Grand Committee Report of 9 June 2003

Official Report of the Grand Committee on the

  Extradition Bill
  (Second Day)
  Monday, 9th June 2003.
  The Committee met at half past three of the clock.
  [The Deputy Chairman of Committees (Baroness Fookes) in the Chair.]
  Baroness Anelay of St Johnsmoved Amendment No. 11:
  After Clause 1, insert the following new clause—

  PART 1 WARRANT: AUTHORITY TO PROCEED REQUIRED WHERE OFFENCE SPECIFIED IN WARRANT IS NOT AN OFFENCE IN THE UNITED KINGDOM
  (1) This section applies when the designated authority receives a Part 1 warrant which specifies that the person in respect of whom the warrant is issued is accused of, or has been convicted of, an offence in a category 1 territory that does not constitute an offence under the law of any part of the United Kingdom.

  (2) When this section applies, the Secretary of State may issue an order giving authority to proceed with the warrant under this Part of this Act.

  (3) When this section applies, a person shall riot be dealt with under this Part of this Act except in pursuance of an order of the Secretary of State made under subsection (2).

  (4) The Secretary of State shall make an annual report to both Houses of Parliament on the cases in which he has exercised the discretion conferred on him by subsection (2) to make an order giving authority to proceed.

  (5) The following provisions of this Part are subject to the provisions of this section."

  The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 258, which is consequential and provides the order-making powers for Amendment No. 11.
  Noble Lords will be aware that today is a very important day for this country. On the Floor of the House, a Statement will be made on economic and monetary union. I appreciate that the normal understanding is that Grand Committees do not adjourn unless Front Bench spokesmen are involved in taking the Statement on the Floor of the House. However, I note that in another recent case involving the Department for Culture, Media and Sport, the Front Bench spokesman remained in Committee while another spokesman took the Statement. It is true that there can be ways around the problem. However, this is an exceptional circumstance. The Statement that the Chancellor of the Exchequer is anticipated to make today will be of great significance to all Members of this House. On the basis that this is an exceptional occasion, I invite the Government, with some temerity but I hope with some force, to say whether they have made arrangements for the Grand Committee to be
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  suspended while the Statement is being delivered on the Floor of this House. Will the Minister respond to that before I go into the meat of my amendment?
  The Parliamentary Under-Secretary of State, Home Office (Lord Filkin): I thank the noble Baroness. Lady Anelay, for making her position clear at this point rather than closer to when the event may occur. No, we have not made arrangements for that because the convention of the House, as I understand it, is that unless Front Bench spokespersons are directly involved in the Statement being made in the Chamber, business in Grand Committee proceeds. One can see that there are good reasons why that is the convention of the House. My preference, as noble Lords will imagine, is that we continue making good progress on the important scrutiny work we are doing on the Bill. Having said that, clearly I am aware that many Members are deeply interested in both issues—this Bill and the Statement on the euro. Therefore, if the noble Baroness, Lady Anelay, wishes to press the matter—if that is her firm wish—I shall concede and withdraw.
  Baroness Anelay of St Johns: That is a very generous response from the Minister. He recognised the fact that noble Lords who are taking part on this Bill are keen to press ahead with their work on it. I am sure that they will take those comments to heart and make their best efforts in that regard. Members of the Committee are very concerned about matters on the Floor of the House. When the Statement is made, I make it clear that we should press the matter.
  Lord Clinton-Davis: I unreservedly support what the noble Baroness, Lady Anelay, said. I make it clear that my noble friend's statement was very welcome. This is a very unusual, specific and important issue. The whole Committee is enormously obliged to the noble Baroness and my noble friend for ensuring that we can go to the Chamber. Whether we make a statement or not, it is very important that we hear what the Government have to say.
  Baroness Anelay of St Johns: I am most grateful to the noble Lord and the Minister for his response. It is my wish that we should adjourn at the appropriate time. Perhaps it would be appropriate for the Government Whip to notify the Minister at that point. In that spirit, I shall deal extremely quickly with Amendment No. 11.
  The amendment would insert a new clause into the Bill. It seeks to address the issue of extradition under Part 1 for offences under the law of other EU member states that are not offences under UK law. It would retain the requirement for authority to proceed to he given by the Home Secretary before such cases could be dealt with under Part 1.
  Members of the Committee will recall that at Second Reading the noble Lord, Lord Filkin, said that,
  "if a person goes to another EU country and breaks its law while there, he should expect to face justice. The fact that the UK happens not to have an exact equivalent offence should not excuse him … So the Bill removes the dual criminality requirement for offences which fall within the 32 generic offence categories … So

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  while it is true, as has been commented on repeatedly, that the UK has no specific offence of … xenophobia, we have plenty of offences which fall within that category". —[Official Report, 1/5/03; cols. 855–56.].
  I press the Minister a little further in relation to the point he made at Second Reading. He was absolutely right to say that our law criminalises certain types of conduct which would be classified as xenophobia under the framework decision. However, can he say for certain that all offences under the law of all other member states that come within the definition of xenophobia are equivalent to offences here in the UK? If he cannot, can he tell the Committee what steps the Government have taken to ascertain the circumstances in which a person might be extradited under Part 1 from the UK to another member state for an offence that should not be an offence under UK law?
  There was much comment at Second Reading — both here and in another place—on the possibility of someone writing a Sun editorial and being caught by the rules. I will not rehearse that again, in the spirit of trying to move the amendment briefly. I shall simply press ahead and ask: what if someone produced an article in a newspaper or on an Internet site and went from this country to another country, or—to put the matter both ways—published the article on an Internet site abroad and came here? How would they be affected by the Part 1 rules?
  Briefly, the point of my amendment is that if we are to have Part 1, as the Government intend, is it right that the new procedures under Part 1 should apply even where the extradition offence is not an offence under our law? Or should there be some form of safeguard—this is all about safeguards—such as the requirement for authority to proceed to be vested in the Secretary of State? The amendment provides that authority to proceed. It also provides the "Bassam special"—the annual report—to show how the Secretary of State may or may not have exercised properly that power.
  In essence, in the amendment we attempt to provide a safeguard and ask the Minister to say why he believes that such a safeguard is not necessary in the Government's view and, if that is the case, how we should prevent the problems with dual criminality having unexpected consequences. I beg to move.
  The Earl of Mar and Kellie: Were my noble friend Lord Goodhart in his place, he would make two points, which I shall make very briefly. We believe that the involvement of the Home Secretary in proceedings would be unnecessary for category 1 territories, and we fear that that will create increased opportunities for judicial review to delay proceedings.
  Baroness Carnegy of Lour: I was not previously able to take part in proceedings on the Bill. The Second Reading debate was arranged—presumably knowingly—on the day of the Scots Parliament and local government elections. Anyone who took part on that very important day was not able to come here. I am glad that the noble Lord gave in today. I thought that that was a great mistake on the part of the
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  Government; the Bill is so important to the whole of the United Kingdom. It was unfortunate that the Second Reading debate fell on that day. The date last week was my own fault and I apologise to the Committee for not being here.
  I was surprised by the comments of the noble Earl, Lord Mar and Kellie. I know from talking to members of the public that what worries people most about the Bill—if they realise that it is the case—is that it would be possible for someone from this country to go abroad to commit an offence, which they did not know was an offence, to come back and find that they could not be protected from extradition under any circumstances. They feel that they should be able to trust this country to have a Home Secretary who could protect them from extradition if the circumstances were such that he felt that that was appropriate.
  People are worried enough about politicians at the moment. Cynicism is becoming a very dangerous thing for democracy in this country. We all understand the problems with that; there are problems for politicians, and particularly for the Government. This is a great mistake. It is the one proposal in the Bill that the public would like changed. I support my noble friend's amendment.
  Lord Donaldson of Lymington: The spectre of judicial review keeps rising from one quarter or another. I have no hope of nailing it finally. However, I point out that the judges are no keener than the executive on people using judicial review for improper purposes. It can be and is very easily stopped by judicial management. There are two methods involved. One is providing that permission is required before one can begin judicial review proceedings and the other is after consultation with the judges. There is nothing wrong about consultation with judges. They need to know what are the problems on the ground.
  The other point is that under the judicial review regime applicants must act promptly. There is a longstop provision of three months, but there is absolutely no reason why the court should be bound by that. It would be perfectly open to the courts to let it be known that any application must be made within three days, or whatever. Any attempt to do an American-style—"keep on thinking of new ideas and bring them to the court"—could be quashed very quickly and simply on a permission basis.
  I turn to anecdotes only because I know about them. In the Court of Appeal, on at least one occasion—and there is no reason why there should not have been others—an appeal court stood by to cut out delay, so that it could at any time during the evening or the night have gone into session immediately the judgment was given below because the life of a Jehovah's Witness was at stake.
  In the industrial relations era—perhaps one must not mention that nowadays—there was a line of communication between the Secretary of State and the court. Therefore the court could be told the moment the Secretary of State made a reference to it and it could convene within the hour to deal with directions. These things can be done; there is no problem.

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  However, there is great difficulty if a whole mass of cases is allowed to build up. But, providing the judges know what the problem is—as I have said, there is no reason whatever why the executive should not discuss these problems with the judiciary, provided that they know what the problem is—judicial management can virtually eliminate them. I do hope that we shall not hear a great deal more about, "Oh, we have to do this to avoid judicial review". The proper way to do it is to make certain that judicial review is not abused.
  3.45 p.m.
  Lord Filkin: I am grateful to the noble Baroness for tabling the amendments, which would partially reintroduce the "authority to proceed" stage in extradition. Under the Extradition Act 1989, the Secretary of State must issue an authority or order to proceed for each extradition case. The amendments reinstate this stage only when the warrant requests the person for an offence that is not an offence in the UK.
  That brings me to my first practical question: who decides whether the warrant is for an offence that has an equivalent offence in the UK? Amendment No. 11 suggests that it is the designated authority, which in the UK's case will be the National Criminal Intelligence Service, or the Crown Office. So we have a dual criminality test that was previously a matter for the courts being applied by NCIS—or the Crown Office, in Scotland. That seems slightly curious.
  NCIS or the Crown Office, having thus identified that dual criminality did not apply, would then be required to send the warrant to the Secretary of State, who may issue an order or authority to proceed—on what basis, we are not clear. Under the amendment, a warrant would be issued by a body we recognise, certified by our central authority, for an offence committed in the requesting state that is punishable in the requesting state for the threshold that we have set in law and the Home Secretary would have to decide whether to issue an authority to proceed. On what precise grounds could he refuse?
  Any decision made by the Secretary of State would have to be subjective—which, with no apologies to the noble and learned Lord, Lord Donaldson, would of course mean that it could be judicially reviewed, and we would return to the process of appeals and delays that we on this side of the House, at least, want to do away with. The Bill has been drafted precisely to avoid avenues for defendants to delay extradition and, although I know that Members of the Committee did not intend to recreate those avenues, the amendment does so.
  Having set out the disadvantages of the amendments, I turn to any advantages that they might bring. What or who exactly are we seeking to protect? The noble Baroness, Lady Anelay, went some way to advance an argument for them. In principle, it is that if a person goes to another EU country and commits an offence against the law of that country while there, he or she should expect to face justice if arrested in that country. We see no reason in principle, just because they have then left that country, for them not to face
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  justice. It is as simple as that. The UK should not offer such a person sanctuary simply because we happen not to have an exact offence equivalent.
  If a person from another EU country comes here and breaks our law, we would expect to put them on trial. The fact that the conduct in question happens not to be contrary to the law of his home country would not be an excuse—nor should it. If he had managed to cross our border before being arrested, we would want to be able to extradite them. That is a central point.
  However, I reiterate that the Bill makes it quite clear that no one will be extradited for conduct that occurs here that is not contrary to our law. I shall now address directly the question raised by the noble Baroness, Lady Anelay: whether people would be extradited only for what are offences in the UK. The answer is that not all offences of xenophobia in EU member states will necessarily be offences in the UK.
  In the European Union Committee, we have several times discussed the specific issue of denial of the Holocaust, which is an offence in Germany but not here. In a sense, that is the point of mutual recognition. Such offences will be extraditable in the same way that those who break UK laws while here will be returned here, even if the conduct would not constitute an offence in their country.
  However—this is an important point and relevant to the point about Holocaust denial—we are amending the Bill to make it clear that, if any part of the conduct occurs in the UK, we will extradite only if the dual criminality test is met. So, for example, if someone writes an article in the Sun or posts it on a website denying the Holocaust or saying that it did not matter, we might think that they were mad, but that would not be an offence in the United Kingdom. Because there is not an equivalent United Kingdom law of denial of the Holocaust, the person would not be extraditable from the United Kingdom, because the act had occurred here and there was not a matched offence here. So the only circumstances in which a person would be extraditable for Holocaust denial would be if he had gone to Germany, stood up, for example in KÖln market place and repeatedly said, "We deny the Holocaust".
  Having said that, one should bear common sense in mind. In the circumstances I have described, in theory, the German authorities could apply to the United Kingdom to extradite a person who had committed such an act in KÖln market place but, in practice—I hope to give the Committee more chapter and verse at a later date—I know, because I pressed officials on the matter, that the German authorities do not act in any way vigorously in that respect. So if we are focusing on Holocaust denial, the German authorities are not exactly zealous in pursuing it.
  Lord Wedderburn of Charlton: Will my noble friend give way? I am sorry to stop him in full flow, but I am sure that he will appreciate that some of us get a little disturbed when Holocaust denial is equated to the whole problem of xenophobia. I hope that, in relying so much on what the German authorities would do about Holocaust denial, he is not pre-empting our

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  discussion of xenophobia. Does he appreciate that some of us get rather disturbed at the emphasis put on that by authority? It was not the only matter dealt with by the scrutiny committee.
  The debate on xenophobia is still to come. I appreciate that the Minister is giving an example, but it is significant that authority always turns to that example. Xenophobia is a much wider problem that may well disturb the noble Baroness who moved the amendment in a more general way, to which the Minister might address himself.
  Lord Filkin: I shall certainly do that, but let me respond more specifically to my noble friend Lord Wedderburn. He is right, of course. "Racism and xenophobia", which is the phrase used in other European member states, tends to be a more portmanteau term. We use the example of Holocaust denial because it is the one example that comes to mind of an action that is clearly not racist but xenophobic.
  I would be pleased to widen the illustration of other xenophobic acts that are offences in other member states but which are not offences here. We shall apply our mind and our officials' minds to that. I suspect that in practice there are not many, because in practice "racism and xenophobia" is used as a portmanteau term. I shall be delighted to return to my noble friend Lord Wedderburn either before Report or on another occasion, if we can find lots of other examples of xenophobia over and above the rather hackneyed example of Holocaust denial. I would not like to raise my noble friend's expectations that there will be many examples to get excited about, but we will go to it with a will, nevertheless.
  Let me also remind Members of the Committee of what I said on Second Reading: the UK has serious offences that are not replicated in all other EU countries. We do not want a person to be able to commit a serious offence, such as fraudulent trading or inciting racial hatred, in the UK and then flee abroad. We believe that it is right that such people be brought to justice; I hope that Members of the Committee agree.
  I note the support of the noble Earl, Lord Mar and Kellie, for the idea that the involvement of the Home Secretary is unnecessary. The noble Baroness, Lady Carnegy, rightly said that people may be unaware of breaking the law, but ignorance of the law has never been a defence. If that were the case, lawyers would be much more prone to prosecution than others, which would present a practical problem. For that reason, we cannot support her argument. I shall allow the noble Baroness, Lady Anelay, to respond.
  Baroness Carnegy of Lour: It is all very well to say that not being aware that something is against the law is no excuse. The Minister's example of denial of the Holocaust is important, although it is getting a bit hackneyed. People might not have the slightest idea that they were doing something so dreadful. Yes, it would be insensitive of them, but they might well get carried away and break the law in that and other ways.
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  It is frightening to think that one cannot ultimately be protected by one's own country vis-à-vis another because one is in the European Union and because of the Bill. Of course, judicial review is greatly to be respected, but people want to feel that there is a political dimension and an ultimate backstop. I am concerned about the matter, which is the one aspect of the Bill that worries the public—if they know that it is part of the Bill.
  Lord Bassam of Brighton: I see that the Statement is being made in the House, so I suggest that we adjourn the Committee for its duration.
  [The Sitting was suspended for a Statement in the House from 3.55 to 5.7 p.m.]
  Lord Filkin: I believe that I was in mid-sentence in my response to the question raised by the noble Baroness, Lady Carnegy of Lour, about the subject of an extradition being in ignorance of the law and whether that would place them at a disadvantage. Of course in the situation where someone is charged with an offence which is against the law in their own country, that would not raise an issue and therefore I presume that the debate focuses on the 32 serious generic crimes where an exact equivalent of legislative infringement is not required for a person to be extradited.
  We have talked about racism and xenophobia being one instance but, without listing the other 32 crimes, they cover serious offences such as terrorism, trafficking in human beings, the sexual exploitation of children, trafficking in weapons, counterfeiting, murder, kidnapping, armed robbery, forgery, trafficking in nuclear weapons, rape, arson, the unlawful seizure of aircraft and sabotage of that type. At heart, the Government's position is aligned with that of other member states. These are such issues that one would not wish to frustrate a person being brought to justice only because an identical criminal offence did not apply in the two member states. That is the heart of it.
  My point is that, for the types of offences I have just described—putting aside for a moment our debate about racism and xenophobia—it is hard to believe that, under such circumstances, a person would not be aware that those were likely to be offences in any other civilised country. I feel that that is a reasonable position.
  Let me say something about the second limb of these amendments which requires the Secretary of State to produce an annual report on the operation of this legislation. I am sorry that my noble friend Lord Bassam is not dealing with this since he is the Government's expert on the matter. Given that we do not believe that the Home Secretary should perform the role assigned to him, we do not see the need for a report to follow. However, I should like to put on the record that Home Office Ministers will be happy to answer Parliamentary Questions on the operation of our extradition legislation, including details of the numbers of cases, the average time taken to process cases and any other such information. No doubt if the

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  Opposition parties were to request it at some stage, we would have an informed debate about the operation of the legislation. This House does that very well and it would be able to inform an understanding of how legislation works in practice.
  For those reasons, I invite the noble Baroness to withdraw her amendment.
  Baroness Anelay of St Johns: I should like to put on the record my thanks to the Minister for agreeing to suspend the Grand Committee so that noble Lords could attend the Statement. I found it most useful. As the Minister will be aware, our appetite had been whetted by the advance information circulated in the House that the last three pages of the Statement would not be provided to Front Bench spokesmen because they contained something that we would not have expected. Of course the Government are hoisted by their own petard. All noble Lords wanted to be in the Chamber. Perhaps our only regret is that the time taken by one or two of the earliest Back Bench speakers did not allow sufficient remaining time for all those who wanted to put questions and to contribute to the debate.
  I am grateful to all noble Lords who have spoken in this debate. As always, I listened with care to the noble and learned Lord, Lord Donaldson. His comments were to the point with regard to the fact that judicial management could help resolve many of the problems which the Government say are besetting our current extradition processes. In the future we shall need to consider whether there can be greater co-operation between the executive and the judiciary. It is a matter to which we shall address our minds in some detail when we come to debate the Criminal Justice Bill, but it is also relevant here.
  I am also grateful for the comments of my noble friend Lady Carnegy and for her support. She pointed the way to an important issue; that is, that the public is already concerned and will become even more concerned as it learns more about the Bill and the operation of the list of 32 offences to which dual criminality now no longer applies. Along with my noble friend, I was concerned about the lines of argument being developed by the Minister. They began by being rooted in fact, but then seemed to move to another sphere which we shall need to look at.
  The first was that the list of 32 offences is important because it is important that people face justice. That reflects the oft-repeated argument: why should one commit an offence overseas and not have to face justice for it? However, equating justice with criminal proceedings is not always the happiest of circumstances, but we shall let that pass.
  Surely the logical extension of the Minister's argument would be to say that there should not be a list of only 32 offences for which one loses dual criminality. If the argument that people must face justice whatever the consequences is so strong, then one would move eventually to argue that dual criminality could be set aside for all offences, not only for the 32 on the list. I am aware that that was not the
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  Minister's argument—he is shaking his head in confirmation—but it is the logical development of his line of argument against the amendment.
  When responding to my noble friend Lady Carnegy, the Minister referred in particular to denial of the Holocaust. The noble Lord, Lord Wedderburn, made the important point that that is an important and significant offence, but we need to know about other offences. It is easy to pick on such an offence, one which would arouse disgust in any normal person in this country, but in worrying about something like that, it is possible to ignore debate on the broader issues. I was grateful to the Minister for what I thought was an offer made in his response that the Government would try to list what other offences might similarly be considered as offences of xenophobia throughout the EU. That kind of response would inform our future debates.
  The Minister wishes to intervene. I shall give way.
  5.15 p.m.
  Lord Filkin: The noble Baroness is most gracious to infer from my body language that I want to put this point on record. The reason we have a debate about xenophobia is that it is one on the list of 32 offences to which people often respond: "If it is all silly, why should it be there at all?". That was why I sought to see whether there was anything else of more substance, over and above the issue of Holocaust denial raised by my noble friend Lord Wedderburn.
  Again for the record, the thrust or drift suggested by the noble Baroness, Lady Anelay, is not the Government's position. It is also not the intent of other member states—so much so that there is a unanimity lock on adding to the 32 generic offences. I do not need to say how difficult it is to achieve unanimity in the Justice and Home Affairs Committee to indicate the strength that that lock implies in practice.
  That is our position. We do not see this as a process of elision; but, for a limited range of offences, it is right and proper to waive the dual criminality test, which is the normal basis of our processes. We shall return to those issues later in our debates on the Bill.
  Baroness Anelay of St Johns: That is where I should conclude my remarks. As the Minister said, we shall return to the debate on dual criminality, the list of 32 offences and how effective and appropriate they are in reflecting the implementation of the European arrest warrant.
  I want to refer to one further matter, which arose from a comment made by the noble Lord, Lord Wedderburn, when he questioned the Government about the reference to Holocaust denial. I was concerned when the Minister sought to reassure noble Lords that perhaps prosecutions would not be brought forward against UK citizens. I shall examine his response carefully as it was given about an hour and a half ago. However, I have a note to the effect that the Minister appeared to say that the German authorities are not the most zealous in following up such

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  prosecutions. The fact that the prosecuting arm of a state does not prosecute is not the best argument for saying that it does matter and we should have the offence there anyway. I shall carefully consider the Minister's remarks before considering in what form I need to bring back amendments relating to this subject. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 2 [Part 1 warrant and certificate]:
  Baroness Anelay of St Johnsmoved Amendment No. 12:
  Page 1, line 15, leave out second "an" and insert "a judicial"
  The noble Baroness said: I shall speak also to Amendments Nos. 45, 46, 113 and 138. Amendments Nos. 46 and 138 are government amendments. I shall refer to them in passing and look forward to their presentation by the Minister. It looks at though they will probably meet most, if not all, of my objections. I do not wish to remove the ground from under my own feet before I go any further, so I shall naturally wish to hear his explanation; it looks, however, as though the Government have gone a long way to meet the issues that we raised on Second Reading.
  Both here and in another place, the issue had loomed large as to which authorities should be competent to issue a Part 1 warrant. Clause 2 requires that a Part 1 warrant must be issued,
  "by an authority of a category 1 territory".
  In another place, significant and welcome changes were made by the Government as a result of concerted pressure from all Back Benches, backed by a recommendation from the Home Affairs Select Committee in another place. The Government conceded that the designated authority in England should not certify a Part 1 warrant unless it believed that the warrant had been issued not merely by an authority designated for such a purpose in that country but specifically by a "judicial" authority.
  That change has brought about more protection for British citizens. Our amendments build on the principle introduced by the changes made to the Bill in another place. They seek to clarify and emphasise that the issuing authority must indeed be a "judicial" one. That is in line with Article 6 of the framework decision, which states:
  "The issuing judicial authority shall be the judicial authority of the issuing member state which is competent to issue a European arrest warrant by virtue of the law of that state".
  We believe that the "judicial" nature of the issuing authority should be stated clearly in Clause 2(2) when describing a Part 1 warrant and not simply be left until subsection (7), which deals with the grounds for which the designated British authority must certify the warrant. This, we believe, would reinforce the point that no warrant should be issued by any authority other than a judicial one, irrespective of whether the warrant reaches the stage of certification.
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  I thank the Minister for the apparent movement on the matter. He wrote to me on 28th May. I understand that a copy of his letter has been placed in the Library, so I hope that all Members of the Committee have been able to read it.
  Now that the Government have conceded on the principle of stating in the Bill that the issuing authority must be judicial, it makes sense to make clear in Clause 2(2) that no Part 1 warrant is valid unless it has been issued by a judicial authority.
  That is all the more the case in relation to Clause 5. My noble friend Lord Hodgson will deal with Clause 5 in more detail later. The clause states that,
  "A constable, a customs officer or a service policeman may arrest a person without a warrant if he has reason to believe … that a Part 1 warrant has been or will be issued in respect of the person by an authority of a category 1 territory, and … that the authority has the function of issuing arrest warrants in the category 1 territory".
  As I said, my noble friend Lord Hodgson will go into the subject in greater detail, but we are worried that the Government seem to have conceded that these authorities should be judicial but have not clarified the point throughout the Bill. That is what the amendments seek to kick-start. I beg to move.
  Lord Filkin: In response to representations by the Official Opposition in another place, we introduced an amendment on Report to make it absolutely clear that all European arrest warrants must come from a judicial source. The relevant provisions can be found in subsections (7) and (8) of Clause 2.
  However, we have since realised—I am not surprised that the noble Baroness recognised this—that there are a couple of other references to the issuing authority and that we therefore need to insert the "judicial" stipulation there as well, which is the purpose of the amendments standing in my name.
  We are sure that the government amendments achieve exactly the same purpose as those of the noble Baroness. I hope that on that basis she will agree to withdraw hers and to support those that I have proposed, which I hope respond to the point fully and satisfactorily.
  Lord Wedderburn of Charlton: My noble friend advances the thesis that Amendments Nos. 46 and 138 achieve the same purpose as the amendment that is being pressed on him. But there is one big difference. The amendment proposes that, right from the outset, there should be absolutely no doubt that a judicial authority—I believe a ministerial statement once indicated that that means a court—must be the source of the warrant. Under the terms of the amendment that would be stated right at the beginning, on page 1.
  The Government made a mistake. They began with "an authority", and have had to go on fiddling about with the Bill, inserting "judicial" where they could find it—and there are two cases where they have failed find it until today.
  What on earth is the Minister's objection to setting out this point on page 1? It would be clear and straightforward: there would be no doubt at all that

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  the warrant must be issued by a judicial authority. Why bother with bits and pieces, giving rise to the need to continue amending the Bill? On Report, the Minister may find another instance where that has been left out. He would not have to deal with the matter quite so badly if he were straightforward and said: "Page 1—that's it".
  Lord Filkin: As ever, I shall reflect on what my noble friend says. If, on reflection, there are better ways of dealing with the issue, we shall not be churlish or obdurate for the sake of it in resisting such amendment. But Clause 2 is quite clear as it stands. A warrant is valid only if it is certified by the UK certifying authority. The UK authority can certify the warrant only if it comes from a judicial authority, as set out in subsections (7) and (8) of Clause 2.
  Lord Stoddart of Swindon: Then why not say so?
  Lord Filkin: That stipulation could hardly be closer to the beginning of the Bill. Nevertheless. I shall not be churlish. I shall consider and reflect. I do not believe that there is any issue of principle here. We are absolutely clear about that, and I have been happy to respond positively to the request of the Official Opposition in this respect.
  Baroness Anelay of St Johns: I am grateful to the Minister for his careful and considered response and for saying that he will re-examine the issue. The noble Lord, Lord Wedderburn, made an important intervention. He is attempting to assist the Government in obtaining the greatest clarity in the Bill's drafting. Not only those reading the Bill now but those who will put it into practice in future need as much clarity as possible. If we can make it clear from the start that the authority must be a judicial one, it will be of great assistance.
  I am glad that the Minister has agreed to re-examine this issue. In that spirit, I beg leave to withdraw my amendment, while welcoming the Government's amendments.
  Amendment, by leave, withdrawn.
  Baroness Anelay of St Johnsmoved Amendment No. 13:
  Page 1, line 16, at end insert "in ordinary language"
  The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 155. They deal with an issue which I believe is of central importance to all criminal proceedings and, not least, to extradition.
  To be faced with a warrant that orders one's extradition to a foreign country to face prosecution—to face charges, as the Bill now states—is a daunting prospect for anyone, whatever his or her nationality. My amendments state simply that the warrant for the person's arrest, whether issued by a Part 1 or Part 2 country, should provide a statement of the crime involved and, in the case of category 1 countries, the necessary information in addition to that "in ordinary language".
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  The issue of language arises in a number of later amendments to which my noble friend Lord Hodgson will speak. They have purposely not been grouped with this one because they address the separate issue of interpretation and translation. Here, in using the phrase "ordinary language" I refer to the clarity of the language.
  I am slightly disappointed that my protagonist, the noble Lord, Lord Clinton-Davis, is momentarily not in his seat—or perhaps in "ordinary language" I should say "for the moment". When I raised a similar amendment in relation to the Crime (International Co-operation) Bill, the noble Lord took me somewhat to task and asked me what on earth "ordinary language" was, saying that I ought to be able to define the phrase. On that occasion I had not done my homework well enough. I thought that it might be clear to all what "ordinary language" was; therefore, I did not proceed in as forceful way as I might have done. I have tried to catch up this time.
  "Ordinary language" is not an ambiguous phrase. If it were, the Government would themselves be guilty, as they have used the phrase in recent circumstances. I understand that Sections 46 and 47 of the Criminal Justice and Courts Services Act 2000—fairly and squarely on this Government's patch—introduce new sections into the Powers of Criminal Courts (Sentencing) Act 2000, telling the court to explain to offenders "in ordinary language" the effect of exclusion orders and draft abstinence orders. Section 65(5) of the Crime and Disorder Act 1998 states that a constable should explain the effect of reprimands and final warnings "in ordinary language" to the offender or appropriate adult.
  The important point is that the Extradition Act 1989—passed by the Conservative government and on which the Bill builds—uses the phrase "ordinary language". So there are ample examples of the use of that phrase. I refer the Committee to Sections 11 and 13 of the 1989 Act. I shall not take time to read them out, but I am sure that the Committee will want to examine them closely. The killer blow is that the precedent exists also in this Bill. Clause 91(2) states:
  "The judge must inform the person in ordinary language that … he has a right of appeal to the High Court".
  The principle is right: we need clarity and particularly as regards this matter. I beg to move.
  5.30 p.m.
  Lord Filkin: I am grateful to the noble Baroness and the noble Lord for tabling these amendments that draw our attention to the content of a Part 1 warrant. A considerable amount of time was devoted to the issue in another place. The Government also tabled amendments, which were generally welcomed.
  As a consequence, Clause 2 is very explicit on what a Part 1 warrant must contain. I invite the Committee to look at Clause 2(4), which I suggest is clear and comprehensive. Nevertheless, the Official Opposition have made a number of suggestions to improve it, which no doubt have been made in good faith.

  GC 15
  Amendments Nos. 13 and 155 would provide that all information in a warrant must be provided "in ordinary language". That opens up a debate as to what "ordinary language" means, how those words are defined and who decides whether or not a warrant contains it. It opens up the potential for much legal process of inquiry by the fugitive's lawyer to get a warrant struck down on the grounds that the language in it is not ordinary enough.
  One item that the warrant naturally must contain is the details of the offence of which the person stands accused. However—if the Committee considers the issue for a moment—the formulation of some offences in English law are hardly in plain or simple language. In fact, they are as the statue was drafted.
  While it may appear attractive to seek to translate offences in English statutes into what we might think is plain, ordinary or simple language, there are obviously certain risks in so doing. One does not actually capture exactly what the legislation intended and therefore a risk of challenge is opened up. Therefore, the answer to this must be that the offence should be listed in the warrant exactly as specified by the relevant legislation. The fugitive, against whom the extradition request is made, should be properly legally represented and legally advised so that he is advised by his lawyer of what the understanding is of the offence with which he is charged, as specified by the relevant statute.
  If there are occasions in British law when it is not easy or simple to understand in ordinary or plain language exactly what the legislation says without legal advice, the same must be true for the legislation of other European Union member states. Therefore, although the argument is seductive, it opens up the risk of finding failures of interpretation of exactly what a specific statute quoted—on which the offence has been levied—means or does not mean.
  There is a remedy for that. It is important that there is a remedy, which is that by the Government's insistence—a matter to which we shall turn later—people so charged have access to legal advice. That seems to be a proper and safe course of action. Therefore, a person can actually understand the meaning of the warrant as it is specified.
  For those reasons, without in any way wishing to be obdurate, we think this is the right and safe course of action. It reaches the same effect sought by the noble Baroness, Lady Anelay, which we share, that a person understands with what he is being charged. The way to do that is by specifying in the warrant exactly what the charge is and by then having legal advice to interpret that in a way that the person who is so charged can understand.
  Baroness Carnegy of Lour: I did not speak before because I was very keen to hear what the Minister had to say about this issue. It is a very important point. I am picturing what it feels like to be confronted with a warrant with a view to extradition. It is fairly shattering. One would want to read the warrant very carefully. I quite realise that describing an offence
  GC 16
  from another country might well not be "ordinary language". I can understand that. But the Minister referred to Clause 2(4), which has four parts. It would be possible there to insist on ordinary language. For example, it would be terribly important to understand the,
  "particulars of the circumstances in which the person is alleged to have committed the offence".
  If the noble Lord is unsure what ordinary language is, I would refer him to the Chancellor of the Exchequer's Statement today which in parts was expressed in a totally incomprehensible way to people such as myself. I am not sure that that was not unintentional. I say that just as a sideline.
  Possibly the Minister can think hard and find some words which would allow the offence to be expressed in the proper terms, but with the rest of the description of the particulars and so on in—perhaps one should say, so far as possible—ordinary language. I do not know whether that suggestion is of assistance to the Minister, but I believe that it would be helpful for people to understand everything possible on the warrant at what is a moment of great trauma. I suggest he thinks quite hard about that issue.
  Lord Wedderburn of Charlton: I was going to put this point to my noble friend when he was semi-recumbent, but now I must speak to it as a point that is separate in itself. There are later amendments about language and issues that overlap. I am not trying to advance the debate to later amendments, but there is an overlap. I want to ask the Minister about something that has worried many people about the Bill as it stands.
  The Minister spoke about making the charge clear and so on. Clause 2 is valuable and I appreciate everything that is in it. Can the Minister point to any part of the Bill which ensures that these statements should be in English? This is not just a debating point because the Act, if it is passed as it stands, will be read in the context of the agreement we have made under the framework decision. The annex to the framework decision states:
  "This warrant must be written in, or translated into, one of the official languages of the executing Member States. when that State is known, or any other language accepted by that State".
  In that provision the translation is not mandatory.
  I have tabled later amendments about translation and explanation of the charges, so I am a little tentative about asking the Minister to go very far. I merely ask him at this stage whether there is any provision in the Bill to state that these statements must be in English. Is there any interaction with the framework decision that would prevent the argument that it is valid to present the warrant in one of the languages, or a translation, of the member states? The annex has mystified some people on that issue. I should be grateful if the Minister could point me to a part of the Bill that I have missed that solves the problem.
  Lord Carlisle of Bucklow: I felt that the question I was going to ask the Minister was so naïve that I hesitated to do so until I heard the noble Lord, Lord

  GC 17
  Wedderburn. In which language is the warrant to be written? Is it to be ordinary language in French, in English or in both?
  Lord Stoddart of Swindon: I add to that: who will do the translation? A French translation into English is sometimes very strange, to say the least.
  Lord Filkin: I start at the end because the matter should—although I say that with some hesitation knowing this Bill—be relatively straightforward. These are not naïve or foolish questions but straightforward and necessary ones. The framework decision allows us to demand that all European arrest warrants are in English. We will do that as a point of government policy.
  To answer a further question: it will be up to the requesting state to translate into English—
  Lord Carlisle of Bucklow: What if a Frenchman who does not speak English is being arrested? Will he also get a French copy of the warrant?
  Lord Filkin: We shall turn to that matter on subsequent amendments as there will be debates about how a person can understand a warrant that is not in his language. The short answer is that it is important that a translation service is provided for that person. The reason for putting the warrant into English is because we operate in English and our lawyers and our courts understand English. Therefore, the requesting state has to put the warrant into English. As a matter of policy, that will be our position.
  Lord Wedderburn of Charlton: I am most grateful to my noble friend. This matter must be cleared up. If what the Minister says is right—that we are relying not on the Bill but on the framework decision—there might be an advantage in putting that in the Bill. Then we would all understand the issue. But which part of the framework decision gives us the power to demand that the warrant be in English as opposed to the annex, which says that it need not be in English?
  Lord Filkin: We will hunt for that specific clause. It is usually sufficient for a Minister on behalf of the Government to make an absolutely clear statement of how one would put something into practice, for that to be taken in good faith. In particular, when that is reinforced by the practice of common sense, one can see why we would want it to be in English, for our processes to work appropriately.
  There are two further points on the matter. The foreign country which completes and sends the warrant to us actually initiates it. It puts on to paper what the offence is that it believes this person has committed. Therefore, the burden is with that country. One may say, "Well, that leaves the issue totally at large". It does not because there are two further tests within the Bill. First, NCIS, before it allows a request from another member state to proceed, must be satisfied that the warrant contains the information specified in Clause 2(4). Therefore, if the information is not there, or for some reason it is incomprehensible,
  GC 18
  it has the duty to send it back and to say that it does not understand it; it is not clear; and that it does not meet the test as set out in Clause 2(4).
  NCIS has that duty which it must discharge. One may further ask what happens if it makes a mistake and does not spot something that was unclear. There is a further test: the district judge who hears the initial application must be satisfied that the information is full and adequate. Therefore, there is a second protection if the judge thinks that it is unclear that the test in Clause 2(4) has been met.
  Those points deal as well as one can expect in a reasonable world in terms of trapping through proper judicial processes the test of Clause 2(4). They do not necessarily mean that the person who has been served with a warrant will understand every word of it. But I have given my answer as to why it is safest and soundest to phrase it as the exact legal offence, as specified by the requesting authority. We then expect the lawyer advising the person being sought for extradition, to give him the advice as to what it means. So, as one would wish and hope, he would be under no doubt as to what the charge was for which he was being sought for extradition.
  Lord Wedderburn of Charlton: I want to ask the Minister a question, but I want to preface it by saying that in no sense was I questioning the good faith of the Government. I accept what he says: the Government will say that they want the warrant in English from the judicial authorities that are the source. Unless I am wrong—and I shall check Hansard, of course—what I understood him to say was that the framework decision allowed us to demand English. What I was saying to the Minister was that that is not what the annex says. The annex says that it can be in any of the,
  "official languages of the executing Member State … or any other language accepted by that state".
  I suppose that, if we are the executing member state, it could be in Welsh.
  I do not understand whether the Minister is telling us that he will not consider amending the Bill on Report in order to make it absolutely clear in our own legislation that, without needing to go to the framework decision, we require all these things to be in English. It may be a very small point, but it simply seems sensible.
  5.45 p.m.
  Lord Filkin: I am perfectly happy to be challenged on the authority for my statement that we have the power to request this. However, if we have such an authority, I am less inclined to be challenged that we should have to include in the Bill a provision to specify a point which is so blatantly common sense—that we want these points in English, for the reasons that I have already granted. The reference, which I do not expect the whole Committee to thrill to at this point, is on page L190/13 of the framework agreement of 18th July 2002. The footnote states:
  "This warrant must be written in, or translated into, one of the official languages of the executing Member State, when that State is known, or any other language accepted by that State".

  GC 19
  The UK has only one official language—English. I therefore believe that it is beyond doubt that we have the power to request that all extradition orders made to us should be in English. It beggars my belief that we would not wish to do so.
  Lord Goodhart: Is not Welsh also an official language? It is certainly in ordinary use again.
  Lord Filkin: At the risk of inciting a minor riot, I am advised that it is not an official language for EU purposes.
  Baroness Anelay of St Johns: The Minister's last comment was very helpful within the context of a later debate. It was an interesting remark.
  I have to tell the noble Lord, Lord Wedderburn, that I ducked out of the more complex issues on translation and interpretation because I knew that they would be raised later. However, he was absolutely right to refer to those issues within the context of my amendment on ordinary language. It is useful that we were taken as far as we were in directing our attention to the part of the framework decision giving us the authority to have the documents in English, as it now appears. Whether that should be stated in the Bill is an issue that we shall have to consider between now and Report. However, I listened very carefully to what the Minister said as regards the fact that it may not be necessary to do that given the Government's explanation and assurances.
  I am grateful too for the contribution from my noble friend Lady Carnegy. She raised the important issue that there may be another way of drafting my amendment so that it overcomes some of the Minister's objections that, in seeking to ensure that warrants are in ordinary language, the amendment may have the unwitting and unintentional consequence of assisting people to launch frivolous extra-legal proceedings simply to prevent their extradition rather than to conduct their case properly. I am certainly not in the business of trying to help people avoid extradition if they are the subject of properly launched proceedings. I shall therefore very carefully consider whether my amendment could lead to inappropriate extra-judicial challenge. However, if it were an appropriate challenge, I would revert to what the noble and learned Lord, Lord Donaldson, said earlier. It may well be that judicial management can ensure that legal challenges are not frivolous.
  We shall need to return to the issues raised by my noble friend Lord Carlisle of Bucklow about which language, and to the comments of the noble Lord, Lord Stoddart, about who translates these matters. Those issues will be key to the amendments in the name of my noble friend Lord Hodgson. I certainly have much to consider—in ordinary language and in ordinary time. I shall do so between now and Report. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 14:
  Page 2, line 1, leave out "is accused" and insert "faces charges"
  The noble Baroness said: In moving Amendment No. 14 I shall also speak to Amendment No. 17. The amendments focus on a point which has particular resonance with many in your Lordships' House and in another place, so much so that, on Report, the Government made a substantial and positive change which we welcome. The problem is whether the Bill as drafted guarantees that one cannot be extradited for questioning, interrogation or investigative purposes but only—as I think we all want—to be prosecuted for a charge which has already been brought against an individual, with sufficient evidence so to do.
  We all know that there have been cases in which UK citizens have been arrested in circumstances that would not be considered appropriate here and in which they have been held for a long time. I shall not sensationalise those matters or take up time outlining them; they were discussed on Second Reading. However, in speaking to the two amendments, I invite the Minister to give assurances that such a practice would not be possible under the provisions of the Bill. Our amendments seek to ensure that we have a truly sound guarantee on this point.
  For example, in our jurisdiction, the "accused" has connotations of being "suspected" of a crime. That is how we regard the position although our European colleagues may not share that view. Accusations can be made without evidence. I feel that the term "faces charges", as the amendment proposes, carries with it a greater guarantee of official process.
  I am sure that the Minister will tell me that I am simply quibbling over wording, that my language is not any better or more ordinary than the Government's and that there is no way in which a person could be extradited for interrogation purposes. However, I do not think that the Bill as drafted gives a guarantee that people will not be extradited for the purposes of interrogation. I simply invite the Minister to explain why he believes that the Bill as drafted gives the safeguards that I am trying to insert. I beg to move.
  Baroness Turner of Camden: I truly believe that this is a most sensible amendment in view of the fact that on Second Reading a number of noble Lords voiced concerns about human rights. Surely it is necessary to ensure that, if people are going to be extradited, they should not be extradited for the purposes of interrogation. Moreover, those of us who have received lobbying on this issue have had many instances explained to us of people being detained for very long periods. I think that that is quite unacceptable. So I really do think that the Government should be urged to look sympathetically at this amendment. Even if they do not like this particular wording. they know what it is all about. If they do not like it, perhaps they could come back on Report with different wording. I support the amendment.
  Lord Stoddart of Swindon: I too support the amendment. The issue was also raised on Second

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  Reading. It is essential that we stick to the letter of what is being proposed and that we do not allow people to be taken abroad and examined in different circumstances from those they would normally expect in this country. I am quite sure that not every country in Part 1 has the same safeguards as we do against methods of interrogation that we would not accept in this country. It is also true that people in this country are used to our forms of police investigation and judicial process, whereas in actual fact they may not be apprised of what happens in continental countries.
  There is the obvious difference that an examining magistrate in France, for example, does the investigation of the crime whereas in this country the magistracy is apart from that and the police investigate the crime. Therefore, it is essential that in this Bill we lay down beyond all shadow of doubt that people cannot be extradited simply for being accused of a crime, but are required to he taken abroad for a crime that has been proved to have been committed. I therefore have great pleasure in supporting the amendment.
  Lord Wedderburn of Charlton: I support the amendment. However, I should like to know—so that I do not interrupt my noble friend the Minister again, or try to reply to what he says—whether he finds with this amendment any difficulty with the implementation of Article I of the framework decision. It has been suggested that there is an ambiguity in Article I of the framework decision. It states:
  "The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution".
  I stop there as the rest is not relevant.
  Some have suggested that that formulation might be consistent with an extradition for the purpose of gathering more evidence. It is not clear. I think that we are entitled to say that if it is the Government's policy to interpret it the other way—which seems to me quite possible; that the judicial decision must be for the purpose of conducting a criminal prosecution after the surrender—we are entitled to have it made clear in our own legislation that that is our interpretation. Therefore, the amendment, which would insist on the need for the extradition to lead to facing charges rather than an accusation, is relevant to the interpretation of Article 1 of the framework decision. I hope that the Government will not find any difficulty in the framework decision to which we have acceded in accepting this amendment.
  Lord Filkin: I thought when we started that there was not a great deal of difference between us on this one—maybe there is, maybe there is not; we will see.
  I think that all sides of the Committee are clear that in an accusation case—a case where the person has yet to be convicted—extradition should be possible only for the purpose of putting the person on trial; it should not be possible for the purpose of interrogation or evidence gathering. In fact, the Bill goes much further
  GC 22
  than our current extradition legislation. The 1989 Act, which governs how extradition requests to other European member states are handled, simply requires a person to be accused of an offence in the requesting stateno more, no less. The Bill goes beyond that by placing a positive onus on the requesting state to say that the person's extradition has been sought for the purpose of being prosecuted.
  In response to the comments of a number of Members of the Committee, I believe that the Bill as currently drafted fully meets the concerns and anxieties—which were perhaps most specifically addressed by the noble Lord, Lord Wedderburn—that the part of the framework decision that he quoted might be open to some ambiguity. I refer the Committee to Clause 2(3)(b), which states:
  "the Part 1 warrant is issued with a view to his arrest and extradition to the category I territory for the purpose of being prosecuted for the offence".
  I do not believe that that could possibly be clearer. It is for the purpose of the prosecution that the person is being extradited.
  The legislation goes much further than the 1989 Act; even so, we have not been aware of any problems since 1989 in this respect. However, I would be open to being educated if any Members of the Committee know of any examples of that being the case. Similar amendments were tabled in another place, and in the debate there, Mr John Maples, the honourable Member for Stratford-on-Avon, said that he was happy with the words in the framework decision. The way that we have expressed it in the legislation is, if anything, even clearer.
  The framework decision states that an EAW should only be issued,
  "for the purposes of conducting a criminal prosecution".
  The words in the Bill seem to me even stronger than that. In that light, I shall reflect on what has been said, although I do not want that phrase to be interpreted as meaning that I am minded to change our view. That is not what I am implying. I believe the position to be absolutely clear. I hope that it is recognised that we have sought to respond to representations made in another place to put the matter beyond doubt. Therefore, I invite the noble Baroness, Lady Anelay, to withdraw her amendment.
  6 p.m.
  Lord Stoddart of Swindon: I am not an expert in the law in any way. However, the Minister referred to the 1989 Act, which has an entirely different procedure. Under that Act, prima facie evidence would have to be provided. Is that not so?
  Lord Filkin: No, it has not been so since 1991, when the then Conservative government made prima facie evidence not a requirement of such extradition requests.
  Baroness Carnegy of Lour: In view of the Minister's remarks on ordinary language and the fact that the issuing authority issues the warrant, who is to decide whether the warrant is all right according to this

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  country? The judge cannot do that—or can he? He does not decide whether the warrant is okay; he decides whether the person described on the warrant is the person intended. Have I got that wrong? I am simply wondering who checks that what the Minister says about the warrant is so.
  Lord Filkin: It is clear that a Part 1 warrant under Clause 2(3)(b) can be valid only if it is for the purpose of a prosecution. A request from a member state to this country for extradition for the purpose of investigation or interrogation would not be lawful.
  I said previously in another debate that there are two early procedural stages of testing, even before we get to the substantive hearing, when the matter is considered in its full merits. The first stage is the National Criminal Intelligence Service, which would expect to see in English on the face of the warrant a clear statement that it was an extradition request for the particular offence that had been committed in the opinion of the requesting state. If on the initial application, whereby the judge was essentially testing the issues under Clause (2)(4)(a) to (d), there was then a doubt in the district judge's mind that the request was for a prosecution case—if he believed that it might be for a fishing trip or an interrogation—I should have thought that he had the power to strike out the application. If I am wrong on this matter, I shall write to Members of the Committee.
  Lord Carlisle of Bucklow: As I understand it, the whole purpose of changing the law on category 1 extradition is so that, for example, one does not have to prove a prima facie case. However, I am not sure how that fits in with what the Minister has just said. Surely, the judicial process in this country is limited to accepting the word of the other territory that the request is for a prosecution rather than an accusation. The Minister implied that the judge would not grant the extradition if the judge felt that it might be that the individual was merely being accused rather than tried. I do not know how the judge can be sure that there is insufficient evidence and so on, if there is to be no need to prove prima facie evidence in this country.
  Lord Filkin: I have two responses to that intervention. That has been the situation since 1991, which is 12 years ago. I am not making a debating point—I would be pleased to know whether there have been any areas of difficulty. We are not aware of any in the Home Office, although that does not mean to say that there will never be any. However, at least there do not appear to have been frequent difficulties.
  The fact that since 1991 there has been no requirement to have prima facie evidence that sets out the case in full does not mean that there is not a requirement that the extradition should be for a trial as a result of a charge that has been levied. Therefore, if either NCIS or the judge decides that the warrant
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  does not contain all the required information making it clear that the request related to a trial rather than to an interrogation, the judge would strike it out.
  Lord Wedderburn of Charlton: I hope that the Minister will forgive me if I pursue the matter. After all, it is what we ought to do in Committee where issues of human liberty are concerned. This is not a proper discussion for Report stage.
  Will the Minister consider what the amendment raises—that is, the wording of subsection (3)? The subsequent subsections do not solve the problem. Subsection (3)(a) says that the statement must be one where,
  "the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified".
  There we have an accusation.
  Subsection (3)(b) says that the statement must make it clear that,
  "the Part I warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted".
  Is that language really sufficient? I hope that the Minister will reconsider the matter. "With a view to" is a subjective formula; the purpose is ultimately of his being prosecuted,
  "with a view to his arrest … for the purpose of being prosecuted".
  Surely, it would be better to say that charges must be made clear at the time when he is accused. The problem is not solved by the subsequent subsections. Will the Minister look at the subsection again?
  Lord Filkin: I believe that I have understood the thrust of the point made by my noble friend Lord Wedderburn about subsection (3), which returns us to his worry that there was an ambiguity in the framework agreement that is repeated in the legislation. I say that in good faith, as that is what I understood about his comments on the framework agreement—that it was potentially open to a misinterpretation allowing for the possibility that someone could be sought for extradition for interrogation, with the view that it might help a subsequent prosecution when it had not yet been decided to prosecute.
  I shall reflect on the matter, with the caveat that I mentioned before, that I am not implying that we shall change our minds. It seems to me that,
  "for the purpose of being prosecuted",
  must mean that those involved believe that they have the evidence to levy charges.
  I do not wish to spend time debating the matter now, as it is better that we get our lawyers to consider it, but if I am wrong we will change the legislation. If I am not wrong, we will explain either in a letter before Report stage or in the Report debate itself why we believe that the point is safe. It is a good challenge—the Government are being asked, "Is this point safe?"
  Baroness Anelay of St Johns: I am grateful to the noble Baroness, Lady Turner, and the noble Lords, Lord Stoddart and Lord Wedderburn, for their support and for their forensic examination of the purpose behind my amendment. I agree entirely with the noble Baroness, Lady Turner, who said that it might be possible to find different wording to mine to achieve the right objective. Like the Minister, I shall undertake to reflect carefully on the drafting of the amendments between now and Report stage.
  The combination of the arguments made by the noble Lords, Lord Stoddart and Lord Wedderburn, went to the heart of the matter. People need to be assured that the way in which they will be treated by a jurisdiction in Europe where corpus juris comes into play is fair and clearly laid out in the Bill. The noble and learned Lord, Lord Wedderburn, was particularly concerned about ambiguity, and there remains a level of ambiguity in the Bill.
  The Minister made two points. First, he said that in another place my honourable friend John Maples had accepted the government amendments and made no further amendments of his own later on. My amendment simply reflects the fact that we have been talking to our friends in another place between the Bill leaving there and arriving here. We decided that there was a remaining ambiguity that needed to be resolved and that we should table these amendments, which are rather different from those debated in another place.
  The Minister also repeated the comment that he has made in many occasions in the past—and will no doubt continue to make in future—with regard to the 1989 Act and the prima facie rule being dropped. Our riposte is always to say that this is a different animal. In Part I, other concessions are being made by the Government as part of the framework decision. They are giving up safeguards, which makes our approach to Part I necessarily different from that to the loss of the prima facie rule in the past.
  I am grateful for the way in which the Minister responded to my noble friend Lord Carlisle, who asked how a judge could knock out an application if he thought that it was for a fishing trip. The Minister's response was to explain that there should be sufficient information on the warrant for the judge to be able to make an appropriate decision as to whether it was a fishing trip that was involved. That was an important comment, and I shall consider it carefully.
  I should put on record my thanks for the courtesy of a body outwith this House—the Bow Street magistrates' court. It has been made possible for me to attend an extradition case tomorrow so that I may see what the current status is under the 1989 Act before I make any further pronouncements on that particular piece of legislation.
  I am grateful to the Minister for saying that he will reflect. I most certainly will do so, as the matter needs to be resolved in some way on Report. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 15 to 17 not moved.]
  6.15 p.m.
  Baroness Anelay of St Johnsmoved Amendment No. 18:
  Page 2, line 12, leave out from "including" to end of line 14 and insert "a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person, the nature and legal classification of the offence and the applicable statutory provision;"
  The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 22. The amendment appears in my name and that of the noble Lord, Lord Goodhart.
  Amendment No. 18 was tabled in response to representations from Liberty, which is particularly concerned that there is currently no need to establish a case against those facing extradition to category 1 countries. As I have just said, that may well be in line with current practice under the 1989 Act where no prima facie evidence is required from those signed up to the European Convention on extradition. We had quite a debate on that at Second Reading which I shall certainly not seek to repeat. However, we feel that there should at the very least be a statement of facts that establishes more than simply the identity of the accused and that the offence is an extradition offence. That is vital. Having heard the Minister's response to the previous group of amendments, I hope that he may well be able to flesh out his response to those amendments and place on the record assurances that may resolve our concerns.
  In most extradition cases, it would be little more than a formality to identify those cases where there was a concern about the legitimacy of the extradition—for example, if extradition should be barred on account of political prosecution under the extraneous considerations provisions. It is similar to a "tick box" exercise.
  In Committee in another place, Clause 2(4) was introduced. It requires some level of detail. The Government responded to concerns that had been expressed in that regard. However, the framework decision on the European arrest warrant contains an annex model of the warrant. In the interests of legal certainty and clarity, the Bill should explicitly state the details required on the warrant to allow the judge to reach a reasoned decision. In particular, the details of the offence must include sufficient detail of the legal basis of the offence and the specifics of the conduct alleged in order for the judge to establish a reasoned connection between the offence or type of offence and the alleged conduct.
  If the Government are unwilling to adopt Amendment No. 18, which uses the same wording as part (e) of the warrant, they might look more favourably on Amendment No. 22. It states:
  "The statement referred to in subsections (3) and (5)"—
  of Clause 2—
  "shall conform with the model warrant",
  which is set out in the annex. I believe that it is necessary to have something on the face of the Bill to give us guidance as to what the warrant should include in terms of detail. I beg to move.
  Lord Goodhart: As the noble Baroness said, the amendment also appears in my name. The amendment's words are taken directly from the annex to the framework agreement, which sets out the form of the warrant. They involve what appears to be pretty ordinary language—at least as ordinary as the language in the Bill—and it would be better, simpler and clearer to use the words in the annex to the framework decision rather than the paraphrase of those words in subsection (4)(c). Moreover, subsection (4)(c) leaves out certain parts of the wording in the annex, particularly that relating to the legal basis. There is a clear case for adopting Amendment No. 18.
  Lord Filkin: We have already spent some time on the warrant so I shall try not to repeat myself unnecessarily. The point that I must emphasise is that the Government have put some effort into drafting the Bill to ensure that its provisions are both clear and concise.
  Amendment No. 18 seeks to put additional wording on the face of the Bill. As the noble Lord, Lord Goodhart, said, I recognise those words. They are the words to be found in Article 8(1) of the framework decision. Including the provision would be a desirable thing to do were it not for the fact that the Bill already sets out exactly what a warrant should contain, based on the list in Article 8(1) of the framework decision. Moreover—this is the key point—the Bill does so in language which is more clear than that in the framework decision. What, for example, does "legal classification" mean? What does the,
  "degree of participation in the offence",
  mean, and how would it be assessed?
  I do not see any need to import wording from the framework decision just for the sake of it when we have a perfectly adequate provision in the Bill which does the job well. Let me seek to illustrate how it does so. We believe that we have included all of the safeguards that the framework decision allows us. Amendment No. 22 provides that the content of a warrant must conform to the model arrest warrant appended to the framework decision. However, if noble Lords examine what that model warrant contains, they will see that the requirements that are already in the Bill already cover it. For example, the first section of the model warrant asks for details of the person's identity. That information is already a requirement by virtue of Clause 2(4)(a).
  The next thing that must be provided in the model warrant is details of the judicial decision on which it is based. That information is already a requirement by virtue of Clause 2(4)(b). The model warrant also contains details of the sentence that could be imposed. Clause 2(4)(d) means that that information must be provided.
  Information is also sought in cases of conviction in absentia. However, that information already has to be supplied to comply with Clause 20 of the Bill. Then further details of the offence are required, including whether it falls into one of the 32 generic offence categories. That information already has to be supplied in order to comply with Clauses 10 and 63. I
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  could go on but I hope that noble Lords will take the point. The Bill, as currently formulated, already requires the information which forms the model warrant to be supplied. If it is not, extradition cannot and will not take place.
  I hope, for the reasons that I have set out, that it is clear that we have already fully complied in the Bill with what the framework decision says in this respect and have done so in a way that is clear and concise.
  Baroness Anelay of St Johns: I shall reflect carefully on what the Minister said. I am particularly struck by the fact that the noble Lord, Lord Goodhart, said that his preference was for the words in the warrant annex rather than the paraphrase in subsection (4)(c). That is exactly why I tabled Amendment No. 18. We must look carefully at the Minister's final comments that the Government have met the principles in the framework decision properly in the Bill and that that has given sufficient clarity. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 19 to 22 not moved.]
  Lord Wedderburn of Charltonmoved Amendment No. 23:
  Page 2, line 37, leave out "it believes that"
  The noble Lord said: I make it clear, in view of a remark that the Minister made, that I am not in favour of helping people to avoid extradition when they have committed crimes. However, I am in favour of making sure that the Bill—which, after all, involves a totally new regime in Part 1—provides adequate protections. I am especially mystified—this is the reason for the amendment—by Clause 2(7). The provisions as to who can issue a valid European arrest warrant have been the subject of some controversy and some change in the Bill. We began with the notion that any authority that is competent to issue it was enough. The Government have had to make changes in the Bill and they are making further changes today. This is not a debate on the spur of the moment; it is one with some history. The Home Affairs Select Committee in another place stated on 28th November 2002:
  "We agree with the European Scrutiny Committee that the European Arrest Warrant should be able to be issued only by a judicial authority exercising recognised judicial functions in an independent manner".
  In its 17th report on 9th January, at paragraph 58, the European Scrutiny Committee stated that the framework decision,
  "as finally adopted, refers to the EAW as being a judicial decision issued by a member state".
  It also thought that the term "judicial authority" had to be clarified. In the House of Commons, the Minister, my honourable friend Mr Ainsworth, said:
  "the only people who are allowed to issue a European arrest warrant are those who have that function under the framework document. That document spells out that such people must be judicial authorities".—[Official Report, 9/1/03; col. 49.]

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  I imagine that the Government would agree that, subject to the odd word, there is nothing in those statements about "believing" that the issuing body is this or that. One could believe what one likes; but it must be a judicial authority. Yet Clause 2(7) states that the designated authority—our court—may issue a certificate,
  "if it believes that the authority which issued the Part I warrant … is a judicial authority of the category 1 territory, and … has the function of issuing arrest warrants".
  Clause 2(8) states that the,
  "certificate must certify that the authority is a judicial authority".
  I want to remove the words,
  "if it believes that",
  so that the Bill reads that our court,
  "may issue a certificate under this section if the authority which issued the Part 1 warrant … is a judicial authority".
  Perhaps I have been insufficiently diligent, but I have found no explanation for the inclusion of the words "it believes"—introducing a subjective test—in the Bill.
  Some people may say, "That does not matter. After all, no one would be silly and believe things that are not true". Life is not like that. A forged document may be produced to the court. A document may be produced that induces a mistake. The court might believe that the issuing body had fulfilled all the tests that one could possibly include in the Bill, but its belief should not by itself be the basis for a person's loss of liberty by extradition.
  I want to press that point hard, because on 9th January the Minister, Mr Ainsworth, himself stressed that a host of bodies in other jurisdictions might issue arrest warrants. He said that there is:
  "the examining magistrate at Liege, the magistrate at the public prosecutor's office in Amsterdam, the Court of Brescia, the county tribunal of Bobigny, or even the magistrate judge Maria Teresa Palacios Criado in Madrid. That gives an idea of the span of arrangements".—[Official Report, 9/1/03; col. 48.]
  I must admit that I have not discovered exactly who or what is Maria Teresa, but a court might be equally mystified if faced with a document stating, "This is from Maria Teresa. You all know Maria Teresa; the Minister said who she was; it must be all right".
  I appreciate that that will be said to be far-fetched, but Bills should not allow even for far-fetched possibilities. It is the mark of slovenly and slack legislators that they tell us that there is no possibility of contingencies being fulfilled for which legislation leaves an opening. Time and again, life is so strange that even far-fetched contingencies sometimes become real.
  The right question is: is it in fact a judicial authority; not whether someone, whoever he may be and on whatever evidence, believes that it is a judicial authority. At the least, I hope that the Minister will agree to reconsider the matter, because it is not unimportant. If I can show that my client faces an arrest warrant issued by a body that is not a judicial authority and can prove that case beyond a reasonable doubt, the belief of whoever that that is not so should not allow for extradition and arrest or, more
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  particularly—I know that the Minister does not like this word—surrender, which is the word used several times in the framework decision.
  So I move the amendment hoping that Ministers will reconsider the wording. If I have missed their previous explanation, I apologise, but I do not think that they have ever given one, and it is time to know why those odd words appear in the Bill. I beg to move.
  6.30 p.m.
  Baroness Turner of Camden: I support the amendment moved by my noble friend, to which my name is attached. The Bill is an extraordinary measure—as I think that many Members of the Committee agree. Much of what is proposed in it is controversial, as was apparent during debate on Second Reading.
  As my noble friend said, we are not in the business of opposing extradition. Crime is becoming international, and no one should he able to escape justice simply by crossing a border into another country. So we have in the framework directive—although not in the Bill—32 categories of offences that fall within the scope of the Bill. There will be an opportunity to debate that when we discuss later amendments.
  The Explanatory Notes state:
  "The law should provide a quick and effective framework to extradite a person accused or convicted",
  of one of those offences,
  "provided that this does not breach his fundamental human rights".
  That has caused much concern and motivated most of the amendments in my name and that of my noble friend. Our first amendment relates to the requirement in the framework directive that a judicial decision is required to start the process. As has already been said today, that is crucial.
  Who can issue a valid arrest warrant? In foreign jurisdictions, there are many different bodies, but it is clear that by "a judicial authority" is meant a court. As my noble friend said, it is not a question of belief. It is either a court or it is not. It is only a judicial authority within the meaning of the framework directive—and hence the Bill—if it is a court. A belief that a body issuing an arrest warrant is a court will simply not do. That is so clear and obvious, and it is so necessary that there should be no ambiguity, that I cannot believe that the Government will not accept the amendment.
  Lord Clinton-Davis: I rise to support my noble friends, but I do not think that it is a matter of huge importance. However, I have come to the view that this statute ought to be very precise. Why are these words in the provision? Are they not entirely redundant? When he comes to respond to this debate, I hope that my noble friend will say, "I am going to think about this", because I do not believe—I must not use that word—that the words "it believes that" have authority in any other provision, or at least so far as I know.

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  I ask my noble friend to come to the conclusion that he will take the amendment away and think about the issue. I cannot believe that the statute would be any the worse if the phrase were left out.
  Baroness Carnegy of Lour: It seems eminently sensible to accept the amendment.
  I wish to put a question to the Minister. This whole discussion reflects the vagueness and sense of compromise under which framework decisions are reached and with which we are inclined to discuss them subsequently. Surely what is needed here is a list of which judicial authorities can issue warrants. All countries will need such a list in order to be certain that they are valid. In previous discussions I may have missed mention of the fact that such a list already exists, but if that is the case then there is no earthly reason why the amendment should not be accepted. It would be the right thing to do. The warrant would have to be issued by an authority included on the list. Without the list, surely the process will be difficult to operate. It should be an absolute necessity. Whoever has the job of overseeing the issue of a warrant should ensure that that is the case.
  Baroness Anelay of St Johns: I support what is a common-sense amendment. While the noble Baroness, Lady Turner, and the noble Lord, Lord Clinton-Davis, remarked that they did not think it would do any damage to remove the phrase, I think that its removal would improve the Bill. I shall speak with caution because I am sitting in front of two noble friends who are both highly qualified legally.
  If the qualification of "belief" was removed, it might reduce the opportunity for challenge to decision making. If I were a person in receipt of a warrant and I knew that the legislation made it incumbent on an authority to do something if it believed that it needed to do it, I would then want to challenge the way in which the authority exercised its right to hold a belief. I would want to know by what process it decided to act on a belief.
  Difficulties are encountered as soon as "belief" is introduced into legal documents. To that end, my noble friend Lady Carnegy sought to assist the Government even further by suggesting that clarity would be improved by having a list. Perhaps the Government will respond by asking what the position would be if the judicial authorities changed and about issues of slippage of time in a list—I see the noble Lord, Lord Wedderburn, shaking his head. However, in this technological age one can update a list with a swift electronic communication. My noble friend has suggested a most helpful solution and I hope that the Government will be able to accept it.
  Lord Bassam of Brighton: This has been an interesting and entertaining debate. I was grateful and pleased to note that, in moving his amendment, my noble friend Lord Wedderburn said that he did not favour enabling people to escape extradition. That was not just magnanimous on his part, I thought it was a
  GC 32
  testament of faith. Since the issue of belief has been raised here, such a testament of faith is important. We are grateful to our noble friends for tabling amendments which examine the issue of clarity in this part of the Bill.
  I must put the Committee on notice and say that the speaking note states "Resist". That is our starting point. However, I have listened carefully to the arguments and I was struck by the observation made by the noble Baroness, Lady Carnegy of Lour, about vagueness. We share her concern. For many this is a controversial piece of legislation. We want to see crispness of language and, along with all concerned, we seek a large measure of certainty.
  I want to spell out what the clause seeks to achieve. As is currently the position, NCIS or the Crown Office may certify an incoming warrant that it believes to have come from a judicial authority which has the function of issuing arrest warrants in that country. That is the current position, based on a belief. We expect incoming EU extradition requests to come from exactly the same sources and personnel. The amendment moved by my noble friend would provide that the UK authority has the power to issue a certificate if the warrant has come from a judicial authority with the appropriate function. His proposal would mean that no longer would there be any measure of how the decision is to be taken as to whether it was an appropriate authority.
  I can reassure my noble friend that we appreciate the reasoning behind the amendment. We would not want invalid warrants or warrants from unauthorised sources being certified in this country. That is exactly why this subsection is in Clause 2. There has to be some measure of how the decision on certification is to be made. Whether the authority issuing the warrant is the appropriate one, with the relevant functions, can be gauged only by the UK designated authority's belief in the matter. As I have said, that is the current position.
  To satisfy the point raised by the noble Baroness, Lady Anelay, and other noble Lords, there will be a central register of the appropriate competent authorities in each country. Therefore it will be possible for the UK authority to verify whether each warrant has come from the correct source. So the process of verification will be in place. Ultimately, however, the UK will have to believe justifiably that the warrant has been issued by the appropriate authority. The certificate will then be issued.
  Because of the points that have been made, I see no great harm in us at least going away and considering—
  Lord Clinton-Davis: Can my noble friend point to any other part of the Bill where similar words to those in question have been used?
  Lord Bassam of Brighton: I am not able to answer that question off the cuff. My noble friend has made a fair and reasonable point. However, I was about to say that while I think that, on balance, we have the wording right, I see no harm in taking away the point raised by this amendment and considering whether the issue of certainty can be given some further emphasis.

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  I say that without prejudice; I am not making a rock-solid commitment to return with an amendment. However, the issue raised by my noble friend Lord Wedderburn is worth looking at further. I hope that he will be happy with that.
  I wish to make a final point of reassurance. The Government's aim, which has to be shared and collectively agreed, is that no inappropriate warrant can be certified in this country. Indeed, I believe that my noble friend moved his amendment in that spirit. If any doubts at all are raised about the authenticity of a warrant, of course the UK authority has all the powers it needs to ensure that no further action would be taken.
  I hope that I have been able to reassure the Committee with those comments. We shall consider further the issue raised by the amendment and check that we have got it right.
  Lord Wedderburn of Charlton: I am most grateful for that reply. The Minister said that I made an entertaining case for the amendment. It always gives me enormous pleasure to provide entertainment for-my noble friends. I regard that as a compliment because it is rare that I am able to do so.
  My noble friend said that his brief stated "Resist". In view of his later remarks, I thought that perhaps he had misread the word and that in fact it was "Desist" from stubborn opposition to what is a sensible proposal. I hope that he can give us further information about Maria Teresa. I say that because the point is that a mistake could be made. Of course I believe that the Government will do all they can to ensure that, in practice, things work properly, but a mistake could be made. If the words are taken out, any mistake would invalidate the proceedings, which is how it should be.
  I am tremendously grateful to my noble friend for saying that he will take this away. I hope he will find that the balance is wrong and the words are taken out. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  6.45 p.m.
  Lord Wedderburn of Charltonmoved Amendment No. 24:
  Page 2, line 40, after "warrants" insert "after a judicial decision"
  The noble Lord said: This is a small amendment which I suspect is less entertaining. It rests on a point referred to by my noble friend Lady Turner in Article 1 of the framework decision, which refers to a European arrest warrant as a judicial decision issued by a member state with a view to the arrest and surrender of a requested person.
  We have seen the need to amend the Bill to make it absolutely clear that a "judicial" authority is the source of the warrant. That notion is central. In paragraph 8 of its preamble, the framework decision speaks of the need for "sufficient controls":
  "which means that a judicial authority of the Member State where the requested person has been arrested will have to take the decision on his or her surrender".
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  As we understand it, a judicial authority must, if it is a court, act judicially. If it were found that a particular court had acceded to requests without a judicial examination of the case, I suggest that the court's action would not fall within the spirit of what we intend. Therefore, we should make it clear—as it is in Article 1 of the framework decision— that it is not just a matter of a judicial authority, but of a judicial authority exercising a procedure which amounts to a judicial decision.
  A case in point might be that a body which was a judicial authority acted as a matter of course—as a matter of formality—on the request of a public prosecutor. If that could be shown—at least beyond reasonable doubt—I apprehend that such procedure would fall outwith the spirit of what the Government intend. The Government do not, as I understand it, intend that a public prosecutor should just he able to demand of someone who is on the list of designated judicial authorities that an arrest warrant be issued. If that is so, perhaps we should make that understanding clear in the Bill; namely, that this is a judicial authority—and, as my noble friend the Minister mentioned, information as to who the authorities are will be sent by the other state—and that that judicial authority must be acting, as it normally would, in terms of a procedure which can be said to be a judicial decision.
  It is not impossible. I give Ministers notice that I have been doing as much work as I can, in such languages as I can muster, on the new penal code in Estonia. My noble friend finds that amusing. It is not irrelevant. Estonia is a long way away—a land of which we know little, to employ a famous phrase—but, nevertheless, the new penal code for 2002 appears to have some very interesting features. I imagine that Ministers will not object if we refer occasionally to territories that are about to become members of the European Union. Obviously, they will be very relevant; they are bound to come in to Part 1. it have not yet reached any conclusion on the matter. I merely give Ministers notice so that those who advise them can muster their even greater linguistic skills on this matter.
  There is a worry, and it has been suggested that what clearly appear to be judicial authorities act on the formality of something like a public prosecutor request. I ask my noble friend to consider making it clear in the Bill that that is not the intention. I beg to move.
  The Deputy Chairman of Committees (Lord Haskel): A Division has been announced, so the Grand Committee stands adjourned for 10 minutes.
  [The Sitting was suspended for a Division in the House from 6.50 to 7 p.m.]
  Baroness Turner of Camden: I support my noble friend. My name stands to Amendments Nos. 24 and 25. Amendment No. 24 has been moved and Amendment No. 25 has been spoken to. As I understand the framework directive, the processes outlined in the Bill have to be, as it were, started by a

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  judicial decision. If so, it seems desirable that this should be unambiguously stated in the appropriate clauses. That is why I put my name to these amendments. I hope the Government will accept the case made by my noble friend Lord Wedderburn with his usual erudition and more briefly by myself.
  Lord Clinton-Davis: I worry about the words "after a judicial decision" because I am not convinced they are entirely required. On the other hand—and there is always another hand—why should they not be included? My noble friends have argued the case with impeccable logic and I cannot see why the Minister cannot also take this issue away to reconsider. I do not think that the statute would suffer by the words "after a judicial decision".
  Baroness Anelay of St Johns: The noble Lord, Lord Wedderburn, has assisted the Committee by tabling amendments which try to add some clarity to the Bill. He has also assisted me by making me think sideways as to some of the other implications of the clause. My sideways thinking is not directly relevant to his amendment. However, I shall utter it briefly so that it can perhaps be considered before we reach the Report stage, when I may bring forward an amendment around it.
  The Minister will recall that on the Crime (International Co-operation) Bill, we had some lengthy discussions about administrative proceedings in the European Union. We were given some definitions of what "administrative proceedings" could be. It seemed that they were the same as judicial proceedings. Obviously, I need to consider whether the Bill as currently drafted may cover all types of decisions—perhaps I may call them that—taken in other EU jurisdictions, both now and in the future when the Bill is perhaps amended by additional and other offences. That was simply an observation.
  I am grateful to the noble Lord, Lord Wedderburn, for giving my brain a bit of a thump to kick-start it.
  Lord Bassam of Brighton: It is worth putting on the record my gratitude for the amendment in the sense that we want to have clarification and we are not at all unhappy about providing that.
  These amendments relate to the "process"—that is the important matter—for issuing European arrest warrants in other countries. The Bill provides that the UK's designated authority, NCIS or the Crown Office, must certify that any incoming warrants come from a bona fide source and that they contain all the necessary information.
  With regard to the source, the designated authority must be satisfied that the issuing authority in the requesting state is a judicial authority, which has the function of issuing arrest warrants in the country
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  concerned. The "designated authority" here must be satisfied that the judicial authority has the function of issuing arrest warrants.
  Lord Clinton-Davis: I thank my noble friend for giving way. Why not in any event include the words "after a judicial decision"?
  Lord Bassam of Brighton: I am not sure that that would necessarily add greater clarity. Let me proceed with the points.
  As I said in response to the earlier debate, there will be a central register in which the approved issuing authorities in each country will be listed so that it will not be unduly difficult for the UK designated authority to carry out the necessary checks. I should also make it clear that, as I said earlier, we expect to receive incoming European extradition requests from exactly the same people as we get them from at the moment. We currently receive requests from a wide range of judges and magistrates across the European Union, and we see absolutely no reason why that should change.
  Amendment No. 24 would provide that the decision to issue a warrant has to be a "judicial decision". I have to confess that I am not wholly clear what is meant by that. As I have already explained, all warrants will have to be issued by a judicial authority. I think that it is reasonable to argue that any decision taken on a matter of law or procedure by a person holding a judicial office—such as a judge or magistrate—is a judicial decision. So I cannot see what the amendments would add to the Bill.
  I certainly hope that my noble friend is not suggesting that in order to qualify as a "judicial decision" the decision to issue a warrant should be taken in court with some kind of formal procedure or hearing. That may be what my noble friend and his supporters want, but that is not how we do things in the United Kingdom. It is not our practice. An arrest warrant can be issued, on application from the police, by a justice of the peace. Clearly the justice needs to be convinced that the arrest would be justified, but he does not have to hold any kind of formal hearing for that purpose. Nor does that process need to happen in court. After all, a justice can sign an arrest warrant at home in his pyjamas if necessary, and there have been occasions when that has happened.
  Baroness Anelay of St Johns: I wonder whether the Minister would like me to intervene now in order to assist. I sat as a magistrate for 13 years. I can assure him, without trying to be flippant in any way, that I never once signed an arrest warrant in a state of undress or in any relaxed manner. The matter is taken very seriously by justices in this country. What we are trying to elicit from the Government is a statement as to whether the matter is taken seriously in other countries. I cannot speak for other members of the judiciary, but the lay judiciary are given not only very

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  strict training but a very strict set of rules by which they have to abide before doing something as serious as issue a warrant.
  Lord Bassam of Brighton: We too take these matters very seriously. I was not attempting to be flippant in any way. I was merely trying to suggest that although these matters are dealt with without the formal trappings of a court—it is in no sense a full hearing—they are taken very seriously indeed. I am sure that the noble Baroness, Lady Anelay, and other justices take every warrant application very seriously and that they give them very careful consideration. That is exactly what we expect to happen outwith our own jurisdiction. However, we see no need to impose requirements on foreign judicial authorities that we do not impose on our own judicial authorities. We expect that the process will be similar to that in the United Kingdom and that it will be of similar veracity.
  Lord Stoddart of Swindon: I have been listening to the Minister and to the noble Baroness, Lady Anelay. I have never been a magistrate, but my wife has. Therefore, I know how carefully these matters are dealt with. The process may be done in someone's sitting room or dining room, but if the individual is a magistrate, he or she is a judicial officer and the process is a judicial process. The fact that it does not take place in a court room is neither here nor there—it is a judicial process. What the noble Baroness and my noble friends are concerned about is that in other countries it need not be a judicial process—it may be an administrative process. I hope that my noble friend agrees with what I am saying. In some countries it may very well be that the exercise of a warrant does not happen through a judicial process but through an administrative process. I am worried about that. I am worried that other countries' systems are not as good as ours. I think that that is what the amendment seeks to achieve.
  Lord Bassam of Brighton: In a sense I think that the noble Lord helps our argument. It is absolutely correct that, regardless of the location, as I said at the outset, we expect the judicial process to be very similar to ours and as robust as ours. It should be considered in exactly the same way. That is why we will be clear and ensure clarity as to what constitutes a judicial authority. The judicial authorities will be properly listed.
  As I said, we do not see the need to impose requirements on foreign judicial authorities that we do not impose on our own judicial authorities. Yes, it will be a judicial process in the sense that the noble Lord, Lord Stoddart, understands, but that process will be similar to ours. We expect it to operate very similarly to ours.
  Lord Wedderburn of Charlton: I have a feeling that entertainment gets us some way, but that what one noble Lord has called impeccable logic does not get us quite as far. I have to preface what I want to say with an expression of astonishment at my noble friend the Minister's description of magistrates' activity. I should
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  have thought that, in all the processes that we have and are likely to have under this legislation and under previous extradition law, when judicial bodies sit, they go through a judicial process to reach a judicial decision. I think that the Minister, on reflection, would not wish to controvert that. I therefore press this amendment very hard upon the Government. I do so not because I have views on what a particular foreign judicial body does at the moment but because of what the Bill would allow. That is what we are concerned with.
  The Bill as drafted would allow for a case in which a judicial authority on the list—or even not on the list, in a sense, although that is not questionable—on which the Minister relies acts, as a formality, on the request of some administrative or other state body or officer. That would be a judicial authority because it is on the list, but it is not exercising a judicial process in coming to a judicial decision. My noble friend the Minister confuses the process and source. The Bill now clearly states—we are gradually getting it right—the source: it must be a judicial authority. We get to know which is which—Maria Teresa will be on the list—but it does not say anything about what has to happen.
  There might just be a case where the public prosecutor has established such a close connection with the judicial authority that the judicial authority will do more or less what he wants. I do not believe that it is our intention to enact that. I especially do not believe it because it would controvert what the framework decision says. As my noble friend has pointed out, the framework decision says that the European arrest warrant is,
  "a judicial decision issued by a Member State with a view to the arrest and surrender".
  What is wrong with that?
  I have no objection to the Government remarking, as they have in previous debates in another place and in your Lordships' House, about gold-plating the framework decision. However, I have some objection to copper-plating the framework decision such that the Government can engrave into it an inferior procedure to that in the framework decision.
  7.15 p.m.
  Lord Mayhew of Twysden: I wonder whether the noble Lord agrees with me that there may be some confusion in the Government's mind arising out of what is meant by a judicial decision. It would be understandable, as it is a linguistic problem. The noble Lord is talking about an adjudication—an action by a judicial authority resulting in an adjudication, having weighed the pros and cons of whatever issue was put before it. Perhaps the noble Lord would agree that it might be worth suggesting to the Minister that the words "an adjudication", "by virtue of an adjudication" or "after an adjudication" might be an alternative way of expressing the correction that the noble Lord is keen on.
  Lord Wedderburn of Charlton: I am grateful to the noble and learned Lord, but as a matter of fact I would not accept that. There are problems about the meaning

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  of "judicial process" in our partner countries in Europe. I know only a little about the Italian system, but I have no doubt that my Italian friends would understand the notion of coming to a judicial decision, which means at least considering the issues and coming to a decision impartially. Wording such as "a judicial process" might have its own problems.
  I hesitate to refer to the academic literature, of which I am sure that the Government's advisers are well apprised. However, there is a long and honourable history to the discussions of what is and what is not a judicial process and a judicial decision. I am particularly struck that that causes no problem with our European partners. That is why they put "judicial decision" in the framework decision. It is understood that the body must consider the issues and come to a decision for itself, not merely at the request of some other organ of the state authority. That is what is at stake. If such a case arose, the Bill would allow that to cause someone's liberty to disappear, and he would end up abroad in a foreign gaol.
  I do not understand the Government on this issue. If they have a better phrase—a better hole to go to—by all means let them go there. Before doing what I inevitably have to, in an executing manner in this Grand Committee, I urge the Minister to think again about the matter. There could be a case tomorrow in which someone is whisked off, with the British court being able to do nothing about it, because of what the Minister has put in his Bill, with no judicial process or decision having been undertaken abroad. All I can say is that I hope the Minister will return on Report with further thoughts on the matter. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 25 not moved.]
  Baroness Anelay of St Johnsmoved Amendment No. 26:
  Page 2, line 45, leave out subsections (9) and (10) and insert
  "(9) The designated authority is the National Criminal Intelligence Service in England and in Scotland the Crown Office.
  (10) For the purposes of subsection (9), further designated authorities can be designated if necessary."
  The noble Baroness said: In moving the amendment, I shall speak to Amendments Nos. 27 and 29. I note that Amendment No. 28, tabled by the noble Lord, Lord Wedderburn, is grouped with these.
  The amendments focus on the authorities in the UK that are designated to receive Part I warrants and certify them if they are satisfied that the conditions in subsections (7) and (8) have been met. That is clearly a vital role.
  We have just had a long and fruitful discussion on the amendment tabled by the noble Lord, Lord Wedderburn, on how we can be satisfied that the issuing authority in the category 1 country is a bona fide judicial authority acting in a judicial way and making a judicial decision. The designated authority in this country has the crucial role of making the decision, checking the authenticity of the Part 1
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  warrant and signifying approval by certificating the warrant, thereby allowing the extradition request to proceed to the next stage in the process. Yet we are not told in subsection (9) what authorities in the UK are to undertake this role, only that they will be designated by Order in Council. Subsection (10) sheds little more light, merely telling us that there may be more than one authority and that there may be different authorities for different parts of the UK.
  I believe that the two subsections are unnecessarily obscure. Our amendments give two alternative versions, for clarity. Amendment No. 27, along with Amendment No. 29, which is consequential on it, would allow the authority to certify Part 1 warrants to reside in the Secretary of State alone. I set out under a previous amendment the arguments which we believe support the involvement of the Secretary of State in each and every extradition request. The amendments would not have to cause the delays which currently proceed. Other changes under the Bill make sure that the process for a Part 2 request will be cleared in six months. Moreover, the number of extradition requests is not considerable—usually no more than 100 a year and often a great deal less.
  Under the EAW, we lose the dual criminality and prima facie requirements. In that way, we lose the safeguard of the Secretary of State's ultimate discretion in taking the decision. The Secretary of State is still the authority in Part 2, so I believe that our amendment is robust enough to withstand criticism, as it seeks to put a politician in ultimate control of a judicial decision. That may not be quite the case—but if it is good enough for Part 2 it should he good enough for Part 1.
  I thought that the Government might object to the Secretary of State being there, but I tabled the alternative amendment so that we could have a full debate in Committee. When I looked at the Explanatory Notes, I saw that the Government themselves had provided an explanation. The notes state:
  "The authority for the UK is intended to be the National Criminal Intelligence Service and, additionally in Scotland only, the Crown Office".
  Having seen that in the notes, I pulled it out and put it into my amendment.
  Subject to what the noble Lord, Lord Wedderburn, might be about to say, I support Amendment No. 28, which would insist that any designation of the appropriate authority through Orders in Council be done only by the affirmative procedure. That seems a welcome development.
  The Scottish Law Society has approached us, but it is more appropriate that I leave any comments on Scotland to my noble friend Lady Carnegy. I beg to move.
  Lord Wedderburn of Charlton: Amendment No. 28 has been grouped with the amendments tabled by the noble Baroness, Lady Anelay, which is perhaps another example why one should get up early in the morning and have a look at the draft groupings. I was prevented from getting to the House in time to do so.

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  I considered what the Minister said about affirmative resolutions on the first day of the Committee proceedings, and wondered whether his logic should lead him to look favourably on the notion of affirmative resolutions in this part of the Bill—and, if not, why not. I hope for a favourable reply.
  Lord Pearson of Rannoch: I would like some clarification. As I understand the matter, the designated authority is merely designated by Order in Council. Exactly how wide could that designation range? Who or what are the possible bodies that could be included? To put it at its strongest, is there anything that would stop Europol being designated, or possibly the European Union itself? That ties in with Amendment No. 10, which I moved earlier. What exactly is on offer here?
  Lord Filkin: Again, these amendments are concerned with important issues—the receipt of incoming requests in Part 1 cases. Clearly, in any extradition case we need to be sure that an incoming request has come from a bona fide source before any action is taken on it. For that reason, the Bill creates a role for a designated authority to check that the warrant has indeed come from a recognised source in the requesting state and that it contains all the required information. As the noble Baroness, Lady Anelay, correctly said in relation to the Explanatory Notes, our intention is that NCIS should be the UK's main designated authority, with the Crown Office additionally performing the role in Scotland.
  It makes good sense for NCIS to perform that role as it will be the home of the UK's Schengen bureau and we expect most requests to be transmitted by the secure Schengen system. NCIS will therefore be well placed to certify that the request has come from a bona fide source.
  Similarly, it is entirely appropriate for the Crown Office to perform that role in Scotland, providing administrative assistance to the judiciary north of the Border. 'Designating an additional authority for Scotland will allow swifter transmission of the relevant warrant where it is known that, for example, the individual being sought is actually in Scotland.
  That being so, I do not have any great problem of principle with Amendment No. 26, which seeks to put on the face of the Bill the requirement that those two bodies will perform that role, because that is our intention. My difficulty is one of practicality. By being that specific on the face of the Bill, we would limit our ability to cope with changes in the future. What would happen if either NCIS or the Crown Office were to be abolished in the future or changed their name? What would happen if either of them merged with another body or split into two or more separate bodies? In each of those cases, primary legislation would be required to revoke the status of NCIS or the Crown Office as a designated authority. We have no intention of doing so. Having said that, who knows what may be needed to be done in the future? The Bill is therefore drafted in such a way as to allow for any change in structure
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  or any renaming that may occur in the coming years. I do not believe that we should jettison that flexibility, which is neither sinister nor malign.
  As I have sought to explain, the role of the designated authority is essentially an administrative one, important though that is. I cannot see any need to make the orders which will designate the bodies concerned subject to the affirmative resolution procedure, as suggested by the amendment standing in the names of my noble friends Lord Wedderburn and Lady Turner. The Delegated Powers Committee, which examined the Bill carefully, did not consider that that would be necessary and I do not believe that it would be appropriate to set such a high level of scrutiny for a procedure such as that.
  Amendments Nos. 27 and 28, from the Official Opposition, seek to make the Secretary of State responsible for certifying an incoming Part 1 request. As the noble Baroness, Lady Anelay, said, we discussed those issues earlier in Committee. Members of the Committee are well aware that doing that would undermine Part 1 because the extradition laws are outdated and in need of urgent reform. The intent is to simplify and make appropriate expedition for the handling of requests from all the UK's extradition partners. As I sought to explain previously, there really is no case to try to re-involve Ministers in what should be an entirely administrative and judicial process.
  As I explained, the role of the designated authority is to confirm the source of the request and to check that it has been properly filled in and that all the relevant necessary information, as is specified in the Bill, has been supplied.
  Lord Clinton-Davis: Amendment No. 28 is not in the name of the Official Opposition. The Minister said that but he was wrong—unless, of course, he refers to my noble friend Lord Wedderburn as the Official Opposition.
  Lord Filkin: I stand corrected. The noble Lord is quite right. My noble friend is most certainly not the Official Opposition.
  Lord Wedderburn of Charlton: Or even the unofficial Opposition.
  Lord Filkin: I refrain from making another comment.
  As I was saying, NCIS is well qualified to perform the role that I described because it is likely to have good links with its issuing counterparts across Europe and can easily send back warrants which are incomplete or incorrect. All of that is also true of the Crown Office in Scotland.
  That is the extent of the role of the certifying authority—checking that the request contains all the necessary information and certifying that it comes from an appropriate source. It is entirely appropriate that that should be an administrative function that is performed by an administrative body. That involves the thrust of the question raised by my noble friend Lord Wedderburn; that is, why we see a distinction

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  between that and the issue involving adding countries into Part 1, on which we gave ground earlier in the Bill. That appeared to us to involve a different level of controversy, importance and sensitivity. We were pleased to respond to the comments of Members of the Committee and the Delegated Powers and Regulatory Reform Committee in that regard.
  I cannot see what added value Ministers could bring other than adding a layer of delay to the whole process. I hope therefore that the amendment will be withdrawn.
  7.30 p.m.
  Lord Pearson of Rannoch: Would the Minister mind answering the question I put to him? How wide could this go? Who else might be designated? Is a limit to be set? After all, the designated authority is fairly crucial. Nothing will happen unless it decides that it has received an appropriate warrant. I do not think that it is sufficient excuse to say simply that the whole thing is entirely automatic and so it does not matter. Who else might be designated?
  Lord Filkin: I find it hard to see how Europol could be designated because it would not have the capacity to fulfil the functions required by the designated authority. I think that was one of the examples cited by the noble Lord, Lord Pearson of Rannoch. Under the Bill any body could be designated subject to the approval of Parliament but, as I have indicated, we intend to designate only NCIS and the Crown Office.
  Lord Carlisle of Bucklow: The Minister dismissed rather summarily the argument put by my noble friend that the Secretary of State should be the designated authority. Would he like to reconsider that? If, as I understand from what was said earlier, we are not expecting a great volume of such warrants and if they are intended to address serious crime, is not there a case for saying that the Secretary of State should be the designated authority, even if only to ensure conformity in what is required when accepting warrants in this country?
  I personally support the Bill to the extent that rightly and properly it helps to modernise the rules on extradition, but the Secretary of State had a vital role to play in that process because he had finally to approve the extradition of the individual concerned. Would it not perhaps demonstrate that the Government, while modernising the procedures, were not in any way diminishing needed protections if at some stage reference was made to the Secretary of State?
  Might it not mean that in fact he has to be the designating authority, as the noble Lord, Lord Wedderburn, pointed out, without whom the process does not start? There might be a case for saying that it should be the Secretary of State.
  Lord Filkin: It is with some regret that I cannot accede to the request of the noble Lord, Lord Carlisle, in this respect, because I have been aware that while
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  probing the legislation is part of the Committee's work, he has nevertheless signalled his recognition of the importance of having in place an effective extradition to ensure that we can combat international crime. I respect that.
  I have little to add to what I have already said on this point. No doubt we shall return to these issues at later stages. I shall certainly reflect on whether there are better arguments, but in essence I have said that, in our view, the role of Ministers in this respect is superfluous and otiose. All it would do would be to add another element of process, thus adding to delay.
  I shall reflect on whether I can bring forward other arguments to persuade Members of the Committee at subsequent stages, but at this point I am not minded to change my view.
  Lord Mayhew of Twysden: Does the Minister agree that reassurance for my noble friend Lord Pearson in his proper anxiety appears to be found in page 1, line 13, in Clause 2(1), which states:
  "This section applies if the designated authority receives a Part 1 warrant in respect of a person"?
  It is hard to envisage how Europol could receive a Part 1 warrant, as, as the Explanatory Notes make clear, a Part 1 warrant must be issued within the requesting territory? I may be wrong, but that seems to be a reassurance.
  Lord Filkin: I always take at face value offers of assistance in my defence from any Member of the Committee. Having said that, I shall double check whether, as I suspect, that is the case and that the noble and learned Lord, Lord Mayhew, is right, as on many other occasions.
  Lord Pearson of Rannoch: I am most grateful to my noble and learned friend and perfectly prepared to accept that Europol is off the pitch for the purpose of the relevant process. However, the Minister has not yet answered the question of how wide the designation could go. In the context of Amendment No. 10, I mentioned the European Union itself. I do not know. There are fears that many institutions beyond those that we are currently considering could be designated in future. That might be unacceptable.
  Lord Filkin: I am always cautious about saying that I shall reflect, because that is open to such gross misinterpretation that it can lead to disappointment. The commonsense answer is that I cannot see how any European Union institution, even if we wanted it to—which we certainly do not—could act to fulfil the functions meant to be fulfilled by the designated authority.
  Essentially, the designated authority is a body under the control of the UK Government—because it is our responsibility to administer that part of the Bill—that can receive incoming requests from other member states and, when it receives them, check that they meet terms and criteria set out in the relevant clause, to which we have already spoken—such as, do they meet the information tests? It therefore seems to me—I shall

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  say not self-evident, but clear—that it must be a body under the control of the United Kingdom Government to fulfil those functions.
  I am extemporising on the wing from reflection. If there is any gap in what I say, I shall write to the noble Lord, Lord Pearson, to clarify it; but that is what I believe to be the case.
  Baroness Anelay of St Johns: I am grateful to all Members of the Committee who have taken part in the debate, which goes to the heart of the clause. I am grateful to my noble friend Lord Pearson of Rannoch for raising the issue at the nub of the debate: how wide can the designation of bodies go? It is not even a case of who might be designated hut of who can be. What could be covered?
  The Minister stated today that the Government's intention is not to be too specific, but that, effectively, they want NCIS and the Crown Office to be covered but not named, on the basis that it is practical to leave the matter open, so that if those organisations were renamed—in another place, it was said specifically if NCIS were renamed—they could still be designated. But the Minister also said, "Who knows what needs to be done in future?" That is precisely what underlies my concern and is why I tabled the amendments.
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  I shall reflect carefully before Report, but I am still not persuaded that the Government have the provision right in denying the Secretary of State a role. I was grateful for the contributions of my noble friend Lord Carlisle of Bucklow and my noble and learned friend Lord Mayhew in assisting the definition in the first amendment.
  In the Bill, the Government are giving up a series of safeguards, one of which I have addressed in the amendment. However, I put all those safeguards together. The Government seem to be knocking clown the pillars of safeguards one by one in the Bill, just as it appears that, in the draft constitution, they are knocking away the third pillar.
  I am not a Euro-sceptic— that may shock sonic of my colleagues, but I am certainly not—but I am sceptical about how Part 1 of the Bill meets our needs for extradition. At this stage, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 27 to 29 not moved.]
  Lord Bassam of Brighton: It may be convenient if the Committee adjourn until 18th June at 3.30 p.m.
  The Committee adjourned at twenty minutes before eight o'clock.