Grand Committee Report of 3 June 2003

Official Report of the GrandCommittee on the

  Extradition Bill
  (First Day)
  The Committee met at half past three of the clock.
  [The Deputy Chairman of Committees (Lord Tordoff) in the Chair.]
  The Deputy Chairman of Committees (Lord Tordoff): Before I put the Question that the Title be postponed, it may be helpful to remind your Lordships of the procedure for today's Committee stage. Except in one important respect, our proceedings 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 Unless, therefore, an amendment is likely to be agreed to, it should be withdrawn.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.
  Title postponed.
  Lord Hodgson of Astley Abbottsmoved Amendment No. 1:
  Before Clause I, insert the following new clause—
  "PURPOSE OF THIS ACT
  The purpose of this Act is to make provision about extradition and to give effect to the Council Framework Decision of 13th June 2002, on the European arrest warrant and the surrender procedures between Member States."
  The noble Lord said: Amendment No. 1 would introduce a new purpose clause and, in doing so, make clearer what the Government intend by the proposals in the Bill.
  I do not wish to plunge the Committee into a heated debate about the rights and wrongs of the process by which we signed up to the framework decision, the degree of scrutiny that it received or the subsequent obligation on our national Parliament to abide by the decision. Those concerns were expressed by many noble Lords—some did so with considerable vehemence—at Second Reading. In his letter to us dated 12th May, the Minister kindly answered some of those points by saying:
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  "Let me make it quite clear that if Parliament amends the Bill in such a way as to make it incompatible with the Framework Decision—though I hope it won't—it will be the Bill as enacted by Parliament and not the Framework Decision that will govern how our extradition system operates".
  I shall set the amendment in context by briefly reiterating the Conservative Party's overall position on the Bill. First, we agree that our extradition procedures need improving. There are too many opportunities for delay by the malevolent. However, secondly and importantly, we do not think that Part of the Bill is necessary to achieve that. The changes proposed in Part 2 will achieve a sufficient speeding-up of the extradition process. Most importantly, they will achieve it without the reduction in the safeguards for the liberty of UK citizens that is implicit in an acceptance of the proposals in Part 1. Thirdly and finally, we understand that there is considerable public concern about terrorism, post-Twin Towers, post-Bali, post-Iraq and post-Morocco, and we can see arguments for Part 1, if it were to be restricted to terrorism alone. That is our broad position—away with Part 1.
  I am aware that that approach has not—so far, at least—commended itself to the Government. However, if there is to be a Part 1, we should, at least, be open about it and about its consequences for every citizen in the United Kingdom. The Government are not being candid: they are being coy. In his opening speech at Second Reading, the noble Lord, Lord Filkin, rightly reminded us that,
  "Extradition is a classic balancing act. The rights and protections to those who are the subject of extradition requests must be set against the needs of society and of victims of crime to see justice done and done swiftly and effectively".—[Official Report, 1/5/03; col. 858.]
  No one could disagree with those sentiments, but the Minister did not then examine in detail what was in the scales of that balance. On the one side, in the last year for which records are available—2000—there were 47 extraditions and only 78 requests. On the other side—the down side—there is, as many noble Lords pointed out at Second Reading, a significant diminution of the safeguards available to the 55 million people who live in the UK.
  The point of proposing the new purpose clause is to make the Government lay their cards on the table about what is intended in the Bill. What is called the Long Title of the Bill is, ironically and erroneously, short. Before us, we have a Bill to "make provision about extradition". At Second Reading, the Minister spoke about the cumbersome and convoluted extradition procedures currently employed in this country. He spoke about delays and about appeals that cost the taxpayer money and allowed criminals to evade justice.
  However, it would be misleading—to put it no higher—to present the Bill merely as a tool to speed up the extradition process and make it more efficient. In the implementation of the European arrest warrant, we have a fundamental change in the way in which we conduct extradition. We are relinquishing many of the key safeguards enshrined in our criminal justice system.

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  The Bill refers rather nonchalantly to Part 1 and Part 2 warrants, and it is not until Clause 63 that we learn about the celebrated—or infamous, depending on one's point of view—European framework list, with its 32 generic offences. Although Part 2 makes provision for improved extradition, Part 1 has an altogether different aim. Paragraph 5 of the preamble to the framework decision states:
  "The objective set for the Union to become an area of freedom, security and justice leads to abolishing"—
  "abolishing", my Lords—
  "extradition between Member States and replacing it by a system of surrender"—
  "surrender", my Lords—
  "between judicial authorities".
  The reality is that the European arrest warrant is one step in the process of abolishing extradition altogether. It is strange, then, that we do not hear of the framework decision until Clause 63, and stranger still that there is no mention of that aspect in the purpose clause. The Government seem to be trying to pass it all off as the simplification of a complicated extradition process, although the actual aim is to abolish extradition and replace it with surrender for category 1 countries.
  For that reason, I tried to amend the title to reflect the reality of the changes proposed in the Bill. My original idea was that we should have a new title: "The Surrender and Extradition Bill". Unfortunately for me, the kind members of staff of the Public Bill Office informed me that the title of the Bill could be changed only if the substance of the Bill were altered. Nor was I allowed to amend the existing purpose clause. Presumably, there is something undesirably contradictory about a Bill that makes provision for new extradition procedures, on the one hand, but aims, on the other hand, to abolish extradition and replace it with surrender.
  I need not labour the point that the concept of surrender is the fundamental change. Surrender is the final goal envisaged in paragraph 5 of the preamble to the framework decision, implemented in Part 1 of the Bill. The European arrest warrant is the first step towards achieving that goal. Having been stumped in my attempts to enshrine the change in the title or in the existing purpose clause, I opted for another purpose clause that had the advantage of setting out from the start and on the face of the Bill the fact that the law makes fundamental changes to our extradition procedures, in line with the Council framework decision.
  No doubt, the briefing notes elegantly prepared by officials for the Minister could have words to the effect that the amendment reflected the reality of Government policy and should be accepted. Somehow, I doubt that they will. Why? Because the Government are scared of the word "surrender". The use of the word "surrender" will highlight to our fellow citizens the fact that some important changes are afoot. The Government will use every endeavour to
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  keep the word "surrender" out of the Bill, so as to make it easier to slide the significant consequences of the Bill past the country.
  In truth, the amendment is innocuous. The Government should not be shy of admitting the role that the framework decision plays in the proposed changes to our extradition procedures that are laid out in the Bill. I beg to move.
  The Parliamentary Under-Secretary of State, Home Office (Lord Filkin): I thank the noble Lord, Lord Hodgson of Astley Abbotts, for opening with an interesting and, in a sense, challenging amendment. I can summarise my response by saying that the concerns set out in the noble Lord's speech were so far from our mind that we failed to spot that the word "surrender" was the central thrust of his concern. In short, the Bill does not abolish extradition between EU member states. Extradition is the process by which one country sends a warranted fugitive back to another country after due process. That is precisely what Part 1 does. I draw to the Committee's attention the Long Title of the Bill. It states unequivocally that it is a Bill to "make provision about extradition". There we have it: that is the purpose of the Bill.
  I appreciate that the new clause appears to go further than the Long Title and specifies that the Bill is also designed to give effect to the European arrest warrant. The Bill already makes that explicitly clear. In defining extradition offences for the purposes of Part 1, Clauses 63 to 65 refer to the framework decision. This is the implementing part for the European arrest warrant being executed in this country. Clause 142 makes a similar reference, which effectively implements the framework decision for warrants issued in this country to be transmitted elsewhere. There is also an interpretative provision in Part 5 at Clause 203(7), which gives the full title of the framework decision. There is no mystery or secret there.
  The new clause refers to the Bill being about extradition, as well as implementation of the EAW. Part 2 is concerned with extradition to non-EU countries and sets out clearly the procedures to apply. Therefore, I failed to see what the new clause might add to the Bill. It occurred to me, however, that the intention behind the amendment was that the Bill should be restricted to those purposes. Again, I do not think that there is any cause for dispute on that. The Bill is clearly concerned with extradition and with nothing else. If there was anxiety that it might have been intended that the Bill should be used incrementally to add on other things or as part of a process of creep, I can say that it is a single purpose Bill. The brevity of the Long Title attests to that.
  There are, inevitably, transitional or related provisions that must be made. We have provisions to extend the presumption in favour of bail in Clause 193; to apply legal aid in Clauses 184 to 186; to clarify police powers in various provisions in Part 4; and so forth. All of those are clearly defined in the extradition context and in that context only.

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  We shall, in due course, come to the transitional provisions concerning requests issued prior to January 2004, which is when the European arrest warrant will come into effect. They are requests that are currently on the Schengen Information System being operated by other member states in the EU, and we will need the capacity to deal with them when the UK becomes a party to the system in 2004. Such requests can be made only on the basis of a pre-existing domestic arrest warrant issued by a judicial authority and would normally require the permission of that authority to be placed on the system. As we have explained, that is a limited short-term measure to put beyond doubt any question that such warrants are in some way less valid than one issued after 1st January 2004. In any event, the potential for challenge will not affect warrants issued once the European arrest warrant has come into effect, which is why the provision has such limited application. However, it was clear from the remarks of the noble Lord, Lord Hodgson, when speaking to his amendment, that that was the central thrust of his argument. Nevertheless, it is now on the record, should that be of help.
  I am not certain that I will necessarily have satisfied the noble Lord, Lord Hodgson, on these matters because, in a sense, the position of the Government is clear. It is not that this is a part of a dreadful process of creep towards corpus juris, but that we need an effective system of extradition if we are to fight international crime. The Bill does that. It is why we regard the legislation as necessary and important. For those reasons. I hope that I have been able to help in part, if not in full.
  3.45 p.m.
  Lord Wedderburn of Charlton: I want to ask my noble friend at the Dispatch Box whether I heard him right. He said that he failed to see what might be added to the Bill by Amendment No. 1. I repeat, did I hear him right in that? Although the amendment lacks merit in certain respects, for some of us it does make things clear. First, if it were added to the Bill, it would make it clear that Part 1 is not primarily concerned with terrorism. Of course Part 1 is not primarily about terrorism, it goes back to a long time before September 11th. One can date it from 1999. I know that while the Government like to link that development with the whole debate on corpus juris—I hope that Members of the Committee will not be detained too long on those debates—this is a project that goes back to the origins of the European arrest warrant.
  Does not the Minister agree with one point rightly made by the noble Lord in moving his amendment; namely, that the objectives set for the Union, presumably to which the Government subscribe—this legislation is instrumental in securing our agreement to the framework decision—are leading to the abolition of extradition and replacing it with a system of surrender? It is perhaps permissible to consider that the very abbreviated Long Title to the Bill is even somewhat misleading when it states "Make provision about extradition". The Bill makes very necessary provisions on extradition proceedings. Anything I may say in this
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  Committee or elsewhere should not be taken as expressing anything other than my support for updating the law on extradition. However, as is required by the framework decision, Part I introduces a system of surrender. It does so, quite naturally, by amending the law which has governed extradition procedures in this country. Therefore the amendment before us adds to our understanding of the Bill which, on first reading of the Long Title, might remain obscure.
  Whether the wording of the amendment could be improved is another matter. I had expected my noble friend to say something about the wording, but again that is another matter. However, its thrust exposes the fact that the Long Title is missing something that could be added at the outset. Of course I am experienced enough to know that many complications arise when seeking to amend the Long Title of a Bill. Nevertheless, while the Bill concerns extradition, Part 1 especially seeks to give effect to the framework decision about the European arrest warrant and surrender procedures which are explicitly stated in that decision to be the object of the Union.
  I must apologise to noble Lords because I shall have to leave the Committee proceedings before they finish this evening. However, I should make it clear at the outset that I speak on this matter for one main reason: any amendments I move or speak to will have one primary aim; that is, to defend the human rights of ordinary people. Part 1 raises questions for noble Lords to consider and I hope that those rights will be the thrust of the debates on particular matters. Therefore to declare, "This is what the Bill is all about", has more merit than has been given to it by my noble friend at the Dispatch Box, who said that he failed to see what it could add.
  Lord Filkin: I do not think there is much that I can add to what I said in response to the noble Lord, Lord Hodgson, apart from agreeing with my noble friend Lord Wedderburn that the Bill is not concerned primarily with terrorism, it is about extradition. The Bill is not about the abolition of extradition. As I have already explained, Clauses 63 and 65 make it clear that the legislation will not abolish extradition. However, the last thing I wish to do during what is obviously a preparatory discussion is to enter into an area of controversy on an issue which appears to he in the nature of a perfectly legitimate probing amendment seeking to mark certain political points.
  For the reasons I have explained, I genuinely believe that the Long Title is appropriate for its purpose. Furthermore, the framework decision does not use the term "surrender" but, as the noble Lord, Lord Hodgson, indicated in the extract of my letter he read out, once enacted, this Bill will govern our extradition procedures. Part I will put in place extradition arrangements which involve due process as a consequence. I shall not trouble the Committee by going further than that at this point.
  Lord Mayhew of Twysden: I wish to intervene briefly. First, I express my pleasure at the fact that, in his first response, the Minister did not indicate any

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  objection in principle to a purpose clause. It is helpful to include a purpose clause in what is a complex Bill. Furthermore, the trend in legislation is to try to make it more user-friendly and easily understood. I was glad therefore that the Minister did not evince any objection to the principle. I think that the purpose clause which forms the subject of this amendment fulfils those purposes very well.
  I have four or five brief questions to which I would be grateful if the Minister could respond. First, is not the framework document which derives from the Tampere meeting absolutely critical to our extradition arrangements? The answer to that has to be "yes". Secondly, does it not introduce a detailed system of surrender? Again, the only answer to that question would be "yes". Thirdly, does it not need to be implemented into our domestic law in order that our obligations under Tampere and the framework document are fulfilled? My last but one question is: does not the Bill achieve just that? If not, what else does it achieve?
  The noble Lord will be relieved to hear that the question was in fact my last. However, I believe those to be quite important questions of principle. If the answer is "yes" to all except the last query—that nothing else would be achieved except that of meeting our obligations under Tampere—then what on earth is the objection to setting out in the first clause of the Bill that the purpose is to do just that?
  Lord Filkin: The noble and learned Lord asked first whether the framework decision is critical to our extradition arrangements. We believe that the decision is extremely important in seeking to put in place a better system of extradition in our relationships with European Union member states. As I signalled in the debate at Second Reading—I thought that we had a good debate—there are substantial benefits for British citizens as a consequence. I shall not go into detail at this point, but I am sure that Members of the Committee will recollect that the key issue was that it would allow us to bring to trial over here people who otherwise would have avoided justice and who are currently avoiding justice.
  Secondly, yes, the framework decision puts in place a system of extradition. Thirdly, the framework decision does have to be implemented in British legislation. The noble and learned Lord is absolutely correct. I make again a point that I think was made clear at Second Reading. If the decision is to have legal force in Britain, and if we are to derive the benefits that it will bring to British citizens, then it has to be legislatively enacted by Parliament. Until such time as it has been enacted, we shall not derive those benefits.
  Finally, while the Bill does give effect to the framework decision, it also governs extradition with the rest of the world. I hope that I have answered the questions advanced by the noble and learned Lord.
  Lord Lamont of Lerwick: The argument appears to turn on whether this is merely an alteration in extradition or whether it marks the shrinkage of the
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  extradition procedure to such an extent that either it justifies the word used by my noble friend—"surrender"—or, as others have used it, the phrase, "the abolition of extradition". If it is not an alteration, as has been maintained by Members on this side of the Committee, perhaps the Minister can remind us by how much the Government expect the speed of handling extradition cases to increase. In the past the Minister has referred to the length of time that extradition proceedings can take and has implied that that is wrong and intolerable; we must shorten the process. He has put a figure on that. Can he remind us of what is now the average length of an extradition case and what he expects it to come down to?
  Once we have the figure, can the Minister then tell noble Lords how it is to be achieved? What will be cut out? Plainly something must be cut. What kinds of cases are being cut? What stages of cases are being cut? As I recall from what he said previously, we are to see a quite dramatic reduction in the time that extradition cases are expected to take. How is that to be achieved and what is to be cut out?
  The Minister has stated that safeguards are still built into the process. No doubt he will refer to Clause 21 which concerns human rights. However, to judge from all that has been said about the validity and the mutual recognition of the legal systems of other countries, it does not appear that Clause 21 will be invoked in very many cases. Although it is long on words, given the comments about the legal systems operating in other countries within this single legal space, one would not expect it to be used all that much.
  We do know that dual criminality is to be abolished and that the grounds on which extradition can be resisted are to be narrowed. This is important because it is one of the premises of the whole argument. There should always be wider grounds to plead against extradition, not only on those such as, "I am not Mr Brown, the accused; I am Mr Smith". I say that because extradition by itself places the accused in an extremely difficult position. The accused is taken to another jurisdiction where he is less likely to secure bail because he is a foreigner. Because he is less likely to secure bail, he will be less able to prepare his defence. Following that are all the other points that we have discussed: whether he will understand the proceedings; whether adequate interpretation will be provided; and the matter of legal representation.
  There is quite a strong presumption that a person being extradited is placed at a disadvantage. That is why there ought to be in place a process and a series of hurdles. You cannot have an automatic extradition process. Because of that, it is incumbent on the Minister to prove to noble Lords that this is not just a system of automaticity. He must prove that proper extradition cases will be heard. Given his remarks about the shrinkage in time, I remain unconvinced.
  Can the Minister also give the Committee further information about how the system as it is being set up compares with extradition proceedings between the individual states of the United States? I understand—I stand to be corrected because I may be wrong on this—

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  that in certain states such as California, people may not always be extradited to states such as Alabama, except in serious murder cases, because of concerns about the quality of justice in Alabama. That is something which can be brought before the courts. It is not something that can be easily brought under the Bill. I want the Minister to compare the single legal space of the United States and the single legal space that has been created in this sense in the Bill because I would be very alarmed if extradition were to become even easier from one country to another in the EU than it is between states in the United States. It would be helpful to have a detailed statement later about the United States and extradition procedures between the two as that is relevant to our considerations.
  As the framework decision has been mentioned,en passant I ask the Minister: is it right that there is a delay in Austria's implementation of this directive in terms of extraditing its own nationals or has that now gone? My main point is the reason why there has to be some kind of procedure and whether we are not shrinking it so much that actually there is some validity in what is being said about this being called "the abolition of extradition"?
  4 p.m.
  Lord Filkin: The thrust of the question of the noble Lord, Lord Lamont—
  Lord Stoddart of Swindon: Is the Minister going to answer every contribution individually?
  Lord Lamont of Lerwick: Yes.
  Lord Stoddart of Swindon: That is unusual.
  Lord Carlisle of Bucklow: Perhaps I may return to what my noble and learned friend Lord Mayhew said.
  Lord Stoddart of Swindon: Can we clarify the position? Are we to have a discussion as normal on the first amendment where the Minister responds at a later stage, or is he going to reply to each contribution?
  Lord Filkin: After the noble Lord, Lord Hodgson, had moved and spoken to his amendment, I looked around the room. Members were sitting down and silent. I therefore stood up to make my response to the debate. During my response, my noble friend Lord Wedderburn asked whether before I sat down—although I seem to recollect that I was—I would answer some further questions, which, out of courtesy, I did. Since then it appears that the debate has reopened on the amendment. Therefore, I have sought to be courteous to Members and to respond to their questions. That is my understanding of what has happened. I am always open to the advice of the Committee and the Chair if I am wrong in my understanding.
  Baroness Anelay of St Johns: On behalf of my noble friends perhaps I may offer this clarification. In Committee, one of the great advantages for BackBenchers is that once the Minister has responded at any stage of the debate they are able to ask questions.
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  Members on the Front Benches are able to ask questions or to make speeches towards the close of the debate and we do not try to reopen it.
  Surely it is one function of Committee that any Member, but in particular Back-Benchers, may make speeches at any time. It is only in that way that BackBenchers manage to hold the executive to account. That becomes progressively more difficult for them as we progress to the Report and Third Reading stages. If I am mistaken in my understanding, it is important to have that made clear by the Chairman and the authorities. I would not wish, for example, the speeches made earlier by my noble and learned friend Lord Mayhew of Twysden to be considered as an intervention, which is how the Minister referred to them. I realise that that may have been a slip of the tongue.
  The Deputy Chairman of Committees: Before anyone goes further, I ask Members not to suggest that the Chair can intervene in these matters, because it cannot. If there are matters of procedure which need clarification, it is normally the Whips who would intervene, but certainly not the Chair.
  Lord Carlisle of Bucklow: I thought he noble Lord, Lord Stoddart, was being unfair to the Minister. The Minister was showing his usual courtesy to the Committee in attempting to answer a speech made by my noble and learned friend before other Members has entered the debate. I appreciate that, although I hope that we shall have general debates on the various amendments as we go through the Bill.
  I want to return to the point made by my noble and learned friend Lord Mayhew, which I think is important. He asked: what is the objection of having Amendment No. 1? I get more and more worried about the complexity of legislation and its wording. At Second Reading I had the temerity to point out that in a Bill that was said to be intended to simplify the law of extradition, we were in fact starting to consider a Bill of 213 clauses and 116 pages for the purpose of simplifying one Act of 38 clause that covered 33 pages. That is true of many other parts—this is no party-political criticism—of the legislative procedure today. We have become very complicated in the language we use.
  My noble and learned friend Lord Mayhew is asking what is wrong with having a first clause which sets out the purpose of the Bill so that people at least understand where they start. I understand that the Minister did not suggest that my noble and learned friend's purpose was not an accurate one in the intentions of the Bill. Therefore, I believe there is some advantage in having the new Clause 1 setting out that purpose before we consider the various clauses that follow.
  Lord Stoddart of Swindon: I was not being unkind to the Minister. Indeed, I was amazed by his courtesy in replying to every Member as soon as he finished making his speech. So I was certainly not criticising the Minister. I thought that perhaps he was making more

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  work for himself than was absolutely necessary. As the Committee will know, I always like to be helpful to Ministers if at all possible.
  I think that the amendment is perfectly reasonable and necessary. The reason it is necessary is that we seek to implement the framework agreement in the same Bill that deals with extradition. The problem with the Bill is that it is two Bills. It is two Bills because Parts 1 and 2 aim to obtain different results. Therefore, there should have been a Bill to deal with the framework agreement and then a separate Bill to deal with extradition outside the framework agreement. That is what has caused confusion. As noble Lords who took part in the Second Reading said, if this was a plain extradition Bill about Part 2 there would have been little quarrel with it. Most of us would accept that that would have been a tidying-up operation of the existing extradition procedures.
  The issue has become complicated because of the intrusion into the Bill of legislation to implement a framework directive which seeks to achieve a uniform system in the European Union of exchanging people accused of crimes in various parts within it. It would have been far more honest and—perhaps I may suggest—far easier if the Government had introduced two Bills.
  In the country there is a great deal of confusion as to what is happening. Like noble Lords, people in the country see little objection to Part 2 of the Bill. However, they "fear"—and I use that word advisedly—Part 1 and the framework directive because they believe that it removes from them rights which they previously enjoyed and which they will no longer enjoy. Therefore, this is a good amendment because it makes clear that there are two distinct matters dealt with in a single Bill.
  It is too late for the Government to rethink the issue and to bring forward two Bills; but that is the reason for the confusion; and that is why Amendment No. 1 would be helpful to the Minister and to the Government.
  Lord Filkin: I shall respond first to the points made by the noble Lord, Lord Lamont. He asked the very important and probably the central question that this scrutiny process needs to address—whether we are convinced that there will be a proper process for people who are to be extradited from this country as a consequence of the Bill. In broad terms, I accept that challenge. It seems right and proper that that question should be posited on our first amendment on our first day of our Committee. It is certainly one of the tests and measures that the Bill has to meet. It is not the only one, but it is an important part of the process. I shall touch on that matter now. I suspect that we will need to return to it in more detail at subsequent stages.
  The noble Lord, Lord Lamont, next asked about current time periods. From recollection, the average time taken for a contested case from the United Kingdom to abroad is some 18 months. The average cost for a contested case is £130,000. The noble Lord was right to indicate that we are talking about
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  relatively few cases. Every one matters to the individual, but the average number per annum over recent years has been about 35 outward extraditions. As I indicated at Second Reading, they were for serious crimes in the top few categories. I do not have the exact figures to hand. They were for murder or attempted murder, drugs and international crime of that kind. So they are serious issues, as I am sure that the Committee is aware.
  The noble Lord then asked what period we would expect that process to take as a consequence of the changes. The short answer is probably about three months. Therefore, he was right again to ask the question: what is cut out as a consequence of those changes and does the suspect lose out proper protections as a result? In broad terms, what is cut out is the attempt by some, not all, people charged with serious criminal offences to use the legal system to the utmost to prevent or avoid extradition. It would be surprising if they did not, if they knew that they were to face a charge of murder or serious drug running or so on in another country. They are extremely vigorous in using every available legal mechanism.
  At a later stage, perhaps in a response, I shall go into more detail and specify step by step what currently happens and how people who, understandably from their point of view, seek to avoid extradition by using the legal system to its maximum. That includes the use of judicial review and, if possible, using it again and again to try to delay extradition.
  A further change which we shall reach later in our discussions is the removal of ministerial discretion. I shall not pre-empt our discussion on that issue. Clearly, that is a further reduction in time and process. It is an otiose process, which will be taken out as a result of these actions. That is beneficial because we believe, as I shall subsequently argue, that there is a full, fair and accurate opportunity for someone for whom there has been an extradition request to come before a judge—there is an appeal process against that hearing—and to put their case as to why they should not be extradited.
  I return to the debate we had at Second Reading. that the essential thrust of this issue is about recognising that crime is international. It is much more international than it ever was. It is important that we have effective arrangements to bring to justice people who are charged with crime, whether they commit an offence in this country and then run abroad, or whether they commit an offence abroad and therefore need to be extradited to another country abroad. One of the reasons why this is particularly important in the European Union, although not exclusively in the EU, is that this is an area of free movement.
  Therefore, if the UK persists with its current extradition arrangements we are unlikely to meet the needs of justice or of the victims of injustice and crime. If one can delay extradition long enough, the prospects increase that witnesses will fall away and no longer be prepared, willing or able to give evidence. The matter will become clouded with time. Justice will not be done because the person will not be brought before a proper

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  court to answer for the crime with which he or she is charged. That matters to us and I am sure that it matters to the noble Lord, Lord Lamont. That is why the Bill is necessary. That is why Part 1 and its sensible reduction of unnecessary and otiose legal procedures is part of it. However, I shall answer the more specific element of the question, which I think justifies a more detailed answer, either on Report or by letter before Report stage—simply to illustrate some of what is happening at present, and therefore the way in which Part 1 benefits justice without depriving the accused of a fair and proper hearing as is his or her right.
  The noble Lord also asked about a comparison with the extradition arrangements between different states of the United States. I am certain that he shares my view that the European Union is not, and should never become a federal state like the United States of America. I do not know the detail of how the arrangements work between states, but I shall research it and come back to him.
  The noble Lord asked also about Austria. Austria has a limited extension in respect of its own nationals until 31st December 2008 at the latest, only for offences not punishable under Austrian law. Article 33(1) of the framework decision refers to that. I think that that answers the question.
  The noble Lord, Lord Carlisle, asked what is the objection to a purpose clause. We believe that we already have a purpose clause. The Bill as written sets out its purpose. The purpose of the Bill is to ensure effective extradition. I do not wish to raise hopes, but I will always listen to noble Lords. However, I must in truth say that the Bill's current purpose is a true, fair, accurate and sufficient purpose. I doubt that I will change my mind, but I shall nevertheless reflect on the point.
  The noble Lord, Lord Stoddart, asked, "Why not two Bills rather than one?" I think that I would reverse it and ask, "Why not one Bill rather than two?" We are seeking both to put into practice a framework decision which we think is right and in the interests of British citizens and to bring about wider reform of our extradition laws which we signalled well before September 11th were needed and overdue. The Bill therefore attempts to address that issue in the round. Clearly, as we shall see, there is an intersection between Part 1 and Part 2. It is not simply about the European Union.
  As for a uniform system in the European Union, I think that the UK's position on extradition has always been broadly positive. The UK has always recognised that one has to extradite in order to serve the cause of justice. In 1991 the Conservatives themselves introduced significant changes to extradition which I think have stood the test of time. We have not sought to change that and we do not intend to do so. The problem with many other European countries at present is that they will not extradite to this country. We think that that is wrong. The framework decision and the Bill change that. So a Frenchman who comes to this country and commits a murder will now be brought to trial in this country for that murder. The
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  relatives of the victim will not have to go to France. That person will come here and he tried in an English court for the crime that he committed in England. We think that that is right. I t is an enormous benefit of the framework decision. There are other benefits, but I shall not weary the Committee by going on.
  I shall reflect—although I do not think that I will change my mind on whether anything is wrong with the purpose as set out. I shall certainly take the central challenge put by the noble Lord, Lord Lamont. I shall try to ensure that I can convince the Committee and then the House that there is an adequate system for those accused of an offence so that they can put their case under British justice before extradition.
  4.15 p.m.
  Lord Lamont of Lerwick: I am grateful to the Minister for the way in which he has replied. It was a helpful reply. I stress that I am open-minded on the issue and open to persuasion, although I am currently very unconvinced and very sceptical about the good effects of the Bill. I hope he will forgive my saying so, but at one point he said that he might come hack to the issue on Report. I hope that he will actually answer questions in Committee. To leave it to Report seems to be saying, "We will go away and reflect". With respect. I do not think that it is a brilliant idea to say, "I will come back on Report".
  Lord Filkin: All I was seeking to indicate was that, if I was not able to give as full a response as possible, I would not ignore it but return to it at the earliest opportunity.
  Lord Lamont of Lerwick: I am grateful.
  The Minister said that three months is the time period. If, as I understood it, that meant three months from the time of arrest to the time of extradition, that is a very short period. It does not seem to indicate a lengthy court case. Unlike other Members of the Committee, I know nothing about that; I am simply asking as a layman. However, three months seems an extraordinarily short period. It seems to indicate that the actual court case will be extremely quick and limited. Although we are not debating a one-year period against a three-year period or the possible length of sentence if a person is found guilty, that is part of the interaction of all the other issues. We are not talking about offences of murder but about offences that could carry a one-year sentence. It seems that people could be whisked out of the country after a very fast hearing. The Minister may correct me on that.
  The Minister did not list the grounds on which extradition can be resisted. It can be resisted because of mistaken identity. As the Minister said, it can also be resisted because the crime was not committed in the country requesting extradition. Although we will want to probe the point, I should jolly well hope that one cannot be extradited to a country requesting extradition if the crime was not committed in that country. That is not much to be grateful for. Within the context of the European Union and its current

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  membership, I do not expect that the human rights in Clause 21 could be invoked on many occasions. So what are the grounds on which extradition can be resisted?
  Lord Hodgson of Astley Abbotts: We have had a—
  Lord Lamont of Lerwick: Is the Minister going to reply to that?
  Lord Filkin: I thought that we had addressed many of those issues on Second Reading. However, the first ground goes to the heart of the issue. If a judge thinks that Clause 21 is not satisfied, he or she will refuse extradition. That could not be clearer. It is essentially putting in the hands of a British judge the power to decide whether the test in Clause 21 is met. We will undoubtedly discuss that matter in detail when we reach Clause 21. It gives the judge an extremely important and strong power. Many other tests have to be met in the hearing before the judge, but I shall not weary the Committee now by going into all the details. We will come to those when we come to them. In essence, we believe that the arrangements are necessary to ensure a fair hearing for an individual whose extradition is sought while not allowing that individual so to protract the process that he or she can effectively avoid coming to justice. I hope that for now the noble Lord, Lord Lamont, will accept that that is the position.
  Lord Hodgson of Astley Abbotts: We have had a very interesting debate. I am grateful to Members of the Committee who have spoken in support of the principle behind the amendment. I make it clear that I am wedded not to the precise wording but to the principle that legislation should carry a clear explanation of the proposals and their implications.
  I am grateful to the Minister for his very full reply. However, 45 minutes ago, when initially replying to the amendment, he seemed to be arguing that the Bill "already makes it clear". I think that was the phrase he used. He went on to say that the Bill "makes it clear" in Clauses 63 to 65, 142 and 207. With the greatest respect, members of the public are not able to thumb through such a range of clauses. We owe it to them to provide greater clarity about what the legislation seeks to achieve.
  The Minister also said that I was endeavouring to raise the spectre of the creep to corpus juris. I was not really. I was merely quoting from the framework decision, to which we are signed up, in relation to abolishing extradition and replacing it with surrender. All I am saying is that if that is what the framework decision says, surely we should be telling our fellow citizens that that is happening. A balance may be struck, but it is none the less a balance. If they do not realise it, should we not bring it to their attention? As the noble Lord, Lord Stoddart of Swindon, said, we should also make it clear that there are two distinct parts to the Bill—Part 1 and Part 2, one of which is about changing extradition and replacing it with surrender, the other of which is to do with extradition.
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  I am not stuck on the precise wording, but I am fairly stuck on the principle. I felt that my noble and learned friend Lord Mayhew hit the nail on the head when he asked whether there is a downside to having a purpose clause. It can do no harm and it may help enlighten readers, the public and our fellow citizens. For the time being, I beg leave to withdraw the amendment. However, I will probably want to reflect and bring it back for further consideration.
  Amendment, by leave, withdrawn.
  4.30 p.m.
  Clause 1[Extradition to category 1 territories]:
  Lord Hodgson of Astley Abbottsmoved Amendment No. 2:
  Page 1, line 6, leave out "in Council" and insert—
  "() No order may be made under subsection (1) unless a draft of the order has been laid before Parliament and approved by a resolution of each House."
  The noble Lord said: In moving Amendment No. 2, I want to focus particularly on Amendments Nos. 2 and 261. My noble friends tabled some of the other amendments in the group, which are consequential on Amendments Nos. 2 and 261. I do not think that their amendments contain any differences in principle or approach. The noble Lord, Lord Goodhart, has tabled various amendments in this group. They seem to have the same target albeit they approach it from a slightly different angle. I look forward to hearing his views.
  This group of amendments deals with the procedures for the designation countries in either category 1 or category 2 and the procedure by which Orders in Council throughout the Bill are made. I tabled Amendments Nos. 2 and 261 in a positive, even anticipatory frame of mind. In his helpful post-Second Reading letter, the noble Lord, Lord Filkin, said:
  "my Ministerial colleague Bob Ainsworth said in Commons Committee Stage that he recognised that there were strong feelings on this point and that we would be prepared to consider using the affirmative resolution procedure for designating extradition partners if a strong case for doing so could be made. I have no doubt we shall have a lively discussion on this point during our own Committee stage".
  We are grateful to him for that statement.
  Before I attempt to make that case, and before the affirmative resolution procedure, I should like briefly to mention the rationale behind the drafting of the amendments. Amendment No. 2 probes the Government on the reasoning behind providing for designation of countries to be made by Order in Council. The Bill does not lay down any principles or guidelines governing the choice of territories to be designated category 1 or category 2. However, given the differences between Part 1 and Part 2 which we have just been discussing, surely it is vital that either the Bill explains the basis on which decisions are taken by the Secretary of State or Parliament is allowed a close scrutiny of the decision process. I would like the Minister to explain why such a fundamental decision is subject to Order in Council by the negative procedure.

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  What would be the difference between having an order rather than an Order in Council as Amendment No. 2 proposes?
  Both amendments, one providing for an order by designation, the other providing for an Order in Council, insist on the affirmative procedure. That is a point of principle, judging by the debate on Second Reading, when there was clearly some support from all parts of the House. We have drafted Amendment No. 261, which covers Clause 210 on Orders in Council, to cover all the changes from negative to affirmative procedures, in that way meeting the recommendations of the Delegated Powers Committee.
  The noble Lord, Lord Goodhart, has taken the alternative route and has tabled amendments in each instance, to provide affirmative procedures in Clauses 1, 68 and so on. We have the same aim in mind, however. We chose our drafting to facilitate debate in Grand Committee, where we cannot vote, but we recognise the advisability of tabling separate amendments to each of the pertinent clauses, as the noble Lord has done, when it comes to considering the issues on Report.
  Having clarified the drafting, I shall state the case for the need for the affirmative procedure. As we noted in the first debate, extradition is a matter of striking a balance between what we receive and what we give up in return. I accept that my party's radical approach to Part 1 does not commend itself to all Members of the Committee. However, even the most hardened advocate of the new procedures for the European arrest warrant in Part I must accept that it represents a substantial change. None of us can foretell for certain whether the balance that we are striking is the right one. Moreover, there is that other joker—the law of unintended consequences. Quite often, as successive governments have learned to their cost, legislation does not operate exactly as planned. That is why we need high levels of parliamentary scrutiny and, in turn, why we need the affirmative resolution procedure.
  That is the case "for". Let us now look at the Government's defence to date. First, it depends on precedent. The 1989 Act, in terms of designation, proceeds by Order in Council laid before Parliament after being made. The Government argument seems to be that we have had no scrutiny previously, so why start now? The answer to that seems perfectly straightforward: previously we did not have a system in which one category contained significantly fewer procedural safeguards and protections than the other. Indeed, as my noble friend Lord Lamont drew out of the Minister, the whole purpose of the Bill is to reduce the opportunities for delay currently available to the extraditee. A precedent of that type should not be followed when the system itself is being so transformed by the implementation of the European arrest warrant.
  Secondly, the Government argue that to introduce the affirmative procedure would reduce what they describe as "flexibility". How often is the procedure going to be used? "Very rarely", the Minister has said, so the loss of flexibility can hardly be great. What is
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  certain is that using the affirmative procedure would put people's minds at rest about other countries being slid into categories unheralded and unnoticed.
  The third point that the Government bring up is that we should not be suspicious of the negative procedure since,
  "we have no plans to designate any non-EU countries, other than possibly Norway and Iceland, as part 1 countries".
  That is a quote from the letter from the noble Lord, Lord Filkin, on 12th May. However, as the Home Affairs Committee report pointed out, the Bill effectively enables any country to be designated as a category 1 or category 2 territory. Consequently, there is nothing to prevent territories other than EU member states from being designated as category I territories. We have no reason to doubt the assurances of the present Government, but situations change. Present procedures do not provide sufficient guarantee for the future.
  Fourthly, as my noble friend Lady Park pointed out on Second Reading, deep concern exists about the accession states. The noble Lord, Lord Filkin, made it clear that while accession to the EU would not bring with it an automatic change from category 1 to category 2, it was largely expected that such a transition would take place. I, for one, am deeply concerned at the idea of accession territories becoming category 1 territories without proper scrutiny and almost as a matter of course.
  The problem lies with what the Government like to call the mutual recognition of judicial spheres, which is enshrined in Part I of the implementation of the European arrest warrant. Stephen Jakobi, the director of Fair Trials Abroad, said:
  "I must conclude by giving a solemn warning. In 2004 ten countries will join the Union. Public concern has been expressed by the Commission about corruption in some of them. What evidence we have suggests that this corruption extends to their judicial system. In 2007 Bulgaria and Romania are scheduled to join. There is clear evidence of corruption and third world standards in their criminal justice systems. The principle of mutual recognition of judgements, of which the arrest warrant is but a high profile example, will to some extent export Bulgarian and Romanian standards of justice to all parts of the Union".
  Part 1, and the implementation of the European arrest warrant, is a wholly new step forward, as we would all agree. I see no harm in allowing Orders in Council for designation to be by affirmative procedure; I see, however, a great many dangers in allowing designation without any clear criteria being carried out without parliamentary scrutiny. I beg to move.
  Lord Goodhart: I start by declaring a couple of interests. I am a vice-chairman of the Council of Justice and a trustee of Fair Trials Abroad. They are both organisations that have taken an interest in the Bill.
  I shall speak to all the remaining amendments apart from Amendment No. 261, to which noble Lord, Lord Hodgson, has already spoken. This group of amendments deals with the question of the appropriate parliamentary procedure for the approval of Orders in Council. I entirely agree with Amendment

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  No. 2: no country should be designated as a category 1 country except by an Order in Council that has received the actual approval of both Houses of Parliament. My amendments extend the same principle to a number of other Orders in Council. I welcome the fact that the noble Viscount, Lord Bridgeman, has put his name down in support of the amendments.
  Amendment No. 148 would require the affirmative procedure for designation of a territory as a category 2 territory under Clause 68(1). Under Clause 68, an Order in Council is needed when a country with which the United Kingdom has had no previous extradition arrangements is brought into the extradition net. Extradition has a very serious potential consequence for the individual whose extradition is sought, and it is plainly desirable that there should be parliamentary control over the designation of territories to which people in this country can be extradited. I recognise that our proposal goes beyond the existing practice in the Extradition Act 1989, but the Delegated Powers and Regulatory Reform Committee is right in saying that it is not a precedent that can be relied on and that the practice should change.
  I should also mention the memorandum from the Home Office to the Delegated Powers Committee, which is printed as an annex to its report, which says in relation to designation under Part 2:
  "It may also be necessary to designate countries on an ad hoc basis".
  I have to say that I am not at all clear what that means, and I hope that the Minister will be able to explain what it means. If the measure is intended to apply in cases when there are no formal extradition arrangements, that if anything seems to strengthen the case for the affirmative procedure.
  Amendment No. 151 will require the affirmative procedure for an Order in Council under Clause 70(4), which removes the requirement for providing evidence to support a claim for extradition and substitutes a requirement to provide information. That would make it possible for the court to consider something in the nature of a written statement of the information on which the country requesting extradition relies, but nothing that is in the nature of evidence, which must be given and tested in the courts. That is a major step in making extradition easier. It therefore requires a high degree of confidence in the police and judicial system of the territory that seeks extradition. When that confidence exists, I have no objection in principle to the substitution of information for evidence.
  I recognise, again, that what we propose goes beyond the existing requirements under the 1989 Act. I also recognise that the requirement to provide evidence is already excluded between parties to the European convention on extradition. That is a convention of the Council of Europe, not of the European Union, and therefore includes several states that are not members of the European Union and which therefore may not become category 1 territories.
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  I might not have objected to Clause 70(4) if it had been limited to designation of other parties to the European convention on extradition. Had that been so, it is possible that the negative procedure might have sufficed. However, as it is, Clause 70(4) can apply to any category 2 state. There are many states in that category where it would not be appropriate to dispense with the evidence requirement. I believe that the United States of America is one of them, given the enormous difference in the quality of judgments in the 50 different states, let alone in the federal jurisdiction. In fact, under the new treaty that has just been entered into with the United States, even the need for the provision of information, showing a reasonable basis for the belief that the defendant committed the offence, is excluded on requests for extradition from the United Kingdom to the United States. What is more, it is excluded on a non-reciprocal basis, since that information still has to be provided for the United Kingdom's requests for extradition from the United States. I find the fact that that is non-reciprocal absolutely astonishing.
  I give notice to the Minister that we will pray against the order to give effect to the treaty when the Order in Council that gives effect to it is laid before Parliament. Owing to the contents of that treaty, under the Extradition Act 1989 it is subject to annulment under the negative procedure.
  I agree with the Delegated Powers Committee that Clause 70(4) permits the removal of important procedural safeguards in relation to any designated territory. Therefore, I agree that it is necessary to use the affirmative procedure.
  Amendment No. 168 raises the same issue as Amendment No. 148 in relation to provisional warrants under Clause 72. I do not believe that I need to add to what I have already said, except to point out that in the case of Clause 72 the Delegated Powers Committee also called for the affirmative procedure.
  Amendment No. 182 requires the affirmative procedure for an Order in Council that extends in relation to a particular territory the period of 40 days from the date of arrest in the United Kingdom at the end of which the judge must order the discharge of the person whose extradition is requested if the necessary extradition documents are not received. That Order in Council creates a more limited power than others covered by this group of amendments. However, as the Delegated Powers Committee pointed out, even that extension could have a significant effect on the individual concerned. It could in effect amount to detention without trial. Again, I agree with the Delegated Powers Committee that the affirmative procedure should be required.
  Amendments Nos. 198 and 205 cover the procedure in court. Amendment No. 198 applies to the procedure under Clause 83—extradition for the purposes of trial—while Amendment No. 205 applies to the procedure under Clause 85—extradition after a conviction in absentia. In both cases, the Order in Council may require the judge hearing the application not to rule on the sufficiency of evidence. It would

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  therefore remove an important procedural safeguard. Again the Delegated Powers Committee took the view that the affirmative procedure is required—as did the Home Affairs Select Committee in the Commons. Once again, we take the same view.
  Amendments Nos. 262 and 264 to 266 are consequential. As all those amendments echo the views of the Delegated Powers Committee—as does Amendment No. 2—I hope, as does the noble Lord, Lord Hodgson, that the Government will be able to give a sympathetic response to them.
  4.45 p.m.
  Viscount Bledisloe: I support the amendment moved by the noble Lord, Lord Hodgson. On the matter addressed by the noble Lord, Lord Goodhart, I confess that to me it is a pity that amendments relating to Part 2 of the Bill have been grouped with amendments relating to Part 1. Although I understand the force of what the noble Lord said—in particular, the iniquity of submitting to America not needing to give us reasons that we must give it—I shall not deal with that.
  I seek clarification from the Minister on what countries will be designated and when. As I understood what he said on Second Reading, the intention was that all existing countries in the European Union would automatically be designated, if and when the Bill was enacted. On the other hand, in answer to the noble and learned Lord, Lord Mayhew, the Minister appeared to say that one reason why we must enact the Bill is that, unless we do so, we will not receive the benefits of extradition the other way.
  If that is so for us, presumably, we shall not designate countries in the Union unless and until they have enacted similar provisions. First, will designation be automatic or will other European Union countries be designated only when they have enacted—if that is the right word in those countries—the provisions of the agreement?
  Secondly, assuming that those countries are designated or remain designated only when they have implemented the agreement, to what extent must they implement it? Let us suppose that Parliament passes one or two amendments to the Bill that make it not strictly in accordance with the agreement. Would that mean that we should not receive reciprocity, or would we get extradition from those countries on a similar basis if we had enacted the bulk of the agreement, but with a few details altered?
  Lord Mayhew of Twysden: In order to alleviate an embarrassing silence, perhaps I may, as a member of the Select Committee on Delegated Powers, express the firm hope that the Minister will accede to our recommendations. It is no doubt in the confident expectation that he will do so that the remainder of the committee has fallen silent.
  Lord Filkin: I shall deal with the important questions in reverse order, and then return at the end to the two central questions raised by the amendments tabled by Members on the two Opposition Front
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  Benches. The noble Lord, Lord Goodhart, asked about ad hoc requests. The Extradition Act 1989 allows any country to make an ad hoc request to the UK, even if it has no standing extradition relationship with the UK. That is subject to no parliamentary procedure. We should want to be able to continue to receive such requests and to make judgments about whether it was reasonable to accede to them—for reasons that I hope would be understood.
  The noble Lord, Lord Goodhart, also stated his concern about the UK-US bilateral extradition treaty and his intention to challenge some of those measures when they come before the House. Let me speak briefly to that.
  Why does the new treaty abolish the prima facie evidential requirement for requests from the UK, given that we shall still be obliged to provide it on request to the USA? US extradition law does not permit it to remove the prima facie evidential requirement, but we are in a different position. We have been able to lift the prima facie requirement since 1991. We have already removed it for more than 40 countries, including places such as Albania, Turkey and Latvia. Since the Conservatives introduced that change, there has not been great evidence that that has been a major source of problems.
  So we see no need to impose a more stringent requirement on a well-established democracy, such as the USA. It is to our mutual advantage to remove the prima facie requirement and we see no reason why we should deny ourselves benefits simply because US law does not permit reciprocity. That is not the only incidence of absence of reciprocity in extradition. For example, New Zealand operates a backing of warrant scheme in respect of requests from the UK, even though we do not do so in respect of requests from New Zealand.
  On the question of the noble Viscount, Lord Bledisloe, about which countries will be designated, I shall speak to the matter later, because I trust that we shall reach it, but our current intention is that Part I should constitute EU countries, plus Norway and Ireland.
  Noble Lords: Iceland.
  Lord Filkin: I am so sorry; did I say Ireland? I meant Iceland. I am most grateful for that correction. All other extradition partners will be included in Part 2. All EU countries are expected to operate the European arrest warrant from 1st January 2004. If we fail to enact the EAW, it will be for other countries to decide whether to offer us the full benefits. In essence. the judgment will be with them, rather than with us, about whether the non-compliance is so material that, as a consequence, they do not wish to co-operate with us.
  I turn to the essential debate about the clutch of amendments concerning positive or negative resolutions. I am grateful to the noble Lords, Lord Hodgson and Lord Goodhart, and others who have tabled amendments in that regard. The Bill as drafted provides that all such designations for both Parts 1 and 2 would be by negative resolution. As I have said, that

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  provides for a greater level of scrutiny by Parliament than currently exists, because the 1989 Act provides that most orders are not subject to any form of parliamentary approval—the only exception being those orders that remove the prima facie evidential requirement.
  As has been said, the Select Committee on Delegated Powers and Regulatory Reform made firm and clear recommendations that orders designating extradition partners should be subject to the affirmative resolution procedure. As has been noted, we signalled that our ears were open to hearing the arguments put for that on Second Reading and by the noble Lords, Lord Hogdson and Lord Goodhart, today. Accordingly, I can inform the Committee that we accept the advice of the Select Committee and the arguments made today on that point.
  Noble Lords: Hear, hear.
  Lord Filkin: I shall be tabling an amendment at a later date to provide that orders designating countries as extradition partners—be they in Part 1 or Part 2—should be subject to the affirmative resolution procedure.
  The Delegated Powers Committee also recommended that orders that remove the prima facie evidential requirements from Part 2 countries and that vary the period in which papers must be supplied following provisional arrest should be subject to the affirmative resolution procedure. That is the effect of the amendments tabled by the noble Lord, Lord Goodhart.
  I can confirm that the change that I have just announced will also give effect to those recommendations. Any order designating a country as a Part 2 extradition partner will also, if appropriate, contain provisions removing the prima facie requirement or setting a different period for the receipt of papers. So if the main order designating the country as a Part 2 extradition partner is subject to the affirmative resolution procedure, it follows that Parliament will also be required to debate whether the prima facie evidential requirement should apply or if a period of other than 40 days should be set for the receipt of full papers following provisional arrest.
  I very much hope that the fact that we have made those changes goes a long way to meeting the concerns expressed.
  Lord Goodhart: I am most grateful to the Minister; that certainly goes a long way. However, I seek clarification on one point. If a country should be designated as a Part 2 territory and then, subsequently, it is decided to dispense with the prima facie evidence rule for that country, where a separate Order in Council will be required, will that Order in Council also be subject to the affirmative procedure?
  Lord Filkin: The answer, my instinct tells me, is yes. It would be illogical not to do so, given that they are different measures.
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  However, the second of the amendments tabled by the noble Baroness, Amendment No. 261, would provide that all Orders in Council made under the Bill should be laid before Parliament in draft to be approved by a resolution in each House—in other words, any order-making power other than those to which I have referred. That goes considerably further than the Bill and the recommendations of the Delegated Powers Committee.
  Indeed, apart from the specific recommendations to which I have referred and the one place at which the Delegated Powers Committee said that further explanation was required, which I shall happily give when we reach that point, the committee concluded that the Bill as drafted provides for the right level of parliamentary scrutiny. At paragraph 5 of its 18th report, the committee stated that, apart from the specific points to which I referred,
  "the delegations are appropriate and subject to an appropriate level of Parliamentary scrutiny".
  That being so, I hope that the noble Baroness will accept that the changes that she seeks to make through Amendment No. 261 are unnecessary, although we have been glad to accept the thrust of argument made from both Opposition Front Benches on the central amendments before us.
  I repeat my assurance that we will table a government amendment or amendments to provide for the designation orders to be subject to the affirmative resolution procedure. In the light of that, I invite noble Lords not to press their amendments.
  Lord Hodgson of Astley Abbotts: I am extremely grateful to the Minister for responding so positively; I shall of course withdraw the amendment, pending the government amendments.
  I hope that the Minister will not think that I am ungrateful, but he said quite a lot about Amendment No. 261 quite fast. I should like to read what he said in Hansard, but I am most grateful for what he said and I therefore beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  5 p.m.
  Baroness Anelay of St Johnsmoved Amendment No. 3:
  Page 1, line 6, at end insert "and only applies to persons who have been charged with or convicted of terrorist offences"
  The noble Baroness said: I shall speak also to Amendments Nos. 6, 15, 16, 19, 20, 21, 63, 114, 117, 119, 121, 123, 124, 128, 130 to 133, 135, 130 and, just to put the final seal on it, clauses stand part from 1 to 67. As I am sure that the Committee would agree, that is an horrendous grouping, but I suggested it so that we can debate the issues in the Bill to which we on these Benches have the strongest objection. If we were able to vote in Committee and were not in Grand Committee, I would have separated out the amendments referring to terrorism from those which seek to delete Part 1 from the Bill.

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  Let me turn briefly to clause stand part and why so many amendments are grouped together. I made it clear on Second Reading that we believe that Part I should not be in the Bill and that Part 2 is sufficient and appropriate to cover extradition to all countries. If, as they have said so far, the Government refuse to accept our objection to Part 1 and excise it, our next best preference would be to have Part 1 confined only to terrorism offences.
  In seeking guidance on how to group the amendments, I talked to people at the Public Bill Office. I was advised that the only way in which we could signal our intent to remove Part I altogether was to object to all the clauses in Part 1 standing part and then to say that if Clause I were carried on Report, we would consider the other clauses to be consequential. We would not be too surprised if the Government did not agree with us on that understanding of consequential. Noble Lords will be relieved to hear that I have no intention of speaking to every clause from Clause 2 to Clause 67 at this stage. I want to get out of this room alive.
  I should make it clear that every noble Lord has the right, as we progress through our debates on the Bill, to speak at clause stand part in its place in the Bill. By grouping them together, I am not pre-empting the right of noble Lords to make their points on each clause at the relevant stage. I should also point out that I am not encouraging everybody to take a lot more time. I shall certainly not speak to clause stand part on each and every occasion—perhaps on the odd occasion. I shall try to limit myself carefully. However, I certainly do not want noble Lords to think that I am trying to stifle debate.
  We object to Part 1 for the reasons that my noble friend Lord Hodgson explained earlier. The debate we had on Amendment No. I means that I do not have to go through a lot of detailed arguments that I would otherwise have had to address. I shall simply say that our main objection to Part 1 is that we believe it makes inroads into the civil liberties of British citizens that are unacceptable and unnecessary. It makes fundamental changes and goes too far by eroding the principle of dual criminality at the same time as it removes the backstop power of the Executive to prevent extradition where it would be unjust to allow it to go ahead.
  We have always supported measures to improve co-operation with other countries to fight crime, and we will continue to do so. But we oppose the Government's proposals to harmonise our judicial processes with those of other countries in the EU.
  The Minister commented earlier that he thought that my noble friend Lord Hodgson might be talking about corpus juris in Amendment No. 1. That was never the intention—corpus juris is contained in Amendment No. 3.
  Although the Government say that they have chosen this route as the only alternative to harmonisation, we believe that, because of the way in which the Bill has been drafted, they are achieving the
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  very harmonisation they say they are trying to avoid. We believe this goes far beyond the mutual recognition they say they are proposing.
  Part 1 creates powers to arrest and deport British citizens for activities that are not defined in English law. The list of offences is in practice nothing of the sort—it is a general descriptive list to which Ministers can add at some future date without the need for parliamentary approval. We will naturally debate that matter in detail later.
  This is not streamlining extradition—it is putting it into an EU straitjacket, stripping away the safeguards that we believe are necessary. We can consider those in detail over the next few days of debate in Grand Committee. For today's debate, I thought I should refer only to the most pressing matters.
  I turn to the amendments that seek to limit the operation of Part 1 to terrorism offences. We define terrorism using the Government's own words in Section 1 of the Terrorism Act 2000. We ensure by our amendment that we cover both those who have been charged with and convicted of terrorism offences.
  If we are unpersuaded by the Government's answer that we should not proceed and then take these matters forward to the House on Report, we would of course separate out our amendments regarding the excision of Part 1 from the Bill as against those that would confine Part 1 to terrorism.
  The argument we have put forward on confining Part 1 to terrorism is that there may be justification for surrendering the safeguards that we believe are otherwise necessary to underpin extradition procedures in Part 1 simply because of the unique threat of terrorism. That alone might be enough to allow us to give up those important safeguards.
  I thank the noble Lord, Lord Filkin, for writing to noble Lords between Second Reading and Committee. I was pleased to see him refer in that letter to,
  "the unique threat that terrorism presents".
  He rejects my stance because he says we have to fight against other serious crimes too. I agree with him wholeheartedly—of course we have to fight against all other serious crimes. But where I part company from him is in my belief that they can be fought quite properly with the weapons available in Part 2. Nothing the Government have said so far during the course of our proceedings persuades me that this is wrong.
  At Second Reading, the Minister said, at col. 856 of the Official Report, that he expects a Part 1 case to take three months. He repeated that in his response today to a question put by my noble friend Lord Lamont. The Minister also said, at col. 857, that a normal Part 2 case will take six months. Even with my feeble maths, it looks as though we are being asked to sacrifice the civil liberties being excised from Part I for the sake of three months. I believe that so far the Government have not given a cogent reason for following that line, and that is unacceptable. I beg to move.
  Lord Stoddart of Swindon: I would like to say a few words on Amendment No. 3 and the other amendments in this group. There are considerable

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  worries about the harmonisation of justice affairs throughout the European Union. Those fears have been enhanced and exacerbated by the discussions in the Convention on the Future of Europe. We have heard that there is a proposal for a European Union public prosecutor. If that is not moving us towards a new European judicial space and harmonisation of systems, I do not know what is.
  There are concerns that Part 1 of the Bill is the thin end of the wedge and, as so often happens in the European Union, that we are proceeding by stealth to a position where there is a single area of judicial administration and that extradition will eventually not be necessary. We will all be subject to the same judicial arrangements and an EU public prosecutor will oversee simply everything. I know that sounds farfetched, but many things which were first proposed and dismissed as imagination or nightmare have then come into law. That is why people like myself and an increasing number of others want to scrutinise every little bit of legislation that has anything to do with the European Union.
  One is bound to be suspicious of this piece of legislation on another ground. Indeed, I think the Government deserve some credit for this—I hope they do. The European arrest warrant has, as the noble Lord, Lord Wedderburn, pointed out, been under discussion since 1999. It has been such a long time because our Government were a little concerned about some of the proposals coming forward. Then, suddenly, after 9/11, the matter was given a great impetus and we found we had a framework agreement. The impetus, according to discussions in the European Parliament, was a result of 9/11. One could have understood that an impetus relating only to terrorism might have been reasonable. However, it has resulted not only in issues of unlawful seizure of aircraft or ships or sabotage—included in the 32 items—but a whole schedule of crimes covering just about everything under the sun.
  It seems that 9/11 and terrorism were used to extend the idea of a European arrest warrant and the scope of that warrant. I therefore think it is quite reasonable for the Opposition to put down a limiting amendment. If the amendment were carried, I think much of the opposition to the Bill would be lessened and we would not be so worried about it.
  I am sorry to have taken up the time of the Committee but I think the Government and the noble Lord, Lord Filkin, should know how many people feel about the Bill. They do not like it; they are afraid of it. They believe that it has been rushed and that terrorism has been used to bring forward legislation that has not only an immediate but an ongoing purpose which will undermine the judicial protections in our own system that has protected our people for a long time.
  Lord Goodhart: On the previous group of amendments, my party was in entire agreement with the Conservative Front Bench. On this issue, we are not. We welcome, in principle, the idea of the European arrest warrant. There is no doubt that the
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  existing procedures take far too long, and there is no reason to believe that, for example, multiple applications for judicial review serve the interests of justice. On the contrary, as the Minister said, it is delays which damage the interests of justice. Justice delayed is justice denied, and that is as true of the victims of crime as it is of parties to proceedings.
  If we are satisfied that a person against whom extradition is claimed will get a fair trial in the requesting country, there is no reason why we should require that a kind of mini-trial take place before there can be extradition. Of course, that is a big "if. In many other member states of the EU, a person is as likely to get a fair trial on a criminal charge as in this country. We have a system of criminal justice of which we are rightly proud, but we are sometimes prone to regard it as being somehow superior to the systems in all other countries. That is simply not true.
  Having said that, I admit that there are problems with some member states—for example, Greece, Portugal and, perhaps, Italy—especially on procedural issues. In some countries, there can be severe delays, and, in more than one, there are problems with access to effective free legal representation and interpretation facilities for those who cannot afford to pay for them. We hope that our amendments will go some way towards dealing with those problems.
  The question of the framework list, which was raised, is entirely separate. It would be possible to have Part 1 with or without a framework list. No doubt, we can deal with questions relating to the framework list when we get to them.
  I can see no justification for confining Part 1 to terrorist offences. If Part 1 is not suitable for people charged with other serious offences up to and including murder, it cannot be suitable for people who are charged with but not, at that stage, convicted of terrorist offences. They must be entitled to the same kind of defence against improper extradition as anyone else.
  We do not and will not object in principle, and we cannot, therefore, support Amendment No. 3. We will come to the detail when we get to what we see as the necessary strengthening of the protections of individuals in Part 1.
  5.15 p.m.
  Lord Lamont of Lerwick: The noble Lord, Lord Goodhart, made an interesting and important contribution, albeit a brief one. He said that he did not agree with the thrust of the Conservative Party's arguments on the amendment. None the less, he made certain concessions in his argument that ought to be considered.
  The amendment returns us to the points raised earlier and which I raised when I spoke on Amendment No. 1. I apologise for repeating the point, but we need to remind ourselves that a person who is extradited is placed at a disadvantage compared with a national. A person extradited to this country may be placed at a disadvantage compared with a British

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  citizen. They may not be familiar with the proceedings, and they may not understand them. In the absence of a Eurobail system and because of the fear of absconding, they are likely to be kept in custody, which will separate them from their family and, above all, may prevent them from preparing their own defence. It is because such a person would be placed at a disadvantage that one would argue that virtual automaticity in extradition ought to apply only if serious, serious crimes are involved.
  The amendment refers to terrorism. Perhaps that is too narrow, and it should refer to offences that would carry a sentence of five years or seven years in this country. I remain to be persuaded that the whole apparatus of the Bill is necessary for the whole panoply of offences. Why have we removed the double criminality provision? We heard that Austria had preserved double criminality. The Minister told us in answer to my question that Austria had a derogation on double criminality until—I think he said—2008. I hope that I understood him correctly. It may be that, for that to end, the Austrian Government will have to amend their constitution. I know that one of the earlier problems that they had with the arrest warrant was their constitution. If amendment of the constitution is required, there is no guarantee that it will happen by 2008. If Austria can have some sort of derogation, why cannot we? Double criminality is, at least, one way of having some sort of court hearing.
  I was interested to hear the noble Lord, Lord Goodhart, say that he saw no reason to have a mini-trial. There is a reason to have a mini-trial, if one is concerned about standards of justice. The noble Lord referred to Greece, Portugal and—I think he said—possibly Italy. I should have thought that, in the light of the Greek plane-spotters case, there was every reason to be concerned about standards of justice in Greece. That case was resolved only because of the intervention of the Foreign Secretary. Government-to-Government discussions were held so that an embarrassing situation could be prevented. In the future, when we have the arrest warrant, the Foreign Secretary will not be able to ring up and say, "We think that this is a miscarriage of justice".
  I know that that was not an extradition case, but it could easily have given rise to such a case, and it is relevant that double criminality is disappearing. There were tremendous defects in the handling of that case. There were several categories of defendant and one lawyer provided for the lot of them. One of the people accused—a woman who had sat in a van reading a newspaper—was bundled together with all the others and represented by the same lawyer. I am told that, in Greece, the average salary of a judge is something like £10,000. It is not surprising that there should be some observations about the quality and impartiality of justice.
  It was a concrete case. The noble Lord, Lord Goodhart, mentioned Greece, and we have the case of the plane-spotters in our minds. I see no reason why one should not have a mini-trial on such a question. That is why I support the idea of having some sort of threshold. whether it is terrorism, as has been
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  proposed by my noble friend, or some other threshold. What was said about Greece, Portugal and possibly Italy provides an argument in favour of having some sort of proceedings. I do not believe that a reference to the European Convention on Human Rights in Clause 21 is adequate. The convention has been judged to be consistent with all sorts of things that would appear rather questionable or strange to us. The presumption of innocence seems to operate differently in certain countries from how it operates here, but their practices have been judged to be consistent with the convention. That is why there must be a threshold or some sort of proceedings.
  The noble Lord, Lord Goodhart, said that he did not agree with all that. He thinks that the matter can be addressed by tabling amendments to do with legal aid, translation facilities and bail. I will support such amendments; I agree with their thrust. However, that does not get at the issue of the quality of Greek justice. We will not solve the issue by concentrating on amendments to do with bail, translation facilities or legal representation. A mini-trial of the kind that was suggested for certain offences—not the most serious—is a good idea.
  Lord Donaldson of Lymington: I fully understand the remarks made by the noble Lord, Lord Goodhart, about other forms of justice being different but not necessarily worse. Any judge faced with a system of justice outside his own would be bound to make those noises. I do not necessarily mean that they would be entirely a matter of politeness, although they might, in some cases.
  For someone threatened with extradition from this country—most of whom will be British residents or will be normally resident here—it is this system with which they are familiar. If they are to be extradited to another country with a system with which they are unfamiliar, they will certainly take the view that it is an inferior system for various reasons—some good. some bad, some indifferent. That undermines a theme that has run through all the Government's thinking, as I understand it, which is that there is a straight balance here and that, as long as we can get criminals extradited to this country, the ordinary British citizen will be content that there should be a reciprocal arrangement whereby he can be extradited to another country. I do not believe that for one moment.
  I am sure that the main worry of the ordinary citizen here is the risk that he may suddenly find himself bundled out of this country and tried in another country. However excellent we may say—or even think—the system of justice in another country to be, the ordinary citizen would give up every right to have criminals extradited to this country, if he could be sure of his own judicial safety.
  Lord Pearson of Rannoch: The problem is further compounded by what the Minister confirmed at Second Reading. If there is any doubt as to whether a crime has been committed, it is purely the issuing magistrate who will define the crime. My noble friend Lord Lamont of Lerwick used the example of the

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  plane-spotters. If the extraditing magistrate said that they were guilty of sabotage or were indulging in computerised crime because they were carrying pocket PCs, that would be the end of the matter. That aspect of the arrest warrant makes the amendment or something like it more necessary.
  Lord Filkin: I shall deal first with the specific points and will return to the general case for why we think that amending the Bill to confine Part 1 to terrorism would not be appropriate.
  I do not apologise for re-stating the broad picture. In the Government's view, there is nothing wrong with the European arrest warrant. It is a step forward in achieving justice for British citizens and with other member states. Great benefits will flow to justice and the fight against crime as a consequence of the warrant. I do not wish to over-state the case, but the warrant is a necessary part of effective action against serious international crime in the context of people's increased mobility. There are full and adequate safeguards to protect the individual from mischief or wrongful process as a consequence.
  If I commit an offence abroad, I should face trial for that offence. If someone from abroad commits an offence in Britain, he should be brought to trial here. It is not in the interests of justice not to support and promote such principles, subject to the important qualification referred to by the noble Lord, Lord Lamont of Lerwick—namely, that there should be a fair process for bringing people to trial. That is not in the interests of victims or in the interests of more effective action against international crime.
  Let me turn to the concerns of the noble Lord. Lord Stoddart, about harmonisation of judicial procedures. I think that I shall shock him when I say that the Government share many of his views. The harmonisation of judicial procedures is not on our agenda and it is not our intent. Turning specifically to the European public prosecutor, I have been pleased to be part of the process of discussion with my fellow Interior and Justice Ministers about why this is an inappropriate remedy for an issue of crime or fraud against European Union budgets. We are making some progress on the argument, but I shall not delay the Committee by going into further detail as it would be inappropriate to do so at this point.
  5.30 p.m.
  Lord Stoddart of Swindon: Perhaps I may ask the Minister a question on that point. I understand that at present we have a veto on this, being a third pillar matter. If we assume that the convention proposals are introduced—which again I understand would collapse all the pillars—so that instead of having one unified treaty or constitution, would that mean that we would lose our veto? Whether in the future we had a public prosecutor or further harmonisation would not depend on the British Government because qualified
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  majority voting would apply and the Government, no matter how good their intentions or how similar to my own they were, could or would be overruled.
  Lord Pearson of Rannoch: I wonder if I could query what the Minister said. I have a letter dated 10th December 2002 written by his colleague, Mr Dennis MacShane, the Minister for Europe. I do not know exactly to whom it was written because it is addressed to "Dear friend". In the letter Mr MacShane sums up the Prime Minister's and the Government's view on what they want out of the Giscard convention on the future of Europe. Obviously they start by seeking a proper constitution for Europe, but it is the second point which seems to go against what the Minister has said. It states that they want:
  "A stronger Commission: with real authority to ensure Europe's rules are obeyed".
  I suggest that then comes the killer point, which is quite simply this:
  "Tackling crime and bringing justice to Europe's citizens should be communitised".
  There it is, and it is that which worries us.
  Lord Filkin: I do not wish to be discourteous either to my noble friend Lord Stoddart or to the noble Lord, Lord Pearson, by not going into detail. I shall be pleased to discuss the issues at another time.
  In short, the issue of the European public prosecutor is being debated in the draft constitution. The current draft puts it in subject to unanimity—a lock—rather than to qualified majority voting. The Government's view is that even that goes further than we would wish. It is not subject to QMV. However, these are broad issues and it would be helpful to hold further discussions on another occasion.
  On whether this has been rushed, the Government's discussion paper of March 2001, which Members of the Committee may recollect was produced before the events the following September in the United States of America, proposed a system very similar to that set out in the Bill covering all serious crimes. In fact, the framework decision was heavily influenced by the United Kingdom's own proposals for the reform of extradition. We have never claimed that the European arrest warrant should be limited to terrorism, nor has anyone else. The discussion paper clearly did not focus on that.
  I am grateful to the noble Lord, Lord Goodhart, for his welcome in principle to the European arrest warrant, and his recognition that delay damages justice, both for the person who is charged and, even more important, for the victim. The issue must be brought to a fair conclusion. However, this is not the time to go into further detail on the specifics.
  We touched on this point at Second Reading, and all I would mark is that one either takes a position that we should never extradite until every country to which we are extraditing has either exactly the same judicial system and processes as ourselves, or that we harmonise our judicial processes. Both of those seem to me to be positions that the Government would not wish to take. Alternatively, we can recognise that the

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  interests of justice are served, after a proper process of testing, to allow people to be extradited to face trial in other countries. There is nothing new in that. It has been the practice of United Kingdom governments for over 100 years. We have been positive and cooperative partners on extradition, whereas others have been laggards.
  As a consequence, we see no case at all for confining the process only to terrorism, as I believe the noble Lord, Lord Goodhart, concluded. However, the noble Lord, Lord Lamont, was right to point out that this touches in part on his earlier argument. He questioned whether the focused and shortened procedure set out in Part 1 gives an adequate opportunity for a person to make the case that they should not be extradited. Our position is quite clear on this. We believe that it does, and the Committee process, along with the other stages of our discussions, will test and challenge it.
  Given that there is an adequate process for a person who is the subject of an extradition request, in our view there is no justification not to allow other crimes and charges to be subject to Part 1 requests for Part 1 processes of extradition to countries where we believe it is reasonable to do so. In a sense that will be the focal area of our debates in Committee and I am happy to repeat my acknowledgement of that to the noble Lord, Lord Lamont.
  I wish to make one qualification on what the noble Lord said about Austria. Austria does not have a derogation in respect of dual criminality. It is not permitted to extradite its own nationals in cases without dual criminality until it amends its constitution, or by 2008, whichever is the earlier. That is the position.
  With regard to the Greek plane-spotters, as we know that was not an extradition case. We discussed this at Second Reading. In fact the people concerned were bailed to the United Kingdom. They then returned to face trial, and all credit to them. However, had they been charged and had they then moved to the United Kingdom, while I do not wish to comment in detail, there would have been no particular reason why we would not have acceded to an extradition request from the Greek Government for people charged with espionage, which was the charge laid. I repeat that that is totally in line with legislation introduced in 1991. Had the Greek Government made the case, we would have looked reasonably at the issue. However, I cannot prejudge the case without looking into it, but in principle there is no reason why we would not have agreed to extradition.
  Lord Lamont: Surely if that had been an extradition case, prior to this Bill, would not dual criminality have applied? It would have been said that there was no case for extradition. We all know that the case against those people was absurd and a disgrace. What defence could they have made? I am astonished to hear the Minister say that we would not have objected to their extradition. Of course it is a matter for the courts, but
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  it would have been a scandal if they had been extradited. Again, surely they would have been protected by dual criminality.
  Viscount Bledisloe: With respect, perhaps the noble Lord has misunderstood the rule against dual criminality. The charge made against them was one of espionage. As the Minister pointed out, that is also a crime in England. The complaint made was that we did not think that the evidence added up to espionage. But so far as dual criminality is concerned, they would not have got out of it on those grounds.
  Lord Filkin: That is exactly correct. The charge of espionage meets the dual criminality test. I shall not delay the Committee on that point, but return to the heart of the matter.
  Lord Lamont of Lerwick: Is that all?
  Lord Filkin: On the Greek plane-spotters? Yes, it is.
  If Part 1 should be used to extradite terrorists, that begs the question why it is not appropriate for other serious criminals. All Members of the Committee understand that international crime seriously affects the lives of our fellow citizens, whether it be the scourge of the trade in illegal drugs, of people trafficking or of promoting illegal immigration into this country.
  The amendments could lose the great benefits afforded us by the EAW framework decision—the real benefits of being able to seek the return of nationals from countries which currently refuse to extradite their own nationals. We would lose the benefit of being able to extradite those who commit fiscal offences. I indicated that previously in relation to someone who had defrauded the Exchequer of more than £1 million. The Italians would not extradite him to face trial in this country because they did not have an exactly identical charge or crime in their country. That person therefore escaped justice. We would also lose the benefits of the speed of extradition that the instruments would give us with our own fellow member states.
  There is a significant difference between three months and six months. If the person is brought to trial within three months, the prospect is greater that he will face justice appropriately than if it is six months or more. The delay is not in the interests of the victims of crime who, as we signalled previously, must be paramount. We do not see why those who commit serious crimes should not also be subject to the fast-track procedures that we propose for Part I, which strike the right balance between ensuring the right to fair treatment under the law as well as speed of decision.
  We have already heard, and will no doubt hear further, that that is too different from current procedures. However, we need to start unpacking why that is. What is it in Part 2 that is lacking in Part 1 that makes Part 1 so unacceptable? It seems to boil down to two issues, or three at the most.
  First, people might cite the ability to have repeated judicial review challenges that seek to delay the day. I do not in all honesty believe that that is the thrust of

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  the argument from Members of the Committee who are concerned about the measure. I do not believe that the repeated delaying mechanism—the ability to keep on mounting a judicial review even though it has no merit or hope—is what is really being sought.
  Perhaps, then, Members are concerned about the other two issues: ministerial involvement and dual criminality. I am slightly surprised to hear the charge that ministerial involvement is something that we need to keep in these Part 1 cases. In essence, we should be open about what value it would add in the Part 1 cases. In short, Ministers exercising ministerial judgment in this respect have always to be thinking of the judge on their shoulder and whether any judgment that they make would stand the test of judicial review.
  Therefore, Ministers must, if asked to make a ministerial judgment, reflect as to what the court would decide if it was challenged. They are almost acting in a quasi-judicial function already. Our position is that we should let the court decide those issues in the limited circumstances in which Part 1 cases seem to us appropriate. Clearly, we are not for a second saying that Part 1 cases are appropriate for all countries.
  On dual criminality, I put two questions. Do we believe that when someone is residing in a country they should obey its laws? If the answer is yes, do we think that it is unacceptable that a person should be able to evade justice if they manage to get over the right border before being brought to justice? Without wishing to be contentious, those are the questions that we should all ask ourselves.
  The Government's position is clear: if we wish to have a reduction in international and domestic crime, we must have an effective system that brings people to face justice speedily and effectively while giving them the protections to which they are entitled against unfair process.
  Lord Lamont of Lerwick: Would that not depend on the gravity of the offence? Does a sense of proportion not come into it? I have read in newspapers that France is introducing a new offence of whistling during the national anthem. I do not know whether that carries more than one year and therefore becomes an extraditable offence but, if it does, in common sense someone should not be extradited for that.
  Lord Filkin: That touches on an important issue. The noble Lord, Lord Lamont of Lerwick, is again right about the threshold for the processes. We will debate that in some detail when we come to it. The noble Lord signalled that the threshold that we propose or that the framework decision proposes is too high and that he would be happier with a framework based on a five-year sentence. We will debate those issues. In a sense, we are arguing about a threshold, rather than a principle.
  Lord Carlisle of Bucklow: The Minister posed two questions. Is there not a third? If the person has come
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  back to this country from another country, should he be returned to that country to stand trial for something that would not be an offence if done in this country?
  Lord Filkin: The Government's position is that he should. When in Rome, one should do as the Romans do. If we do not take that position, we are basically saying that, as long as someone can run for a border fast enough, he will escape justice. That is not a credible or responsible position, given the reality of international crime. I do not wish to put it too bluntly, but, if I were a terrorist, I would hope that the amendment would be made.
  Lord Carlisle of Bucklow: The Minister must agree that the sort of serious crime that he mentioned is already covered by the Bill. We are talking about the removal of dual criminality in cases that may be of minor importance.
  Lord Filkin: I do not think that some of the examples that I gave were of minor importance, in terms of the statute of limitations, which we talked about at Second Reading, or in terms of fiscal offences, in some countries. We will come to the matter in more detail at another time, but the thrust of the dual criminality issue is that we do not want to have a pedantic, if I may put it that way, emphasis on having an exactly identical law for serious matters—we will discuss those serious matters later—that would prevent someone from facing justice.
  If we adopted such a position, we would make it more difficult to bring to trial people who should be brought to trial. That is not to say that they should be convicted, but they should, at least, be brought to trial.
  5.45 p.m.
  Lord Stoddart of Swindon: Like others, I believe that, in the last analysis, it is the Government who should protect the citizen and the citizen's rights. The Home Secretary believes in intervention in judicial decisions. Only recently, he said that he intended to take certain actions that would allow Ministers to intervene in matters of sentencing and in decisions on asylum and immigration. Ministerial involvement is not necessarily a bad thing. The Home Secretary believes in it in certain circumstances.
  I believe in ministerial involvement in this circumstance. A citizen will be physically removed from this country to another jurisdiction, where, as has been said, the laws will not be properly understood and will not equate to those to which he or she is used in this country. So that there is, in my mind anyway, a case for ministerial involvement. I hope that the Government will reconsider their attitude on this issue, particularly bearing in mind the Home Secretary's announced views with great press coverage that he also believes that Ministers should be involved in the judicial process.
  Lord Mayhew of Twysden: Perhaps I may intervene while the Minister is considering how to reply to that. I would not wish to align myself with everything that the Home Secretary has recently been saying about the

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  judges. Indeed, I do not think that I would wish to align myself with anything the Home Secretary has recently been saying about the judges.
  I was touched and gratified to hear the Minister speak of Ministers always having regard to the "judge over their shoulder" because when I was the Attorney-General I sponsored the little booklet with very entertaining graphics entitled Judge Over Your Shoulder. That has had a salutary effect because it has meant that Ministers in purporting to exercise their functions have had to have regard to the limits of judicial review. They do not put themselves in the position of the judicial authority. All they do is to look at the road that he or she has taken. If he has taken a wrong turning and misdirected himself and behaved unfairly, the judge says, "Go back and do it again. Start again and see where you get to this time following the right road".
  So I believe that judicial review, contrary to the opinions of the Home Secretary and be it said some of his predecessors in my government, will be an effective curb upon the abuse of executive powers. That is not to say that there does not remain a place for ministerial involvement in extradition, or so I believe. The Minister will not have the answer at his fingertips now, but I should like him to reflect on why the extradition legislation for over 100 years has involved a ministerial position.
  I can think of a rather sensible reason. However, I do not know whether research shows that this has been the explanation all along. It is that it is extremely important that any extradition procedure in this country should carry the confidence of the ordinary public. Let us take the perhaps slightly fanciful example of a British citizen who is arrested in Spain for interfering out of principled motives with a bull fight because he takes a particular view about bull fights. He returns home and extradition is sought to enable Spanish law. which may be a savage law in those circumstances, to take its course. It seems important from the point of view of confidence among the ordinary public in the extradition system, that a Minister should have the ability to decide whether extradition using British law enforcement officers should be activated to send that person back to undergo trial.
  I am not presuming to say what the answer should be but I think that there is, in terms of public confidence, a proper place for a Minister at the process end of the judicial proceedings. Perhaps the Minister might care to reflect upon that.
  Lord Filkin: I shall deal with the last two interesting interventions. I had forgotten when I read the noble and learned Lord'sJudge Over Your Shoulder many years ago that it was a product of his actions. I am pleased to learn about it, as one always is.
  In short, for reasons that are clear, our position on Part 2 cases is that there is a need to retain ministerial involvement, but there is not for Part 1 cases. At this point I have nothing further to add to what I have said already on that.
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  I turn now to some of the further practical reasons why we think the differentiation that has been made between terrorism and other serious offences is inappropriate. The consequence would be that when dealing with a country, we would have to put in place parallel regimes, depending on the ostensible purpose of the crime in question. Thus there would be one extradition for Spain if one was dealing with terrorist offences and another for non-terrorist offences.
  A more substantial problem may arise that may be instanced by, say, a bank robbery that had taken place in Madrid, the perpetrators of which had fled to the UK. Are we saying that the different extradition procedure would apply depending on whether the motives of those bank robbers were for personal gain or to fund the activities of, for example, ETA? 'That would invite the courts to try to inspect what was the motivation of the perpetrators of that crime. That is a challenge that it would be foolish to ask a court to undertake.
  It matters as a distinction because the involvement of paramilitary groups in non-terrorist crime, as the experience of Northern Ireland shows, demonstrates that this issue is of profound importance to the United Kingdom. Perhaps I may remind the Committee of what Lady Sylvia Hermon said during the debate on the Third Reading of this Bill in another place. She does not sit on the Government Benches and she is the wife of a former Chief Constable of the then Royal Ulster Constabulary. She has considerable knowledge of these matters. She said that:
  "Paramilitary terrorist organisations, both loyalist and republican, smuggle weapons, fuel and cigarettes. Given that the paramilitary terrorism that we have had to confront is so closely tied to other very serious offences, [the] proposal to narrow the definition to terrorism would do a great disservice to the people of the United Kingdom".—[Official Report, Commons, 25/3/03; col. 248.]
  We agree with those comments.
  One real and very terrifying example of this was recently highlighted by the conviction of the Real IRA operatives responsible for a campaign of car bombing in Birmingham and London during 2001. Noble Lords will recall the destruction and injury caused at the BBC Television Centre at Ealing Broadway two years ago. On 9th April 2001 John Steele wrote in the Daily Telegraph that the case,
  "provided clear evidence of links between Irish terrorists and mainstream crime".
  He went on to explain the sobering concept that one tactic apparently employed by those men to conceal their terrorist activities was to,
  "hide behind their involvement in 'ordinary, decent crime".
  I do not need to labour the point. It is well known to noble Lords, but certainly today in particular some Members of the Committee will be well aware of the strong links between terrorism and other forms of crime, and the way in which ordinary crime—if I may put it that way—is used by terrorists to fuel and support their activities. They are inextricably linked and any attempt to deal with them by using different procedures would be fraught with difficulty and complication.

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  In his speech at Second Reading, the noble Lord, Lord Hodgson, which as promised I reflected on after the debate, said that the Government's example of a terrorist funding his network by drugs was "extreme". I would now say in all candour that, in the terrorist fraternity, such practice is commonplace and this Government and this House have to deal with that awful reality. These amendments would not help our cause in doing so.
  I should like also to turn to Amendments Nos. 124 and 135 which seek to remove subsection (7) from both Clauses 63 and 64. These subsections relate to conduct which would amount to an offence under specific provisions of the International Criminal Court Act 2001.
  What conduct or actions are we talking about here? This covers genocide, crimes against humanity and war crimes. I am sure we all agree that those are the most serious of crimes. Because we take very seriously our responsibilities concerning such crimes, the UK takes extra-territorial jurisdiction in order to deal with them. We would certainly want to be able to extradite for them as well. Why seek to remove those parts of the Bill which would allow us to deal with them? Our current extradition law allows us to deal with them and it was amended specifically for that purpose, so we are adding nothing new. We simply continue to maintain our commitment to bringing war criminals to justice.
  All these provisions are clearly drafted to mean that the dual criminality test will always have to be met for such conduct. The wording explains that it would apply only where conduct constitutes or, if it took place in the UK, would constitute such an offence. That is the definition of the dual criminality test. In that respect, there is nothing new or sinister here. We look simply to continue our observance of the UK's international obligations to ensure that war criminals are brought to justice.
  I shall not go into further detail at this point. This has been an important debate which has served to set out some of the areas to which no doubt we shall return and test further. In the light of what I have said and given our present procedures, I invite the noble Baroness, Lady Anelay, to withdraw her amendment.
  6 p.m.
  Lord Pearson of Rannoch: Before the noble Lord leaves this subject, he has mentioned several times the benefits to the United Kingdom which the Government see arising from the European arrest warrant as proposed. Could he remind the Committee of how many extra suspects do the Government believe the United Kingdom will get back as a result of passing Part 1 in its present form? I do not think that he has touched on the matter this afternoon and I cannot recall it being covered at Second Reading. What is the balance between what the Government see as the advantages of bringing people back to try them
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  here and the disadvantages many of us see in accepting that the judicial systems of Italy, Greece, Belgium and other countries are as good as our own?
  Lord Filkin: As the noble Lord, Lord Pearson, knows, I do not accept his basic premise that this is in some way a trade-off along the lines of, "Let us put up with a bit of difficult practice here because we get some benefits". We do not see that there is anything wrong at all with the European arrest warrant process as it is intended to be legislated for in this Bill. We do not perceive it as flawed or risky, and that is what will be tested and judged. I do not grant that premise.
  On the specifics of what the noble Lord has asked, I do not think that I have ever given an estimate of the numbers of extra cases that might be brought to trial. It would be quite difficult to do so because several variables would come into play. However, I shall not say "no" out of hand. I shall reflect on his question and if it is possible to indicate a quantity, I shall do so.
  The point I intended to make in terms of the benefits of extradition is that it would not simply bring more people to trial, it concerns also trying people in what many would consider to be the right place. I shall repeat an example I made earlier because I am not sure whether the noble Lord was in his place at the time. If a Frenchman comes to Britain and murders a British citizen here, at present that French person cannot be brought to trial for that murder in this country. He would be tried in France. It may be that he would get a fair trial and that the French process would work well. I am not saying that it would not do so. But it seems wrong that the witnesses and the family of the victim would have to travel to France to have the case heard rather than having it heard in the country in which the crime was committed. I shall say no more, but that was one of the points I instanced earlier.
  I hope that, if not to his entire satisfaction, I have at least responded to the noble Lord.
  Baroness Anelay of St Johns: In the Minister's response to my noble friend Lord Pearson he has encapsulated the difference between us by saying that the Government see nothing wrong with the European arrest warrant, that it is perfect in its current form and in the process under which it will operate. It appears that the Government believe that they have given birth to a perfect baby, but we see it as something already in the form of a difficult adolescent.
  I shall not seek to summarise all the points made by noble Lords in this important debate, but I should like to thank my noble friends Lord Pearson, Lord Lamont and my noble and learned friend Lord Mayhew for their support in these matters. I was particularly struck by the comments made by my noble and learned friend Lord Mayhew with regard to the proper role of a Minister in extradition matters. We shall return to that in detail in later amendments.
  I am also grateful for the support of the noble Lord, Lord Stoddart, who made the important point that there is a genuine fear that we are drifting by stealth

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  towards harmonisation. That is where the difficulty arises because there is a difference between us in principle here.
  With his usual courtesy, the noble Lord, Lord Goodhart, made it clear well in advance that he could not support my amendments, so his remarks came as no surprise. We differ on the principle of how we approach the European arrest warrant. We do not see it as an undeniable good that has to be wrought upon us. However, we agree with the noble Lord, Lord Goodhart, on the practical matters that he explained so clearly. We worry that the judicial systems of other countries are not sufficiently robust to bring justice to those who are then extradited. There are differences between other countries to which the noble Lord, Lord Goodhart, referred. I might add to his list of difficult countries in terms of trust that of Belgium as regards its police systems. In previous debates the noble Lord has raised the matter.
  The Minister spoke of a trade-off and said that we would benefit from other people being extradited back to this country. I still return to the fact that my first concern is this: what are we giving up for our people who are resident in this country? Which civil liberties must be given up? What will be the price that we pay? We shall debate those matters in great detail later.
  I conclude with one comment. The Minister said clearly: "When in Rome, do as the Romans do". He emphasised time and again the point that if you are abroad and you commit an act that is an offence in that country, then you should jolly well expect to be prosecuted for it and, if found guilty, to be convicted. That underlies the entire thrust of the argument that the Minister seems to have been developing throughout the debate; namely, that if one believes that, then ultimately Part 2 should drift into Part 1. Part I would be expanded.
  Lord Filkin: I am sorry to interrupt the noble Baroness. I wish I could claim that I had chosen Rome deliberately because it is within the European Union, although in a sense that makes my point. We were talking about the Part 1 processes for countries where we think it is appropriate to do so. Therefore we were not saying and have never said that to be the situation for any country in the world. We are talking about the narrow circumstances of Part 1.
  Consistent with that, we have agreed to use the affirmative resolution procedure for the designation of any country in Part 1, recognising the concern to ensure that, without expecting that anyone will find a perfect judicial system anywhere in the world not even here—if a country looks to be a reasonable enough extradition partner, we can use the procedures set out in Part 1 rather than Part 2. I intervene to ensure that there is no misinterpretation that I had implied that if someone committed a crime in an appalling police state named X, we would automatically bang the accused back. Not for a moment was I saying that.
  Baroness Anelay of St Johns: I am grateful for that clarification. I have to say that I had hoped that the
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  Minister would say exactly that. The difficulty, however, is that we still must come back to what happens in countries already in the European Union and the fact that we are not guaranteed that the Part 1 procedures will be applied only to existing EU members. That creates the additional difficulty that offences created in the future in other countries may be added to the framework list—by unanimity in a ministerial decision, it is true, but it could happen. Thus we are trying to aim static provisions at a moving picture. It is the moving picture that worries us so much.
  The Minister finds fault, for example, with our definition of terrorism. The courts already have to work with the Government's definition of terrorism when they decide each and every case in this country. We see that as a difficulty that we trust our courts to determine. We do not necessarily trust the procedures applied abroad to be able to determine properly decisions that will have to be made as a result of the procedures set out in the Bill. The Minister will therefore not be surprised to learn that I expect to return to these amendments on Report. He will also not be surprised to hear me say that I look forward to our later discussions on the very important safeguards that are enshrined in further amendments. not only from these Benches, but from all sides of the Committee. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Clinton-Davismoved Amendment No. 4:
  Page 1, line 9, leave out "may" and insert "must"
  The noble Lord said: In moving Amendment No. 4, for the convenience of the Committee, I suggest that we should also consider Amendment No. 5. First, I should like to make a short point. I live in a world of optimism in that regard. My first point is that the issue which this amendment addresses is very simple. Since my stroke, I speak very slowly, so I think that the Committee is bound to make rather slower progress than is usual.
  This clause retains the possibility that a state capable of imposing the death penalty can be allocated into category 1. I welcomed the Government's statement declaring that they will not allocate to category 1 any state which uses the death penalty. But, in my view, the use of the word "may" renders the clause rather ineffective. There is then the possibility that a country could still be included in category 1 regardless of whether it imposes the death penalty.
  The clause then limits the remit of the provision to the death penalty under the general criminal law of the territory. I ask, therefore, whether capital offences defined as coming within the general criminal law would be so caught. Would terrorist-related or emergency legislation be defined as coming within the general criminal law? How are military tribunals to be covered?

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  I submit that the clause as currently worded does not provide any effective safeguards or progress the discussion of criteria for allocation, a subject which remains rather opaque. I beg to move.
  Lord Goodhart: Amendment No. 5 in this grouping is tabled in my name and I welcome the support of the noble Lord, Lord Clinton-Davis. However, I am afraid that I did not return the compliment by adding my name to Amendment No. 4 because I do not think that it is necessary. The words "may not" inevitably equal "must not" in the particular context. However, in my view Amendment No. 5 is needed. It concerns a point raised originally in briefing by the Law Society.
  Subsection (3) states that:
  "A territory may not be designated for the purposes of this Part if a person found guilty in the territory of a criminal offence may be sentenced to death for the offence under the general criminal law of the territory".
  It makes plain sense to stop at the words,
  "may be sentenced to death for the offence",
  thus leaving out the phrase,
  "under the general criminal law of the territory".
  What is meant by those words? Do they exclude emergency law? Do they exclude military law? Are they meant to leave open, for example, the possible imposition of the death penalty under Article 2 of the 6th Protocol to the European Convention on Human Rights which permits the death penalty to be imposed for acts committed in time of war or imminent threat of war?
  All those possibilities open a wide loophole. A state could abolish the death penalty under the general law, but keep draconian powers to apply the death penalty, for example, in times of internal insurrection. It would be best to get rid of those words or to tighten and clarify the definition of the circumstances under which the death penalty could in fact be applied.
  6.15 p.m.
  Baroness Anelay of St Johns: I shall deal first with Amendment No. 4. I certainly support the spirit in which the noble Lord, Lord Clinton-Davis, moved the amendment. However, like the noble Lord, Lord Goodhart, I think that perhaps in drafting terms, it is not necessary. If my Chief Whip told me that I "may" not do something, of course I would not do it. "May" means "must" so far as I am concerned.
  Any matter with regard to the death penalty is one of personal choice in political terms when one votes. Members of this Front Bench will be supporting not only these amendments but all other amendments with regard to safeguards that need to be imposed to ensure that persons are not extradited to a place where they might then face the possibility of a death penalty.
  The noble Lord, Lord Goodhart, has very effectively explained the amendment on which we received briefing from Liberty. I shall not repeat that. We shall return to the question of the death penalty later in Part 2 with Clause 93. I simply say that I support Amendment No. 5. The clause as currently
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  worded does not provide the effective safeguards we need, nor does it take forward properly the discussion of criteria for allocation which, as the Law Society says, is opaque in this respect.
  Baroness Turner of Camden: I also support Amendments Nos. 4 and 5. I very much welcome the Government's frequently stated policy that they will not extradite people into territories or countries where it is not certain that capital punishment will not apply. As my noble friend Lord Clinton-Davis stated, the Bill leaves a bit of a loophole, as indeed the noble Lord, Lord Goodhart, explained. It would be much better if this were clearly stated on the face of the Bill as:
  "A territory [must] not be designated for the purposes of this Part if a person found guilty in the territory of a criminal offence may be sentenced to death for the offence".
  Full stop. I think that is appropriate. I hope that the Government will be prepared to accept it.
  Lord Mayhew of Twysden: I endorse the support for the policy of the subsection. It has been, I do not know for how long, and it was certainly the policy of the last Conservative Government not to extradite to a country where the death penalty could be imposed. There was a case called Soering which caused tremendous complications. The Commonwealth of Virginia sought to extradite Soering. Its Attorney-General had been elected on a strong pro-capital punishment ticket. I shall not go into the details, but the extradition request had to be downgraded by Virginia so that he was tried for a lesser offence which did not carry the death penalty.
  It is important that we should maintain that position. It has been the policy of successive governments for a long time. It is a good thing that is defined in statutory form. I agree with the noble Lord, Lord Goodhart, that the words are possibly productive of doubt and really are not needed. It is enough to say,
  "where he can be sentenced to death".
  One might possibly say,
  "where he can lawfully be sentenced to death".
  But under the general criminal law the words seems to be unnecessary and potentially troublesome.
  Viscount Bledisloe: I share the aim of the noble Lord, Lord Goodhart, but does he actually have the procedure right? The provision goes to designation of a country and not to extradition or an actual offence. A country is designated when it does not have the death penalty. It then has a political crisis and introduces, as the noble Lord, Lord Goodhart, presupposed, emergency legislation or martial law, which includes the death penalty.
  First, the noble Lord's amendment will not say that in that case the country's designation has to be revoked. Surely he needs a further provision elsewhere stating that even where a country has been designated and does not have a death penalty under its general law, if it changes that in relation to a particular type of offence, there cannot be a Part 1 extradition. It seems a little strange that if a country introduces martial law

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  under which one can be executed for rebellion or subversion, that that would then prevent one from being extradited to that country for fraud, blackmail or so on, which is not covered by the death penalty at all. While the intent of the noble Lord, Lord Goodhart, seems good, I am not currently convinced by his method.
  Lord Bassam of Brighton: I am grateful to noble Lords for having tabled the amendments and to the noble Lord, Lord Goodhart, for the amendment standing in his name. It will help us to put on the record and to clarify at least one issue to everyone's satisfaction.
  The amendments are concerned with the provision in the Bill which ensures that no country retaining the death penalty can be designated as a Part 1 country. Perhaps I should explain the history of that provision, although the noble and learned Lord, Lord Mayhew of Twysden, has given us some of the history, since it was not in the Bill when it was first introduced.
  As we have previously indicated, it is our current intention to designate only EU countries together with, perhaps, Norway and Iceland as category I countries. None of those countries retains the death penalty in any circumstances.
  It is not impossible that Parliament might one day decide that certain key Commonwealth extradition partners should be in Part 1—Australia, Canada and New Zealand are countries which spring to mind. Again none of those countries use the death penalty in any circumstances.
  The United States of America is the only country with which we have any significant volume of extradition business that retains, and uses, the death penalty. For the avoidance of doubt, let me make it clear that we have never had any intention of designating the USA as a Part 1 country, and, indeed, the USA Government have made it clear to us that they would not want to be so designated.
  In addition, the human rights clauses in the Bill mean that we would be unable to extradite in any individual case where there is the prospect that a death sentence would be carried out. So I hope the Committee will agree that the prospect of anyone ever being extradited to a category I country to face the death penalty is remote indeed.
  Nevertheless, the Home Affairs Committee in another place recommended that there should be an explicit provision to the effect that no country which retains the death penalty can be a Part 1 country. While we believed, for the reasons which I have just given, that this would make no difference in practice, we were happy to go along with the Home Affairs Committee's recommendation, as we were with many of its other recommendations. The result is now contained in Clause 1(3). It simply provides that no country which retains the death penalty can be designated as a Part 1 country.
  So I can assure my noble friend Lord Clinton-Davis that the use of the word "may"—as several noble Lords have rightly recognised during the course of the
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  debate—is absolute for these purposes and does not allow any means of getting around the provision. So, his amendment to substitute the word "must" will not serve any purpose. Similarly, I am not sure what the other amendment in the group would achieve. It may be that it is designed—
  Lord Clinton-Davis: If we did use the word "must" instead of the word "may" my noble friend has implied that there would be no difference. So why do we not use the word "must"?
  Lord Bassam of Brighton: The answer is because there is no need to. It is commonly used and understood in these circumstances—a point made by the noble Baroness, Lady Anelay, and equally well by other noble Lords. We are content with the current wording. To change it to "must" would not add anything.
  It seems that Amendment No. 5 was inspired by concern about civil offences or perhaps military offences in particular. We are not aware of any such countries and there are certainly none among those countries which we could ever possibly consider designating as category 1 countries. We do not think that the amendments are necessary. I hope that the reassurance I have given, in particular with regard to Amendment No. 4, satisfies Members of the Committee. We cannot always satisfy everyone in these debates. I hope for those reasons that the noble Lord will feel able to withdraw his amendment.
  Lord Corbett of Castle Vale: I apologise for having to slip out earlier and I in no way want to antagonise my noble friend, who is such a valuable member of the House of Lords' tug-of-war team. My noble friend twice spoke about countries which retain the death penalty. Twice in the last century, one current member and one prospective member of the European Union had military dictatorships imposed on them. I do not know the detail. Reference was made earlier to the possibility of martial law being introduced in those circumstances and the death penalty being extended to all kinds of offences that those responsible for the break in democracy did not like. Is the implication of Clause 1(3) and what the Minister has said, that in the circumstances where this is not retaining the death penalty and it is reintroduced, that the category 1 designation would then be revoked?
  Lord Bassam of Brighton: It is rather better than that. If there was a military dictatorship, Clause 21, which relates to human rights, would of course prevent us from extraditing to those countries to which my noble friend has drawn attention.
  Lord Mayhew of Twysden: The Minister might think that there is a case for reviewing the wording of the subsection. I am afraid that I do not have in my mind exactly what was in the mind of the Home Affairs Committee in another place. I suspect that it wanted an absolute assurance that no one would be sent hack to a country which has the death penalty in respect of an offence that could carry the death penalty there. I do not feel that the Minister has quite addressed the

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  point raised by the noble Viscount, Lord Bledisloe, about whether it really is the Government's policy that someone should no longer be able to be extradited for a serious fraud, for example, simply because it is a country which has become one that uses the death penalty. The issue needs to be looked at again. I quite see why the Home Affairs Committee in another place may very well have wished to be absolutely certain that no one should he sent back where there is a risk that they should suffer the death penalty in respect of the offence concerned, but there seem to be certain possible unintended or undesirable ramifications which need to be either addressed now or looked at again.
  Lord Bassam of Brighton: I have listened with great interest to the noble and learned Lord, Lord Mayhew. Yes, obviously we will revisit the wording if that is helpful. I thought we had made clear what our position was and for that reason put in the new Clause 1(3). I hope also that the words that have been spoken today into the Official Report make it fairly clear that it is absolutely our intention that we would not seek to extradite in circumstances where someone was at risk from the death penalty. That is the Government's position.
  Viscount Bledisloe: I am unclear what the noble Lord is saying. We have a country which does not have the death penalty at all. It is therefore able to be and is designated. I t then has martial law introduced. That allows the death penalty for certain limited offences. Is it intended that that designation will immediately be revoked totally? Or is it intended merely that if the extradition is requested for an offence that could carry the death penalty, that extradition will be refused under Clause 21?
  We have two very different circumstances. As I understand Clause 1(3), the Government have decided for some reason that if you have the death penalty for any offence however remote—for example, a special form of treason—you cannot be a category I country for any offence at all. The noble Lord's answer about a country that changes its laws appears merely to be saying. "They will remain designated, but if the offence in question is a death penalty offence, then Section 21 will bite and the person will not be extradited, on human rights grounds." Could the noble Lord more clearly explain the Government's position'? If this is a new point and he would prefer, will he write to us about it?
  6.30 p.m.
  Lord Goodhart: I am sorry to intervene on this. However, would not the most likely position be that if a country reintroduced the death penalty, it would cease to be eligible to be designated under Part 1, but it would of course be possible to re-designate it under Part 2—in which case the protections against extradition for death penalty offences which apply to
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  Part 2 would come into play, although it would still be open to extradite in that way for fraud or any other serious offence?
  Viscount Bledisloe: With respect, the noble Lord has missed the point. Designation is a one-off event. If you are designated, you are designated by an Order in Council. That Order in Council, regardless of whether it is subject to the affirmative procedure, stands. It would be well and good if the Government were saying that we would immediately de-designate any country that had martial law and introduced the death penalty for an offence under it. However, they have not said that, and I do not believe that they mean it. I do not think that they should mean it.
  Lord Bassam of Brighton: The noble Viscount, Lord Bledisloe, raises an important point. I thought and hoped that we were clear on that, but perhaps it is worth reflecting on it between now and Report. It is worth putting on the record the general point that both the human rights clause and ECHR case law have established that we would not extradite in any individual case where there was a prospect of the death penalty. It would then be for Parliament to revoke the designation order. However, that does not necessarily cover the noble Viscount's point. It is important that we reflect on this to ensure that we have the policy absolutely right.
  Lord Clinton-Davis: I am quite a difficult chap to convince. Nevertheless, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 5 and 6 not moved.]
  Baroness Anelay of St Johnsmoved Amendment No. 7:
  Page 1, line 11, at end insert—
  "() A territory may only be designated for the purposes of this Part if it is a party to the framework decision on the European arrest warrant and the surrender procedures between Member States."
  The noble Baroness said: In moving Amendment No. 7 I shall also speak to Amendment No. 9 which is in the name of the noble Lord, Lord Goodhart. I thank Liberty for its briefing on the amendments.
  Earlier this afternoon, a while ago now, when speaking to Amendment No. 2, my noble friend Lord Hodgson talked about the importance of using the affirmative procedure for designating territories. He spent some time setting out the reasons why we feel that it is right to get the designation of territories right. I was therefore very interested to hear in the previous debate the intervention of the noble Viscount, Lord Bledisloe, with regard to designation and de-designation. I think that that whole debate is key to the debates on how one designates countries and which countries should be designated.
  In his response to the previous group, the noble Lord, Lord Bassam of Brighton, talked about the extended shopping list of countries that might be added in future. Ministers have previously been rather more cagey about extension. Although we certainly

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  heard comments on the record about Norway and Iceland, Ministers have been a little more cautious about extending it to the ex-Commonwealth countries. I have heard asides, but I have not heard anything else put so clearly on the record. It was an interesting and important comment for the noble Lord, Lord Bassam of Brighton, to put on the record.
  The principle behind the amendment is to try and insert into Clause 1 some criteria for which countries can be designated as the Part 1 countries. The lack of guidance and clarity on this issue is clearly not something that perturbs only me. The noble Lord, Lord Goodhart, has tabled amendments which refer to bail policies and say that the country should accept the right of petition to the European Court.
  Speaking only to my own amendment, I presume that the Government will come back at me and say that to insert my specification for category 1 territories would be "inflexible"—which is the type of word that Ministers use. I do not think that that is a particularly valid argument in this case. Simplification of the extradition procedure and the consequential removal of certain traditional safeguards, which we have already discussed today, have been agreed to by the UK with other EU member states under the Eurowarrant scheme. So Part 1 of the Bill is designed to transpose the substance of the European arrest warrant into national legislation.
  The Home Office Select Committee report voiced the following concerns on the issue:
  "As the Bill is currently drafted, there is nothing to prevent an Order in Council designating a country which is not a signatory to the framework decision as a category I territory, meaning that a country which is not bound by that decision could still have the benefit of article 2.2 of the decision. A non-EU member state could therefore request that the UK extradites a suspect for an offence that does not constitute an offence in the UK".
  I would welcome some clarification from the Minister about whether territories that have not signed up to the framework decision will be designated as category 1 territories. In addition, perhaps rather than naming the future countries which he envisages, I hope that he will endorse what the noble Lord, Lord Bassam of Brighton, has said. However, if he does not want to do so, perhaps he will be more forthcoming in setting out the criteria that will form the basis of the categorisation.
  I turn briefly to Amendment No. 9, tabled by the noble Lord, Lord Goodhart. I shall listen with interest to his exposition of the amendments. I simply note that when I read a briefing from Fair Trials Abroad—which I thank very much for taking the time to come to the House in order to brief my noble friends on the Front Bench—I was a little concerned about the impact of Amendment No. 9. Fair Trials Abroad pointed out that countries could claim that they accepted the right of individual petition to the European Court, whereas in practice and in the experience of Fair Trials Abroad it would be very difficult for individuals to appeal successfully because of problems of corruption and discrimination against non-nationals in the country where the trial was taking place and because of the expense of pursuing a
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  successful petition. However, if the noble Lord, Lord Goodhart, is able to show that those matters have been overcome, I think that he could be on to a winner.
  With regard to my own amendment, I beg to move.
  Lord Goodhart: I wish to speak to Amendment No. 9, which is in the same group as Amendment No. 7 which was tabled by the noble Baroness, Lady Anelay. Amendment No. 9 has a similar purpose to Amendment No. 7 but allows rather more leeway. Amendment No. 7 is limited to parties to the framework decision. Those parties must necessarily be member states of the European Union, whereas Amendment No. 9 can extend rather more widely.
  As I said in a previous debate, we welcome the fast-track process where we have confidence in criminal procedures in the requesting state. On that footing, we would be entirely happy with the proposal to extend category 1 status to Iceland and Norway and indeed to some non-European countries such as those mentioned by the noble Lord, Lord Bassam. However, I think that there should be some criterion beyond merely the absence of the death penalty to limit the Government's power to add new territories to category 1. I suggest that a suitable criterion would be the acceptance by the relevant territory of some exterior tribunal to which individuals can apply in cases of alleged breaches of human rights.
  In the case of member states of the Council of Europe such a tribunal already exists in the case of the European Court of Human Rights. It certainly appears on the whole that even in countries such as Turkey which are not as good as some other countries in observing human rights there is a fairly active system of appeal to the European Court of Human Rights.
  In the case of non-European countries, it has to be said that it is harder to find a suitable tribunal. However, the International Covenant on Civil and Political Rights has an optional protocol that enables an individual to bring a complaint before the Human Rights Committee which has been set up under that covenant. The Human Rights Committee can consider the facts and publish a report on the complaint, though admittedly it is a report rather than a judgment. Signing up to the optional protocol is not therefore an ideal basis for the criterion, but in many parts of the world it is the best that can be done.
  In answer to the point that the noble Baroness very fairly raised when she said that some countries subscribe to the European Court of Human Rights or to the optional protocol but would still not be suitable for category 1 status, I entirely accept that. However, my amendment does not suggest that all parties to the European Convention on Human Rights or to the optional protocol were in fact suitable for immediate category 1 status. It seems to me, however, that countries that are not parties to the European convention or which have not signed the optional protocol have shown a reluctance to allow individual cases to be subject to an independent scrutiny by an international body and that that reluctance should disqualify them from category 1 status. It would

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  remain entirely within the Government's discretion whether in other cases they felt that it was suitable to approve category 1 status or whether those countries should remain in category 2.
  Amendment No. 9 therefore would allow the Government to negotiate category 1 status with states outside the European Union but would exclude from category I status any territory which has refused to accept the international oversight of individual complaints over human rights breaches.
  Lord Filkin: These amendments are concerned with which countries can be designated as category 1 extradition partners and in what circumstances. The effect of the amendment from the Official Opposition would be that the only countries which could be so designated would be those which had signed the framework decision on the EAW. That in turn means the member states of the EU together with Norway and Iceland which have so signed. The Liberal Democrat amendment goes slightly wider by allowing any country which has signed up to and operates the provisions of the ECHR to be in Part 1. That encompasses a rather wider range of European countries.
  It is the Government's intention, as we have indicated, that the only countries that should be subject to Part 1 procedures are precisely the ones covered by the official Opposition amendment—the member states of the European Union plus Norway and Iceland. However, I do not think that it would be wise to limit the future quite as tightly as that amendment would indicate. It would limit the room for manoeuvre of our successors if they decided that there were good reasons to bring before Parliament the case for putting a non-European country into Part 1. My noble friend Lord Bassam trailed that point by referring to Australia, New Zealand and Canada. Although we currently have no intention of doing that, it is not outside the bounds of possibility. The day may come when one thinks that there are benefits in doing so. If that were so, one would make that proposal to Parliament. The USA is of course precluded from such designation in Part 1 for as long as it retains the death penalty.
  Those three countries are all established democracies, where the rule of law is respected. However, I hasten to stress that we have no plans to remove those three countries, or any other non-European countries, into Part 1, although it does not strike me as impossible. There may be a strong case for doing so in future, but that is not being deceptive; we are simply leaving open the possibility. Therefore, we need to retain a flexibility—although I hate to use that word—to cope with the situation, as the noble Baroness, Lady Anelay, suggested. I indicated by the amendment which I signalled we would table that we would not be able to do so, and we would not wish to be able to do so, without making a proposal that would have to stand the test of an affirmative resolution of both Houses of Parliament.
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  The noble Lord, Lord Goodhart, raised some thoughtful additional points, as ever. I do not want to raise his hopes by signalling that I will reflect, but I do not want simply to be dismissive and strike it out altogether. I shall use some of the time between now and Report stage to reflect on the balance of advantage and disadvantage. With that, I hope that the noble Baroness, Lady Anelay, will he minded to withdraw her amendment.
  6.45 p.m.
  Baroness Anelay of St Johns: This would certainly have been a probing amendment, even if we had not been in Grand Committee. My objective was to elicit from the Minister some explanation of the criteria on which the Government were going to operate. I have failed signally in that regard. The Minister said that he did not like the amendment because it was too much of a straitjacket and too limited. I would certainly agree with him on that, if we must proceed as the Government want, and there may be a better way of limiting the scope of designation to Part 1 countries.
  The Minister said that it was unwise to limit the provision because we do not want to prevent people in future from adding other countries. The difficulty is that we still do not know on what criteria the Government will operate when we reach that stage.
  Lord Filkin: I am sorry to have to intervene twice in this way. First, we have not really given much thought to criteria because there is no current intention to add to designation. That does not mean to say that we believe that there should be a rigid set of criteria, but one might at least have to reflect on possible principles.
  Secondly, it would not be someone in future making the decision, but Parliament itself. We have made it clear that adding any country to Part I would he a decision made by Parliament through the affirmative resolution process.
  Baroness Anelay of St Johns: I am grateful to the Minister for that. I was about to move on to the fact that he has helpfully signalled today that the Government will consider introducing amendments on Report that will make designation subject to the affirmative procedure. However, the fact is that by that stage the Government would presumably have had to give some thought to the matter. The Minister made the point that not much thought had been given to the criteria yet. That very much underwhelms me, I must say. Any Government that introduced an affirmative statutory instrument would presumably, at that stage, have to say what the criteria were on which they proposed that a country should be added to the list. One would assume that Parliament would, at that stage, consider the criteria that had been used to put the countries on the list in the first place.
  I feel as if I were going round and round in a circle and getting absolutely nowhere, which is why I shall beg leave to withdraw the amendment. However, I shall have to bring this back at Report to test it further, even if we do not get the Government to consider it in the meantime. It is a matter on which noble Lords will

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  have to establish their views before the Bill goes through the House. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Coodhartmoved Amendment No. 8:
  Page 1, line 11, at end insert—
  "() A territory may not be designated for the purposes of this Part unless it is bound by law not to discriminate against persons resident in other category 1 territories in the grant of bail pending trial."
  The noble Lord said: The amendment is not exactly a probing amendment. It has been moved mainly in order to get the issue of bail on record. I have referred already to Fair Trials Abroad, which helps United Kingdom residents facing trials in other countries, and sometimes the converse. Over the years, it is clear that a main cause of hardship for people arrested abroad is the difficulty in getting bail in foreign countries. British lorry drivers especially, whose lorries are found to be holding something that should not be there, whether it be people, booze or cannabis, are often clapped in jail and held there for months pending trial. That is so even where a local lorry driver would be released on bail.
  The reasons for that discrimination are understandable up to a point. For example, a Spanish defendant who is arrested and charged with a criminal offence in Spain is unlikely to go abroad unless he is a serious professional criminal and can afford to go and live somewhere else. If a Spanish defendant jumps bail in Spain, the Spanish appeal can find him, put him in prison and bring him before the court with no formality. On the other hand, if a United Kingdom resident is charged in Spain and given bail, he will naturally want to return to the United Kingdom. If he does, there is a significant chance that he will not return for the trial, and if he does not go back to answer to hail, there is no quick and easy way in which to get him there. The Spanish authorities would have to apply for extradition which, as we know, even under the new procedure can be a long and expensive process. Of course, the bail can be forfeited, but many defendants are not in a position to find substantial bail, and if they are going to be released, they have to be released on relatively modest bail.
  The simplification of the extradition procedure by the Bill undoubtedly means that it would be easier to get bail jumpers back to other category 1 territories. That is one reason, and an important reason, why I support the European arrest warrant in principle. However, it is still a relatively complicated procedure.
  Fair Trials Abroad has been campaigning, for many years now, for the creation of a Eurobail system. That would mean that a defendant who refuses to answer to bail in another Eurobail country would be returned for trial to that country with the minimum of formality. Of course, there would have to be some formalities—for example, the person who had been arrested could raise the defence of mistaken identity and say that he was not the bail jumper—but the procedure would be kept to a minimum. That would minimise the protections against abuse, but that is a fair balance, because
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  without a Eurobail system foreign defendants are more likely to be detained in custody, and the more opportunities that a person on bail has of delaying or blocking his return, the less likely it is that bail will be granted. Therefore, it is in the general interests of people charged with a crime in a foreign country that procedure for returning those who do not surrender to their bail voluntarily should be as simple as possible.
  That means having a Eurobail system that is separate from extradition and is as near automatic as reasonably possible. It is not practicable for us to introduce in amendments to this Bill any formula for a fully-fledged Eurobail system, as that would be far too complicated. Therefore, 1 have tabled an amendment that requires all category 1 territories to undertake not to discriminate against the residents of other category 1 territories in granting bail. I am not suggesting that that would be an adequate substitute for a proper Eurobail system, although it would be better than nothing.
  Are the Government prepared to give approval in principle to setting up a Eurobail system, and are they prepared to raise the matter with other member states of the European Union with a view to ultimately making progress and having a framework decision that would create such a system? I beg to move.
  Viscount Bledisloe: The noble Lord has raised an important and difficult problem, although I do not believe that his answer is the right one. As he said, the problem applies to people arrested for an offence abroad. It matters not whether they were arrested in that country when they committed the offence or whether they have been extradited for it. The problem arises when a person is in custody in a foreign country for an offence that he is alleged to have committed there. It makes no difference whether he got there because he was arrested before he got out of the country or whether he was hauled back pursuant to extradition.
  I also have to say that this country would probably not qualify within the test imposed by the amendment. I may be very out of date, because it has been a long time since I did a bail application, but it has always been a serious consideration of the court whether the person in question was, if given bail, likely to attend the trial. Many people in this country will be required, for example, to surrender their passports and give undertakings that they do not leave the country. The person granted bail in Greece after looking at aeroplanes will want to come home, and it is not much good to him to be given bail and required to remain in Greece. Almost no country could pass the test, because countries will inevitably discriminate against people whose natural tendency will be to leave the territory when they cannot prevent it.
  On the other hand, I entirely agree with the noble Lord, Lord Goodhart, that it is high time that we had a Eurobail system, and I do not see the objection to it. If one is arrested in a foreign country, one does not have to ask for bail; one can remain in custody. If one does ask for bail, one is either expressly or implicitly promising and undertaking that one will return for

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  trial. If one breaks that undertaking, why should he not be hauled back straight away? I do not see the difficulty with Eurobail, which seems to me much less controversial and more reasonable than the arrest warrant. I do not understand why Europe has not got on with it; normally it gets on with far too many things, but this seems to be one thing that it should have got on with but has not. Will the Minister tell us where we are on that matter?
  Lord Wedderburn of Charlton: I support the amendment, at least in spirit. There may be some problems with wording, as the noble Viscount, Lord Bledisloe, said, but he referred to cases that would not amount to discrimination within the terms of the amendment. That is simply a matter of wording, at any rate. The spirit of the amendment is surely something we should support.
  I have some knowledge of the cases investigated by Fair Trails Abroad. I do not believe that the Government have really paid heed to the work of that organisation. Surely, the spirit of the amendment must be right in a general sense, when it says that we should not designate where there is discrimination against people from other territories as regards granting of bail. I point out to the noble Viscount that it is a matter of designation.
  The grant of bail is absolutely fundamental. People languish in prisons in other countries, which include countries in western Europe. The Government must surely, on principle, do something to establish right at the outset of the Bill that they are against that. They can do so by saying that no country can be designated where such discrimination exists. I do not know about the exact wording of the amendment, but this is a test case for the Government.
  The noble Lord, Lord Carter, speaking in the curious debate that determined whether the Bill should be sent to the odd procedure of a Grand Committee, recommended the procedure on the grounds that the Government were more likely to make concessions. His speech was highly recommended by my noble friend the Minister. I hope that my noble friend has that spirit now. I was so glad to hear that the previous amendment will be considered. Surely, if there is an amendment on the Marshalled List that the Government should reconsider—whatever the Home Office has thought in the past—this is it. I hope that my noble friend can reassure us on that point.
  7 p.m.
  Baroness Anelay of St Johns: This is certainly an interesting amendment. When Fair Trials Abroad came to give their briefing, they made the point to me that when the European arrest warrant comes into force, it is necessary to have a practical traditional liberty system also in place as soon as possible, and that if that does not happen, European citizens who are foreign to the jurisdictions in which they find themselves will inevitably experience institutionalised discrimination in the granting of provisional liberty. That is why it made the suggestion of Eurobail.
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  I was struck by the comment of the noble Viscount, Lord Bledisloe, when he said that our jurisdiction might be found wanting within the definition of the amendment. I plead guilty to having myself sat on and refused granting of bail—in one case to an Italian and in another to a Spanish person, on the basis that they were likely not to surrender. In both cases they were accused of trafficking drugs. I am not sure that they would have been granted bail had they from this country, either, but it is certainly a matter for consideration in granting bail whether someone will skip the country. I appreciate that all those who grant bail must have that in mind.
  The amendment is helpful. It is important for the Government today to shed some light on the problematic issue of bail and how they intend to advance negotiations with their European partners. I was again struck by the comment of the noble Viscount that the matter was less controversial than the European arrest warrant. Some might not agree with him, but I think that he is right.
  Lord Donaldson of Lymington: I certainly agree that English law—at least as I know it—would not pass that test, and reasonably not. But why should the examining judge not be allowed when asked to extradite someone to consider whether bail had been unreasonably refused? Or, let us put the matter within the judge's remit. I have not worked out the appropriate wording, but that would be better than the flat-footed amendment that has been tabled—although I of course understand that it has been tabled merely to edge the Government towards Eurobail.
  Lord Filkin: That is an interesting and complicated discussion but, as I shall seek to demonstrate, one for another time.
  Bail in the context of extradition cases is something that the Government take seriously. Indeed, for the first time, the Bill extends the presumption in favour to cover extradition cases—accusation only—in this country. The presumption, which would normally apply in criminal proceedings in the UK, is extended to extradition proceedings in this country by virtue of Clause 193. We shall come to that due course.
  I appreciate the sentiments behind the amendment and the considerable knowledge about and involvement in the issue of the noble Lord, Lord Goodhart, and of Fair Trials Abroad. I am delighted to put on the record that the Government commends the work of Fair Trials Abroad on the issue and on many other topics with which the noble Lord is closely involved. Of course, that does not mean that we automatically agree with them in every respect. Nevertheless, they must be listened to.
  I believe that the amendment is aimed at ensuring that any person extradited under Part 1 has access to equal consideration of bail, pending prosecution. I hope that I have correctly interpreted the objective of the amendment in that summary, although I think that the noble Lord was also speaking more widely about the benefits of Eurobail as a system. The Government could not disagree with the former view—not that we would ever want to.

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  When taking a decision on bail, to discriminate on the basis of a person's race, religion, nationality and so forth, would clearly be unacceptable. Such discrimination is prohibited by the Human Rights Act 1998, as it is by the corresponding legislation in all other member states' law. However, residency is not one of the factors on which discrimination is prohibited. I should explain that, were the amendment to be accepted, exactly as the noble Viscount, Lord Bledisloe, said, we judge that no country, including even ours, would qualify to be in category 1.
  The reason for that is as follows. Let us take a judge in this country, for example. As the noble Baroness, Lady Anelay, so personally and graphically illustrated, one of the judge's primary considerations must be how likely is the person in front of him or her to adhere to the conditions if bail is granted. Naturally, that applies in all types of jurisdiction when provisional liberty is being decided on.
  When considering hail, courts will take into account factors that would contribute to the probability of the person adhering to the conditions of bail, such as having a fixed abode, employment, family ties, and so forth. A non-resident is inevitably less likely to meet those tests and, consequently, may in some circumstances be less likely to be granted bail. But he is not being discriminated against purely on the basis of his place of residence. His likelihood to comply with the conditions of bail is being assessed, to which the effects of non-residence are one of range of factors that will he considered.
  We have already touched on the fact that extradition concerns serious criminal offences. By definition, extradition is likely to become an aspect of a case only when the person accused of the crime has fled from the place where it was committed. We need to view the matter in that context.
  I turn to Eurobail. With the greatest respect to the noble Lord, Lord Goodhart, Eurobail goes beyond the scope of the Bill. The principle of Eurobail as outlined by Fair Trials Abroad is that a person should be sent to his home country pending the start of his trial, so that the bail decision can be taken there.
  Whatever may be the general merits of Eurobail, it would be especially inappropriate for extradition. Let me explain why. No doubt the noble Lord, Lord Goodhart, will respond if he feels that to be appropriate. If a British citizen committed a crime here and then fled to France, we would submit an EAW to France. Under a system of Eurobail, he would be returned here until the extradition hearing, whereupon we should have to return him to France, so that they could consider whether to return him to Britain to stand trial. That does not seem to us a sensible way to proceed in practice.
  I hear the arguments about whether a person abroad is more likely not to be bailed for the reasons on which the noble Baroness, Lady Anelay, touched in her case. All that I can say is that there is no change as a consequence of the Bill. It does not change that, for better or for worse.
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  The Eurobail system is separate from extradition. However, I was invited to set out our position on it. I hope that we keep an open mind on all potential European Union measures, although we would start from a position that may disappoint the noble Lord, Lord Goodhart, of being sceptical about whether the approximation of criminal procedures is a road down which we want to travel very far. So we start from a position of scepticism. However, currently, no negotiations are in process or planned on Eurobail in the Justice and Home Affairs Committee. As I said, for reasons in both principle and practice, I hope that the noble Lord will feel minded to withdraw the amendment.
  Lord Wedderburn of Charlton: Do I understand my noble friend to mean that the Government will not reconsider the impact of bail on the European arrest warrant?
  Lord Filkin: Our position is that Eurobail and bail is a separate matter from that of the European arrest warrant. That is the current position; we have no current plans to change the system of bail. There is no change to the current position of people who are subject to extradition requests into this country; there is nothing worse nor better than the current position as a consequence.
  Lord Goodhart: I am grateful to Members of the Committee who have supported the principle of Eurobail and that behind the amendment. The noble Viscount, Lord Bledisloe, is right in his criticism of the amendment; indeed, I am well aware of that. It is not a satisfactory substitute for a proper Eurobail system, and was never meant to be. It is mainly a peg on which to hang this debate; I am glad that we have had the debate.
  I also accept what the Minister says: that Eurobail is, on the whole, something rather different from extradition, because the Eurobail system would mainly apply in cases in which someone was believed to have committed an offence in, let us say, France, was arrested in France, and then a question arose whether he or she should be bailed in order to be allowed to return to the United Kingdom. So the question of extradition would not enter into that unless and until we reached the stage where. having been granted bail, the person, when back in the United Kingdom, refused to return to France, in which case France could instigate extradition proceedings to return the person.
  But what I frankly find disappointing is the negative attitude to the whole concept of Eurobail and the fact that the Government appear to have no intention to proceed any further with it. The present position causes serious hardship, not to a large but to a significant number of people, which should be considered. It should not be left as it is. I therefore regret that the Government have not seen fit to signal that they will take the matter any further. I shall have to consider whether I can take any further action on Report; I may well not be able to. However, I shall think about that, and, in the meantime. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 9 not moved.]
  7.15 p.m.
  Lord Pearson of Rannochmoved Amendment No. 10:
  Page 1, line 11, at end insert—
  "() The EU or any of its institutions may not be designated for the purposes of this Part."
  The noble Lord said: I trust that it is clear that the amendment looks forward to the time when the European Union has its own legal personality. There appears to be little doubt that the EU is about to acquire legal personality, because that seems to have been generally agreed—including by Her Majesty's Government—in Mr Giscard d'Estaing's Convention on the Future of Europe.
  That acquisition of legal personality by the EU does not appear to have been fully thought through by those who support it. For instance, the EU flag will presumably acquire the status of a national flag, whereas, at the moment, as perhaps not all Members of the Committee may be fully aware, it is merely an advertising gimmick, requiring a local authority licence before it is displayed in this country. Beethoven's "Ode to Joy" will presumably suffer the ignominy of becoming the new EU mega-state's national anthem.
  The main aim of the amendment is therefore to ensure that the EU itself will never be able to extradite a British citizen, especially for the highly controversial crime of xenophobia. If some Members of the Committee feel that such a prospect is far-fetched, I refer them to an answer given to my noble friend Lord Howell of Guildford by the Minister, the noble Baroness, Lady Symons of Vernham Dean, in debate on a Starred Question tabled in my name earlier this year. The noble Baroness said:
  "Conferring a single personality on the Union would give it the capacity to act within the legal system distinctly from the states that are its members. The noble Lord is quite right. In practice that would mean that the EU would have the capacity to make treaties, to sue and be sued, and to become a member of international organisations".—[Official Report, 20/3/03; col. 377.]
  So why should it not issue arrest warrants for xenophobia? I remind the Committee that Article 9 of the Giscard draft constitution, entitled,
  "Application of fundamental principles",
  States:
  "The Constitution, and law adopted by the Union Institutions in exercising competences conferred on it by the Constitution, shall have primacy over the law of the Member States".
  I remind your Lordships that Article 11 of the draft constitution defines the competencies, or powers, that are to be exclusively granted to the EU, giving it complete power over the member states. Article 11(2) states:
  "The Union shall have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union, is necessary to enable the Union to exercise its competence internally, or affects an internal Union act".
  I appreciate that those clauses have not yet been agreed by the next intergovernmental conference, but the signs are that they will be. If they are, the concession made earlier today by the Government to
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  the effect that new entries to the category 1 territories will have to be approved by affirmative resolution may not afford much protection.
  I raised the prospect of the EU issuing its own arrest warrants with the noble Baroness, Lady Symons, in our debate on 2nd April this year on the Convention on the Future of Europe in the name of my noble friend Lord Blackwell. I asked her specifically whether the Government could give a clear assurance that when the EU had legal personality, and after Parliament had rubber-stamped this outrageous EU arrest warrant—which is, of course, what we are doing now—whether one would be committing the crime of xenophobia if one insulted the European Union, perhaps while in Brussels or in another member state, or even in this country. Could calling it "the corrupt octopus in Brussels" or worse—perhaps much worse—lay one open to extradition and prosecution abroad?
  The noble Baroness was good enough to answer my question as follows:
  "Perhaps I may tell the noble Lord, Lord Pearson of Rannoch, that he will be able to continue to speak with his customary gusto on all matters European, without any hint of sedition or treachery, and that we would all wish to protect his rights to free speech".—[Official Report, 2/4/03; col. 1388.]
  Of course I am grateful for that answer, especially as the Government often never really attempt to answer questions I put to them on EU matters. But I think noble Lords will agree that the answer does not quite hit the spot. I was not asking about sedition or treachery, as defined in British law. I was asking about racism and xenophobia, which is not a crime here, as defined by a foreign magistrate. I was also asking about British rights to free speech which are rather different from those in Germany, where to deny the holocaust is a crime, or in France, where to insult the President is also an offence, believe it or not. My noble friend Lord Lamont mentioned today that whistling during the French national anthem is either a crime or becoming one.
  Furthermore, noble Lords may remember the recent judgment of the EU Advocate General in the case of Mr. Bernard Connolly, a senior Commission official, who had been sacked for writing a seminal and revealing book entitled,The Rotten Heart of Europe. Mr. Connolly claimed that his right to free speech had been violated. The so-called judge dismissed his case, of course, telling Mr. Connolly that free speech was not an absolute right. It could not be used to justify certain offences, such as criticism of the EU, which he put into the same category as blasphemy.
  So I confess that I tabled the amendment against the background of the deep apprehension with which I and many others view the path being taken by the European Union. Many of us see it as clearly undemocratic and corrupt, and we fear that it may be on the way to becoming a dictatorial unitary state. There are signs that, consciously or unconsciously, it is already setting in place the instruments of control, as that great Soviet dissident, Vladimir Bukovsky, has so expertly analysed.

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  One instrument was exposed by the redoubtable Conservative MEP, Daniel Hannan, in the Sunday Telegraph two days ago, when he revealed that the EU is proposing legislation which could bar Euro-sceptic parties from the European Parliament. This is, of course, one of the principal methods by which the Soviets controlled their Union. They did not ban elections—they merely banned the dissidents from contesting the elections. Parties were initially banned as being fascist, but before long this description applied to everyone except the communists.
  As some Members of the Committee may remember, article 58 of the Soviet penal code went further than that. Anyone who spoke against the Soviet system was clearly mad, so mad that they had to be confined for eight years in the gulag, with its famous psychiatric hospitals, to straighten them out. That is the system which sent Solzhenitsyn and Bukovsky and millions of other to the camps, which very few survived.
  I am not sure whether I mention this in jest, but the recent editor of the BBC's flagship political programme, "Today", has publicly revealed that the BBC's hierarchy regards me and others as mad, because we believe that the European Union is developing into a colossal mistake, and that the United Kingdom would be very much better off out of it.
  Be that as it may, I trust the Government will he able to assure your Lordships that the EU will not be able to go down the path I have indicated, whether it wants to or not, and that they can therefore accept the amendment. I beg to move.
  7.15 p.m.
  Baroness Anelay of St Johns: I thank my noble friend for taking us into more general waters. He has put the Bill against the background of a very important issue as we see the development of the European Union over the coming year. I was particularly struck that he asked during his peroration whether the safeguard the Government are offering us of having the affirmative statutory instrument as a designation of countries will be sufficient. That is something that I want to consider.
  My noble friend referred again to the fact that crimes in other jurisdictions would not be considered crimes here. He said that in France, whistling during the national anthem is about to become an offence. In defence of football in this country, perhaps it is just as well, because France will certainly never be able to hold the World Cup there again.
  Lord Stoddart of Swindon: Of course I must support the noble Lord's amendment. I thought he raised some very real fears. He referred to the BBC, which thinks that anybody who is a little concerned about the European Union and the direction it is taking must be completely and utterly mad. That accusation has been levelled at many of us for a very long time.
  As I said earlier, what we have predicted has usually come to pass. For example, some of us said that the European Union was intent on setting up a United
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  States of Europe. People said that that was a mad idea. The problem is that in his original draft, Giscard d'Estaing suggested that once his convention had sat and the constitution had been drawn up and agreed, the new organisation should be the United States of Europe. So those of us who said many years ago that this could happen were right after all.
  Many of us said, after 1985, at the time of the Single European Act, that we were on the way not to a federal Europe but to a unitary European state. Indeed, one needs only a cursory glance at what is being prepared and suggested by the European convention to see that it brings about that European unitary state. Our Government may resist many of the worst aspects, but if the past is anything to go by, they will talk a lot about it and say that they do not agree with this and that; but of course they will agree with this and that.
  In support of the noble Lord, Lord Pearson, I refer to Lord Denning, who made it clear in the House of Lords on 31st July 1986 that Acts of Parliament and decisions of our courts have been set aside and rendered invalid by decisions of the European Court, which is superior in all matters of EEC law not only to British courts, including the House of Lords, but also to Parliament where their Acts past, present or future have been, can be and will be declared illegal by an overweening court sitting in a foreign capital.
  As we proceed with the completion of the internal market, the powers and decisions of this supranational court will impinge more and more on every aspect of our national life—social, legal, political, business, labour, economic and, indeed, on our relations with countries in the rest of the world outside the EEC. Business and individuals will find themselves unwittingly breaking laws of which they have no knowledge and which have been made, not by their own Parliament in public, but by the institutions of the EEC meeting in private, probably after wheeling and dealing in secret.
  It seems to me that that great authority on constitutional and other law foresaw in 1986 exactly what would happen. The noble Lord, Lord Pearson, has every right to draw our attention to what could happen. I think that he will probably withdraw his amendment, but at least his concerns have been aired and it will be interesting to see exactly how the Minister replies.
  Lord Wedderburn of Charlton: I would like to ask the Minister a straight question on the amendment. I do not share some of the views expressed by noble Lords who have spoken to it so far, although I tend to he a bit of a sceptic—about everything, if possible—because I find it a useful way in. I resist, for example, taking things by way of revelation or faith, and I object to those who answer points, some of which have some substance, merely by making a joke. There is a certain arrogance which has overcome those who see Europe in a particular light—they think there is some conspiracy of mirth and that they can answer all points at once. I do not find that attitude in the best traditions of English or, more particularly, Scottish—to reveal

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  my ultimate origins—political or economic philosophy. So I hope the Minister will not make a joke of this amendment.
  Is there any good reason why the European Union or an institution of the European Union could possibly be designated for the purposes of Part 1 in the world in which we live? If there is not, why does not the Minister say he will consider this amendment favourably?
  Lord Filkin: I will certainly not make a joke about the powerful and strongly felt arguments advanced by the noble Lords, Lord Pearson and Lord Stoddart, on these issues. They are in part a debate about where the future of Europe negotiations are, where they are moving to and what might happen during the next year or so, by the time they come to a conclusion.
  I understand why those concerns are raised. In a sense, they form a backdrop to issues of interest and concern, but this is a highly mobile and moving debate. There is a substantial amount of confusion and sometimes misinformation about what is or is not happening. Therefore, I do not intend to get into a detailed debate about what is happening on the future of Europe, although I have already given the signal that I am happy to talk about some of the matters with which I am involved, if that would be helpful. I have a very small part to play in some of the discussions on justice and home affairs. I will read what the noble Lords, Lord Stoddart and Lord Pearson, have said on this, and reflect on it to see whether anything needs a fuller response at a later stage.
  Given where we are, the most helpful and straightforward response that I can make is relatively succinct. We are absolutely clear that we intend to designate individual countries and not the EU as a single entity. I will reflect on the question asked by the noble Lord, Lord Wedderburn of Charlton, but I cannot think of any good reason why anyone would think of designating the EU or an EU institution for the purposes of the process that we are discussing. I must reaffirm that the affirmative resolution of Parliament is sovereign in these respects. That is the decision of Parliament.
  The best answer that I can give is that it is our view that it is not possible to designate the EU or an EU institution as a Part I territory or a Part 2 territory. It
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  does not constitute a territory as required by Clause 1. That is the view of the Government on the issue. I am not seeking to be, in any sense, abrupt or flippant. I want to give our clear response to an important amendment.
  7.30 p.m.
  Lord Pearson of Rannoch: I am grateful to all noble Lords who have spoken, and I am glad to have been taken so seriously on this occasion. For many years, when the noble Lord, Lord Stoddart of Swindon, and I—and others—have risen to speak in the House on matters European, we were greeted with a groan. More recently, we have been greeted with a certain amount of jollity. On this occasion, I am grateful to the noble Lord, Lord Goodhart, for restricting his contribution to a wry smile.
  I am grateful to my noble friend Lady Anelay of St Johns and others who supported the amendment. To the question put by the noble Lord, Lord Wedderburn of Charlton, and answered, to some extent, by the Minister, I answer that I accept, of course, that, under the wording of the British Bill which we are considering, it might not be possible to designate the EU or an institution of the EU because they do not constitute territories. My worry, which I trust that the noble Lord will consider—we may discuss it more briefly at a future date—is whether the EU could designate itself and put itself into the position that I have indicated, if it is given the powers that the draft constitution envisages for it. However, as the noble Lord indicated, that is all to be decided at a future intergovernmental conference, and the eventual discussions which we will have in the House on the Bill which emerges from that.
  The amendment remains pertinent to a consideration of the Bill. I am grateful to all noble Lords who have spoken, and I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause a agreed to.
  Baroness Crawley: I think that this may be a convenient moment for the Committee to adjourn until Monday at 3.30 p.m.
  The Committee adjourned at twenty-seven minutes before eight o'clock.