in her response to an earlier group of amendments, the noble Baroness highlighted the difficulties of making arrangements when other countries specified periods comprising months but did not state which months. Here is set a limit of two months, but it is the case that different months contain different numbers of days. I shall be interested in an explanation of why the Government have alighted on such a period.
§ Baroness Scotland of Asthal
I thank the noble Baroness, Lady Carnegy, for tabling these amendments. They are concerned with the time limits set out in Part 2. Perhaps I may say straightaway that we are very willing to listen to arguments about the limits we have set and to questions as to whether they are right. We certainly do not claim to have a monopoly of wisdom in this area. There is an interesting debate to be had and I shall come to that in 100GC a moment. I was also very interested to hear what the noble Baroness had to say about the practice in Scotland.
However, since one of the issues at stake is the time in which the Home Secretary has to make his decision in particular cases, this seems a good moment to try to respond to some of the issues that were raised earlier by, I think, the noble Lord, Lord Hodgson. I believe that the matter was discussed during the first day or two of these Committee proceedings. Unfortunately I was not present and I do not know whether those days are now so thoroughly passed by that I do not need to address these issues: such peace has broken out in the Committee since those early heady days.
At that point the noble Lord suggested that in certain particular cases my right honourable friend the Home Secretary had been dilatory, which led to delays. Noble Lords will appreciate why I cannot comment on individual cases, but I can answer the point in general terms. First, however, I can assure your Lordships that the Secretary of State takes his responsibilities in extradition cases very seriously and acts with all due expedition on every occasion. He certainly does not sit on cases unnecessarily—if, for no other reason than that no Home Secretary would want to see a valuable prison place taken up if he could possibly avoid it.
As noble Lords would expect, the Home Secretary considers all representations very carefully. Therein lies one of the problems and one of the reasons why cases can appear to sit for a long time on the Secretary of State's desk. There is no limit to the number of representations that can be made or, more important, when. So the Secretary of State can have considered all the representations very carefully and be about to reach his decision when fresh representations are made. Those can and do amount to 10, 20 or even 30 full box files, all of which have to be studied in detail. Moreover, of course, the other side may need to be given the opportunity to respond to the arguments in the new representations.
All of this takes time. I am sure that noble Lords would want all representations to be considered with the greatest care. I hope therefore that noble Lords will accept that perhaps it is not right to criticise my right honourable friend when he does exactly that and gives proper consideration to each and every one of those recommendations. Perhaps I may gently suggest that it is particularly unfair to chastise him by reference to individual cases knowing that in this House he is not in a position to answer directly, even though he would have a very good story to tell.
I turn now to the specific amendments before the Committee. I am sympathetic to their motivation and I can reassure noble Lords that the Government are as keen as the Committee to ensure that no fugitive is held in custody for longer than is absolutely necessary. The Government would not want to create a system which contains avoidable inefficiencies.
As currently drafted, Clause 74 requires that the main extradition hearing in a Part 2 case should begin within two months of the fugitive's first appearance 101GC before the judge. This is in cases where the person has been arrested under a full order request made under Part 2. Similarly, under Clause 98, if the judge has sent the person's case to the Secretary of State for consideration, the Secretary of State must decide whether the person is to be extradited or discharged within two months. In each case these amendments would reduce the period from two months to 40 days.
The first point I should make is that our current legislation, the Extradition Act 1989, contains no time limits. Clearly there is no right answer to I he question. As I have said, I am perfectly willing to listen to the arguments put for different limits. It might be helpful if I explain in detail why we settled on the period of two months.
I shall deal first with the time limit for the hearing to start. The two-month time limit has been given careful consideration. It aims to provide a balance between ensuring that the fugitive's case is heard as quickly as possible—we certainly do not want anyone languishing in gaol at the taxpayer's expense for longer than is absolutely necessary—while ensuring that the fugitive's solicitor has sufficient time in which to prepare his case.
This may sound like an obvious point, but we must remember that in some Part 2 hearings the fugitive's brief may have to make a defence against a prima facie case. This could require obtaining witness statements and other material from the requesting state, which—let us he frank—may not have the communication facilities that we have come to expect in the developed world. I recognise that this also allows the requesting state the time to put together its own case and, in the interests of a comprehensive and just judicial process, I am sure that noble Lords would agree that that is right.
If the 40-day limit were to be imposed, as the amendment moved by the noble Baroness suggests, I fear that the number of applications for a later date to be fixed would rise, particularly in light of the discussions in Committee on 19th June when it was noted that lawyers are a very thorough breed—this was a point made by the noble Baroness, Lady Anelay—and need a lot of time, and more if possible. One can anticipate that this would be an issue.
I turn now to Amendment No. 211, which would reduce the amount of time the Secretary of State has to make his decision on a Part 2 case. Again I understand the desire of noble Lords to streamline the process as much as possible. As I have already outlined, the Secretary of State will have to consider various representations. Those representations will come primarily from the fugitive's legal representatives, although it is possible that the requesting state, other organisations such as Amnesty International, as well as members of the public, may also make representations about the individual's case.
In order to allow sufficient time for these representations to be put together and submitted, we felt that a time limit of two months would be appropriate. Indeed, reducing the time-scale in Clause 98 might actually have the effect of putting the fugitive 102GC at a greater disadvantage if, for example, he was seeking to obtain material to counter assertions made by the requesting state.
One matter that we shall certainly want to consider is whether we should seek to impose a deadline within the time limit by which all representations have to be submitted. This would ensure that the Secretary of State has proper time to consider them and avoid the problems of the late and multiple representations which bedevil the current system.
If there is one recurring feature of the Bill, it is that extradition is a balancing act between the interests of justice and the need to safeguard those who are subject to the extradition process. These amendments raise such issues in a nutshell. We all want to speed up the process and, in particular, to ensure that those who are the subject of extradition are not held in custody for unnecessarily long periods. However, we need to ensure that both sides have adequate time in which to prepare their cases and to submit whatever representations they consider necessary.
I hope that by now Members of the Committee will have detected that the Government are uncertain about the best approach to take. We will study the remarks made by the noble Baroness, Lady Carnegy, with the greatest of care. It may be that the course hinted at by the noble Baroness, Lady Anelay. of picking two months and putting a figure to it might be better—-we are really not sure. So we are open to further argument as to how to draw it. We want certainty; if certainty is better met by providing for 60 days or whatever, we can see that. We see the force of providing 40 days—I have explained at great length why we chose that time limit for other provisions. But we know there are difficulties in terms of what is happening on the ground.
We have listened to what the district judges who have been dealing with these applications have indicated to us so that we could fashion something which will be practical and will work, but we are not tied to this figure. So if any Members of the Committee would like to make representations before we think again about this, I would be most grateful to receive them.
§ Baroness Carnegy of Lour
I thank the noble Lord, Lord Goodhart, and my noble friend Lady Anelay for their support. In particular, I thank the Minister for a very interesting and full reply—fuller than I expected. She said she would study what I had said. She will not find very much there because the argument for the precise need for 40 days was not given in my short speech. The Law Society of Scotland said that the summary proceeding in Scotland would normally allow 40 days, and it could not see why it should be longer. Its members will doubtless read with great interest what the Minister has said; I shall talk to them and see what they have to say.
I was interested to hear that the Government were wondering whether to impose a deadline. I am sure my noble friend will want to consider that carefully, because it is an interesting idea.
103GC I have one question for the Minister about the discussions with Scottish Ministers when the Bill was being drafted. To what extent has there been a discussion between officials of the Scots Parliament about the desirability of trying to match, where possible, time limits in various parts of the Bill with Scottish practice? It is obviously desirable; the sheriff of Lothian and Borders will be familiar with that procedure, as are all those concerned. I expect that there have been discussions, but it would be interesting to know. If not, perhaps there should be before these proceedings are finished because new time limits are being set.
I do not think Scottish Ministers are particularly worried about diverging, but it would be nice to know whether that has been properly discussed. Would the Minister like to reply before I withdraw the amendment?
§ 7.15 p.m.
§ Baroness Scotland of Asthal
Although this issue is retained in terms of jurisdiction, on a case-to-case basis, those persons who are discovered to be in Scotland are dealt with as a matter of custom and practice by the Scots jurisdiction—by the Scots courts in accordance with their laws.
We have kept in close contact with our Scottish counterparts on all aspects of the Bill. But extradition is a reserved matter, so ultimately it is for the United Kingdom Parliament to set the rules for the whole of the United Kingdom. The experience of our Scots colleagues is obviously very important. As the noble Baroness is aware, our Scottish colleagues have fewer cases with which to deal than those colleagues who deal with these matters in London. The nature and breadth of the countries from which and to which individuals are extradited are therefore very broad in the London jurisdiction.
104GC The noble Baroness is absolutely right: we shall continue to talk to our Scottish colleagues. But I say very gently that because of the difference in the volume and scope of the applications dealt with in London, the time frame within which individual matters must be dealt with may appear slightly different because of the number and nature of the countries to which and from which our Scottish colleagues will have dealt on extradition issues. We will certainly continue to look at this very closely.
§ Baroness Carnegy of Lour
I thank the Minister very much for that explanation. It is probably not a major problem but the Law Society has raised an interesting point, and I shall talk to them. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 186 not moved.]
§ Clause 74 agreed to.
§ Clause 75 agreed to.
§ Clause 76 [Judge 's powers at extradition hearing]:
§ [Amendments Nos. 187 to 189 not moved.]
§ Clause 76 agreed to.
§ Clause 77 [Initial stages of extradition hearing]:
§ Baroness Scotland of Asthal moved Amendments Nos. 189A and 189B:
§ Page 42, line 5, leave out "under section 69" and insert "by the Secretary of State"
§ Page 42, line 21, leave out "under section 69" and insert "by the Secretary of State"
§ On Question, amendments agreed to.
§ [Amendment No. 190 not moved.]
§ Clause 77, as amended, agreed to.
§ Baroness Scotland of Asthal
I think this may he a convenient moment for the Committee to adjourn until 3.45 p.m. on Thursday next.
§ The Committee adjourned at eighteen minutes past seven o'clock.