Grand Committee Report of 1 July 2003

Official Report of the Grand Committee on the Extradition Bill
(Sixth Day)
Tuesday, 1st 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 stage. Except in one important aspect, our proceeding will be exactly as in a normal Committee of the Whole House. We shall go through the Bill clause by clause; noble Lords 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 the Grand Committee. Any issue on which agreement cannot be reached should be considered again at the Report stage when, if necessary, a Division may be called. Unless, therefore, an amendment is likely to be agreed to, it should be withdrawn.
I should explain what will happen if there is a Division in the Chamber while we are sitting. The Committee will adjourn as soon as the Division Bells are rung and will resume after 10 minutes.
Clause 40 [Withdrawal of warrant before extradition]:
Baroness Anelay of St Johnsmoved Amendment No. 93:
Page 20. line 26, at end insert "by a recorded delivery letter"
The noble Baroness said: The amendment refers to Clause 40 which deals with the withdrawal of warrants before extradition has taken place. Subsection (4) states:
"If the person is not before the judge at the time the judge orders his discharge, the judge must inform him of the order".
That is practical and straightforward. We want to qualify that by inserting at the end the words,
"by a recorded delivery letter".
This is a most straightforward tool. It is not intended to go on the face of the Bill. We are simply using this amendment as a way of asking what means will be used by the judge to make the notification to the person that he or she has been discharged. It is important to have on record the procedure by which such notification is
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to take place. We have seen problems in practical terms in some neighbouring European countries where notification has gone astray, or at least has been alleged to have gone astray. We would be grateful if the Minister could put on record the intended process. I beg to move.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin): I thank the noble Baroness, Lady Anelay, for clarifying why the amendment has been deposited in those terms—to draw out a general response to the matter. As she inferred, we would be resistant on principle and in practice to the specific wording of the amendment. The principle is that it is generally a sound approach to specify the outcome that has to be achieved rat her than to specify the mechanisms by which the outcome is to be achieved, both in legislation and in other walks of life. That enables one to have a variety of mechanisms that are legitimate to achieve the objective.
The practical reason, as the noble Baroness partially hinted, is that we know from personal experience that a recorded delivery letter can be signed for by anyone in the house; it does not mean that the person for whom the letter is intended will receive it. Some Members of the Committee will have experienced that recorded delivery is usually the slowest way to send a letter, as the postman invariably finds no one in and it is at least a week before one goes to the Post Office to retrieve it. I am not being flippant, but that illustrates why a specific formulation may not be the most effective one.
Therefore, in the legislation we sought to put the onus and the responsibility clearly on the district judge. The district judge has, with his support, to discharge that responsibility. He or she will not have discharged that responsibility necessarily by sending the item by recorded delivery for the reasons that I have given, but a variety of mechanisms could be used. There could be a telephone call to the office of the solicitor acting for the person, no doubt confirmed by a fax or a written letter afterwards. In many cases I envisage that that would be the fastest and securest way. I would not want to second guess the judge or to specify the range of options open to him or her. It would relate only to circumstances when the person was not in court at the time that the judge made the decision.
Nevertheless, the question is a good one. For those reasons of principle and practice, we believe that the legislation goes as far as it sensibly can by saying that the responsibility is on the judge to discharge that obligation to ensure that the person has been informed. We cannot think of a better way of doing that than making it clear that that burden rests with the judge rather than by specifying the means.
Lord Mayhew of Twysden: I wonder whether the Committee would think that I am in order if, as we are not going to debate clause stand part, I were to raise a

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drafting question on subsection (3) of Clause 40 at line 24. If one takes the eye back to subsection (1), one reads:
"This section applies if at any time in the relevant period the appropriate judge is informed"
and so forth. Then the relevant period is defined. Then we read in subsection (3) the very bald statement:
"The judge must order the person's discharge".
I suggest it would be more elegant and appropriate if those words were to be preceded by the words "where this section applies". I do not expect an answer straight away but I should like to put that matter on the record so that the Minister's officials may inform him whether there is anything in the point. I think that there is.
Lord Filkin: I am always slightly hesitant to imply that it is possible that parliamentary draftsmen's work could ever be improved. Nevertheless, we shall give the suggestion the consideration it merits and reflect on it over the summer.
Baroness Anelay of St Johns: I am grateful to the Minister for his response and for making it clear that the burden of ensuring that notification is given must be placed on the judge. I am also grateful to the Minister for taking on board my noble and learned friend's suggestion with regard to improved drafting. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Anelay of St Johnsmoved Amendment No. 94:
Page 20, line 26, at end insert "as soon as is practicable"
The noble Baroness said: Amendments Nos. 94, 95 and 96 are grouped together. I move Amendment No. 94 and speak to Amendments Nos. 95 and 96. The point at issue is the timescale within which the person should be notified of the withdrawal of the warrant for his extradition. This should be a straightforward matter. When the judge has made a decision to discharge the person, he or she must be informed as soon as possible and subsequently discharged. At the moment there is no reference to a timescale on the face of the Bill. We consider that that should be remedied.
Last week I made it clear that I very much appreciated that putting strict time limits in different pieces of legislation in terms of a certain number of days or hours might make it very difficult for the courts to schedule their business. I do not seek to do that here but I have tried to retain a degree of urgency in the wording of the amendment by stating that the notification should be given,
"as soon as is practicable".
I hope that that is an acceptable and pragmatic way of setting a kind of time limit. I beg to move.
Viscount Bledisloe: On behalf of the Committee I take the opportunity to wish the noble Lord. Lord Filkin, a happy birthday.
Noble Lords: Hear, hear!
Viscount Bledisloe: I do not see the point of the amendment. It is reasonable to expect someone who is doing something positive to do it as soon as is reasonably practical. If the prosecution does not do something as soon as is reasonably practical, it may lose the proceedings. But what would happen if the judge forgot he had to carry out the measure as soon as is reasonably practical? The judge tells the good man that he is going to be let out. If the judge does not do so as soon as is reasonably practical, that may be disappointing for the man but he will still be let out when he is told about that. The measure involves no sanction. Would the judge be sacked for being late in carrying out the measure? It seems to me mistrustful of the judge to think that he would deliberately delay the matter and pointless and remedyless to insert the provision.
Baroness Anelay of St Johns: Perhaps I should respond briefly. I purposely did not insert the word "reasonably" because I thought that that could lead to some reviews later on. I tried to create a balance between giving assurance to people who may be extradited as opposed to not putting too heavy handed guidance upon the judge who will be very mindful of the proper steps that need to be taken.
Viscount Bledisloe: That does not deal with the question of exactly what the judge does.
Lord Mayhew of Twysden: I hesitate to inflict an argument between lawyers on the Committee. I respectfully suggest that it is a helpful steer. It is saying, "Get on with it". It does not have to be an immediate sanction to back up a failure to comply with a steer. I should have thought it helpful rather than otherwise.
Lord Filkin: Because it is rumoured to be my birthday, I thought that I was under an obligation to be as positive and helpful as possible. Therefore, as a point of public policy, we agree that the thrust should be that the district judge informs the person as soon as possible. We therefore saw no particular demerit in making that explicit on the face of the Bill. We were minded to go away and reflect on that and to determine whether we could bring forward an amendment to that effect. I do not wish that to in any way imply that all future amendments will be treated in the same positive spirit.
Baroness Anelay of St Johns: Although it is the Minister's birthday, I am glad that he has given me his birthday present. I accept the offer that he will go away and seek to determine whether something can be drafted that meets my point.
Amendment, by leave, withdrawn.
Clause 40 agreed to.
Clause 41 [Withdrawal of warrant while appeal to High Court pending]:
[Amendment No. 95 not moved.]
Clause 41 agreed to.
Clause 42 [Withdrawal of warrant while appeal to House of Lords pending]:
[Amendment No. 96 not moved.]
Clause 42 agreed to.
Clause 43 [Competing Part 1 warrants]:
[Amendment No. 96A had been withdrawn from the Marshalled List.]
On Question, Whether Clause 43 shall stand part of the Bill?
Lord Mayhew of Twysden: I do not know whether I am in order to raise this point—I think that I am, but I shall be told if I am not. I should like to make the same point as I made originally about Clause 43(4). It would be more appropriate to insert the words, "Where this section applies" before the words, "The judge may". It is the same point.
The Minister of State, Home Office (Baroness Scotland of Asthal): I can certainly indicate that this, too, will he brought to the draftsman's attention. I think that he will have a very close relationship with the noble and learned Lord, Lord Mayhew.
Clause 43 agreed to.
Clause 44 [Consent to extradition]:
[Amendment No. 97 not moved.]
Clause 44 agreed to.
Clause 45 agreed to.
Clause 46 agreed to.
Clause 47 agreed to.
Clause 48 agreed to.
Clause 49 agreed to.
Clause 50 [Extradition request following consent]:
Baroness Scotland of Asthalmoved Amendment No. 97A:
Page 25, line 15, leave out paragraph (c).
The noble Baroness said: I hope that the noble Baroness, Lady Anelay, will think that this is yet another gift. This group of amendments probably wins the prize for length and I shall endeavour to ensure that I do not, as a consequence, make a speech of commensurate length to reflect that.
All these amendments are concerned with the possibility of "re-extradition"—that is, sending a person from the United Kingdom to serve a sentence imposed by a foreign court after a trial to which he was temporarily surrendered. In the context of these amendments, the term "re-extradition" means extradition from the United Kingdom to the same place for a second time in the particular circumstances which I shall describe. For the first time, this Bill allows for the temporary extradition of serving UK prisoners. If we receive an extradition request in respect of a serving UK prisoner, it will be open to the
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district judge to proceed with the case with a view to the temporary surrender of the person to stand trial abroad. All the normal procedures will apply and all the bars to extradition will be properly considered. At the end of the foreign trial, the person will be immediately returned to the United Kingdom to serve the rest of his sentence here.
I shall say a hit more about the procedure and implications for the United Kingdom's sentencing calculations when we come to discuss the amendments standing in the name of the noble and learned Lord, Lord Donaldson of Lymington. As I have explained, the provisions ensure that a person can be temporarily extradited. I could go into greater depth, but the issue may not prove to be contentious. I shall be happy to deal with any issue that arises. I beg to move.
3.45 p.m.
Baroness Anelay of St Johns: We welcome the amendments, but I have a couple of minor questions. If the Minister is not in a position to answer them today, I shall be happy for her to write to me. I merely want her to flesh out the background to the amendments.
Have the Government any statistics on how often this sort of re-extradition occurs and whether any problem has arisen with existing legislation? At what stage can a defendant appeal against the decision to impose a custodial sentence arrived at by the requesting country during the trial? Does it happen before his return to serve the remainder of his UK sentence, or after that, when he has served his UK sentence and has a re-extradition hearing as set out in Amendment No. 249B? That is not something that I expect to be answered today, but I want to put it on the record. If the Minister is able to answer today, that is fine. If not, I shall have to wait.
Baroness Scotland of Asthal: I am able to answer some of the questions.
In relation to statistics, we have never done this before—this will be the first time that we are able to extradite someone who has a prison sentence. Dependent on the nature of the sentence, it would be very onerous indeed if we had to wait for a significant period before the person was sent back to the other country, tried for another offence and then sent back here. This is an innovative step; we have never done it before, so we are really in new water.
The noble Baroness asked at what stage there could be an appeal. The system is that the person would be returned. The agreement inherent in the provisions is that, at the conclusion of the proceedings—the trial and so on—the person would be returned to serve the remainder of his time here. I cannot say definitively, although I will check for the noble Baroness, whether there is any distinction between the trial and the appeal or whether there would be any difficulty in concluding the foreign proceedings, however long they may continue, before extraditing. I shall seek to clarify that point, but I do not believe that there would be any problem.

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The last question related to what happens after the sentence. After the trial has concluded, the person will return to the United Kingdom to continue to serve his sentence. For the purposes of information, the noble Baroness may know that we have memorandums of understanding with some of our partners in relation to transfer of prisoners, and there would be nothing to prevent a prisoner who had been convicted and sentenced in another country from making a request that whatever sentence imposed on that person in the other country could be served at the end of the other sentence or on the basis of another agreement.
The measure will helpfully allow us to work much more creatively and positively with our partners in terms of ensuring that proper trials are conducted speedily and in a timely way, without having to wait too long. I shall make further inquiries in relation to the response to the appeal.
Baroness Anelay of St Johns: That was very helpful, especially in the light of the discussions we will have later.
On Question, amendment agreed to.
Clause 50, as amended, agreed to.
Clauses 51 and 52 agreed to.
Clause 53 [Request for consent to other offence being dealt with]:
Baroness Scotland of Asthalmoved Amendment No. 97B:
Page 26, line 40, leave out "an" and insert "a judicial"
The noble Baroness said: I hope that I shall be able to deal with these amendments very briefly. As Members of the Committee know, we amended the Bill in another place to provide that all incoming judicial warrants must come from a judicial authority. If the warrant is not certified as coming from a judicial source, no action can be taken upon it.
Since we moved the first amendment in another place, we have been scouring Part 1 of the Bill for other provisions where the "judicial" stipulation needs to be inserted. The Committee knows about the change in Clause 5 for that purpose. However, we have been able to identify three additional places where we need to specify that the request must come from a judicial authority.
I am sorry that we did not pick up those additional matters previously, but the amendments would cure the position. I hope that Members of the Committee will be able to find favour with it. I beg to move.
Baroness Anelay of St Johns: My noble friend Lord Hodgson has brought to my attention an apparent grouping error. I raise the matter now only because it will make life easier later. Included in the groupings on the Government's list of amendments is Amendment No. 7268A, which plainly does not exist. I hope that it does not; otherwise, we will be debating the Bill for a few months to come. If the amendment listed is
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supposed to be Amendment No. 268A, it is tabled in my name and will not be dealt with until we consider a much later grouping.
Baroness Scotland of Asthal: I think that it is a typographical error.
Baroness Anelay of St Johns: I am grateful to the noble Baroness.
On Question, amendment agreed to.
Baroness Anelay of St Johnsmoved Amendment No. 98:
Page 27, line 13, at end insert—
"( ) The judge must satisfy himself that the suspect has been notified of the second request and has an opportunity to make meaningful representations at the consent hearing, either in person or through his legal representatives."
The noble Baroness said: With the leave of the Committee, I shall speak also to Amendments Nos. 100, 101, 103, 221, 224 and 226, which are tabled in my name. They were tabled as a result of a briefing from the Law Society. They focus on notification, representation and legal advice in instances where there is a second or further extradition request.
Clauses 53 to 57 and the corresponding Part 2 provisions—Clauses 127 to 129—deal with the difficult—certainly difficult to me—area of a second request for extradition and the consent to he given by the appropriate judge that the person may be extradited to face prosecution for other offences alleged to have taken place. Although the provisions set out what is to be considered, there is no provision to require that a defendant has been informed and given the opportunity to make representation, whether in writing or through legal representatives.
The provisions, we are advised, risk a second request being an administrative matter rather than a fresh set of proceedings. They appear to be founded on the premise that the arguments that apply in relation to one request as regards distinct offences will be identical to those that would apply to a completely different set of offences and a different requesting state.
Of course we are all trying to achieve transparency at all stages of the extradition proceedings. I therefore see no reason why it should not be stated in the Bill that the judge has a duty to inform the defendant of a second request.
I note that the Liberal Democrats have gone one step further. Their amendment not only specifies the notification of the second request, the chance to make legal representation and that access to legal aid should be available to the defendant, but it also emphasises that if those matters are not provided, the Secretary of State must refuse consent altogether. The Liberal Democrats are trying to introduce the same principle to which we adhere. I beg to move.
Lord Goodhart: In this group of amendments, Amendments Nos. 99, 102, 105, 222, 225 and 227 are in my name. Those amendments have exactly the same purpose as those tabled by the noble Baroness, Lady

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Anelay. There are two differences between our amendments and hers. Amendment No. 98—her amendment—refers to,
"an opportunity to make meaningful representations",
whereas my amendment, Amendment No. 99, refers only to,
"an opportunity to make representations".
That does not mean that the purpose of my amendment is specifically to allow people to make meaningless representations. On the contrary, it is simply a drafting point, because the opportunity to make representations must include meaningful representations. It would be absurd to construe a power to make representations as meaning that one can make representations only so long as they are meaningless. Therefore, "meaningful" is surplus to requirements.
The second point is technical, but a little more serious. In cases where it is the Secretary of State who must be satisfied that the opportunity existed, 1 have added a requirement that, if the Secretary of State is not satisfied,
"that the suspect … has an opportunity to make representations",
he must refuse consent to extradition. I have not made any similar addition in Amendments Nos. 99 and 102, which refer to cases where it is the judge who is required to satisfy himself that there has been an opportunity to make representations.
The difference between the two cases is that if, during the course of a hearing, the judge who conducts it becomes satisfied that an opportunity has not been given, he can adjourn the hearing to enable the opportunity to be given and representations to be made. There is no need in that case to provide for an automatic termination to the proceedings and the discharge of the person who is the subject of the order. When the judicial hearing is over, there is then no way—as the Bill stands, at any rate—in which that defect can be cured. The Secretary of State would have to send a case back to the judge in order to enable proper representations to be made. He would have to send it back for a second hearing. The Bill does not provide for that.
In those circumstances, it seems necessary to specify the consequences if the Secretary of State is not satisfied that there has been an opportunity. I have therefore added in Amendments Nos. 105, 222, 225 and 227 that the Secretary of State should be required to direct the discharge. Of course, an alternative, if the Government preferred it, would be to authorise the Secretary of State to send a case back for a re-hearing but, as I have drafted it, the obligation is on the Secretary of State to discharge. Clearly, I believe that something ought to be done.
4 p.m
Baroness Scotland of Asthal: I hope that the noble Baroness, and indeed the noble Lord, Lord Goodhart, will not be overcome by the number of bouquets I seem to have with me today. I should say straight away that
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we are grateful to them for tabling the amendments, which gives the Committee a welcome opportunity to consider what happens after extradition.
The Government fully accept the need for proper notification for the fugitive of post-extradition matters. We are happy to consider making that explicit in the Bill. Although the amendments are many in number, it is fair to say, as the noble Baroness and the noble Lord have already indicated, that they all have the same purpose, so I can safely deal with them as a job lot. I was tempted to deal with the issues as quickly as I had dealt with the other amendments. However, I appreciate that there may be an interest in how we see the matter, why it has been brought up, and perhaps in a little background. For that reason, it might help if I set some of that out.
As Members of the Committee will know, both Part 1 and Part 2 contain clauses to deal with the situation where a person has already been extradited from the UK to either a category 1 or category 2 territory, and the state to which he has been sent asks our permission either to bring additional charges or to extradite him to a third country. Two types of post-extradition issues are highlighted in that situation. The true speciality or specialty provides that an individual, once surrendered, cannot be proceeded against for offences committed prior to surrender for which they were not extradited, unless the consent of the requested state is obtained or the person has had an opportunity to leave the country to which he was extradited.
I should say in passing that there is no fiercer argument among extradition practitioners than that over whether the correct term is "specialty" or "speciality". Parliamentary Counsel has decided that the Bill should use the latter term. For my part, I shall not trespass further.
The Bill contains provisions to enable us to deal with the situation where the UK receives a valid request from the original requesting state for the person to be dealt with for an offence other than the offence for which he was extradited. Similarly, the Bill enables us to deal with requests for further extradition—that is, cases where we extradite a person to a country that then approaches us to seek our permission to extradite him to a third country, following a request from that third country.
The post-extradition provisions are an important safeguard to ensure that the extradition system is not abused by, for example, a country extraditing for an offence with the intention of proceeding with another, or a country extraditing with the intention of releasing to another country. The provisions ensure that the extradited fugitive continues to be subject to some of the protections of UK laws on extradition, even though the person has left our shores.
If we receive a post-extradition request, it will be for the district judge or the Secretary of State, depending on whether the person was originally extradited to a Part 1 or a Part 2 country, to decide how to respond to it. The district judge must hold a proper hearing—the noble Lord, Lord Goodhart, touched on that—so that he can consider whether any of the bars to extradition

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apply to the new request. The person may, of course, make representations in the United Kingdom hearing or to the Secretary of State against the waiver of speciality or further extradition.
All the amendments seek to provide that no decision can be taken on a post-extradition request unless the person has been notified of the new request and allowed to make representations in respect of it, either in person or through his legal representatives. I note in passing that it seems fairly unlikely, if I may respectfully say so, that a person serving a prison sentence abroad would be able to make his representations in person, for fairly obvious reasons, but that is hardly an argument against the amendments.
What may be rather more pertinent is the fact that we have no equivalent provisions in our existing legislation, even though we have the capability to cater for post-extradition requests. However, there has been no suggestion that any unfairness has arisen. I should say at this point, for the sake of completeness, that post-extradition requests are very much a rarity. The fugitive would always be aware of the post-extradition request and therefore have the opportunity to make such representations as he wished.
Having said all that, I can see that there might be no difficulty in making that point absolutely crystal clear in the Bill. Therefore, I am very happy to offer Members of the Committee the commitment that I will take the point away to consider. If we can come up with some suitable form of words that could be introduced by means of a government amendment at a later stage, I shall undertake to do that. We take the point seriously. If both the noble Baroness and the noble Lord say that there is a lack of clarity, we should probably take that into account.
Baroness Anelay of St Johns: I am grateful to the Minister for her offer to take the matter away and to consider the drafting. I was not being flippant when I said that I find it difficult to understand. As a non-lawyer I certainly find it difficult. I was advised by those who are experts in extradition law, but they too found a lack of clarity. I welcome her offer to see whether the clarity can be improved. The Minister made the point that post-extradition requests are rare, but although they may be rare, as ever it is important that the procedure is right. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 99 not moved.]
Clause 53, as amended, agreed to.
Clause 54 [Questions for decision at consent hearing]:
[Amendment No. 100 not moved.]
Clause 54 agreed to.
Clause 55 [Request for consent to further extradition to category 1 territory]:
Baroness Scotland of Asthalmoved Amendment No. 100A:
Page 27, line 41, leave out "an" and insert "a judicial"
On Question, amendment agreed to.
[Amendments Nos. 101 and 102 not moved.]
Clause 55, as amended, agreed to.
Clause 56 [Questions for decision at consent hearing]:
[Amendment No. 103 not moved.]
Clause 56 agreed to.
Clause 57 [Consent to further extradition to category 2 territory]:
Baroness Scotland of Asthalmoved Amendment No. 103A:
Page 29, line 6, leave out "an" and insert "a judicial"
On Question, amendment agreed to.
[Amendments Nos. 104 and 105 not moved.]
Clause 57, as amended, agreed to.
Clause 58 [Return of person to serve remainder of sentence]:
Viscount Bledisloemoved Amendment No. 106:
Page 30, line 3, leave out "does not" and insert "shall"
The noble Viscount said: With the leave of the Committee I shall move the amendment, although my name is not attached to it. I have not spoken to the noble and learned Lord, Lord Donaldson of Lymington, in whose name the amendment stands, but I believe I understand what it is about. It seems to make a good point.
I hope that the noble Baroness will tell me if I have understood the matter incorrectly, but it seems that the noble and learned Lord is saying: "I am in prison in England; I am extradited to a foreign country during my sentence to stand trial for some offences; I am kept in custody in that foreign country; the charges are dropped or I am acquitted completely and I return after having spent nine unpleasant months in a Greek prison only to find that those nine months do not count towards my sentence and I have to spend nine months longer in prison". I accept that it is not the fault of the British Government that such a person has served those nine extra months, but it seems hard that effectively he has had nine months added to his sentence.
The noble and learned Lord appears to have been modest as he does not refer to someone not being sentenced in the foreign country or only being fined instead. In fining a person, the foreign country may take into account the fact that he has been in custody. If someone never proceeds to trial or is acquitted completely, why can that not be taken into account in the sentence that they serve in this country? It would probably be more unpleasant to be in prison in a foreign country so the double counting seems especially hard. I beg to move.
Baroness Anelay of St Johns: It seems that the noble and learned Lord, Lord Donaldson, has raised an issue in point. He raised it at Second Reading, when there was some misunderstanding among us as to the precise point that he was trying to raise. The amendment crystallises it.
I am not aware of the kind of conditions in which people are held within all the jurisdictions that will be covered by Part 1. However, they will vary

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considerably: some will be more allied to remand conditions, which, although extremely unpleasant, are certainly not the same as being held in prison on a sentence. As I understand it, in other jurisdictions conditions will be far more allied to those that we have here when serving a sentence. The noble and learned Lord, Lord Donaldson, has tabled a very interesting point.
Lord Goodhart: I, too, think that there is some substance in the points made by the noble and learned Lord, Lord Donaldson. I am not sure that the drafting covers all possible situations. For instance, it does not cover the situation referred to by the noble Viscount, Lord Bledisloe, of charges being dropped with the result that there is no acquittal. It also seems doubtful whether the noble and learned Lord's proposal should apply in any event where someone is on bail in the country to which he has been extradited, as is possible.
Baroness Scotland of Asthal: The noble Viscount, Lord Bledisloe, has done full justice to the point raised by the noble and learned Lord, Lord Donaldson. He has put it precisely and quite succinctly.
We have difficulty with the point because of the problems that we will have in differentiating between individuals who are transferred, dealt with, convicted and sentenced and those transferred, dealt with and acquitted. There is a problem with parity and how we deal with that.
I shall be absolutely frank. Having considered the point and listened to the remarks of the noble Viscount, Lord Bledisloe, and the noble and learned Lord. Lord Donaldson. this may be a point where the administrative and other difficulties presented as insurmountable in many pages—I shall not delight the Committee by reading them—could prove surmountable. I cannot say that that is so, but I would like to tease out the matter to see whether there is any merit in it. I say that because the noble Viscount, Lord Bledisloe, referred to the division of the length of time.
Although I have never been at Her Majesty's pleasure for any significant time other than to visit residents, I am given to understand that some other jurisdictions are much more to the liking of those incarcerated there. So it is not all doom and gloom. Some people may be very happy to stay in another jurisdiction's more generous accommodation for nine months or longer.
There may be something in the point, so I shall look at it and return at a later stage. Although I cannot guarantee that the response will be favourable, it is worth considering the matter.
Viscount Bledisloe: I am extremely grateful and express gratitude on behalf of the noble and learned Lord for that very co-operative approach. I accept that conditions may be nicer in some countries, but one would have to accept swings and roundabouts. If the prison to which an extradited person went was nastier than in England, it would create some legislative difficulty.
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I accept—albeit with some nervousness, given that I am speaking on behalf of the former Master of the Rolls—that the drafting is somewhat defective. He is, fortunately, former, so I cannot suffer for it! The drafting does not deal with the situation where a man is on bail in a foreign country. However, I imagine that if he were released on bail abroad, we would rapidly put him back in prison here.
The noble Baroness has said that she will deal with the substance of the matter. I am extremely grateful to her. I shall convey her intention to the noble and learned Lord.
Baroness Scotland of Asthal: I should explain that, when a prisoner is extradited while serving a prison term here, one of the conditions upon which we agree extradition is that he will not be granted bail but kept in custody and then safely returned to serve the remainder of his period of imprisonment. I wish to tease out such factors. The situation may be insurmountable; we may have to leave the Bill as it stands, but there is a chance that we can do something about it.
Lord Goodhart: Surely the fact that there is a condition strengthens the argument for taking it into account.
Baroness Scotland of Asthal: That is why I shall look at it.
Amendment, by leave, withdrawn.
4.15 p.m.
[Amendment No. 107 not moved.]
Clause 58 agreed to.
Clause 59 agreed to.
Clause 60 [Costs where discharge ordered]:
Baroness Anelay of St Johnsmoved Amendment No. 108:
Page 31, line 22, at end insert—
"( ) In determining an amount under subsections (6) and (7), the judge or court making the order shall give his or its reasons for calculating the amount of compensation."
The noble Baroness said: In moving Amendment No. 108, I shall speak also to Amendment No. 230. They are based in Clause 60 which provides for an order to be given for payment of an amount of money provided by Parliament for a person who falls into one of the categories under subsection (1) of those discharged. Subsection (6) explains that the amount payable should be decided by the relevant judge or court as the amount which they think is reasonably sufficient to compensate the person for any expenses incurred as a result of extradition proceedings under this part of the Bill. Subsection (7) allows the relevant judge or court to come to a different decision where he or it considers it inappropriate for the person to recover the full amount under subsection (6).
Our amendments attempt to introduce transparency into the process. They propose that when the judge or the court makes the order, they should explain how they have calculated that amount of compensation. I beg to move.
Lord Bassam of Brighton: We are grateful for the amendments being tabled. We do not believe that they are necessary because they would represent a departure from domestic procedure and may be confusing compensation and the issue of costs. Clauses 60 and 132 refer to the important area of awarding costs where the discharge of a person who has been the subject of extradition proceedings in the UK has been ordered under Parts 1 and 2 of the Bill.
Amendments Nos. 198 and 230 seek to make the judge or court making the order reveal their reasons for calculating the amount of compensation awarded. The award of costs is different from the award of compensation. Compensation is an amount given to make amends for loss or injury or disadvantage and is normally sought through civil action. Here, we are dealing only with expenses or costs incurred as a result of extradition proceedings, such as lawyers' fees or perhaps a hotel bill where a fugitive has been granted bail but is not a resident of this country.
As currently drafted, the Bill makes provision for the relevant judge or court to have the power to make an order for costs in the discharged person's favour. The amount is what they reasonably consider to be sufficient to compensate the person in question for any expenses incurred. It also allows for the relevant judge or court to reach a different decision if they consider it inappropriate for the person to recover the full amount of costs incurred and specify that amount in the order as that appropriate amount.
The amendment seems unnecessary as all costs awarded must be determined in accordance with the provisions of Part 2, Sections 16 to 21 of the Prosecution of Offences Act 1985 and regulations made thereunder by the Lord Chancellor. General guidance on costs in criminal proceedings is provided by the Lord Chief Justice's practice direction Crime: Costs in Criminal Proceedings (No. 2), published in 1999. This practice direction does not suggest that any judge is required to give detailed calculations for any decisions he makes with regard to costs awarded in criminal proceedings. It appears to be a matter for the discretion of the individual judge.
This is how costs are awarded in normal criminal proceedings and we see no reason for extradition proceedings to be dealt with any differently. I therefore hope that with that clarification the noble Baroness will feel able to withdraw her amendment.
Baroness Carnegy of Lour: The noble Lord spoke to the fact that the judge can reach a different decision and I have just looked at the Explanatory Notes. Is he saying that the explanation of how the judge does this is the same as in all costs arrangements? It seems unjust that the judge should come to a different decision and not say why. It is based on the cost of the case but he
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does not charge the whole of that cost or he charges more. Is that normally the procedure? It seems so strange.
Lord Bassam of Brighton: It is the same. Ultimately, it will be for the discretion of the individual judge. However, he must have regard to the practice direction, which sets out how the calculation is made.
Baroness Anelay of St Johns: I am grateful to the Minister for his answer. He has based his argument on the fact that this would be a departure from existing domestic procedure. I accept that point but the full-on issue that we will examine in a future amendment is that we are dealing with specialist cases where specialist district judges, in particular at Bow Street, deal with it. Calculating the costs and having regard to the practice direction required a certain amount of expertise. Although legal costs can be high for good reasons, in extradition cases they can be even higher for equally good reasons. I refer to the expertise and rarity value of the people involved and the huge personal costs involved in travel and accommodation. I accept the Minister's point that the practice direction procedure exists and that my amendments would take that practice away. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 60 agreed to.
On Question, Whether Clause 61 shall stand part of the Bill?
Baroness Carnegy of Lour: Clause 61 mentions England and Wales and Northern Ireland, but there is no mention of Scotland. The Minister seems to be receiving advice that there is a reason for that and I shall be interested to hear it.
Lord Bassam of Brighton: The advice is that there is no equivalent Scottish legislation to apply here, because these provisions are for England and Wales and Northern Ireland. We cannot apply what does not exist.
Baroness Carnegy of Lour: So what happens to poor Scotland?
Lord Bassam of Brighton: Presumably the Scottish Executive has its own way of dealing with the issue. That is probably the answer to the question. As my noble friend is telling me, the Scottish legal system is different and the noble Baroness, Lady Carnegy, is good at pointing that out to us.
Clause 61 agreed to.
Clause 62 [Documents sent by facsimile]:
Lord Bassam of Brightonmoved Amendment No. 108A:
Page 31, line 36, leave out subsections (1) and (2) and insert—

"(1) This section applies if a document to be sent in connection with proceedings under this Part is sent by facsimile transmission.

(2) This Act has effect as if the document received by facsimile transmission were the document used to make the transmission.

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(3) The document received by facsimile transmission may be received in evidence accordingly."

The noble Lord said: In moving Amendment No. 108A, I shall speak also to government Amendments Nos. 109A and 230A. I want also to address Amendments Nos. 109 and 231, tabled by Members of the Committee opposite. All of these amendments are concerned with how documents can be sent from the requesting state to the United Kingdom.
Perhaps I should begin with Amendments Nos. 108A and 230A. These two amendments replace the existing provisions in the Bill on fax transmissions in their entirety. Let me explain why we have done so.
On closer examination, we concluded that the provisions in the Bill as currently drafted concentrated rather too much on the document transmitted, whereas the focus more properly should have been on the document received. We also believe it is unnecessary to say, as the existing wording does, that a document "may be sent" by facsimile. Clearly, there is nothing ever to prevent anyone from sending a fax, but what we need to be concerned about is the status of a document received by fax. These amendments accordingly allow for a document sent by fax to be received in evidence.
Of course, the district judge may refuse to admit it where there are doubts about its provenance and the fugitive will be able to challenge documents on those grounds. In case of doubt, it will always be possible for the original to be obtained and produced.
Let me turn to the new clause in Amendment No. 109A, which we seek to introduce into the Bill. This clause will allow Part 1 warrants, though not supporting material, to be sent by electronic means other than by fax. This clause is needed because, as has been previously explained, we anticipate that in future the vast majority of Part 1 requests will be transmitted by the secure Schengen computer system. This is a closed computer system to which only law enforcement agencies in each country will have access—in the UK's case it will be NCIS which will house our Schengen terminal.
I hope that Members of the Committee will welcome this. Quite apart from all the practical benefits, we believe that a secure computer link is probably a safer way to transmit documents than by post or fax and certainly allows for much less possibility of fraud or rogue documents than any other system of transmission.
I turn to the amendments standing in the name of the Official Opposition. They seek to provide that the Secretary of State should make regulations concerning the security of documents sent by fax. I appreciate that we need to guard against documents that are not genuine. However, I believe that this is a little over the top. The Bill already requires NCIS in Part 1, and the Secretary of State in Part 2, to certify that all incoming warrants have come from a bona fide source. As I have already indicated, any documents can be challenged by the fugitive, so the mere fact that it can be sent by fax does not put him at a disadvantage.
Accordingly, I hope that on reflection Members of the Committee opposite will accept that this provision is unnecessary. I trust that the Committee will find favour with the Government's amendments. I beg to move.
Baroness Anelay of St Johns: My name appears on two of the amendments in the group. We tabled them in order to obtain a debate on the security of fax transmissions. I welcome the government amendments and make it clear that I shall not move mine when we reach them. The Minister will recall that during the passage of the Crime (International Co-operation) Bill we discussed the Schengen information system. We made it clear that we were content with the provisions within that Bill.
Lord Lamont of Lerwick: Perhaps I may ask the Minister a question on which he may wish to seek advice. Can he explain the background to the provision, saying why it has been made, what it has replaced, and whether in previous cases facsimiles have been refused and challenged in courts? What has given risen to this?
4.30 p.m.
Lord Bassam of Brighton: The answer to the point made by the noble Lord, Lord Lamont, is really very simple. There is nothing in previous legislation because that legislation dates from 1870. I know that the fax machine has a longer history than it is often given credit for, but we felt that the step was useful and modernising. As I explained in promoting the amendment, we have a secure system, as was referred to by the noble Baroness, Lady Anelay. I am advised that we are not aware of any challenges to faxes being accepted. However, I have made it plain that they can be open to objection by a fugitive. That is for the district judge to consider.
Baroness Carnegy of Lour: I may be quite wrong in asking this and should know, but will all the countries involved in Part 1 be part of Schengen? The secure system is a Schengen system, and will the countries necessarily have access to it?
Lord Bassam of Brighton: All EU countries will be party to Schengen, but there is the possibility that non-EU countries will be part of the scheme. That probably does not entirely satisfy the noble Baroness, but that is the situation.
Baroness Carnegy of Lour: It does not satisfy me. The whole argument deployed by the noble Lord was that the system was secure and closed. If there were an open system, the provisions would not be safe.
Lord Bassam of Brighton: The noble Baroness is right. Other countries can use an open system to transmit documents, and nothing can necessarily be drawn from that as wrong in any way. Within Schengen and the EU countries, a secure system is being set up. That adds a great deal more in terms of

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integrity, but it should not be seen as taking anything away from documents sent through the post and by other means all the time.
Baroness Carnegy of Lour: I am wondering whether my noble friend's amendment has a use in the case of, say, Norway.
Lord Bassam of Brighton: Norway is part of Schengen in any event. That is my understanding.
Lord Stoddart of Swindon: I am a little concerned. I have heard of all sorts of systems being secure, and then we find that they are not so secure as we had been led to believe. Will the noble Lord explain how the security is achieved and maintained? How can people be prevented from gaining access?
Lord Bassam of Brighton: The Schengen computer system is closed. It is discrete to those countries party to Schengen. As I described in my notes, the UK end of it is housed within NCIS. My assumption would be that, in each country, there would be something similar or parallel to NCIS that would be the receiving and sending organisation, and that those organisations will be party to a closed and secure computer system. I am sorry if that does not entirely satisfy the noble Lord. If he and other Members of the Committee wish it, we can set out in more detail more of the background to that closed system than we can describe in Committee this afternoon. However, the system is based on those principles.
Lord Lamont of Lerwick: When the Minister says "any document", does that include the warrant?
Lord Bassam of Brighton: Yes, it does.
Lord Lamont of Lerwick: The procedure followed for transmission of a lot of legal documents is that the original would have to follow. Would the original have to follow in the case of the warrant, or would a fax be acceptable?
Lord Bassam of Brighton: My understanding is that a fax would be acceptable.
Baroness Carnegy of Lour: As a completely lay person, and not having had any involvement at all in extradition proceedings, I have to say that it does not sound as though the matter has been properly thought out. Can a warrant arrive by fax? That seems extraordinary. Can a country that is put on the list of Part 1 countries but that does not have access to the secure Schengen system send documents in an open way? We need some more detail, do we not?
Lord Bassam of Brighton: With respect to the noble Baroness, it is common that legal documents are sent by facsimile. What we are describing is a secure system. It works well. We are simply clarifying the matter in legislation. I am really puzzled as to why Opposition Members of the Committee think it somehow odd and
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strange. It is not. It is common practice. We are trying to ensure absolute security, and the Schengen secure system will achieve that.
Perhaps for the record, I ought to add—the issue of non-Schengen countries was raised—that non-Schengen countries can send documents by means other than fax. In every case, NCIS has to check and certify that the warrant has come from a bona fide source. In a sense, there is a double check in that event. I continue to be slightly puzzled by the questioning of a system that seems to the Government not only valid, but secure, and that attempts to ensure that we have a very high standard in the transmission of documentation.
On Question, amendment agreed to.
[Amendment No. 109 not moved.]
Clause 62, as amended, agreed to.
Lord Bassam of Brightonmoved Amendment No.109A:
After Clause 62, insert the following new clause—
"PART 1 WARRANT: TRANSMISSION BY OTHER ELECTRONIC MEANS
(1) This section applies if a Part 1 warrant is issued and the information contained in the warrant—

(a) is transmitted to the designated authority by electronic means (other than by facsimile transmission), and

(b) is received by the designated authority in a form in which it is intelligible and which is capable of being used for subsequent reference.

(2) This Act has effect as if the information received by the designated authority were the Part 1 warrant.
(3) A copy of the information received by the designated authority may be received in evidence as if it were the Part 1 warrant."
On Question, amendment agreed to.
Lord Bassam of Brightonmoved Amendment No.109B:
After Clause 62, insert the following new clause—
"PERSONS SERVING SENTENCES OUTSIDE TERRITORY WHERE CONVICTED
(1) This section applies if an arrest warrant is issued in respect of a person by an authority of a category 1 territory and the warrant contains the statement referred to in subsection (2).
(2) The statement is one that—

(a) the person is alleged to be unlawfully at large from a prison in one territory (the imprisoning territory) in which he was serving a sentence after conviction of an offence specified in the warrant by a court in another territory (the convicting territory), and

(b) the person was serving the sentence in pursuance of international arrangements for prisoners sentenced in one territory to be repatriated to another territory in order to serve their sentence, and

(c) the warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of serving a sentence or another form of detention imposed in respect of the offence.

(3) If the category 1 territory is either the imprisoning territory or the convicting territory, section 2(2)(b) has effect as if the reference to the statement referred to in subsection (5) of that section were a reference to the statement referred to in subsection (2) of this section.
(4) If the category 1 territory is the imprisoning territory—

(a) section 2(6)(e) has effect as if "the category 1 territory" read "the convicting territory";

(b) section 10(2) has effect as if "an extradition offence" read "an extradition offence in relation to the convicting territory";

(c) section 20 has effect as if, in subsections (1)(c), (2)(c) and (3)(c), after "entitled" there were inserted "in the convicting territory";

(d) section 37(5) has effect as if "a category 1 territory" read "the convicting territory" and as if "the category 1 territory" in both places read "the convicting territory";

(e) section 51(4) has effect as if "a category 1 territory" read "the convicting territory" and as if "the category 1 territory" in both places read "the convicting territory";

(f) section 64(1) has effect as if "a category 1 territory" read "the convicting territory";

(g) section 64(2) has effect as if "the category 1 territory" in the opening words and paragraphs (a) and (c) read "the convicting territory" and as if "the category 1 territory" in paragraph (h) read "the imprisoning territory";

(h) in section 64, subsections (3), (4), (5), (6) and (8) have effect as if "the category 1 territory" in each place read "the convicting territory"."

The noble Lord said: I am sure that I shall be hanged for saying this, but although these amendments may appear complicated, we shall endeavour to demonstrate that they are really quite simple and uncontentious. I am aware that statements of that kind are probably the wrong thing to say and may set alarm bells ringing in the minds of some Members of the Committee on the Benches opposite. However, I hope that they will bear with me and take what I say at face value.
The amendments are concerned with the extradition of escaped prisoners who have been the subject of a repatriation of prisoners agreement. It might be helpful if I briefly explain the background. As noble Lords may know, repatriation of prisoner agreements are very common and exist between all major countries. Essentially, they enable a person who has been convicted to a long period of imprisonment in a foreign country to be sent back to his native country to serve out his period of imprisonment there.
Apart from the obvious practical benefits that it is likely to be easier for the prisoner to communicate with prison officers and other prisoners in his home country, repatriation also makes it easier for the prisoner to receive visits from, and maintain contact with, his family. Family contact is generally an important ingredient in eventual rehabilitation and something to be encouraged. So repatriation of prisoners is something to be welcomed and is something that all of our major extradition partners engage in. However, the fact that repatriation is not unknown or uncommon means that our extradition procedures need to be able to cope with it. We need to ensure that if a person is repatriated from one country to another and then escapes from prison we can still send them back if they are traced to Britain.
That requires some adaptation to the Bill. Let us imagine that a person has been convicted in Austria and repatriated to France. If noble Lords look at Clause 2(5), they will see what the statement
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accompanying an extradition request in a conviction case has to contain. In the example that I have just cited, France could not furnish the necessary statement, since it could not say that the person had been convicted in France. Equally, Austria would be unable to provide the statement because it could not say that the person was sought for the purpose of serving a sentence of imprisonment in Austria. So, as I indicated, some minor adaptations are required to ensure that the our extradition procedures can operate in circumstances where the person has escaped from a prison in a country other than the one in which he was convicted.
Clause 136 already achieves that in cases where the person was repatriated between two Part 2 countries. It enables either the convicting or the imprisoning territory to request extradition, and there is a very similar provision in our current extradition legislation. However, Clause 136 applies only to Part 2 countries. Due to an oversight, for which I apologise, the Bill does not include an equivalent provision for Part 1.
Amendment No. 109B, standing in the name of the noble Lord, Lord Filkin, rectifies that omission. We are also tweaking Clause 136 to ensure that we are able to cope where a person has been repatriated between a Part I country and a Part 2 country—for example, where a person has been repatriated from Canada to France or vice versa.
I apologise for having spoken at some length, but I hope that I have been able to reassure Members of the Committee that the amendments do nothing more than ensure that those people who have been repatriated and then escaped from prison do not slip through the extradition net. I trust that I have persuaded noble Lords that these are desirable amendments and that they should be agreed to. I beg to move.
On Question, amendment agreed to.
Clause 63 [Extradition offences: person not sentenced for offence]:
Lord Goodhartmoved Amendment No. 110:
Page 32, line 10, at end insert—
"( ) the category 1 territory is a party to the European framework decision;"
The noble Lord said: In moving Amendment No. 110, I shall also speak to Amendment No. 127.
The amendments were tabled because of the possibility that countries that are not party to the European framework decision may be added to the category 1 list. The effect of the amendments is that he dual criminality rule is excluded in relation to the European framework list, only as between parties to the framework decision. The dual criminality rule would remain in force between the United Kingdom and other category 1 states. Amendment No. 110 would apply the principle to extradition to stand trial. Amendment No. 127 applies the principle to extradition to further sentence.
I see no reason why in an extradition agreement between the United Kingdom and New Zealand, for example, it would be appropriate or necessary to

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exclude dual criminality for all offences on the list but no others. New Zealand is not after all a party to the list. It might be willing to negotiate for category 1 status without any exclusion of dual criminality. It might agree to the exclusion of dual criminality for some but not all the offences on the list. It might, indeed, wish to add other offences to the list.
Amendment No. 110 may be the more attractive, because it can be passed without breaching any treaty obligations involved in the European framework decision, which applies only to the key member states to that decision.
I would not object to a further amendment giving the Government power to exclude the dual criminality rule under a new agreement with a state that was not a party to the European framework decision, but only if that power were subject to parliamentary approval. That could be done by means of a separate treaty or agreement. It seems plain that we should not require acceptance of the European framework list in full, in part or at all, as the condition of admission to category 1 status of states that are not members to the framework decision. I beg to move.
Baroness Anelay of St Johns: I support the amendments. I shall not repeat the arguments, as I subscribe entirely to the comments of the noble Lord, Lord Goodhart.
4.45 p.m.
Baroness Scotland of Asthal: I am slightly puzzled by the approach that has been taken in the amendment, and I hope that I will be able to explain why we believe that the Bill as drafted is the most appropriate way forward.
We are concerned here with the benefits available to different countries, once designated as category 1 extradition partners. Frankly, we see little point in designating countries as Part 1 extradition partners if we then seek to deny them some of the benefits that go with that. The amendments would provide that, whatever countries might be in Part 1, the partial abolition of dual criminality would apply only to those that were signatories to the framework decision. I really cannot see any case for seeking to limit flexibility in that way, nor can I see any intellectual argument that says it is acceptable to limit the dual criminality requirement with a trusted EU partner but not acceptable to do so for a trusted Commonwealth partner, for example, with which we may have many things in common.
As I previously indicated, the Government have no plans to designate as Part 1 countries anyone other than the member states of the EU and, possibly, Norway and Iceland. Having said that, it does not seem impossible that there might one day in the future be a case for putting countries such as Australia, New Zealand or Canada into Part 1 Those countries are all established democracies where the rule of law is respected. What is more, they are all commonlaw countries, so the fears that some noble Lords have
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expressed about investigating magistrates—which may be said to be groundless but which I hear none the less—would not apply.
I hasten to stress again that we have no plans to move those three countries, or any other non-European ones, into Part 1. But equally, it does not strike me as impossible that there may be a strong case for doing so at some point in the future. If that point does arise, we cannot see that there could be very strong objections. There would have to be an objective decision as to whether the rule should change so as to enable the country, which we would have established that we have trust and confidence in, to operate the system. We therefore believe that the Bill needs to retain the flexibility to cope with this situation.
As I have already indicated when we discussed previous amendments, we will introduce a government amendment to provide that designation of Part 1 countries will be by the affirmative resolution procedure, so both Houses will have an opportunity to have their say. Therefore, Parliament will have the fullest opportunity to consider whether designation of any country as a Part 1 country is justified. That is a very important safeguard.
Bearing all that in mind, I have to confess that we were a little surprised and puzzled by the noble Lord's approach. If Parliament takes the view that a non-European country should be in Part 1, what is the point of then denying that country one of the benefits that go with being a category 1 country? Either we have sufficient trust in a country and its legal system to put it in Part 1 or we do not, in which case we should not he going down that road. But if we do think a country warrants being in Part 1, we cannot see why we should do so on a half-hearted basis and not accord it the full treatment and status that goes with being a Part 1 country.
I understand what the noble Lord says in relation to the nature of the framework agreement, the reciprocity and the signatories in relation to ECHR. I hear what he says about all those beneficial aspects that allow us to be in comity with our EU partners. However, we are also in comity, often in almost the same intimate way, with a number of other counties that we may want to allow into the Part 1 fold if it appears appropriate to Parliament in due course. On that basis, we do not believe that the amendments are necessary, and we invite him to reconsider his position and to withdraw them.
Baroness Carnegy of Lour: The Minister has given us some good news, which I do not believe that we have had before; that the Government have paid attention to the comments of the Delegated Powers Committee about making additions to the list of Part 1 countries under affirmative procedure. As the Bill was originally drafted, the Minister could not have argued that, because Parliament would not have had the chance properly to decide—it would have been "Yes" or "No", with no discussion.
The Minister also said that the Government did not have it in mind that any additional countries would be brought into Part 1, except for possibly Australia, New

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Zealand and Canada. I took part in that discussion in the Delegated Powers Committee, so I am very interested in it. However, that is not how the Bill is drafted—any country could come in, so the argument is not 100 per cent strong.
Baroness Scotland of Asthal: We were referring not to the three countries mentioned by the noble Baroness, but to the possible inclusion of Norway and Iceland. However, it is not beyond question that those three countries might be included at some stage in the future.
Let us consider the historical links that we share with Australia, New Zealand and Canada. They share with us a position in relation to capital punishment—they do not have it—and an adherence to all the human rights provisions and agenda. They have a very similar commonlaw approach to law enforcement and also provide legal assistance for individual persons who find themselves in difficulty. Therefore, there are strong similarities between those countries and ourselves, but we do not say that at this stage we are minded to consider including them. We are simply saying that we do not rule it out for all time.
There may come a time when changes are made and similarities become closer, when it is thought necessary that those countries are brought into the closer partnership available under Part 1. If we have the necessary trust and understanding and a working relationship, we may well feel confident enough to say that we are minded to make available to them all the benefits of Part 1. If we are not so minded, they should properly remain in Part 2, and they should not make the transition unless and until we are satisfied that the change should be undertaken. That does not imply any degree of compulsion on our part; we can make the choice to leave them where they are or to change them, and Parliament can decide whether it is content or not content.
Baroness Carnegy of Lour: I am grateful to the Minister for clarifying the argument about the three countries, and 1 appreciate what she says about Iceland and Norway. However, my argument is really that the Bill does not limit the countries that can be included; it could be any country at all. The Government's argument is somewhat weak when one considers that we may be dealing with a country that is as yet unnamed. Parliament will have the opportunity for very limited discussion under the affirmative procedure, which it would not have had if the Government had not changed their mind on the matter, but my point related to the lack of a limit. I understand the argument about the three countries, which we had under Clause 1.
Baroness Scotland of Asthal: I hope that I can reassure the noble Baroness. The whole point is that the Part 1 countries are the countries about which we feel the greatest degree of confidence. I can reassure the noble Baroness that, while this Government are in being, there will be no suggestion of introducing into Part 1 any country that does not meet the criteria that enables us to have confidence in the operation of their
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justice systems similar to that which we have for the Part 1 countries. That is why the Bill differentiates between the Part 1 and Part 2 frameworks.
I hear what is being said about EU countries. In essence, if I may paraphrase the noble Lord, Lord Goodhart, we have only one family. If you are in the EU family, you can be in Part 1 but, even if you have the same relationship and closeness with us, if you are not in the EU family, you cannot be in Part 1. We do not actually agree with that. We can have close relations with our partners in Europe—that is right and proper—but in time we may also develop with other countries sufficient nexus, comfort and trust, that we may decide that they deserve a closer relationship with us and to be included in Part 1. However, as long as any country does not meet those criteria, they will remain firmly in Part 2.
Lord Lamont of Lerwick: I find what the Minister says quite persuasive, although I am struck by the way in which she uses the term "flexibility". One could stand that on its head arid say that what the noble Lord, Lord Goodhart, was advocating was more flexibility in the application of the extradition procedure. The Minister is all on the side—as is this Bill—of extraditing people willy-nilly. As we keep saying, there is very little in the Bill to safeguard people's rights.
The amendment tabled by the noble Lord, Lord Goodhart, would introduce more procedural flexibility. As he has said, it would enable for certain categories of country the partial removal of dual criminality not to apply. I accept the Minister's comments about countries such as Australia and Canada, but that leaves one more than ever puzzled by the distinction between Parts 1 and 2. It is not a distinction that I find very easy to understand. In some ways, I cannot see why America cannot be a Part 1 country, leaving out the question of capital offences and capital punishment. The noble Baroness smiles, but I should like to smile when she says that Greece is among the countries in which the Government have most confidence.
The issue is very tricky, and even I am a little hesitant about naming countries and making points about them. However, I do not have as much confidence in certain European countries' systems of justice as I would have in the Australian or Canadian systems. Many people would dissent from the view expressed by the Minister, that those are the groups of countries in which we have the most confidence. Ministers always side-step whenever it is raised the terrible case in Greece of the plane spotters. They never explain how we can have confidence in a system of justice that required the Foreign Secretary to intervene before the matter was finally resolved. I accept the Minister's logic, but it was possible to disagree with the remarks with which she accompanied it.
The Minister referred to Norway and Iceland, but could she explain why Switzerland is not a country being considered for category 1?
5 p.m.
Baroness Scotland of Asthal: It is really because Norway and Iceland have signed the framework decision and the Swiss have not. That is the way in which we would consider the matter. It very much takes on board the import of what the noble Lord, Lord Goodhart, said. He is really saying, "I only want those countries to be in Part 1 which are bound by the framework decision".
As regards Part 1, all our partners in the EU—we shall soon be 27 in number—are part of the European Union family. I know that the noble Lord will say that one does not always share the same intimacy with all the members of one's family. That may be so but they are all members of the same family and we have agreed to behave in comity with our EU partners. The framework agreement was negotiated with skill, diligence and energy by all those in the group who signed it. We have to acknowledge that that is the reality of where we are today.
Lord Goodhart: I have to say on this occasion that I am somewhat disappointed with the Minister's response. First, she asked what was the point of having category 1 if you could not get rid of dual criminality. There are very significant advantages in category 1 status that have nothing to do with dual criminality, in particular the greatly increased speed with which one can obtain extradition as a result of not having to provide evidence or information of a prima facie case and of not having to go through the Home Secretary, which gives rise to problems of judicial review. As I say, there are considerable advantages in category 1 status without the relaxation of the dual criminality rule.
It may be my fault for not having explained more clearly what I was after in this case. My amendments in the group we are discussing propose that no state which is not a signatory to the European framework decision shall get the benefit of the relaxation of the dual criminality rule. However, that is not my final or unconditional conclusion. I also said—perhaps not fully enough—when I moved the amendment that I would be perfectly content if the Government were to come back with an amendment which made it possible for new states to be added to the category 1 list with a relaxation of the dual criminality rule which was different from the European framework decision. That plainly gives more flexibility.
What I really object to is the idea of one-size-fits-all and the suggestion that any country which is admitted to category 1 status must accept the European framework decision as it stands even if it is not a party to that decision and even if the United Kingdom and the other state concerned would prefer either not to relax the dual criminality rule at all or to relax it in some way which differed from the way in which it is relaxed by the European framework decision. Far from being rigid, my intention is to give increased flexibility. I am reluctant to undertake the task of drafting a measure for the Government to put forward. That is why I have tabled the amendment in a very simple form which proposes that there can be no
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relaxation of dual criminality as between states which are not parties to the European framework decision. However, the principle behind my amendment has not been met. It is certainly a matter which I may well consider bringing forward again at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Anelay of St Johnsmoved Amendment No. 111:
Page 32, line 11, after "territory" insert "that issued the request"
The noble Baroness said: In moving Amendment No. 111,1 wish to speak also to Amendment No. 116. The amendments were tabled in order to probe the drafting of subsections (2) and (3) of Clause 63. In great measure they foreshadow the debate we shall have shortly on the Government's Amendments Nos. 112 and 126. Therefore, I shall speak briefly. The debate concerns the territorial point raised on Second Reading and on which the noble and learned Lord, Lord Falconer, gave evidence to the Select Committee.
We find Clause 63 somewhat ambiguous in places and we believe that our amendments would add clarity. Clause 63(2) begins thus:
"The conduct constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied—
(a) the conduct occurs in the category 1 territory".
Which of the category 1 territories does that refer to? We would simply add the words "that issued the request" at the end of paragraph (a) in order to identify which category 1 territory is referred to. We feel that that would emphasise the fact that the criminal activity must have occurred in the category 1 territory of the requesting state. That should help to avoid doubts about territoriality. I beg to move.
The Deputy Chairman of Committees (Lord Elton): Amendment proposed, on page 32, line 11, after "territory" insert "and no part of it occurs in the United Kingdom".
Baroness Scotland of Asthal: I thank the noble Baroness for moving the amendment in the way that she did. I accept that it is a probing amendment.
Baroness Anelay of St Johns: I understand that the noble Lord the Deputy Chairman of Committees may have read out the text of the wrong amendment. I was not listening properly. I apologise.
The Deputy Chairman of Committees: I apologise as I read out the text of Amendment No. 112, not that of Amendment No. Ill. After the noble Baroness, Lady Anelay, moved the amendment, I should have said "Amendment proposed, page 32, line 11, after `territory' insert 'that issued the request"'.
Baroness Scotland of Asthal: I must confess that I was concentrating on what the noble Baroness said and I did not notice that the wrong text was read out. I thank the noble Lord the Deputy Chairman of Committees for his acuity on this occasion.

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As I say, I thank the noble Baroness for moving the amendment in the way that she did. She made it clear that it was a probing amendment. I hope that I shall be able to explain why we think that it is not necessary and why the way in which Clause 63 as currently drafted suffices.
As the Committee will know, Clause 63 is an interpretation clause which defines what constitutes an extradition offence; that is, an offence for which the UK can extradite. It applies where the person has been accused of, or convicted but sentenced for, an offence in a category 1 territory. It sets out what conduct can constitute an extradition offence. It does this by reference to the penalty that the conduct can attract and the location of the conduct.
The amendments seek to add unnecessary language into an already clear passage. Subsection (1) of Clause 63 requires the conduct to be an offence in a category 1 territory. Subsections (2) and (3) require the offence to have taken place in the category 1 territory. That is the important point. The conduct must have taken place in the category 1 territory, not a category 1 territory.
So, the Bill already makes it clear that where a person is accused of a crime in a category 1 territory, the provisions of Clause 63(2) and (3) apply only where the conduct took place in that country. I notice that the noble Baroness nods so I think that she is with me. The provisions cannot apply if the conduct took place in any other category 1 territory or, for that matter, in a category 2 territory. I respectfully suggest that it is unnecessary to add the words "that issued the request" as that is implicit in the phrasing of the clause. We believe that the amendments are not necessary. To our mind, the wording in the Bill is clear. I think that the parliamentary draftsman, who has already been given a number of shocks today, would have a particularly big one if we did not appreciate the clarity and precision of the drafting in this instance.
Further evidence is provided by the remaining parts of Clause 63. Subsections (4), (5) and (6) are very clearly designed to cater for cases where the conduct has occurred outside the requesting state.
These provisions would obviously not be necessary if there were any way in which subsections (2) and (3) could apply to conduct outside the requesting state. But since subsections (2) and (3) cannot be interpreted in that way, we do need the rest of Clause 63.
I do not believe that there is any room for ambiguity or any need to amend the Bill. I hope that the noble Baroness will be content with that explanation.
I believe that we have discussed on previous occasions the difference between "a" and "the". I hope that I have clarified the matter.
Baroness Anelay of St Johns: The explanation of the noble Baroness certainly has satisfied me. As she mentioned this concerns the difference between "a" and "the" and the importance of "the" being the distinguishing factor in this respect. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees: I call the noble Baroness, Lady Amos, on Amendment No. 112.
Baroness Scotland of Asthalmoved Amendment No. 112:
Page 32, line 11, after "territory" insert "and no part fit occurs in the United Kingdom"
The noble Baroness said: I am most grateful for the elevation. I believe I shall remain a Minister of State for some considerable time. I hope that I can he brief in moving this group of amendments as they have been extensively trailed.
These amendments are concerned with conduct that may have taken place in the United Kingdom and with ensuring that where such conduct is regarded as lawful here extradition cannot take place. The Government believe that those who go to another EU country and break the laws there should expect to face justice and should, therefore, be extradited even if the UK happens not to have an exact equivalent offence.
Our position is very different from that which appears to be taken by noble Lords opposite. As we have made clear in other debates, the Opposition appear to believe that people who break the law of another EU country should be safe from prosecution so long as they can cross a border into a country where the conduct is not considered criminal prior to arrest. That remains a fundamental difference between us and, I suspect that it will continue to divide us, although I have hopes for the noble Baroness. Lady Anelay, in this regard.
However, one thing we are all agreed on is that it would be quite unjust and improper for anyone to be extradited for conduct which took place in the United Kingdom which was quite lawful here. It has been the Government's firm view all along that the Bill, in its present form, would prevent that happening. Nevertheless, we recognise that very real concerns have been expressed in that regard and that we should address them if we possibly can. Accordingly, my noble friend, Lord Filkin, announced when he appeared before the European Scrutiny Committee chaired by the noble and learned Lord, Lord Scott of Foscote, on 30th April that we would be bringing forward amendments on this point. My noble friend re-iterated the point in a letter to the noble Baroness, Lady Anelay, of 12th May which was copied to a number of your Lordships and which may well now be in the Library.
The amendments that we are now discussing give effect to the commitments that we have made. Their effect is to put beyond any possible doubt that the provisions in Part 1 of the Bill allowing for extradition without dual criminality cannot apply if any part of the conduct that forms the extradition request has occurred in the United Kingdom.
The noble Baroness, Lady Anelay, in her usual courteous manner very kindly indicated that there was a special point with which she has some concern. I hope that I shall be able to set her mind at rest about that. Doubtless the noble Baroness will correct me if I

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inadvertently misrepresent her. I believe that the point at issue concerns an employee of a UK company who commits a crime abroad, whether through negligence or sabotage, or some other method, which results in a death. What would be the position of the board of directors of the company by whom he was employed, based in the United Kingdom, if the requesting country wanted also to put the directors on trial?
The position is straightforward. The individual employee whose action had resulted in the unfortunate consequence would be extraditable, as he or she would be under current law, and I do not think that any noble Lords would quibble with that. The basis on which the company directors were being sought would presumably be because they had set the direction and corporate culture of the company which had caused the individual to be negligent or to cut corners and led to the resulting death. If the company were based in Britain, then the corporate ethos and indeed any specific directives will have been issued from here. So it is quite clear that in such a case, part of the conduct that constitutes what the requesting state believes to be an offence will have occurred in the UK.
These amendments, as I have indicated, put it beyond any doubt that where any part of the conduct has occurred in the UK, we can extradite only if the dual criminality requirement has been satisfied. At the moment the UK does not have an offence of corporate manslaughter so in the circumstances that I have just described, the dual criminality requirement would not be satisfied and the board of directors could not be extradited.
I hope that reassures the noble Baroness and those who have approached her with concerns on this point. I hope too that the Committee will welcome these amendments. I beg to move.
5.15 p.m.
Viscount Bledisloe: I very much welcome the intent behind the amendment. It is intended to meet points which I made on Second Reading. I am, however, worried as to whether, technically, it achieves that which the noble Baroness set out.
Let us suppose that a publication in this country contains an article which constitutes in Germany Holocaust denial and a few copies are sold in Germany. The offence with which the magazine publishers would be confronted would be that of selling in the main streets of Berlin a copy of the Spectator magazine containing the article in question—that act took place wholly in Germany. The article was written in England and was largely circulated in England but the indictment would concern the offence of selling in W H Smith Belinstrasse, if such a thing exists, copies of the magazine containing the offending article. Is there not a risk that in those circumstances this highly well intentioned amendment would not fully succeed in achieving the end for which it is so desirably designed?
Baroness Scotland of Asthal: One has to unpick a large number of the premises upon which the noble
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Viscount has just constructed his argument. First, we would have to consider whether the Holocaust denial offence was committed in publishing the article, where the article was published, and whether distribution was included in the offence.
The hypothetical magazine mentioned by the noble Viscount was published in this country but some copies were distributed in Germany. The physical act of selling those copies of the magazine occurred in Germany. The argument would arise as to whether the German authorities could deal with the German supplier, or the German seller or purveyor of the magazine, as those people knowingly supplied or sold the magazine within Germany, and what access there would be to those who were responsible for editing and publishing the article in this country.
As the relevant article was published in the United Kingdom, we would say that the offence was in part committed here and we would not be able to extradite the people concerned. One could construct a number of interesting and delicate arguments around the alleged offences but in order to obtain a clear view of the matter one would have to look at the precise nature of each and every alleged offence.
The noble Viscount alights upon Holocaust denial because he has probably found that it is the only offence that is outwith those which are caught by our legislation. That is the only such offence that I have discovered; namely, Holocaust denial. It is a very particular offence. We would say that those engaging in that endeavour in part in this country would not be capable of being extradited as the offence would in part have allegedly been committed in this country, and in this country it is not an offence. So we would not extradite those involved in it.
Viscount Bledisloe: I ask the noble Baroness to take the matter away and reconsider it. If one draws the analogy with the law of libel, each separate magazine that is sold constitutes the publication of the libel contained in it. Publication does not have in that sense the common meaning that it has in this country of the act of printing the magazine and running it off. I am not saying that the noble Baroness is not right but I do not think the matter is necessarily as straightforward as she thinks. I should be grateful if she would ask her officials to consider the matter further and then write to me.
Baroness Scotland of Asthal: I am very happy to write to the noble Viscount. Of course I shall reconsider the matter but I believe that Clause 63 is clear as it refers to the case where no part of the relevant conduct occurs in the United Kingdom.
As regards the hypothetical case that the noble Viscount mentioned, the production and publication of the magazine occurred in this country but some copies were distributed elsewhere. Therefore, it would be caught by Clause 63 because clearly part of the hypothetical offence occurred in this country. Dual criminality would apply. Those responsible for the acts in question would be capable of being extradited only if Holocaust denial were also an offence in this

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country, which it is not. I think that I am right but, as any lawyer knows, that is always an interesting position to hold until another lawyer tells you that you are not right.
Lord Stoddart of Swindon: I listened to what the noble Baroness said. I should like to be reassured by what she said but I am afraid that I am not. She mentioned Holocaust denial as the only instance that she can find of the offence that we are discussing. However, that is the only instance that she can find at the moment. The great problem is that once the legislation is enacted, all sorts of instances which one cannot think of at this time suddenly appear. It is that which worries so many of us. I believe, perhaps wrongly, that freedom of speech is absolute in this country. That is not necessarily the case in other countries. Other countries may have a law which criminalises anyone for criticising the head of state. I should like to know—perhaps we cannot say at this point in time—whether anyone in this country who criticises and insults President Chirac may be liable for extradition. All kinds of things may occur.
Indeed, perhaps there is another question I should ask on the point which was raised earlier, by, I believe, the noble Baroness, Lady Anelay, regarding the question of corporate responsibility. Could the employers in this country of an employee who, through his or her negligence, causes the death of a person abroad be extradited on criminal charges of manslaughter?
Under present circumstances I understand that that would not be possible. But in the offing, as I understand it, there is possible legislation on corporate criminality which may well enable managing directors to be prosecuted for the death or injury of their employees through the negligence of another of their employees. That is already in the wings, is it not? Perhaps I am wrong and perhaps I have misinterpreted the Government's intention in that regard and how it would impinge upon the Bill if they intend, as I believe, to introduce a crime of corporate criminality.
Although, like other Members of the Committee, I understand what the Minister is saying and, indeed, believe that she believes what she is saying is the correct response, events have a nasty habit of turning out contrary to what we believe is the position at this particular time.
Baroness Anelay of St Johns: The amendment that the Minister introduced goes a long way to satisfy our concerns. My only disappointment is that she perpetuated the rather stuff and nonsense accusation put forward in another place that somehow we are keen to see people who have committed crimes abroad skip the country and get away with it. If that were the case, we would not want Part 2 of the Bill. We are trying to obtain a fair and equitable system of ensuring that there is swift extradition where it is right and proper. We are certainly trying to co-operate on that basis.
The amendment is intended to solve the problem but, like the noble Viscount, I think that there is still some way to go. I was interested to hear the noble
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Baroness's comment on where publication occurred as regards the offence we are discussing. She certainly satisfied some of my concerns.
One issue that I should like to consider over the summer concerns broadsheets such as the Daily Mail and the Daily' Express which I have enjoyed reading on holiday in Spain. As Members of the Commit tee who have read those newspapers when abroad will know, the newsprint is extremely fuzzy as they are printed on site in the Canary Islands, Spain or wherever. They are printed from copy that is partly sent by electronic communication from this country. There is some input from this country but there is also editorial input overseas. I should be grateful if the noble Baroness and her officials would also consider whether or not we are adequately protecting those broadsheets from any action that might be taken against them. I hope that the response would be that the part of the copy that is sent from this country by electronic means would provide that part of any alleged offence had been committed in this country.
The noble Lord, Lord Stoddart, was right to raise the issue of corporate manslaughter. As we know from debates in another place at Third Reading, the Home Secretary said that the Government would be considering corporate manslaughter as an offence, but he would not specify—quite rightly—when it would come in. I noticed that last week there was a Written Answer in another place with regard to the nature of corporate liability that might be introduced and where the loophole in current law exists. That is an issue which we still have to resolve.
There is one remaining issue to which I shall return when we reach my amendments about the Olympics and sports events in general. It is an issue which equally affects the editors of our newspapers. If, in this country, an editor commits an offence of xenophobia—Holocaust denial is the only one we can think of at the moment; God forbid that they should ever do that—what would happen if he went on holiday overseas? Is he subject to arrest in that country? The offence was committed here hut, as other Members of the Committee suggested, newspapers were circulated abroad, published—a word I should perhaps not use because I am asking for trouble—abroad and sold abroad. If the editor of the Sun were to go to Germany, for example, having done something it judges to be Holocaust denial, could he be arrested for that offence? Can the Minister answer that?
The Government have given us a great deal to think about to ensure that as we progress through this stage of the Bill and, ultimately, Report, we have closed off any avenues by which people could be, in our view, improperly extradited.
5.30 p.m.
Baroness Scotland of Asthal: Perhaps I should respond to the last matter first because the noble Baroness made the clear distinction between those who commit an offence in another country and those about whom a request is made for extradition. They

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are two separate matters. What is clear in this legislation is that if part of the offence is committed in this country and the activity is not criminal in this country, or prohibited, no extradition will flow. If the individual goes to another country and makes a statement or commits acts which contravene the law in that country, he would be subject to the law of that country. Similarly, if someone came from another country to the UK and while here committed an offence against our law, he would be dealt with.
Lord Lamont of Lerwick: Perhaps the noble Baroness will give way. Let me take the example of Holocaust denial or xenophobia. If the editor of a newspaper was in a third country and none of the offence was committed in that country but the extraditing country—let us say France or Germany—presumably one could extradite the person from, let us say, Greece to Germany on the grounds that while the British might say that part of the offence was committed in Britain, Germany was wanting to extradite a Briton from Greece. That presumably is something which cannot be prevented by the amendment—which I agree is good and generous—that the noble Baroness is suggesting. That danger would still remain, would it not?
Baroness Scotland of Asthal: One of the issues that would need to be clarified is whether the country concerned takes extra-territorial jurisdiction. I am not sure whether this scenario is correct or not but let us say, for example, that if Germany were to take extraterritorial jurisdiction over Holocaust denial and a person who is guilty of that offence in terms of the German construction of its law goes to Germany, of course that person would be liable to arrest. But, it would depend on what Germany's rules are in relation to extra-territoriality; we cannot determine that in any given country because it depends upon what it does.
Therefore, I do not know the precise answer of the example given by the noble Lord. I would have to know whether Greece accepted extra-territoriality as a basis. I would then have to know whether Germany had extra-territoriality. If neither did, they could not do it. I think that I would need to know the precise details of what the position of each country was before I could assist Members of the Committee in saying whether a person would be extradited in those circumstances. What we can do is have control over what happens in this country, who we extradite and who we refuse to extradite.
Lord Lamont of Lerwick: I have put it very badly. As was previously argued, supposing copies of the Sun had been sold in Germany, Germany would not need to claim extra-territoriality in order to extradite someone from Greece to Germany, would it? I accept that that may be the position now, but, presumably, that could happen.
Baroness Scotland of Asthal: That would be according to the law because in our country, we deal with offences which are committed here as opposed to
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offences committed elsewhere. I do not know the extra-territorial position in relation to other countries. They may be able to do that, or, in accordance with their laws, they may not be able to do that. I am unable to assist Members of the Committee in relation to those examples.
In relation to that over which we have control, we would not extradite in those circumstances because, in part, the offence will have been committed here and unless the dual-criminality criterion has been satisfied, we would not extradite someone. That is very clear. The way in which another country deals with issues that it deems an offence contrary to its law is outwith that over which I have control. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 113 and 114 not moved.]
Lord Goodhartmoved Amendment No. 115:
Page 32, line 17, leave out "12 months" and insert "3 years"
The noble Lord said: In speaking to Amendment No. 115, I shall speak also to Amendment No. 129. These amendments are of great importance. Indeed, they are the most important amendments that we have yet reached today. Under present law, extradition orders may be made for an offence punishable by at least 12 months imprisonment in the requesting state. That existing rule is repeated for parties to the European framework decision by Article 2.1 of the decision. Article 2.2 excludes dual criminality for offences on the famous list, but only if the maximum sentence is three years or more.
However, under Article 31.2 of the decision, member states can enter into bilateral or group agreements, reducing the three-year threshold for Article 2.2. In exercise of that power, the United Kingdom Government propose to set the threshold for removing the requirement of dual criminality for offences under the list that carry a maximum sentence of not less than 12 months. That is plainly gold-plating. Why are the Government doing that?
The proposal has been criticised by Justice, by Liberty and, perhaps most notably, by the Home Affairs Select Committee in the Commons. The Home Affairs Select Committee stated at paragraph 51 of its first report for the current Session:
"We can see no justification for eroding the basic level of protection provided by the framework decision and we are dismayed that the Home Office is seeking to do so".
I agree that removal of the dual-criminality rule will lead to some simplification of procedure. In so far as it goes, that is an advantage.
The dual criminality rule is not pointless. The original idea was probably because some countries impose harsh and repressive laws—for example, laws which prohibit freedom of speech or assembly or, perhaps, freedom for trade unions to operate. Plainly, we would not wish to extradite for that, but it should not cause a problem with the European arrest warrant because all member states accept the European Convention of Human Rights and, broadly—although not entirely—comply with it.
A secondary reason for the dual-criminality rule is that a stranger to a country may not realise that what is lawful at home may not be lawful abroad. Not only do I accept but 1 also support the principle that visitors to other countries should observe the laws of that country. It is obvious that strangers are not necessarily familiar with the laws of the country they visit. If they are not familiar, a good working rule is that if something is illegal at home, it is best to assume that it is also illegal abroad. But what if it is not illegal at home? There is undoubtedly a risk that visitors may not realise that what they are doing is illegal abroad.
The problem is that that risk is clearly greater with relatively minor offences where practices may vary a great deal. Something recognised as legitimate in one country, or at most subject to an action for civil damages, may be a criminal offence leading to prison in another. I am told in the briefing by Justice that Article 405 of the Italian criminal code imposes a maximum sentence of 16 months for,
"disturbing the religious function of a Catholic cult".
For more serious offences, it is much more likely to be clear to sensible people that they are activities which might be regarded as a crime in another country. The fact therefore that we are prepared to accept exclusion of dual criminality for serious crimes does not mean that we should exclude it for lesser crimes falling within the same category. Some offences on the list can cover a wide spectrum. For example, offence No. 12 is environmental crime, which could include the breach of a tree preservation order—although I should point out that that is not an offence which is subject to imprisonment in the United Kingdom; it is subject only to a fine.
Offence No. 13 is facilitation of unauthorised entry and residence. I am not quite sure what it means but I suspect that it covers the act of squatting which, in this country in an unoccupied building, is not in itself an offence. Therefore, we should not gold-plate the European arrest warrant; we should stick to the basic requirement that the dual-criminality rule is excluded only if the maximum sentence is not less than three years. Lesser crimes will still be subject to extradition if the dual-criminality rule applies. That is the purpose of Amendment No. 115.
Amendment No. 129 applies the same principle to cases where extradition is sought for the return of a person who has already been convicted for the purpose of serving their sentence. Under Article 2.1, the general power of extradition is given where sentences are imposed for a term of not less than four months.
Article 2.2 does not differentiate between extradition for trial and extradition to serve a sentence. In both cases, the dual criminality is eliminated only if the maximum penalty—not the sentence—is not less than three years. I have some concerns that Clause 64(2)(c) may be defective in that it excludes the dual-criminality rule by reference to the length of the actual sentence, not to the length of the maximum sentence, which seems to be what is required under Article 31.2.
Even if what the Government propose is valid, we should retain the same 3:1 proportion as in cases where dual criminality applies. Let us suppose that the
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general law states that the requirement for extradition for trial requires a maximum sentence of not less than 12 months and extradition for sentence requires an actual sentence of four months. Let us suppose further that we apply that principle to the relaxation of the dual-criminality rule. In those circumstances, if extradition without dual criminality at trial requires a maximum sentence of not less than three years, extradition without dual criminality for sentence should require an actual, as opposed to a maximum, sentence of not less than 12 months. Otherwise, there is a danger of extradition after conviction and sentence for an offence which is not a crime in the United Kingdom and which is not serious enough to merit an actual sentence of 12 months.
This raises very serious issues and while the dual-criminality rule, as such, can be legitimately relaxed in relation to dealings with other countries where we have trust, the framework decision in this case actually got it right in Article 2.2. I do riot think that we should seek to reduce that in agreements between ourselves and other member states which take the same view to a period of 12 months. I would apply the same principle to extradition for sentence. There should be no extradition for sentence for an offence which does not carry dual criminality unless the sentence is at least 12 months. I beg to move.
5.45 p.m.
Baroness Anelay of St Johns: I have added my name to these amendments which I strongly support. The noble Lord, Lord Goodhart, encapsulated the issue well when he said that Article 2.2 of the framework decision does the job properly and that we ought not to gold-plate beyond that. I hope that the Minister has not been advised to respond with the riposte which we have had in the past from the Government—namely, that the three-year threshold has never previously featured in extradition law.
The noble Lord, Lord Goodhart, stated exactly why it would be improper to go for the three years to 12 months reduction in this case. The Home Affairs Select Committee was very concerned about this measure. At one point, it stated that,
"the Home Office's response fails to deal with the obvious point that, although a 12-month threshold may ensure that the offence is a matter of 'some seriousness', the framework decision clearly envisages that only offences serious enough to warrant a three year maximum penalty should be exempt from the dual criminality requirement".
Can the Minister tell the Committee whether any other EU member state has lowered its threshold or are we alone in doing this?
Viscount Bledisloe: I found the case made by the noble Lord, Lord Goodhart, compelling, particularly that the lesser the maximum sentence, the less likelihood the tourist will realise that something is criminal in that country. But there is another point. Those who have promoted the desirability of this whole system have done so on the basis that, "Well, you must not think only of our people being taken there, you must think of the desirability of us getting

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people back here". Surely, in that case, we should go below the three years but only for countries that have done the same for us.
There is an argument for saying that the three years could be reduced to a lesser period by Order in Council where the requesting state in question had also reduced similarly. It would be very wrong if we sent people back to a country for 12-month offences when that country would not return people to us except for three-year offences.
Baroness Scotland of Asthal: I thank all noble Lords who have spoken. On this occasion, I shall beg to differ in relation to the way in which these issues have been put. But I should like to thank and acknowledge some of the comments made by the noble Lord, Lord Goodhart, in relation to appreciating that the provisions in relation to dual criminality and relaxation thereof will lead to simplification of the procedure. The noble Lord and the noble Baroness, Lady Anelay, acknowledged that we wish people to comply with the laws of other countries. Those two issues are our starting point.
We do not think that our alteration amounts to gold-plating. We think it appropriate in this instance. We are rather surprised to see the way in which this matter has been addressed with such vigour by our Liberal Democrat colleagues who have said on a number of occasions, as indeed the noble Lord, Lord Goodhart, said today, that they are generally in favour of the European arrest warrant and understand that it has value.
The Government remain of the view that there is no reason why in implementing the European measures the United Kingdom should always do the bare minimum and only that. Our positive approach to implementing the European arrest warrant will, we hope, set an example to other member states to take a similarly constructive attitude. In turn, that will enhance the benefits of the European arrest warrant for the United Kingdom.
It is right—as the noble Viscount, Lord Bledisloe, mentioned—that we bear in mind the real difficulties we have had historically in successfully persuading many of our European partners to extradite nationals to our country to stand trial for offences that we believe should be dealt with here. Historically, that has been a huge difficulty. It will inure to our advantage if, on a proper basis, we are able, through this system, to encourage and enable other European partners who have in the past been resistant to become compliant now.
We must be clear what we are talking about. The Bill provides that where conduct falls under one of the categories of serious offences under the Article 2.2 list—referred to by the noble Lord, Lord Goodhart—dual criminality will not apply where the offences attract a punishment of one year or more in prison, which we believe is a significant sentence.
Looking at the elements in turn, first, the conduct must amount to an offence falling under the list, which, as the noble Lord, Lord Goodhart, indicated,
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it is clear concerns serious crime and not minor matters. He said. "Well, we can deal with serious crime, but we are really looking at the lower end". For those who become victims of the offences included in the list, it is very serious and important to them. If one were to place oneself in the position of such a victim. a period of imprisonment of 12 months or more is a significant period. The second element required for dual criminality to be lifted is for the offence to attract a sentence of imprisonment of one year or more. Again, we say that that is not to view these offences as trivial but emphasises that these are significant offences.
It is therefore disheartening to hear the offences so described. The noble Lord is really saying that we have two tiers. If a person commits a trivial offence and may not know that it contravenes the laws of another country, he should be forgiven and dealt with differently. I do not mean forgiven in terms of avoiding punishment entirely, but there must be the dual criminality. It is only when it is outwith that that it will change. On looking at the list of offences, none is trivial.
I think it has been explained in earlier debate—as I say, I was pleased that the noble Lord re-emphasised this point—that compliance—
Lord Goodhart: Does the noble Baroness not agree that at least some of these offences, while at one extreme are undoubtedly very serious, could also include—for example, environmental crime—relatively minor offences?
Baroness Scotland of Asthal: I obviously accept that it could include relatively minor offences. That is why one must double-lock. It is not only a question of whether the nature of the offence is serious, but the sentence imposed must be a significant sentence. If someone has been charged, convicted and sentenced to a term of imprisonment of one year or more in relation to such an offence, it was not a trivial offence. It was a significant and serious offence.
Taking the example of theft, one could say that theft could constitute stealing a lollipop from Woolworth's. It is not a serious offence and is unlikely to attract a very serious sentence. It may be a serious nature of offence, but it can be dealt with more leniently. In the same bracket of offences is the theft of £1 million, which is a serious offence in terms of our legislation. That is the disparity. How is the difference judged? One looks at the nature of the sentence imposed.
Viscount Bledisloe: The argument about the sentence can apply only to extradition after conviction, except in an Alice in Wonderland situation where, when extraditing for trial, the sentence will not yet have been decided. The point made by the noble Lord, Lord Goodhart, is that an offence can, as a maximum, incur 14 months' imprisonment. But it may be very trivial and it may be something that a person did not realise was contrary to the law of that country. One cannot judge when extraditing for trial what the sentence will be.
6 p.m.
Baroness Scotland of Asthal: There will be a combination of cases: those where you extradite for trial; those where an individual has been convicted of certain offences and a sentence is imposed when he skips hail, or a combination of both. In the cases with which we have dealt, the individual has not always "skipped"—if I may put it colloquially—before being charged or dealt with. In many of those cases, the individual has been sentenced for these significant offences. The requesting state will indicate whether the offence attracts a sentence of imprisonment for one year or more. We still say that an offence that will, or could, attract a prison sentence of one year or more is a significant one.
In another place, the list has caused the sort of discussion that we are having here, where one likes to pick and mix which offences will be "serious". But the list is proper, and noble Lords should be able to rely on it.
Furthermore, it is important to look at the non-list offences under Part 1 on which we will operate a 12-month threshold. The dividing line between the two categories of offences could he as follows: a sentence of more than three years might be necessary for the "serious" list while a 12-month sentence would be needed for those Part 2 offences that are less serious. That would be a very perverse situation.
The noble Baroness says that we should not put forward this argument again, hut, historically, we have taken the benchmark as 12 months. The introduction of a different threshold risks causing confusion, not least for the person whose extradition is requested. The universal application of a 12-month threshold in accusation cases would undoubtedly be much easier to follow than a sliding rule. We know from the "taste, eat and see" approach that the threshold works and has not caused us difficulty, so why is it feared that that which did not cause difficulty in the past is likely to cause additional difficulty now?
The amendment would change the wording of the Bill to mean that the dual criminality test would be lifted only if the offence were punishable by three years' imprisonment. I accept the noble Lord's point that the relaxation of dual criminality is legitimate in relation to the framework. He says that the framework got the balance right and that we should not alter it.
As is always the case, we have had to make objective assessments of where the proper benchmark should be in relation to the countries with which we deal, and what will inure to our advantage in sending people out of the country to be dealt with by other countries. In speaking to an earlier amendment, I have already dealt with the basis on which we send people to other countries. Part 1 countries are trusted colleagues who we can be confident will deal with extradited people fairly, properly and in accordance with the law, upholding their rights under the ECHR, other human rights, and international conditions that we would expect them to meet. On Part 2 cases we have other arrangements.
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I seek to explain, since the Bill was introduced last year, and even before its introduction, that the European arrest warrant was intended to streamline extradition, not simply to replace one method of delay for another. I see what the framework position says and acknowledge that we have gone further than that. But we make no apology for so doing because we think that it is right to do so.
Our aim is to get the maximum benefit from the European arrest warrant in the interests of justice throughout the EU. There is no reason why, when we consider it appropriate, the United Kingdom should not go further than the European arrest warrant and enhance the benefit that it brings.
I would have thought that many Members of the Committee, particularly those on the Liberal Democrat Benches, but also those who sit on one part of Her Majesty's Opposition, would be of a mind on this issue. We wish to lead on this initiative in Europe; we do not want simply to follow the letter of the framework, doing the bare minimum necessary to comply with the agreement. That is where we would be if we felt objectively that it was the best that we could do. We do not want to be party to the lowest common denominator. Within the framework we want to look at what meets the needs of our country and settle our position at that point.
By enhancing the benefits of the European arrest warrant, we think that we will set an example to other member states. The right to free movement within the EU is being abused by serious criminals. When they commit crimes, they do not consider whether dual criminality would apply, the maximum possible sentence and the effect on their victims. We cannot, and will not, let the fight against that abuse be hampered by diluting the ability to pursue those people and to bring them to justice. That is the least that we owe the victims of crime in this country and throughout the EU.
It would be an entirely different scenario if we sought to extradite citizens of, or visitors to, this country to states where we had a genuine fear that the rule of law did not prevail, that those extradited would be in some way subject to abuse, that their human rights would not be upheld, that the process of law would not be robust, where there were no appeals and where there were no systems on which we could rely. In those circumstances, the anxiety about whether it should be one, two or three years would be much more understandable. We think that we have pitched it about right.
Baroness Anelay of St Johns: I did not hear, in the Minister's peroration, whether she answered my straightforward question whether we are the only country that says 12 months rather than three years. Most other EU states have not yet published detailed legislation. However, of those who have, none has sought to go beyond the framework decision on this point. It is right to tell the Committee that we have been in the advance in working out how the arrangements will work.

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Members of the Committee will know that one of the projects in which we participated involved working very closely with our Spanish colleagues to work out a process in which the European arrest warrant would work, using judicial co-operation very creatively, video conferencing and other such approaches. Many of our partners are not as far advanced in this area as we are. I do not know of any other country in our position. We have made our decision objectively on the basis of what we believe to be right for us.
Viscount Bledisloe: The noble Baroness did not deal with my suggestion that we reduce the period only when we get reciprocity from another country to deal with it. I wish to question one point that she made. I think that she suggested that, if the amendment tabled by the noble Lord, Lord Goodhart, were agreed, you could only extradite for an offence on the list that attracted a sentence of at least three years. I do not think that that is right. Surely subsection (3) could be applied, provided that the offence satisfied the conditions for dual criminality, saying, "I agree that the offence does not within subsection (2), but I can extradite you under subsection (3) and show dual criminality".
The only difference would be that you could not extradite for non-dual criminal offences attracting a sentence of fewer than three years. In such instances, you might not know. It would be a ridiculous anomaly if someone would escape completely if the offence was on the list and fell within the 12-month and three-year brackets.
Baroness Scotland of Asthal: The noble Viscount is right. We were talking about cases where dual criminality would have to be satisfied and where it would not. You could still extradite where there is dual criminality.
On reciprocity, we have made an objective assessment as to whether we are minded to permit extradition where offences attract a sentence of one year or more, irrespective of the position that may appertain in relation to the other country. Members of the Committee will remember that we have taken the same stance in respect of the United States of America and other issues. We have taken an objective decision of whether we are willing to do it. We must come back to the words,
"to thine own self be true … Thou canst not then be false to any man".
We work by what we think is right as opposed to saying, "I will only do what my partner will do. If my partner will do nothing, I will be content to remain with them". We part company. We objectively assess what is right, what is proper and what inures to the benefit of Britain. If others wish to join us, we will welcome them with open arms.
Lord Lamont of Lerwick: The Minister is being extremely firm. But I wonder whether in September, when the House returns, she will be quite so pleased that she was firm. I prophesise that the provision will
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cause considerable controversy on the Floor of the House. I speak in these debates with great hesitation, as a non-lawyer. I know that I frequently make incorrect points, but I am deeply interested in the subject and deeply concerned about the Bill.
The Minister ended her first speech with a phrase that is often used in Committees: "You say one thing, someone else says another, but we think that we have pitched it about right". The Minister said that she thought the Government had pitched it about right at one year. I do not know how you could get much lower than one year; it is the most hard-line approach that could have been taken.
As one anticipated, the Minister seems to have based her argument on the fact that the threshold was one year under the system applied in this country historically and that it would be wrong to change it now. But we are in a new system in which the whole point is to speed up extradition and to reduce certain legal processes and safeguards that have been there for the individual facing a request for extradition. If we want a speedier system, it would be logical not to take for granted the one-year threshold but to consider whether it might be higher.
I misunderstood the amendment tabled by the noble Lord, Lord Goodhart, when I first read it. I thought that its purpose was to apply one year to all offences, not just to those where there was no dual criminality. I would go further than he would. But this seems a very modest request that corresponds with the requirements of justice. As the noble Lord said, the whole concept of dual criminality is not without rationale; there is a reason for its existence.
As the Minister gave way just before the noble Viscount, Lord Bledisloe, intervened, she looks at the issue in a very utilitarian way—the trade in people who face extradition requests. That is how some terrible injustices can occur. I have heard sometimes of deals being done between the prosecuting authorities in different countries, with the police in one country saying to those in another, "You give us 'x' and we will give you 'y'". It is not in accordance with the demands of justice that a prosecuting authority should make such a deal. Each case must be looked at on its merits. The Minister is giving a version of that argument, saying that more people will be extradited to this country and we will extradite more people to other countries.
I apologise for repeating myself, but that approach ignores a point that lies at the heart of my concern about the Bill, and, to some extent, at the heart of the concern expressed by the noble Lord, Lord Goodhart. People who stand trial in another jurisdiction are often at a very considerable disadvantage for the reasons that we explained: the absence of legal aid and translation facilities, the fact that bail is refused and that bail is very important to people when preparing their own defence.
There has been no satisfactory reply to those concerns. But the risk of an injustice occurring is a fundamental point that must be addressed when considering speeding up the extradition process. We

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hear all the time about the number of criminals who will be locked up, but we do not hear a word expressed about people being wrongly convicted, placed at a disadvantage or not understanding what is happening.
We hear continually about reliance on the European Convention on Human Rights. That convention does not provide redress for an individual if he faces a wrong, as it would take years for such a case to be heard. As the noble Lord, Lord Goodhart, puts it so well, the European Convention on Human Rights may be generally observed but not in detail in every country. I know quite a lot about the justice systems of certain countries in Eastern Europe, which I do not wish to name, and that they do not conform with the European Convention on Human Rights.
I know exactly what will happen in a few years' time when we have the order late at night. Even though we will have the affirmative procedure, we will be told that things are all changed and everything is different. I very much doubt whether matters will have moved far forward.
This very modest amendment should be accepted because of the risk of a person being at a disadvantage when standing trial in a foreign jurisdiction. The noble Baroness has not responded to the following question: if it is so unreasonable for the noble Lord, Lord Goodhart, to table this amendment, why has every other country in the European Union chosen to stick with three years? Perhaps they have their heads screwed on more than we do and realise that there are risks in speeding up extradition in this way.
6.15 p.m.
Baroness Scotland of Asthal: In response to the issue raised previously, we do not know the stance that some of our European colleagues will take because we are all working now to get ready for the implementation of the European arrest warrant. Each of us may well have to decide what position we should take in the interests of our jurisdiction. We have made that decision for ourselves, as is proper. Others may come to a similar conclusion, but they may not.
I shall deal with some of the other very valuable points that the noble Lord made on the interests of justice. We give way to nobody in our adherence to, and concentration on, the interests of justice. The risks to justice in relation to how this procedure will operate are very clear. But we have taken all necessary steps to limit those risks. We have debated them in part already and will continue to do so. But the scheme that we have put in place to ensure that the district judge has all the information that he or she needs to make an informed choice as to whether an arrest warrant should be acted upon is contained in the Bill.
Each case, therefore, will be looked at on its individual merits. This is definitely not a trade in people. But there is an interest in justice to deal with those who have committed an offence in another European country and those who have committed an offence here. As we see in our everyday dealings, the reality of life within the European family is that there is free movement of people. It is one of the huge
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benefits that we have gained from the European Union. That brings with it a multiplicity of benefits but also dangers and disadvantages. As I said earlier, unfortunately, those who wish deliberately to flout the laws of all our countries feel that they can do so now with far greater frequency and facility than ever before. Collectively, European countries must address that. That is what we seek to do.
The noble Lord, Lord Lamont, says that some of our EU partners are at different stages along the path. That is true, but dramatic changes have resulted from those countries, particularly applicant states, which, to meet the acquis communautaire, have had to revise their laws and to modernise. They are still seeking assistance in implementation from the United Kingdom and many other countries.
The noble Lord said that I was putting the case very robustly. But this debate is an opportunity for me to explain why we are taking this stance. I make plain what I explained at the previous Committee session: we will consider very carefully everything that Members of the Committee say. If there is cause to reflect further on the matter, we will do so. We must reflect further if we hear points that make us pause.
Members of the Committee have recognised that we have listened carefully on many issues and have come back to say that we are minded to change. At present, we think that we have got this issue right. We will look at what other countries do and continue to think about the matter. But, with the greatest respect, we do not think that we are wrong; we think that we have got the balance about right.
Baroness Carnegy of Lour: I wish to make one point. Does the noble Baroness realise that, among the limited number of members of the public who understand the European arrest warrant—we hope that more people will do so by the time the Bill leaves this House—the single point that frightens them most is that, if someone from this country goes to Greece, Hungary or wherever and commits a crime by mistake they might be extradited? In arguing about the levels of crime, the Minister said that only trivial crimes would be committed by mistake. But, over the summer, could she look at the situation in the countries that will be part of the system to see whether, above the threshold that the Government want, it would be impossible for someone to commit an offence by mistake?
That will be the political point that the Government must beat in the longer run. People will understand the advantages to this country of being able to get people back. The Minister states that we must not lose the advantages, but it is the disadvantages that will frighten people. It is in the political interests of the Government and of everyone that they look at those crimes to see whether they have got the approach right. A number of legal people do not seem to think so.
Baroness Scotland of Asthal: I reassure the noble Baroness that I understand people's worries about committing an offence that they had no idea existed. It is a very real issue. If I can use anecdotally the

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Information that I acquired from being a Minister in the Foreign Office responsible for consular affairs, regrettably, many of our citizens who go abroad think that the law stops at Dover. They think that any act committed outside this country does not count and is not an offence, and that behaviours change. So we have a cultural requirement to try to make people understand that they must obey the law regardless of whether they are in this country or another.
The only dual criminality issue that we have identified is the point made by the noble Viscount, Lord Bledisloe, about Holocaust denial. The noble Lord, Lord Lamont, says that that is the way it is now but we do not know about other offences. In the main, all the offences identified in other countries are reflected in our own law. Perhaps they are called something different, but the kernel of the offence is the same. I take on board what the noble Baroness, Lady Carnegy, says.
Lord Stoddart of Swindon: I do not wish to contribute to the debate, as there have been so many well-made contributions. But there is a question that puzzles me. Presumably, the framework agreement was reached under the inter-governmental pillar. If so, there must have been unanimity. If there was unanimity on all the clauses, why are the Government now trying to do something different?
Baroness Scotland of Asthal: The whole point of having a framework document is that it is not a straitjacket. It sets the parameters within which we agree to work. But it enables us, within that, to fashion and craft arrangements that best fit our own needs or those in dealing with others. It is a broad framework; that is why it is called a framework decision. It is not as prescriptive as the other forms that we could have agreed on. It gives us a level of flexibility. If I might say so, I would have anticipated that the noble Lord, Lord Stoddart, would rather approve of framework documents.
Lord Stoddart of Swindon: Yes, indeed. Did our representatives attempt to persuade those of other countries that three years was better than one in this case?
Baroness Scotland of Asthal: I really cannot say. I did not have the privilege of representing us in those negotiations, although I have done so for others. If the noble Lord so wishes, I shall make enquiries. He indicates that he does not. The framework is open to us to choose another benchmark, as we would have known when we negotiated it. We have chosen another benchmark. Of course I hear all that is said about it. We will continue to reflect, but, at present, we have rested at this point and we think it fits our system.
Lord Goodhart: I shall try to be brief in making my winding-up speech. It is clear that there is a fundamental difference between the supporters of the amendment and the Government. There is little point in discussing the differences at any length.
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The Minister suggested that the changes that we propose to make through this amendment would help serious criminals and deprive victims of crime, on occasion, of the chance of seeing criminals brought to justice. I do not believe that either of those is true. So far as serious crime is concerned, the kind of crimes for which serious professional criminals go in—major fraud, large-scale drug dealing and so on—are almost inevitably crimes in both the requesting country and the requested country. The requirement of the abolition of dual criminality will be of no assistance to them.
So far as victims of crime are concerned, one has to say that the kind of crime that causes cumulatively the most distress—local street-based crime—is by and large wholly outside the list of 32 crimes. For example, that list does not include theft, sex offences short of rape or paedophilia, or personal violence short of grievous bodily injury. The number of cases in which victims will lose the ability to see offenders brought to justice for such crimes as a result of the amendment is absolutely nil.
The cases where there is no dual criminality are, by the nature of the event, matters on the borders of criminality. They are something thought to be a crime in one country but reasonably thought in other countries not to be a crime. That is not the kind of offence likely either to be widely exploited by serious criminals—sometimes in the past they may have used tax exemptions for that—or to be particularly upsetting to individuals. I do not see any problem with that.
The noble Baroness criticised my party for on the one hand supporting the principle behind the Bill, but on the other hand tabling such amendments. I do not accept that. As I said, we accept the principle behind the European arrest warrant, but the fact that we do so does not reduce the need for us to scrutinise with great care the details of how the Government will bring that warrant in. If we find some of those proposals objectionable, we shall object to them, as we do in this case. The noble Baroness can rest assured that this amendment will come back but, for today, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.30 p.m.
[Amendments Nos. 116 and 117 not moved.]
Baroness Anelay of St Johnsmoved Amendment No. 117A:
Page 32, line 22, after "Kingdom" insert "punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment"
The noble Baroness said: We now turn to Clause 63(3). Some of what I am going to say has been foreshadowed by remarks made by the noble Viscount, Lord Bledisloe, in the previous debate. I want to look at changes to our current dual criminality rules. Although of course the clause is complicated in itself, we think that there may be an unintended loophole in subsection (3) which our amendment is designed to eliminate.
I was alerted to the matter by one of the most distinguished practitioners in the extradition world, Mr Clive Nicholls QC. He advises me that, having looked further at the Bill, he notices what he considers to be an omission. As we know, Clause 63 deals with the whole definition of extradition offences. Subsection (3) covers offences for which there is dual criminality. We are leaving subsection (2) and its list behind. Subsection (3) covers cases where the conduct is an offence in both the category 1 territory that has issued the warrant and in the UK. However, Mr Nicholls says,
"whereas existing extradition arrangements define double criminality as conduct which carries a penalty of more than 12 months imprisonment in both countries (section 2 1989 Act), clause 63(3) merely requires that … the conduct occurs in the category I territory … would constitute an offence under the law of the relevant part of the UK if it occurred in that part of the UK",
and,
"is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment".
Under that third condition, it is only in the category 1 territory that the 12 months apply.
Mr Nicholls states:
"This provision is of grave concern since it would allow a person to be extradited pursuant to the simplified procedures of Part 1 where, although the conduct which took place in the category 1 territory amounts to an offence in both countries"—
that is fine—
"it need only be punishable by 12 months imprisonment (or more) in the foreign state (i.e. not in the UK). This will not restrict extradition to the most serious of offences from the UK viewpoint and will amount to a fundamental change to",
our current dual criminality rule in the UK. We wonder whether that is the Government's intention. I beg to move.
Baroness Scotland of Asthal: The noble Baroness is right in that we went over much of the background in relation to the amendment on the previous debate, and I shall not repeat all that I said. The positions of the Government and Her Majesty's Opposition seem different. I can understand their position, even if we do not agree with it. I suspect that there will be those who say that there is real difficulty in putting forward a position different from that which I have already advocated.
I want to be clear about Clause 63(3), as that is what we are really dealing with. We are talking about offences that occur in the requesting state, so there are no issues about extra territoriality or the conduct that might have occurred in the United Kingdom. We are also talking about conduct that, as the noble Baroness said, is regarded as criminal in both the United Kingdom and the requesting state, so there is no question of the person being unaware that he was engaging in illegal activity.
In those circumstances, I am not sure whether the noble Baroness is saying that a person should not be extradited, not because the conduct is legal in this
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country, but because it is not capable of resulting in at least a year's imprisonment in the other country. That is what I think I understood.
Baroness Anelay of St Johns: I am simply trying to ask the Government whether they are making an intentional change to existing law. From the nods behind the noble Baroness, that is the case. The Government's argument so far has been that the changes that they are making are allied to the fact that they need to have the framework list and all the extradited procedures in relation to the European arrest warrant. However, in these provisions, they seem to be making extradition easier even in cases where dual criminality is required.
I wanted confirmation as to whether the Government are trying to change from what has been the ECE existing 12-month level. In the past, the Government said, "Don't go for three years. We have always had 12 months". Now they are saying, "We've always had 12 months, but we're still going to change the 12 months and the way it applies".
Baroness Scotland of Asthal: Members of the Committee will see that the way in which we have structured the arrangement complies with the requirements of the framework decision. The new position—that there has to be a criminal offence in both countries punishable by at least one year's imprisonment in the requesting state—is what the framework decision provides. That is why the arrangements are expressed as they are in the Bill. It differs from how provisions were framed before, but reflects the agreed position among all our EU partners. That is why it is expressed as it is in relation to Part 1.
Viscount Bledisloe: I find the amendment unattractive. What the noble Baroness, Lady Anelay, is suggesting is that I can stand up in the extradition court and say, "Yes, I knew this conduct was an offence, and I did it over there. But I knew that I could get only nine months for it if I did it over here. Therefore there was no harm in me doing it in the other country although it gives 18 months for it". It seems rather unattractive to be able to say, "Oh well, I'll go round misbehaving in foreign countries provided the offence wouldn't attract quite as much as 12 months over here". Is that really the policy of the Conservative Party?
Baroness Anelay of St Johns: It may be an appropriate time for me to finish the debate, but I should say that it is not our policy to encourage people to commit crime. I am trying to elicit from the Government why their arguments have not been logical in their own way. They have attacked us in the past for our amendments, saying, "You don't need to worry about going down to 12 months. So far as we're concerned, we've always operated 12 months". I am pointing out that the Government are inconsistent, because in Clause 63(3) they are moving away from what has been the ECE position.
I was using the amendment in a way that I thought was right, the matter having being brought to my attention by a practitioner. The Government want to

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be able to adopt the broader thrust of what is in the framework decision. That is their position. We will consider over the summer whether it is right in respect of the subsection. In regard to subsection (2), they are plainly wrong, and I support what the noble Lord, Lord Goodhart, said on that.
I suspect that we shall come back to the clause in great detail. Perhaps we shall not do so in September, as the noble Lord, Lord Goodhart, optimistically thought. From the views put to me by government business managers in this place, we may not do so until quite late in October, so we will have much time for good and fertile thought. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Anelay of St Johnsmoved Amendment No. 118:
Page 32, line 26, leave out "(however it is described in that law)"
The noble Baroness said: In moving Amendment No. 118, I shall speak also to Amendments Nos. 120, 122 and 134, which are probing in nature, and would have been on the Floor of the House, too.
Clauses 63, 64 and 65 offer us the interpretation of what constitutes an "extradition offence". On that basis, I thought it would be right to ask the Minister for some more details about a phrase used in the clauses, which is,
"(however it is described in that law)".
The phrase may well be used widely in extradition law and, as I do not know about it, may simply be new to me. The Minister may turn round and say, "This is used in the whole raft of legislation. Everyone knows what it means", and then tell us. I hope that he does. It sounds very loose, as though anything would do. I am sure that it cannot possibly mean that. I beg to move.
Lord Bassam of Brighton: I am grateful to the noble Baroness for having tabled the amendment, and I shall explain a little later why that gratitude is rather more generous than usual. We think that the Bill must retain the flexibility to cope with other countries that may use different legal terminology from our own. The amendments refer to the important area of interpreting an extradition offence and, more specifically, to the description in other EU member states of the concept of imprisonment or detention.
Clause 63 gives the definition of an extradition offence in Part 1 accusation cases—that is, cases where the fugitive is sought for prosecution and has not yet been convicted. Clause 64 gives the definition of an extradition offence in Part 1 conviction cases—that is, cases where the fugitive has already been convicted and is being sought for the execution of the sentence imposed. In each case in Clause 63 where the dual criminality requirement is applied, the conduct has to warrant a penalty of imprisonment or another form of detention of 12 months or more, however it is described in that law.
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As the noble Baroness explained, the amendments are probing and have highlighted the relevant words in each case. We believe that those words are necessary. They enable us to deal with cases where our extradition partners use different language or terminology to describe the concept of imprisonment or detention. It would be most unfortunate if we ever found ourselves in a position where we were unable to extradite simply because another country, although clearly recognising and operating the notion of imprisonment, described it in a different way in its law.
That is not about allowing people to be extradited to face indefinite detention or imprisonment that has not been properly sanctioned by a court. Members of the Committee would be right to ask how I can say that with such confidence. The answer is very simple. The words that the amendments seek to remove are not new, as I think that the noble Baroness had twigged. They have been copied almost exactly from the Extradition Act 1989. No doubt she is very familiar with that piece of legislation. If Members of the Committee care to look at Section 2(1)(a) of that Act, they will see that it refers to an offence punishable with imprisonment for a term of 12 months or any greater punishment, and which, however described in the law of the foreign state, Commonwealth country or colony, or of the Hong Kong special administrative region, is so punishable under that law.
In the middle of that section is the phrase,
"however described in the law",
which seems very similar to and to serve the same purpose as the phrase in Clause 63 that the amendment seeks to remove. The phrase has not given rise to any difficulties, and we cannot see why the Opposition should take against it now when they were obviously happy with it while in office.
I have dealt with the amendment to Clause 63, but it would be remiss of me if I did not say something further about Clause 64, which deals with conviction cases, as I explained. However—this is where we own up to something—owing to an unfortunate error, the drafting of Clause 64(6) deals with accusation cases. An amendment to rectify that will be required, so I shall bring one forward. I want to put on record my apologies to the Committee for the error. In our defence, numerous people who have studied the Bill, including Members of another place, failed to spot it.
Doubtless the error would have remained but for the noble Baroness and the amendments that she tabled, which caused us to look at Clause 64(6) with what my notes tell me was renewed vigour. We are grateful, first, for the tabling of the amendment—it enabled me to make an explanation that I hope was clear—and, secondly, because we shall be able to correct an error before it has been writ large in statute.
6.45 p.m.
Baroness Anelay of St Johns: 1 am grateful to the Minister for his helpful explanation. It is always useful to know that Opposition amendments cause the Government to look with renewed vigour at their own

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Bills. We look forward to even more vigorous action from him in the future. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 119 to 124 not moved.]
Baroness Anelay of St Johnsmoved Amendment No. 125:
Page 33, line 24, leave out subsection (8).
The noble Baroness said: In moving Amendment No. 125, I shall speak also to Amendment No. 136. Again, these are probing amendments. I wanted to ask the Minister to give reasons for the distinction made in Clauses 63(8) and 64(8) to matters relating to tax and duty. Earlier in our consideration of the Bill, I spoke in the stand-part debates on the clauses, but they were to do with completely different matters. I did not then have the opportunity to ask these questions, as I otherwise would at clause stand part. Hence the need for the amendments.
The Explanatory Notes state:
"Subsection (8) applies where equivalent circumstances in the United Kingdom are mentioned under subsections (3)(b), (4)(c) and (5)(b). Where the applicable conduct relates to a tax, duty, customs or exchange, subsection (8) explains that it is immaterial that United Kingdom law does not contain rules of the same kind as those of the category 1 territory".
Will the Minister expand on that explanation? The Explanatory Notes are intended to be helpful, and it is excellent that they are now printed so early. However, so often as a member of the Opposition one looks at the Explanatory Notes and finds that they are simply a repeat of what is in the Bill. That is not always as helpful as it might be.
Will the Minister tell us why the tax issues merit special and alternative arrangements in relation to the paragraphs to which I referred? I find nothing in the framework decision to suggest that the exception stems from that document. I can only assume that there is some other provenance. I may have missed it in the framework document, but I looked through it to check and could see nothing that was directly related. I beg to move.
Lord Bassam of Brighton: I am grateful to the noble Baroness for tabling the amendments, as it enables me to say something about fiscal offences. I am sure that noble Lords are aware that some European countries have traditionally been unwilling to extradite people for fiscal offences. Our tax and duty evaders have not been slow in the past to exploit that, as the perusal of popular newspaper headlines referring to the "Costa del Crime" demonstrates rather graphically.
One great advantage of the European arrest warrant is that in future no EU country will be able to refuse extradition for fiscal offences. No longer will those who commit VAT or income tax fraud and who cost this country millions of pounds be able to live the life of Riley in another part of the EU. Instead, they will be held to account for their crimes. I am sure that all noble Lords will agree that that is a good thing, and
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bear in mind that the European arrest warrant offers real benefits to this country, not least in terms of tax revenues.
I turn to the specifics of the amendments. We are not talking about people being extradited for conduct that is not criminal here in the UK. Far from it—evasion of taxes and duties are offences under UK law. Indeed. it is hard to think of offences that have been on the statute book for longer. Clauses 63(8) and 64(8) provide that, if a person evades tax or duty of another country while in that country, he can be extradited for that crime, even if the UK does not happen to have an exact equivalent tax or duty. That is the purpose of the clauses.
I can see no real objection to that. Tax evasion, in whatever manifestation, is a crime in this country, and those who evade the relevant taxes or duties in this country or abroad should in our view face justice. If Belgium has a tax on savings and a person in Belgium deliberately evades it, why should such a person not be extradited to Britain, just because we happen not to have an identical tax? To turn the point round, if a Belgian came here and failed to tax his car, would we excuse him on the grounds that Belgium raises revenue on vehicles in a different way? Of course we would not—that plainly would not make much sense.
Our approach is that everyone has to pay the taxes and duties of the countries they are in, and the provisions that these amendments seek to remove reflect that. We are not referring to dual criminality here, as tax and duty evasion are clearly a crime here and in every European country. We are simply saying that we should not create a loophole by which a person can escape extradition because the tax or duty that he or she has evaded happens not to have a direct equivalent in the UK. I am sure that, having heard that explanation, the noble Baroness will feel confident in withdrawing her amendment.
I should add that it is Article 4·1 of the framework decision that reflects the approach of the provisions in the Bill.
Baroness Anelay of St Johns: I am grateful to the Minister for his response. It occurred to me during his explanation that no one would wish people who evade taxation to evade prosecution. Those of us who are honest want others to cough up too, whoever they are. However, the measure might come as a surprise to so many of our friends and colleagues—and in the population of this country as a whole—who own holiday homes abroad, given the range of property taxes that exist in other countries and do not exist here, and which are so often evaded. My husband and I owned a Spanish holiday home and, although we were always punctilious in everything that we paid, we found that we were among the few in our urbanisation who did pay up. Many sold on and moved off without paying up, so the provision may hit a few people rather hard—we will have to see. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 63, as amended, shall stand part of the Bill?
Lord Lamont of Lerwick: It would be strange to let the clause go by without some comments on how the Bill affects sovereign and state immunity. We had a debate on Amendment No. 111 that centred on the issue of a crime being committed in the UK. How does the Bill change the law, if at all, in relation to crimes under the torture convention and against humanity? Does it modify in any way state or sovereign immunity?
As the Minister will know, the law after the case of General Pinochet was left rather unresolved and in an ambiguous state. An original motivation for the Bill was the prolonged legal process in that case. Of course, there have been one or two judgments since in the International Court of Justice relating to Belgium that have rather put into reverse the findings of the House of Lords, but that is perhaps by the way.
Does the clause change the law relating to state and sovereign immunity and the interaction with the torture convention—which, at a quick reading, I cannot see mentioned? As the Minister will know, Belgian magistrates have claimed universal jurisdiction and have sought to indict General Sharon, President Bush, both senior and junior, and, indeed, General Tommy Franks. That has led to some reaction within Belgium, as the Belgians are trying to modify the law so that it applies only to acts involving citizens of Belgium. I am not entirely sure how they can do that, in view of the obligations that countries have incurred under legislation such as the torture convention. What will be the position if a Belgian magistrate makes a request for extradition of someone in this country—perhaps the Prime Minister? Is the law in the same position as it was after the case of General Pinochet? Is it ambiguous, or has it been changed in some way?
Equally, I would be interested if the Minister would comment on subsection (7) relating to the International Criminal Court. The other day I read in the Herald Tribune that the Government have done a deal with the Government of Afghanistan—Afghanistan is not a category 1 territory—whereby British soldiers are not subject to the jurisdiction and will not be handed over for any acts committed in Afghanistan. The Government have sought a deal vis-à-vis the actions of British troops in Afghanistan.
Presumably that cannot be fireproof against the action of the magistrates in certain countries like Belgium and Spain. Spanish judges have continued to claim universal jurisdiction. As the Minister may be aware, last week an Argentinean was extradited from Mexico to Spain for actions in Argentina. What is the position? Will people who visit this country be subject to the threats of Spanish and Belgian magistrates even for activities committed perhaps in another continent? Perhaps the Minister could comment on what the clause means in that regard.
7 p.m.
Baroness Scotland of Asthal: I hope that I shall be able to assist the noble Lord. The position in relation to immunity of heads of state, former heads of state, diplomats and others similarly entitled to immunity, will not be affected by the introduction of the European arrest warrant.
As the noble Lord knows, international law has established that certain people, such as a head of state, a head of government and a foreign minister, have immunity from prosecution and, therefore, extradition. However, that immunity does not extend to acts such as torture and genocide. That is why, as I am sure the noble Lord remembers more graphically than any of the Committee, the House of Lords ruled that Pinochet should be extradited for acts that took place after the United Kingdom ratified the UN torture convention, but not for those that took place before that point.
The key to this is that nothing in the Bill changes the position on state and diplomatic immunity as it is not, as the Committee will understand, within the UK's gift or power to change the nature of international law unilaterally. Anyone who currently has immunity will continue to benefit from that immunity.
On the questions that the noble Lord raised with regard to subsection (7), which relates to the International Criminal Court, I am not aware of any deal that has been made in relation to British soldiers not being handed over, as mentioned in the Herald Tribune. I do not know the position in relation to that; I would have to write to the noble Lord on that point.
Generally, the noble Lord knows that the provisions in the ICC will work. If an offence is allegedly committed by a British national, a request would have to be made to this country. Only if this country failed and/or refused properly to deal with that request could there be a reference to us. Under the rules set out in the International Criminal Court we would have to deal with our national. Only if we failed and/or refused to deal with the national would the International Criminal Court be in a position to act. We would have to give a response and the Committee will remember the way in which that would go. The request would come to us, we would say that we were dealing with it and everything would stop until we had dealt with it. We would then notify the ICC what we had done. That is the system that is therein contained. I would be happy to write to the noble Lord on any other issues that he raised.
Lord Goodhart: I do not know what my view would be on a point raised by the noble Lord, Lord Lamont, but I would like to know the position on it. Leaving aside any question of state immunity on such matters, assume that someone is accused of a serious offence in, let us say, Rwanda; and the Belgian courts claim to have universal jurisdiction over that person who is in the UK. If the extradition were claimed by Rwanda, there would be no defence to it, but if extradition is

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claimed by Belgium—I believe that there was an actual case along those lines —would there be any change in the position as a result of the Bill?
Baroness Scotland of Asthal: I do not believe that there would be. I believe that the international law on this point remains the same. The European arrest warrant, as dealt with in the Bill, is separate and apart from that. If I am wrong about that, I shall certainly write to Members of the Committee and alert them to that. I shall also see if I can identify the specific case to which the noble Lord referred. It may be covered by Clause 63(5), which allows us to extradite, so there is no change in the position. Clause 63(5) states:
"The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied—

(a) the conduct occurs outside the category 1 territory and no part of it occurs in the United Kingdom;

(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment

(c) the conduct is so punishable under the law of the category I territory (however it is described in that law)".

I do not believe that we are changing the position at all. If I am wrong about that—I believe that the noble Lord and I are correct—I shall certainly ensure that the Committee is made aware of that.
Lord Lamont of Lerwick: I am grateful to the Minister for taking this point seriously as it is a serious matter. I do not simply seek to make a point. There has been a series of attempted indictments in Belgium, one of which, I read in a newspaper—I have no idea whether it was correct—concerned the Prime Minister among others and related to the recent action in Iraq. The Minister says that the position has not been changed post the General Pinochet case, which was what I thought was the case. But are the Government in no way concerned about the attempts by Belgian magistrates to claim universal jurisdiction in that way? It interacts with the Bill and could give rise to an extradition case. It seems to be a serious issue. The Belgian Government appear to be concerned about it, but I am not sure to what extent they have been able to take action against their own judiciary.
Lord Goodhart: I believe that this matter is covered by Clause 63(4).
Baroness Scotland of Asthal: The noble Lord is probably right. I believe that the noble Lord, Lord Lamont, has identified one of the problems. As I said earlier, we do not control international law, neither do we control what happens within another state and the way in which its judiciary behaves. It is interesting to note that the noble Lord says that the Belgian Government are seeking to address the issue so as to prevent Belgian magistrates from acting inappropriately. Of course, we shall continue to keep these matters under review, but I certainly cannot say that the British Government can do anything.
Lord Lamont of Lerwick: With great respect, I assume that the Government do not have a view on it. This matter has led the Israelis to withdraw their
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ambassador from Belgium and it has caused Mr Rumsfeld to say that the NATO headquarters should be moved out of Brussels. Their governments are engaging, their governments are expressing a view, so why have the British Government no view on this matter?
Baroness Scotland of Asthal: The Belgians' attempt to extradite the Prime Minister would fail because he enjoys immunity under international law. In any event, we understand that Belgium is changing the law. I understand why the noble Lord may believe that it is good sport to harry us on this matter, but I can assure the Committee that in our relations with our Belgian colleagues and other colleagues in Europe we seek to ensure that we take a proportionate and an appropriate response. That will continue. I am sure that if the Belgian Government seek to change the law, that will be to the benefit of their citizens and indeed many others.
Clause 63, as amended, agreed to.
Clause 64 [Extradition offences: person sentenced Jar offence]:
Baroness Scotland of Asthalmoved Amendment No. 126:
Page 33, line 40, after "territory" insert "and no part of it occurs in the United Kingdom"
On Question, amendment agreed to.
[Amendments Nos. 127 to 136 not moved.]
Clause 64, as amended, agreed to.
Clause 65 [Extradition offences: supplementary]:
Lord Goodhartmoved Amendment No. 137:
Page 35, line 17, leave out "the appropriate judge believes"
The noble Lord said: Clause 65(2) states:
"An appropriate authority of a category I territory is an authority of the territory which the appropriate judge believes has the function of issuing arrest warrants in that territory".
The purpose of the amendment is to leave out the words, "the appropriate judge believes", which will make the matter of whether the authority in the requesting territory has the function of issuing arrest warrants an objective, rather than a subjective, test. I can see no justification for making the test subjective. It should be an easy fact to ascertain in relation to other member states as to whether any particular judicial authority has the function of issuing arrest warrants. If the test is subjective, the judge must still have evidence before him or her that will enable a reasonable judge to conclude that the authority had the function of issuing warrants, and in practice that evidence would be almost certainly sufficient to satisfy the objective test as well. If, in exceptional circumstances, there is any doubt whether a particular authority has that function, it seems to me that it should be proved as a matter of fact, and not as a matter of reasonable belief. I beg to move.
Lord Monson: The amendment is short and simple, but a most important one. The noble Lord, Lord Goodhart, has made an unanswerable case.
Lord Bassam of Brighton: I always tremble when someone says that an amendment provides an unanswerable case. We have covered this territory in the past in some detail. The Committee may recall my noble friend Lord Wedderburn's amendment to remove the words "it believes" from Clause 2(7). That was in connection with the UK's designated authority's ability to certify a warrant if it has come from a judicial authority in the requesting state.
This amendment, which would remove the words "the appropriate judge believes", raises a very similar issue. The noble Lord, Lord Goodhart, has phrased part of his argument similarly. When I responded to the arguments made by my noble friend Lord Wedderburn, I said that we understood the arguments on this issue. I recall that we undertook to consider the matter afresh to see whether there was any scope for improving the drafting of the Bill, without adding too many words, which is always to be avoided. If we do that in respect of Clause 2(7), it would be remiss of us not to do so for Clause 65(2). I am unsure whether that makes it an unanswerable case, but I am happy to
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undertake to reconsider the matter. I am sure that the noble Lord will withdraw his amendment while we do that.
Lord Goodhart: In those circumstances I shall do so. In a way, I have no alternative. I hope that the Government will find a solution that will mean removing words rather than adding them.
Amendment, by leave, withdrawn.
[Amendment No. 137 A had been withdrawn from the Marshalled List.]
Lord Bassam of Brightonmoved Amendment No. 138:
Page 35, line 17, after "believes" insert "—

(a) is a judicial authority of that territory, and

(b)"

On Question, amendment agreed to.
[Amendment No. 139 not moved.]
Lord Bassam of Brighton: This may be a convenient moment for the Committee to adjourn until Tuesday at 3.30 p.m.
Committee adjourned at a quarter past seven o'clock.