Grand Committee Report of 18 June 2003

Official Report of the Grand Committee on the

  Extradition Bill
  (Third Day)
  Wednesday, 18th June 2003.
  The Committee met at half past three of the clock.
  [The Deputy Chairman of Committees (Lord Ampthill) in the Chair.]
  Clause 2 [Part 1 warrant and certificate]:
  The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin)moved Amendment No. 30:
  Page 3, line 3, leave out subsection (11).
  The noble Lord said: I hope that I can deal with this amendment briefly. As noble Lords will be aware, the Bill was amended on Report in another place to make explicit the stipulation that all European arrest warrants must be issued by a judicial authority. We were pleased to respond to those representations. At the same time, we included a transitional provision, which is now Clause 2(11), to allow us to deal with preexisting alerts on the Schengen information system, or SIS. Members of another place were happy to go along with what we were proposing on that basis. However, on further examination, we considered that some additional minor modifications would be required to enable us to deal with SIS alerts. We concluded that it would be better to have a self-contained provision explicitly dealing with SIS alerts. The provisions that we have in mind will be in Part 5 and we will not reach them for a while, but I assure noble Lords that it is our intention to table the relevant amendment in good time for us to consider it before it is debated. On that basis, I invite noble Lords to agree to the removal of the now redundant Clause 2(11) from the Bill. I beg to move.
  Baroness Anelay of St Johns: I simply rise to agree to the removal of the provision. Because we are in Grand Committee, amendments may be made only with agreement, and I signal that. It is logical that it should be removed. I also place on the record congratulations from the Grand Committee to the Minister on his new post in the Government's reshuffle over the weekend. We shall all be sorry to lose him eventually from the Bill but we notice that he is still working hard with us today. He will be welcome for as long as he is allowed to remain with us but we appreciate that he must go elsewhere at some stage.
  On Question, amendment agreed to.
  On Question, Whether Clause 2, as amended, shall stand part of the Bill?
  Lord Stoddart of Swindon: We discussed the clause pretty thoroughly and I do not want to say more about
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  identification. However, it is convenient at this stage for me to raise another matter that has implications for the Bill. I refer to the agreement reached between the European Union and the United States on extradition and mutual legal assistance.
  It is difficult these days in this place to keep up with all that is going on. So much is going on that unless one is a miracle worker one cannot always know exactly what is happening. I find it odd that such an agreement, which was negotiated in secret, should be made by the European Union with the United States at the same time as Parliament--this Grand Committee—was discussing this Bill. Because the EUUS arrangement was being discussed in secret, I was not aware—no doubt this also includes most other noble Lords—of what had been going on for some 18 months. Any arrangements with the United States would be on a bilateral basis and not by means of an EU-US agreement.
  Virtually out of the blue, the EU-US agreement appeared. Apparently, the matter was of such great urgency after 18 months of discussion that the House of Lords European Union Committee was asked to lift the scrutiny reserve, which I believe it was reluctant to do, in order that the agreement could be signed on 7th June 2003. It is true that Mr Bob Ainsworth, who was then Under-Secretary of State—I believe that he has since changed his job; so quickly do things happen—agreed to appear before Sub-Committee E on 4th June. The minutes of evidence will no doubt soon be available. However, that will be too late for the House to do anything because this is already a done deal and the arrangement was signed, I believe, on 7th June—three days later. Or was it? I assume that the signature was put on the document and that this is a done deal.
  One must ask: why the extreme haste? Why did the agreement have to be signed by that Friday? Because, of course, it must go through the arrangements in the United States. The Senate must debate it, agree to it and sign it into law. The Senate will not hurry that and I really must ask why there was such a rush to sign it without proper discussion in this House through the usual procedures.
  How does the EU-US agreement affect the future bilateral arrangements between the UK and all category 2 countries under the Bill? I ask that because in his presentation to the European Parliament, Mr Vitorino discussed the EU-US co-operation agreement. He said:
  "This is the very first Union agreement in the field of justice and home affairs and it will be an historic precedent".
  That is very significant and must be explained. Just exactly what does that mean? Does it mean that a precedent has been set to enable the EU to negotiate all extradition and other justice and home affairs matters with third countries? If so—a strict interpretation of Mr Vitorino's statement seems to imply that—is not this Bill redundant? That might sound silly but the fact is that if the agreement between the EU and the US sets a precedent, that may very well be the case. I should like to know about that.

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  What if any parliamentary procedures will be necessary to implement the EU-US agreement into UK law? I understand that the agreement is binding on the UK. Is that correct? If so, how has that situation arisen? Justice and home affairs are still, as I understand it, intergovernmental matters. Will primary legislation be necessary or will the procedure be by ordinary affirmative order or a negative order?
  I hope that the Committee agrees that this is a legitimate matter to raise in light of this development and that I am right to be concerned about it. I am not the only one to have concerns. I shall quote what one of our colleagues, the noble Baroness, Lady Ludford, said in the European Parliament. Members who know about these things will be very much aware that my views and those of the noble Baroness on the European Union are, in general, poles apart. She said:
  "We have objections to these agreements on grounds of both procedure and content. I am sorry to see that … as others have said, the degree of unwarranted secrecy imposed by the Council has been utterly scandalous. Council is not here today. No adequate explanation has been given. The only possible explanation is the wish to avoid accountability to Parliament. The failure to consult the European Parliament formerly is a disgrace, and the justification for this democratic deficit—that the agreements fall under foreign rather than justice policy—is thin in the extreme. I very much hope that the new EU Constitution will stop this ever happening again because we will have future agreements of this kind. I wish the European public could understand—and one day will—that the real threat to their rights comes not from this Parliament or the Commission—the Community institutions—but from the arrogant, executive powers wielded in intergovernmental cabal by the Council".
  Those are not my words; they are from someone who is very friendly to the European Union, which I am not. I am concerned about the Grand Committee and the rights of this Parliament. I hope that noble Lords will agree that it was correct for me to raise this matter. In so far as he is able—I gave the noble Lord, Lord Filkin, notice that I would raise this matter—I hope that the Minister will answer my questions.
  Baroness Anelay of St Johns: I recognise that in procedural terms it is correct for the noble Lord, Lord Stoddart, to raise this matter now. On the first day in Committee, the Question whether Clause 2 should stand part was grouped with my earlier amendments. I said then that I had tabled the vast number of clause stand part debates in relation to the whole of Part I only as a device to enable the deletion of Part 1. I did not wish to remove the right of other noble Lords to have a clause stand part debate whenever that was appropriate. I give notice that when we reach Clause 13, I will speak to the Question whether that clause should stand part. I will use that approach very sparingly.
  The noble Lord, Lord Stoddart, raised an extremely important matter. I will not repeat what he said; he asked the right questions. I simply add that the figures show how important extradition to the United States is. I notice that the home affairs report points out that during the three years from 1999 to 2001, the UK extradited 139 fugitives and that of those, 82—or four out of every seven—were extradited to other EU
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  member states. The remaining 57 were extradited to non-EU member states. Of those 57, 23 were extradited to the United States. This is a very important matter in numerical terms as well as in relation to matters of principle.
  Lord Wedderburn of Charlton: I appreciate that this is a proper matter to raise now in view of what happened in the past 10 days or so. I attended, as it was a public meeting, the meeting of Sub-Committee E on, I believe, 8th June, when my honourable friend Mr Ainsworth gave evidence to us. I heard those proceedings and took no active part. Broadly speaking, I personally confirm the account given by my noble friend Lord Stoddart and want to add one word about it.
  I was a member of Sub-Committee E for many years about 10 to 15 years ago. I remember an occasion when a Minister said that he would like scrutiny of a very important agreement at European level within the week. I can only say that there was something of a rumpus about that. The chairman at the time expressed his displeasure. This time the Minister opened by offering his apologies, but said that he was asking for scrutiny and approval on the same day. All that will appear in the documents of Sub-Committee E.
  I apologise for not giving the Minister notice of this particular point, but it is a special point. There is now on the website a letter from the chairman—the noble and learned Lord, Lord Scott of Foscote—of Sub-Committee E to the Minister, which sets out the reactions of the scrutiny sub-committee. If the Minister has the letter in his papers, perhaps he would now, or on a suitable occasion, distribute it to Members of the Grand Committee, not all of whom are sufficiently expert in the modern electronic processes to find it through that route.
  It would be very helpful for noble Lords to see the letter because, in the very respectful manner that noble Lords who chair that committee have always had, it sets out the restrained reactions of a sub-committee which, from observation, I notice were somewhat strong. Without going into detail, the discussion on the EU-US treaty raises a vast number of issues which, beginning with Clause 2, are relevant to this Bill.
  Three documents were approved; I do not remember their precise titles. There is the EU-US treaty, the mutual assistance agreement, and a third document. Perhaps all those documents should be looked at by Members of the Committee and they would see the extent of the matters. The issues include the difficulties of the death penalty in the United States and the extent to which a federal assurance can prevent any action by a state authority, including elected judges and the like, in respect of death penalty executions in the US. The Minister answered all these points with considerable skill, but nevertheless disturbing matters have been raised which the Grand Committee should consider.
  I hope that the Minister recognises that we are placed in a new situation, in which some matters will have to be reopened in the light of what the British

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  Government have now done—namely, the limits placed on Parliament in the normal execution of the royal prerogative in signing treaties, and the limits placed on us which will come up directly under certain amendments that we are about to discuss. Therefore, it is very appropriate that the Minister should make a statement at this convenient point as to just what we have been led into by this rash signature in Portugal before proper scrutiny could, in fact and in reality, be given.
  3.45 p.m.
  Lord Goodhart: The reference that the noble Lord, Lord Stoddart, made to my noble friend Lady Ludford shows that there are aspects of the agreement with which my party is concerned. So far as the debate we have just been having is concerned, I do not think that now is the appropriate occasion to have what could be described as a free-standing debate on the agreement recently signed between the EU and the USA. However, it would be helpful and important if the Minister could tell us what implications that agreement may have for the contents of this Bill. In addition, I should be interested to know how far the provisions of this Bill have been drafted in order to align the UK extradition law with the EU agreement, which was at that stage not signed but must have been at a fairly advanced stage of negotiation.
  Lord Filkin: First, I thank the noble Baroness, Lady Anelay, for her very generous congratulations to me on my new role. I suggest that she does not quite too prematurely rejoice at my imminent departure because the tentacles of the Home Office are long and strong at times—so I may be having further days on this Bill and it will he a pleasure to work with Members of the Committee.
  I agree with the noble Lord, Lord Stoddart. Some of these issues are complex and it is right and fair that he should raise his question. I shall go as far as I can today in trying to explain—in part from memory—these issues from my role in negotiating in a dark and secret place, to paraphrase what he said about this issue. I shall go further than that because this issue justifies a fairly full response in writing from the Government to the Committee and any others who are interested. To what extent is there an intersect between this measure and this Bill? We believe that there is virtually none. Nevertheless, Members of the Committee are entitled to have that set out clearly.
  The noble Lord, Lord Stoddart, is right. There has been an agreement between the EU and the US on extradition, which has been negotiated. The United Kingdom, exercising its Crown prerogative, has indicated its agreement for the EU to sign the agreement as an EU-US treaty. The measure has cleared scrutiny in both Houses of Parliament before the EU indicated its willingness to sign up to it. We believe that the agreement will have virtually no impact on our existing extradition law or on the new treaty because the provisions are essentially between the EU and the US. Our own agreements with the US go beyond and further than this. To put it at its
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  simplest: no parliamentary action will be required to bring United Kingdom law into compliance with the EU-US treaty because our existing law and agreements with the US already comply in full.
  The noble Lord, Lord Stoddart, also asked a perfectly legitimate question about why there was the urge to reach such an agreement. One should never rush an agreement unless its merits themselves justify it, but it sits against the background of September 11th and the recognition that the EU, as well as the US, wants to have in place effective measures against terrorism. This was part of the intent of responding to the more serious circumstances of which we are aware in the light of September 11th.
  The reason why the EU signed first and why the early signature was important is because the US Senate could not consider it until it had been signed. All our relationships with other category 2 countries will remain unchanged by this agreement. Not only that, but our relationship with the US—to re-emphasise the point—will be governed by our own domestic legislation and our own new bilateral treaty with the US. The agreement makes it clear that it does not apply where there are bilateral provisions which go further.
  The noble Lord, Lord Stoddart, also raised a number of questions about how scrutiny operates in this place. I shall not go into detail because it is not the time. Again. I shall touch on that in the letter. Members of the Committee know well the general principles. It is a system of pre-scrutiny of agreements rather than post facto scrutiny. The area of challenge is always when there are effectively confidential negotiations in process, which is a particularly difficult area. Therefore, what happened was that at a certain point it was agreed that the cloak of confidentiality, which normally covers such negotiations, could and should be lifted to allow for relevant member states to have proper scrutiny of that. Both my noble friend Lord Wedderburn and the noble Lord, Lord Stoddart, referred to that process.
  Indeed, I shall look at the letter from the noble and learned Lord, Lord Scott of Foscote, on the website and will attach it to the letter that I have promised to write so that other Members of the Committee will not have to search the web. I agree with the noble Lord, Lord Goodhart, that perhaps we do not need now to go into this in full. Clearly, it is open to Members in another place if they think our extradition relationship with the US should be considered. Clearly. the Government will respond to such a request. The noble Lord asked to what extent we had been crafting this Bill to make ourselves compliant with the EU-US agreement. The answer to that is not at all.
  Lord Stoddart of Swindon: Before the noble Lord sits down—although in Committee presumably we can go on discussing this ad infinitum—I am not quite clear about the position in relation to the agreement we already have with the United States on extradition matters. The noble Lord said that the EU agreement, which we have signed, does not apply. There are no measures to be taken to bring it into law because we are

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  in compliance with it. Let us suppose that government and Parliament decide that they want to alter the present position, and in altering it it ceased to be compliant with the EU-US agreement. What would happen then? Would we be in breach if we then implemented what the Government and Parliament wanted to implement? Could we be brought before the European Court because we refuse to implement something? It is feasible that at a future date we could very much disagree with something in the agreement.
  The other point which concerns me and which the noble Lord, Lord Filkin, did not answer, was the assertion by Mr Vitorino that this set a precedent. Does it? If it sets a precedent, it means that the EU has taken it upon itself to define or to interpret its powers as being able to make agreements with third countries on behalf of this country, whether it is in compliance with our Act—when it becomes an Act—or not. Again, that is a very serious matter. We need assurances about it.
  I appreciate that the noble Lord, Lord Filkin, cannot answer all these questions today or even tomorrow. But perhaps he could write to Members of the Committee in the light of what he said, and in the light of what I have further said, and put that explanation on paper. I should be most grateful if he could.
  Lord Filkin: I shall have an initial stab at answering the question because I believe that we should give as direct and immediate a response as we can. No doubt it will benefit from being added to the letter that I have already promised to write. I suspect that the noble Lord, Lord Stoddart, is well aware, in a sense, of the nature of inter-governmental treaties. If our Government, using the Crown prerogative, make an agreement, that is an agreement with another state. It therefore places a responsibility on the Government, if they wish to ensure that they can honour such an agreement, to put it into legislative effect if it is necessary to do so through Parliament.
  On these measures, we often have a debate at the beginning of Bills as to what would be the consequences should Parliament say no, and whether Parliament has the right to say no. I repeat: the position is that Parliament is sovereign on such issues. Parliament can say no. If the Government are incompliant with a treaty provision they have made and with what Parliament says, that is non-compliant. I think that that is an accurate statement of the constitutional position.
  Whether or not sanctions will apply against non-compliance—again, I tread in deep waters here—depends under what pillar of the treaty such an agreement has been made. We have referred to such issues previously. I shall need to check on the specific point. The noble Lord raised a hypothetical situation. As I said, while we may need to do nothing whatever now, he raised the argument, "What if we want to change things round domestically and were then noncompliant?". Again, I venture into constitutional theory but my understanding is that Parliament can do
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  what Parliament can do. If there is then a noncompliance, whether or not it is sanctionable will depend on the treaty provisions under which it is done. I shall try to answer the specific points in a letter, and will give just a broad interpretation at this point.
  I think that António Vitorino is a very able politician. I have not seen what he said with regard to this agreement. As the EU Commissioner for the JHA I can well believe that he will express to the parliament a degree of pleasure that it had been possible to get 15 member states to agree to this measure. Therefore, he said that perhaps this was an indication of something that the European Union was doing which is useful to ensure that it is negotiating on behalf of its 15 member states an agreement with the US that was agreeable to all 15 member states.
  I repeat or emphasise that in that situation the EU is acting only because all 15 member states have said that they are prepared to agree with the action that the EU intends to take. If those member states had said that they were not in agreement, the EU would not have been able to act. So, it is the carrier for the agreement of the 15 member states who individually state that they are happy to use the EU as a carrier for such a measure.
  There is a further point which I shall touch on briefly because this is not the time to talk about the future of Europe. In discussions on the future of Europe we have been very clear about the importance of preserving our right to conduct bilateral negotiations. We see this as absolutely fundamental in these issues and we should not allow that to be usurped or taken over in any way. I shall respond to any points that I have not answered, on reflection, in a letter to all Members.
  4 p.m.
  Lord Wedderburn of Charlton: I am sure that Members of the Committee will agree that this harsh viva voce examination of the Minister should come to an end. I wondered if he would end it by giving that famous reply of a noble Earl at Oxford as a student when asked how he would bar an entail, how he would end a fee tail estate. Perhaps the Minister will adopt his famous reply, "I'd get my man to do it". I am sure that the Minister will require a great deal of assistance in the task he has nobly undertaken. When he does, could he perhaps distribute, along with the letter of the noble and learned Lord, Lord Scott of Foscote, the very short transcript of the meeting of Sub-Committee E with the Minister, Mr Ainsworth?
  Lord Filkin: I am very happy to do so.
  Lord Lamont of Lerwick: I wonder whether I could return to a point that was made last week. I apologise for the fact that I was not able to be here. Unfortunately I had to be abroad, although the amendment concerned was one which interested me very much. I assure the Minister that I shall not go over what was said but I want to raise certain points which, as far as I can see having read Hansard, were not raised. I refer to the very important point of a warrant

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  being issued and used to extradite someone simply for the purpose of questioning, which might not lead to a trial within a reasonable period but might lead to the person being detained for a very long period without a trial taking place or, indeed, no trial taking place.
  As I say, I have read Hansard, albeit rather quickly. It seemed to me that the Minister's reply essentially amounted to stating that Clause 2(3)(b) states clearly:
  "the Part I warrant is issued with a view to"—
  I emphasise the words, "with a view to"—
  "his arrest and extradition … for the purpose of being prosecuted for the offence".
  The noble Lord, Lord Wedderburn, referred to Article 1 of the framework decision, as did the Minister. It states:
  "The European arrest warrant is a judicial decision issued by a Member State",
  and then the same phrase is used,
  "with a view to the arrest".
  At col. GC 22 of Hansard for 9th June, the Minister repeated Clause 2(3)(b). In the same column he quoted the framework decision and the phrase that I have already quoted. No one seemed to come back on the Minister's speech to ask whether the phrase "with a view to" was sufficient. The Minister said that he would be interested to know if there were any cases and that this has not been of concern. However, surely it is not enough to produce an example of a British citizen who has been extradited. If it is the habit or custom in some countries for people to be held in detention without being brought to trial for a very long period of time. surely that is a matter of concern.
  Certainly, I have read a number of articles that have suggested that in a number of countries it is quite common practice for people to be put under pressure by being detained. The pressure is on them to strike a bargain with the investigating magistrate. They are held for questioning. I did not realise there would be an opportunity to raise this and came unprepared. I do not have the article here, but—
  Deputy Chairman of Committees (Lord Ampthill): I apologise for interrupting the noble Lord. We have dealt with Amendment No. 30 in Clause 2. That is now over and done with and we are dealing with Clause 2 stand part.
  Lord Lamont of Lerwick: With great respect to the noble Lord. I am dealing with Clause 2.
  The Deputy Chairman of Committees: We have been debating this for over half an hour. As the noble Lord was not present last week, perhaps he would be as brief as he humanly can be and make the points that he is entitled to make.
  Lord Lamont of Lerwick: With the very greatest respect, I accept the ruling of the Deputy Chairman.
  The Deputy Chairman of Committees: It is not a ruling; I am making a request.
  Lord Lamont of Lerwick: Perhaps I may suggest that there could hardly be a more important matter for any
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  parliament to consider than whether someone can be detained without being brought to trial. I was not able to be present last week. If noble Lords think that I am repeating points that were made they can tell me, but I do not think that I am. The point I have just made about other countries was not made. I have read the debate and have it here. The point I want to make is very relevant to the adequacy or otherwise of Clause 2(3)(b). We are debating whether Clause 2(3)(b) should stand part of Clause 2. The noble Lord, Lord Goodhart, rightly corrects me. We are debating whether Clause 2, which includes Clause 2(3)(b), should as a whole stand part. If Clause 2(3)(b) is inadequate I would submit that Clause 2 should not stand part because it is the most important part.
  The point I wish to press is that I have read quite a number of articles, including many by John Mortimer QC, suggesting that in France, Belgium, Spain and Germany it is common practice for people to be held without being brought to trial. I made reference to the fact that in Belgium, one person has been held in prison on remand for in excess of five years without being brought to trial. That is a case which raises a question mark about the relationship between the judiciary and politics in Belgium. Certainly, there have been comments in France about this practice.
  Therefore it seems to me, particularly in the case of extradition, we should ask whether one can be satisfied with the words "with a view to". The Minister said that that had been the practice since the 1989 Act, no more and no less. That is all right, but in those days extradition procedures took much longer. They took the 17 months which the Minister is now trying to reduce to three months.
  The Minister also said:
  "If … there was then a doubt in the district judge's mind that the request was for a prosecution case—if he believed it might be for a fishing trip or an interrogation",
  and then stated, "I should have thought", which is riot the strongest wording,
  "that he had the power to strike Out the application".—[Official Report, 9/6/03; col. GC 23.]
  I accept that the prima facie hearing has been gone for some time and that with a prima facie hearing one could have tested whether an extradition request was for the purpose of interrogation. However, as regards the removal of double criminality, which is one way of opening up a case and in some cases exploring some of the issues involved, perhaps in those cases the district judge—if double criminality still existed—would have had a view as to whether or not the extradition request was a fishing expedition.
  I should like to hear the Minister comment more about the practice in other countries. There are many points which cause me concern, but this is the one which causes the most. I do not know whether the Minister saw a Written Question which I tabled, which asked about British citizens held in prison in the European Union. According to the Answer supplied by the Foreign Office, there was no one in the position of having been held hut not charged. It is unfair to ask

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  the Minister about a Question which was answered by the Foreign Office, although I imagine it was passed to him in view of the Bill.
  Perhaps the Minister could distinguish between the words, "accused", "charged" and "indicted". I would be particularly interested eventually to know in what sense there were zero UK citizens abroad who had been held without being charged. I am very sceptical of that in the light of the proceedings one reads about in articles by eminent Labour lawyers such as John Mortimer QC.
  I apologise for returning to an issue but it is a very important part of the stand part debate. I do not think that the thrust of my argument was put previously.
  Lord Filkin: I thank the noble Lord, Lord Lamont, for the question he raised. I think that I understand the two essential limbs of it. He referred to whether the wording, "with a view to prosecution" opens up the risk that someone could be extradited when the requesting state was essentially saying that it wanted to put this person on trial and was ready to do so but in practice wanted to get the person there with the hope that they would be able to prosecute them but using their presence as a mechanism to extract further information to increase the likelihood of a prosecution. Perhaps I put words in his mouth, but I sense that that was the gap that the noble Lord was trying to explore in the use of the phraseology, "with a view to".
  Our position is clear: that people should not be extradited for interrogation or questioning; they should be extradited only in the circumstances we have discussed under Part 1 when the requesting state says, "We have evidence which we think is sufficient to put this person on trial. We want to have them within our jurisdiction so that we can put them on trial". I believe that the wording we have is appropriate. It goes back to the question of whether it is "with a view to". They need to have that person in their state before they can put the prosecution into effect.
  I shall reflect, no doubt over the summer, as to whether it is beyond doubt in that sense. I do not think that on that point there is a difference; it is whether the wording captures the issue. The noble Lord, Lord Lamont, is quite right; the current legislation is completely vague on that point. It does not mean that everything is perfect. On the other hand, we are not aware of problems. I am not saying that means that there will never be problems in the future but we are going further than the current legislation goes in this Bill. We are tightening up extradition law in this country as a consequence of this measure rather than weakening it.
  There is a further point as regards the ECHR obligations of a district judge and whether he thinks that the person's rights under the ECHR will be satisfied. I shall look at what the Foreign Office wrote in response to the questions from the noble Lord, Lord Lamont. I shall see whether we have any information on citizens languishing abroad, to paraphrase what the noble Lord said. As I indicated earlier, I shall reflect on
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  the thrust of his argumentation and see whether we should change our mind on the matter. I shall, of course, correspond with the noble Lord accordingly.
  4.15 p.m.
  Viscount Bledisloe: If the noble Lord is to reconsider the matter, will he consider one further point? Assuming that the wording in Clause 2(3)(b) is limited to a formed intent to prosecute with sufficient evidence, and not an intent to investigate, and that the warrant contains the statement that that is so, has the district judge, or anyone, any power to intervene, if he is convinced that that statement is not true and that what is actually intended is to interrogate someone once he is in the foreign territory? Suppose the magistrate has issued a whole series of warrants to this effect and there is clear evidence that the previous 12 people who had been extradited pursuant to a warrant from that magistrate in the foreign territory were held for a very long time and interrogated and not brought to trial. Has the district judge any power—I cannot find any—to say that he will not extradite because he does not believe the statement?
  Lord Wedderburn of Charlton: Before the Minister replies. in view of the most important strengthened assurance that he has given today—I believe that he had already agreed to reconsider some of the wording—to view them with care, would he note that the phrase is in a sense even weaker than the case put by the noble Lord, Lord Lamont? It is a warrant issued not merely
  "with a view to his arrest".
  but,
  "with a view to his arrest … for the purpose of being prosecuted".
  If the clause said,
  "a warrant issued with a view to prosecution"
  at least that would—
  Baroness Turner of Camden: It states:
  "for the purpose of being sentenced".
  Lord Wedderburn of Charlton: No, that is another measure. I am discussing Clause 2(3)(b). I apologise to my noble friend but I think that is correct. As I say, Clause 2(3)(b) states:
  "with a view to his arrest … for the purpose of being prosecuted".
  That does not guarantee anything. When the Minister is considering that matter and thinking of a change in the wording—which I very much hope he will do—will he also consider the evidence provided by Fair Trials Abroad on the new electronic means of communication? That body mentions a number of cases where people have been kept—in some cases incommunicado—without being prosecuted.
  If my memory is right, there is clear evidence of people who were arrested, interrogated and were about to be prosecuted but then were not. The clause would obviously cover that. Meanwhile, they can be interrogated on anything, unless, of course, you are the Prime Minister of Italy in which case at the moment you cannot be charged with anything at all. In my

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  respectful submission the Minister must consider what the words actually mean. If he is going to consider—as I hope he will—giving a British judge the power to look at the relevant words and decide whether they are valid, he must look at the words even more carefully because, as they stand, a British judge would not have a chance of knowing whether the subjective test would be met.
  Lord Filkin: I shall not weary the Committee by repeating several times the commitments I have already given as that would be tedious. In general terms, international agreements on extradition operate on a basis of an assumption of trust and honour between member states. They have to do so.
  In the circumstance that was instanced of a member state acting in breach of the agreement—I believe the example was given of 12 such occasions—and that claimed to be extraditing someone for prosecution but was in fact extraditing that person for interrogation, that state would be in breach of the agreement. Those would be issues that at one level the relevant state would take up with the other member state. I am sure that the district judge would be informed of the matter when he or she exercised their discretion and considered whether ECHR tests would be met as part of their decision to extradite or not to extradite. We believe that they have a locus and a leverage in that respect. But let us not debate the matter further now. I have given an undertaking to reconsider the issue and to respond on it.
  Clause 2, as amended, agreed to.
  The Deputy Chairman of Committees: I apologise for having interrupted the noble Lord, Lord Lamont, in the midst of his speech. I was merely conscious of the fact that there are some 208 further clauses to be dealt with. If everyone can speak as briefly as they can manage, we might get there before we are too old to listen. It does not affect me personally but it does affect the Members of the Committee.
  Clause 3 [Arrest under certified Part 1 warrant]:
  Lord Hodgson of Astley Abbottsmoved Amendment No. 31:
  Page 3, line 26, at end insert—
  "( ) For the purposes of this section—
  —"constable" shall he a constable of the United Kingdom including a constable of the Royal Parks Police, and
  "customs officer" shall be a United Kingdom customs officer."
  The noble Lord said: We come to Clause 3 which is concerned with the arrest under a Part 1 warrant. There are grouped with Amendment No. 3 a series of other amendments which are consequential. Amendment No. 47 is concerned with provisional arrest. Amendment No. 152 is concerned with arrest under a Part 2 warrant. Amendment No. 169 is concerned with provisional arrest under a Part 2 warrant. They all address the same issue in different parts of the Bill.
  I appreciate the clarification which the Government gave at Report stage in another place when they tabled an amendment which removed the ambiguous phrase
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  "appropriate person" from Clause 3, which deals with those people in the UK who may execute a certified Part I warrant. The Government then limited the ability to execute a Part 1 warrant to a constable, customs officer or service policeman in any part of the United Kingdom.
  However, I feel that this particular issue needs more scrutiny. I have tabled these amendments for three reasons. First, I am unclear as to whether the drafting of Clause 3(2), as amended in another place, really achieves what the Government intended to do. The subsection reads:
  "The warrant may be executed by a constable or a customs officer in any part of the United Kingdom".
  In my understanding that means that a constable, be he French, English or Dutch, who is in any part of the United Kingdom may execute the warrant. In fairness to the Government, they have made it very clear that only British personnel should be able to make an arrest under a warrant. The then Minister Mr Ainsworth said in Standing Committee in another place:
  "No foreign law enforcement officials will be designated to execute a European arrest warrant in this country. That is not what the Government want or have ever intended".—[Official Report, Commons, Standing Cttee D, 9/1/03; col. 64.]
  But perhaps the Minister would agree that the subsection that we are discussing could be better drafted to reflect that point specifically.
  Secondly, there are the problems of different types of police. When Mr Ainsworth was initially challenged in another place about the appropriate person who could execute a warrant, he responded by saying that no other person other than a constable would be able to execute a European arrest warrant. He then went on to say that Customs and Excise and various service police forces were significant players in the area and that it was those "sort of people" whom the Government viewed as "appropriate". Mr Ainsworth said:
  "Constables, Customs officers and members of service police authorities are the only sort of people who we foresee in the role".—[Official Report, Commons, Standing Cttee D, 9/1/03; col. 65.]
  Lord Clinton-Davis: Why has the noble Lord omitted constables from the Transport Police? I believe that there are others who should be included.
  Lord Hodgson of Astley Abbotts: I am grateful to the noble Lord for those comments. We shall discuss that issue in a second. The amendment we have tabled is probing and is intended to explore whether Royal Parks Police and other such personnel are included. Would they be the sort of people that the Minister's colleague, Mr Ainsworth, had in mind?
  When I tabled the amendment I was reminded by my noble friend Lord Bridgeman that the Police Reform Act 2002 has a long list of different types of police. Section 86(3) reads:
  "A person meets the requirements of this subsection if he is attested or sworn as a constable and—

  (a) he is a member of a police force maintained under section 2 of the Police Act 1996:

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  (b) he is a member of the metropolitan police force or of the City of London police force;

  (c) he is a regular constable within the meaning of the Police (Scotland) Act 1967;

  (d) he is a member of the Police Service of Northern Ireland;

  (e) he is a member of the National Crime Squad;

  (f) he is a member of the Ministry of Defence Police appointed on the nomination of the Secretary of State under section 1 of the Ministry of Defence Police Act 1987;

  (g) he is a member of the British Transport Police Force;

  (h) he is a member of the States of Jersey Police Force;

  (i) he is a member of the salaried police force of the Island of Guernsey;

  (j) he is a member of the Isle of Man Constabulary; or

  (k) he is engaged with NCIS on a period of temporary service".

  Will the Minister clarify whether or not all those different types of police are included in the phrase,
  "constable, customs officer and service policeman"?
  Thirdly, as regards Amendment No. 152, despite the changes made to Clause 3(2) in another place on Report, there appears to have been no such alteration in Part 2 of the Bill. Clause 70(5) states:
  "A warrant issued under this section may—
  (a) be executed by any person to whom it is directed or by any constable".
  Perhaps the Minister will explain why the wording is not the same for Part 2 as for Part 1 in that respect? For my part, I do not believe that "any person" should be permitted to execute a Part 2 warrant. Indeed, the use of the words "any person" seems to be even more dangerous than "appropriate person", which was previously found to be unsatisfactory.
  Further, why the phrase "any constable" in Part 2 and "a constable" in Part 1? Amendment No. 152 addresses those issues in respect of a Part 2 arrest and Amendment No. 169 in respect of a provisional warrant under Part 2.
  Finally, perhaps for the convenience of the Committee, the Minister could address one other inconsistency. That is the omission of the phrase "the customs officer" in Part 2 whereas it appears in Part 1. Clause 3(2) reads:
  "The warrant may be executed by a constable or a customs officer",
  but Clause 70(5) reads,
  "by any person to whom it is directed or by any constable".
  There is no mention of the customs officer.
  This is an issue which much concerned the Committee in another place. We would benefit from some tidying-up of the drafting or at least some clarification from the Minister. I beg to move.
  Lord Wedderburn of Charlton: I have an amendment in my name and that of my noble friend Lady Turner which has been grouped with the amendment that we are discussing. My amendment is put forward very hesitantly but also in a probing spirit. What the noble Lord has just said must surely be right in certain respects. We hope that the Minister will reassure us on the matter.
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  The issue that we are discussing must surely be a matter for a United Kingdom constable. That matter should be cleared up. If the Government intend the measure to include a Belgian constable, they had better say so. But I believe that everything the Government have said so far indicates that they intend a United Kingdom officer to be involved. That should be stated in the Bill.
  The modern habit of Ministers saying, "Oh well, it is not down on paper but we shall give you a Pepper v. Hart assurance that you can quote in the courts"—after that famous decision which enabled Ministers to be quoted in the courts—is being rather strained these days. Ministers should not delight in giving Pepper v Hart assurances; they should be ashamed of doing so, because it means that there is something wrong in the drafting that must be cleared up. Surely "United Kingdom" should somehow be included in the Bill.
  We are then left with the problem of "constable". Like most ancient offices, from Lord Chancellor onwards, there is something hazy about "constable" and there is always something hazy about its reform. I fully support the noble Lord in his tabling of Amendment No. 31 as a probing amendment to get the matter out in the open and have it properly discussed, as, so far, it has certainly not been.
  I tabled an amendment about a specific matter regarding prison officers about which I am slightly hesitant. I can quickly summarise my train of thought as follows: in litigation in 1994, it was discovered—by people, like me, who were ignorant of the matter, at any rate—that prison officers, because they had the powers of a constable, could not form a trade union. At that point, they were regarded as falling within the prohibition of the police and constables to form trade unions. I have put the matter very broadly, but that is the nub of it. The issue was, in a sense, cured in the Criminal Justice and Public Order Act 1994, in which Section 126 provides that,
  "employment legislation shall have effect as if an individual who as a member of the prison service acts in a capacity in which he has the powers … of a constable were not, by virtue of his so having those powers … to be regarded as in police service"—
  for any provision of that legislation.
  Although prison officers are not regarded as being "in police service", the Act deprived them of their right to strike anyway, which is a fashionable idea these days. Unless I am wrong, in the light of the definitions that the noble Lord has read out, which exclude prison officers, they appear still to have the powers of a constable. If I have overlooked anything, my amendment is unnecessary. But there are people around who have the powers of a constable. It would not be impossible for a court to regard someone who has the powers of a constable, whether or not in the police service for various purposes such as forming trade unions, as falling within the definition.
  I referred to a prison officer in my amendment. It states:
  "'constable' does not include a prison officer or any other person who has only the powers of a constable".

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  If there are such people around, and if prison officers are among them, they should clearly be excluded here from the definition, because it would be absurd for them to serve European arrest warrants.
  I therefore support what has been said on the other amendments moved by the noble Lord on the Opposition Benches and press the Government to consider the one in my name.
  4.30 p.m.
  Baroness Turner of Camden: attached my name to my noble friend's amendment because the question of who may execute a warrant is very important. Clause 3 stipulates who may do so: a constable or customs officer. It is important that there be a measure of trust in the person carrying out the function. A prison officer does not seem appropriate to carry out an arrest in this context, even though he may be regarded as a constable. For that reason, and because it is a probing amendment, I hope that the Minister can give us a reasonable response, as it is important.
  Lord Bassam of Brighton: As ever, I am grateful to all Members of the Committee who were involved in the discussion. I am also grateful to the noble Lord, Lord Hodgson, for tabling the amendment so that we can go through the issues still obviously causing concern to Members who were unclear about some of the points after they were debated in another place.
  The issue is who may carry out an arrest in this country in an extradition case. Various rumours flew about to the effect that foreign police officers would be allowed to come to Britain and carry out arrests on the basis of a European arrest warrant. So far as we are concerned, nothing could be further from the truth.
  It was certainly an interesting experience to see first hand the degree of paranoia that the issue has raised. The Government have absolutely no plans—
  Baroness Anelay of St Johns: Perhaps I may assist the Committee, as we said earlier that we were trying to move on. That argument was deployed in another place but not here. The Minister has no need to try to respond to an argument that has not been made. My noble friend has tabled some very important probing amendments. I would be grateful if he could address those.
  Lord Bassam of Brighton: I appreciate entirely that point. I am not trying to be disrespectful, but the matter stimulated debate earlier. I wish to make clear on the record that the Government have no plans to allow foreign police officers to exercise powers of arrest in this country. We recognise that there was something to be said for putting the matter beyond all doubt. Accordingly, the Bill was amended in another place, as has been acknowledged on Report, to make it clear that the only people with powers of arrest in Part I are United Kingdom police officers, United Kingdom customs officers and United Kingdom service police officers. That is clearly set out in Clauses 3 and 5.
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  A service police officer is defined in Clause 3(6), and again in Clause 5(5). I hope that there is no suggestion of any outstanding ambiguity about that. It may not have been noticed that in Clause 203(6), which defines a customs officer, there is no ambiguity and no possibility of a foreign customs officer being included.
  On the term "constable", the office of constable is established in common law. On appointment, every constable in the police force must,
  "be attested as a constable by making the appropriate declaration".
  Thus the Royal Parks Police are covered by the relevant provisions in the Bill as drafted as are the British Transport Police, the City of London Police and all the bodies that the noble Lord, Lord Hodgson, read.
  The use of the phrase "a constable" is common in other legislation; for example, the Police and Criminal Evidence Act 1984, the Terrorism Act 2000 and the Anti-Terrorism, Crime and Security Act 2001. No foreign police officer could make the necessary declaration or be attested so there can be no possibility of a foreign police officer falling within the term "constable". Equally, the term "constable" does not encompass prison officers, so I hope that I can set at rest the mind of my noble friends Lord Wedderburn and Lady Turner on that point. I suggest that the amendments are unnecessary. Furthermore, if we seek to give a statutory definition to the term "constable", we could call into question all the other legislation where the term is used and the basis of the common law definition.
  I shall refer briefly to Part 2, in which the powers of arrest are conferred on a constable or any person to whom a warrant issued by a UK judge is directed. There is one simple reason why we have adopted this formulation. It is the tried and trusted one, and the wording is virtually identical to that in Section 8(5) of the Extradition Act 1989. Members of the Committee should be familiar with the wording. Again, the amendments to Part 2 are, I suggest, unnecessary and potentially harmful for the reasons that I have already given. We have amended the Bill to make clear that no one other than UK law enforcement officers may carry out arrests in this country.
  I wish to clarify something that I said earlier in case I have left any doubt. I said that all the people that the noble Lord, Lord Hodgson, mentioned would fall within the definition of "constable". For the purposes of this legislation, the exceptions are the police officers of Jersey, Guernsey and the Isle of Man. They are considered a constable only when acting in their jurisdiction. That clarification is important.
  The omission of "customs officer" in Clauses 70 and 72 is dealt with by amendments in the name of my noble friend Lady Scotland, which appear on today's Marshalled List. They are numbered as 148A, 152A, 169A, 180A and so on. They put beyond doubt the issue that the noble Lord raised.

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  I think that I have covered all the issues raised during that debate. I apologise to the noble Baroness, Lady Anelay, for causing any offence by suggesting that paranoia was present in this room. I can feel that it is not.
  Lord Wedderburn of Charlton: I, for one, am extremely grateful to my noble friend, with the footnote exception of his reference to paranoia, which, with the greatest respect, is perhaps best forgotten. But I was too slow to understand exactly what he said about the reason for not inserting a definition. He told Members of the Committee that "constable" would not include anyone with the powers of a constable. It might avoid litigation if that were stated in the Bill.
  If I am wrong, Hansard will prove me so, but I think that I am right in saying that his reason for not including a definition was that it might call into question the common law definition or definitions already in existence in other statutes. Could the Minister expand on that? That would be the case only if somehow the Government got the definition wrong under the common law tests and in other legislation.
  The Minister is asking us to accept that "constable" must be understood through legislation by implied reference to definitions in common law and other statutes. So when I am arrested—I heartily hope that it does not happen—and I ask the gentleman presenting me with the necessary documents, "Who are you?" and he says, "I am Plod. I am a constable", and I ask, "A constable?" and he says, "I am a tested constable" and I ask, "What is that?", he would have to reply, "Ah, I cannot tell you that. You will have to look up the common law and the other relevant statutes". If there were a definition, he could say quite reasonably, "Just look at Section 3(9). There is a list, and I am one of those"—that is, a constable of the Royal Parks Police, the Transport Police or any of the other headings that there ought to be.
  If the Government do not have those headings, how can they expect an ordinary citizen to understand whether someone is really a constable within the purposes of the Bill? I am entitled to know who is arresting me and whether he is the proper person. The Government have shown that that is correct, because, quite rightly, they have at least included an understandable point of reference for customs officers. What they have done for customs officers proves that they can do it for constables. It is very reasonable to give us a precise explanation of who is the customs officer who can act under the Bill. However, the Government will not do the same thing for constables. They tell us that we must understand that by the ether and osmosis of constitutional understanding that is supposed to afflict every ordinary citizen.
  I press the Minister that perhaps that is an unreasonable position, and one that certainly does not justify the absence of a definition in the Bill, in view of all the many uncertainties displayed in the debate.
  Lord Bassam of Brighton: I suspect that the noble Lord, Lord Wedderburn, has raised a question about
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  definitions that might run wider than that before the Committee for consideration. I do not know; I am not an expert in these matters. Nor am I expert in the origin of the common law definition of a constable, but it is the definition on which we rely and it has a long history. However, I am advised that if we were to define constable in terms—the noble Lord did not raise terms—it would call into question where constable is not defined in all other legislation. That is the nub of the matter.
  That probably does not satisfy the noble Lord, Lord Wedderburn, who is after all one for precision. He is rightly so; precision helps us in our deliberations. However, that would be the effect. If he wants to raise the issue of providing for a statutory definition of "constable" where we have relied on the common law understanding of the term, that question probably runs rather wider than that we are considering in the terms of this legislation.
  4.45 p.m.
  Lord Hodgson of Astley Abbotts: I begin by saying how grateful I am to the noble Lord, Lord Wedderburn, and to the noble Baroness, Lady Turner, for their support for the amendments. It is inherently unsatisfactory when the Bill is not entirely clear but the Government say that they have no plans to do something.
  Lord Lamont of Lerwick: Why is my noble friend so keen that only British policemen can arrest people in this country? It would be much better if foreign policemen could arrest people in this country. Then we would see what the purpose of the Bill was. That purpose is to make people subject to foreign law and deprive them of the protection that they have had in court in the past. It may lead to them being taken out of this country purely for the purposes of interrogation, not for trial and imprisonment. We have had no response on the clause stand part debate. It would be much better if we had gendarmes marching up and down London threatening people with warrants.
  Lord Hodgson of Astley Abbotts: I shall not be tempted down that particular road. However, my noble friend has a serious point. The Government say that they have no such plans. I made it punctiliously clear by quoting from the debate in another place that we never said that the Government had any such plans. What is the danger of putting "United Kingdom" into the Bill? It would not do any harm, and it would answer some of the points and concerns that have been raised in all parts of the Committee.
  It is clear beyond peradventure that the Minister and his colleagues elsewhere in government do not wish non-UK constables to arrest people in this country. However, the Minister will not be here for ever; in fact, we know that he will probably be here for a very short time indeed. Therefore, it would be nice to have that in the Bill.
  With regard to the question of the definition, my noble friend Lady Anelay points out that in the Crime (International Co-operation) Bill, on the Committee

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  on which I did not serve, "constable" was defined as a UK constable. The noble Lord, Lord Filkin, led for the Government on that Bill. Therefore he will know that, so perhaps we can have a look at that matter.
  I am delighted to realise that the Government have picked up on the points about Customs officers. It is a hit hard on those of us slaving away in the salt mines to pick up amendments that were tabled only on the day of the Committee and be able to appreciate them. However, I am glad that the inadequacies and inaccuracies—perhaps I should say inconsistencies—as regards Customs officers in Parts 1 and 2 have been corrected. We look forward to reading those amendments with care. However, we deserve the right to come back for absolute clarity. We are entitled to ask for that, and to make it absolutely clear on behalf of our fellow citizens what the actual remit of who may do the arresting is. In the mean time, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 32 not moved.]
  Clause 3 agreed to.
  Clause 4 [Person arrested under Part 1 warrant]:
  Lord Hodgson of Astley Abbottsmoved Amendment No. 33:
  Page 3, line 30, leave out "and he asks to be shown the warrant"
  The noble Lord said: Clause 4 concerns the actual position of the person arrested under a Part I warrant, his ability to see the warrant under which his arrest has taken place and the speed with which he must be shown it. The consequential amendments, Amendments Nos. 33 and 36, are concerned with those two issues in respect of a Part I warrant. Amendments Nos. 154 and 170 are concerned with the same issue of arrest and provisional arrest under Part 2. Amendments Nos. 157 and 172 are concerned with the time scale in relation to that issue. Some Liberal Democrat amendments are in the same group, to which the noble Lord, Lord Goodhart, will wish to speak.
  The amendments focus on Clause 4(2) and the consequential provisions in Part 2, Clauses 71(2) and 73(2). Clause 4(2) states:
  "If neither the warrant nor a copy of it was shown to the person at the time of his arrest and he asks to be shown the warrant, the warrant or a copy of it must be shown to him as soon as practicable after his request".
  We do not propose to challenge the fact that an arrest can take place if the warrant or a copy of it is not to hand. Understandably, there are circumstances in which that might be necessary. However, we have some fundamental difficulties with the subsection.
  First, there is no obligation to show an arrested person the warrant or a copy of it unless he asks to be shown it. As Liberty pointed out in a briefing—I am sure that other Members of the Committee have had it—there is also no obligation to inform the person of his right to request to see the warrant or a copy of it. Those facing extradition may well be foreign and therefore unfamiliar with their rights in the United Kingdom. It is surely vital, then, that the Bill states
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  that a warrant or a copy must be shown to the person, whether he asks to see it or not. That is what Amendment No. 33 seeks to achieve.
  Secondly, Amendment No. 36 puts a time limit on the period within which the person must be shown the warrant or a copy of it. We feel that "as soon as practicable" is too vague. It is not acceptable for someone to be held for more than five hours without seeing the warrant that authorises their arrest. We selected five hours because it is the length of time limit employed in the Crime (International Co-operation) Bill within which foreign policemen would be permitted to enter the country in hot pursuit. However, we are quite open to an alternative time scheme or limit if one is proposed. The importance lies in the principle of having some limit shown in the Bill.
  So far as the amendments tabled by the noble Lord, Lord Goodhart, are concerned, we are perfectly happy with the insertion of "arrest" in the place of "request", but feel that our amendments go further in offering more protection for the rights of the person arrested. We are rather ambivalent on being "given" as opposed to being "shown" a copy of the warrant, so we shall wait for the persuasive powers of his oratory to convince us of the rightness of that cause.
  The key issue behind the group of amendments, so far as we are concerned, is that the person must be informed of the charges against him automatically in writing, and he must be informed promptly. I beg to move.
  The Deputy Chairman of Committees: I remind the Committee that, should the amendment be agreed to, Amendment No. 34, tabled by the noble Lord, Lord Goodhart, would have been pre-empted.
  Lord Goodhart: I would like to speak to four amendments in the group. Amendments Nos. 34, 37, 153 and 158. Amendments Nos. 34 and 37 follow Amendment No. 33, which I fully support and would have put my name to had there been space to do so. Amendment No. 34 is incorrect, I am afraid. It should be a reference to "shown" in line 31 rather than line 30, where I agree that it is pre-empted by Amendment No. 33. I am entirely happy with and strongly support Amendment No. 33.
  The aim of my amendments is to ensure that the subject of the warrant is always given a copy of it—not the original; that would be inappropriate—either on arrest or as soon as practicable after arrest. The warrant is an extremely important document that will contain a very considerable amount of information. For instance, it has to contain under Clause 2(2) the statement and information required. It is clearly essential that the person arrested should be told in a document—one that he is entitled not merely to be shown but to keep—why he is being arrested and on what grounds his extradition is sought. Therefore, a copy of the warrant should be provided automatically to the subject of it. It should not have to be asked for.
  Having expressed full support for Amendment No. 33, I am less happy with Amendments Nos. 35 and 36. I am not sure that it is appropriate for the warrant to

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  be in a language that its subject understands, for two reasons, one of which is that it may not be possible for the person serving it to know for certain what languages its subject understands. The warrant has to be prepared before the person is arrested and can be interrogated about which languages he knows.
  Lord Hodgson of Astley Abbotts: I hesitate to interrupt the noble Lord's oratory, but is not Amendment No. 35 in a separate group? We will come to the issue.
  Lord Goodhart: Oh! I am sorry. I shall simply deal with Amendment No. 36. I sympathise with the reasoning behind it, but I have to say that I see no logical connection between the Bill and the Crime (International Co-operation) Bill. I would have thought it undesirable to put such a time limit into primary legislation. I think that "as soon as practicable" will do for these purposes. What I have said applies equally to the corresponding amendments to Part 2.
  Lord Wedderburn of Charlton: I put my name to Amendment No. 33, which I regret, only because it prevented the noble Lord, Lord Goodhart, from putting his name to it. The amendment is very sensible. To put it somewhat strongly, the whole process is reduced to a kind of inferior parlour game. When a person objects to being arrested and says, "I do not know what it's all about", he is told, "Ha! You didn't ask for the warrant so you can't have it".
  I do not know how many Members of the Committee know anyone who has been arrested by a policeman. Very often, such people are quite frightened and not in a state where they can ask for anything. They are simply desperate not to be arrested. The provision is absurd. The amendment is a test of Home Office obduracy. If the Minister has a brief headed "Resist", I suggest with great respect that he puts it aside and addresses the common sense of the matter. The warrant should be produced. The subsection would still continue, quite reasonably, to say "as soon as practicable". What on earth is wrong with that?
  I and my noble friend Lady Turner tabled Amendment No. 39, which is grouped with Amendment No. 33. It is entirely my fault that, as it appears on the latest Marshalled List, it is slightly altered from its original tabling. It now reads that there would be a new subsection saying:
  "Where at the time of the arrest the person asks for an explanation of statements set out in the warrant, the person making the arrest shall take steps to provide it at that time or as soon as reasonably practicable thereafter".
  I take it to be common ground that it is desirable for the person being arrested to know why he is being arrested. That may be wholly clear in the warrant but, despite all the statements and details that the Bill says that it must carry, that may not be the case. The amendment would put the responsibility on the arresting authority to do what is reasonably practicable to see that he or she knows the reason.
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  One answer that is often given in discussion of this matter is that we should let the person's lawyer explain the reason to him. That might have the advantage of someone who is favourable to the arrested person wanting to get quite clearly in his mind what he is being arrested for. However, there are all sorts of problems with that. First, the arrested person may not have access to a lawyer, or certainly not in time to prevent deprivation of liberty on grounds that are unknown. That is why the House of Commons Home Affairs Committee concluded that the arrested person should be informed of the matters for which he has been arrested.
  The availability of lawyers to the arrested person may be a problem, if that person is surrendered to a foreign jurisdiction. The investigations of Fair Trials Abroad show, in the organisation's report for 2002–3 that is available electronically, that in France, Belgium, Italy and Spain it is very difficult to get a lawyer or legal assistance. Indeed, in France of all places, it is reported that the,
  "police discourage people held in custody from contacting lawyers".
  People were routinely persuaded to sign confessions in the absence of legal advice. That is the organisation's finding, and it has made a lot of inquiries into those matters. Legal advice may not be available or sufficient for the arrested person to know fully what he is being arrested for. He has a right to know that. and reasonable steps should be taken to inform him. That is the point of Amendment No. 39, which I hope that the Minister will view favourably.
  5 p.m.
  Baroness Turner of Camden: I support the amendments spoken to by my noble friend Lord Wedderburn of Charlton, and Amendment No. 33, which seems eminently sensible and which was moved by the noble Lord, Lord Hodgson.
  In the case of Amendment No. 39, we may be dealing with people who are vulnerable and frightened, and it is necessary to ensure that such people realise the reasons for their arrest. That is why we tabled our amendment, which states that if a person asks for an explanation of the statements,
  "the person making the arrest shall take steps to provide it at that time or as soon as reasonably practicable".
  That seems eminently sensible and only fair and reasonable. I hope, therefore, that the Minister will feel inclined to accept our suggestions. If the Government do not like the wording, they might at least accept what we are saying in principle.
  Viscount Bledisloe: It seems beyond doubt that a person who has been arrested should as soon as possible be given a copy of the document on which he has been arrested. That is the only place where he can find out what he has been arrested for, as it contains not only the charge but also the statement and the information. If he has not got that, how an earth can he know what he is to do about it and whether he committed the offence in question?

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  If the Minister is minded to oppose the amendment, will he tell us what the situation is if someone is arrested for an offence in England and charged by police? Surely, the police are required to give me a copy of the charge before I leave on bail, so that I can go to my lawyer and say, "This is what I am being charged with, what am I to do about it?" I cannot conceive of any ground on which he should not be given a copy of the warrant, whether he asks for it or not. That would be very simple to do, and it is essential to do it.
  I confess that I am somewhat less persuaded by Amendment No. 39. It seems to be asking a bit much of the unfortunate constable that he is asked to give an explanation of the offence of Holocaust denial, for example. That may not be intimately within the purview of his knowledge. If one has been given a copy of the document, at least in this country one should be able to go off and get advice about what it really means. However, I see no possible grounds, although the Minister may try to find some, for not accepting Amendments Nos. 33 and 34—assuming that Amendment No. 34 is amending line 31, not line 30.
  Lord Wedderburn of Charlton: The noble Viscount may notice that Amendment No. 39 says that steps shall be taken to provide the explanation,
  "as soon as reasonably practicable".
  It may be that the constable can do that when he cannot actually articulate the full finery of the matter himself.
  Viscount Bledisloe: I am still a bit pushed to see how Constable Plod can get hold of a person who can give the man a lecture on Holocaust denial. It may be that his chief inspector could arrange that, but I do not believe that Constable Plod could do so.
  Lord Filkin: The effect of Amendments Nos. 33, 34, 36, 154, 157, 158 and 171 is straightforward enough. They require the police to show the warrant or a copy of the warrant to a person arrested under a Part 1 warrant, if it was not shown at the time of arrest. Some of the amendments provide that that must be within five hours of arrest.
  Clause 4, as it is currently drafted, requires the person to be shown the warrant or a copy of it, if he or she so requests, as soon as practicable after arrest. I would ask Members of the Committee to bear in mind that that applies only where the warrant has not already been shown at the time of arrest. In the vast majority of cases, the arresting officer will be in possession of the warrant at the time of arrest and will show it to the person at the point of arrest. However, that might not always be possible, hence the second part of the clause which gives the person the right to request to see the warrant, or be released, if the request is not met.
  The amendments place the onus of responsibility on the police to show the person the warrant, rather than the person having to ask for it. We have resisted that formulation as it represents a departure from UK domestic practice. In domestic arrest cases there is no
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  obligation to show the arrested person the warrant, unless they request it. Section 125 of the Magistrates' Courts Act 1980, as amended, sets that out.
  Members of the Committee will have spotted that the requirement is for the warrant to be shown rather than given to the arrested person, which is the point on which Amendments Nos. 34 and 153 turn. The central issue is that we do not want extradition practice to be out of line with domestic provisions, not least because any inadvertent failure to show the person the warrant would lead to the person's discharge. In the vast majority of cases the person is shown the warrant at the earliest opportunity; the police code of practice required under Part 4 of the Bill will require that as best practice.
  Lord Lamont of Lerwick: It may be my ignorance, but I understand from reading the newspapers that it has sometimes been the case that when a warrant has been faultily drafted, that has resulted in charges being dropped against someone. Surely, one cannot load the system so much in favour of custody that the arrested person is to be deprived of a document which, if he handed it to his lawyer and. his lawyer found that it was defective, might result in his release. Is that not loading the system too much one way?
  Lord Filkin: If the noble Lord, Lord Lamont, lets me complete my explanation, he may judge whether it answers his point or not. I have a lot to say. so it may help if I say the totality of it and then open up to any further questioning if required.
  In order to ensure that the provision is complied with, the draft code of practice for the police sets out police powers under Part 4 of the Bill. That makes it clear that, on arrival at the police station, the person must be told about their right to request to see the warrant. That is explicit in chapter 1 of the code, paragraph 4.3B iii. The paragraph states:
  "When a person is brought to a police station under arrest, the custody officer must make sure the person is told clearly about the right to request to be shown the warrant or a copy of the warrant".
  Chapter 1, in paragraph 4.4A iv of the code, also makes it clear that, on arrest, the detainee must be given a written notice setting out the right to request to be shown the warrant or a copy of the warrant under which the person was arrested.
  I hope that the noble Lord, Lord Lamont, will be reassured to know that in domestic procedures governed by code C, the Police and Criminal Evidence Act 1984 also applies at this stage of the process. That means that a custody officer is required to mark on the custody record that the person has been told about their rights. The arrested person signs the custody record to confirm that. What is more, officers are alerted in the code of practice to the fact that if the warrant or a copy of the warrant is not shown to the person as soon as practicable after it is requested, under Clauses 4(2), 71(2) and 73(2), the person must be taken to be discharged. We have produced a checklist to be used by custody officers that draws attention to that powerful sanction. An example of that checklist can be found in annex A of the draft code of practice.

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  The code of practice has been put out for a three-month public consultation period recently. We very much welcome the views of Members of the Committee on the measures. We believe that it is a powerful expression in practice of what we want to achieve, consistent with domestic regulation practices.
  There is another factor, which is relevant in domestic cases but may be particularly pertinent in extradition cases, and which Members of the Committee have identified in tabling their amendments. There will certainly be cases where the person arrested does not speak English or is not fluent in the language. In such cases, simply showing the person the warrant whether he asks for it or not would not be effective. It is far better that it is shown to the person's lawyer at a time of the lawyer's choosing than to the person who cannot comprehend it at the time of the police's choosing.
  The Bill entitles everyone arrested under Part 1 or Part 2 to free legal advice and we are confident that any lawyer would demand to see a copy of the warrant on the basis of which their client was being held, if that had not already happened. Members of the Committee will probably be aware that following discussions in Committee in another place, we amended Clause 8(1)(b) to place an additional requirement on the district judge to inform the person of the contents of the warrant at the initial hearing. At this stage, we are talking only about the arrest, prior to being brought before a district judge for the first of two times. We are not for a second talking about arrest with a view to the person being put in a van and removed from the country. The provision would merely bring the situation under control so that the person can be brought before a district judge to answer the request.
  On the issue of why we are following domestic legislation, we are doing so for a good and practical reason. The police deal with thousands of domestic arrests in a year and common sense says that it is sensible that the procedure in terms of arrest warrants in this respect should follow domestic procedure because it is more likely that there will be consistent and good practice compliant with a code of practice in those cases. The concerns that are being advanced—I understand their nature and the reasons for them—can be responded to by the fact that the person has a right to legal advice and that they will be brought before a district judge who has the duty to further make clear what they are being held for and against which an extradition is being requested. For those reasons, we believe that the Bill as currently drafted is appropriate and that it therefore adequately answers the concerns that have been raised.
  5.15 p.m.
  Baroness Turner of Camden: Before the noble Lord concludes, will he clarify something that I have only just noticed'? Clause 3(5) states:
  "The warrant may be executed even if neither the warrant nor a copy of it is in the possession of the person executing it at the time of the arrest".
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  According to the amendments that we discussed earlier, the person being arrested must be given a copy of the warrant and, under our amendment, an explanation. How will that be possible if the arresting officer does not have to have the warrant with him at the time?
  Lord Filkin: The noble Lord, Lord Hodgson, referred to that when he moved the amendment. He signalled—I appreciate that he did so—that the Opposition recognise that there were circumstances in which the urgency of the situation required that the person actually was seized because the warrant was not physically in the hand of the relevant officer. Common sense tells us that that will be the case. Without returning to earlier discussions, I have indicated previously the nature of people on whom extradition requests are normally made and I indicated the nature of the most serious offences. They frequently involve murder, terrorism, drug dealing and so on. There is often urgency in those situations to get the person into security.
  All of the warrants will also be on the police national computer. If a person is stopped for a traffic offence, the arresting officer will not have the document in his possession but it can be obtained, for example, when they are at the police station. The immediate arrests can take place but the person then has to be shown the warrant if they request it as soon as possible. The noble Baroness rightly said that that should be their right. Those are our reasons.
  Lord Mayhew of Twysden: Listening to the case made in favour of the amendments, I wondered what possible grounds the Minister would be advised to advance for resisting them. Having listened carefully to what he said, it seems that they boil down to one word: tidiness. We want to keep the procedure the same as it is for domestic warrants. The question that must be asked is: why should it be the same? What is the significant merit of tidiness in this regard?
  Is there not—I hope that the Minister will be so good as to deal with this point—a substantial difference in real life between a warrant that is issued domestically in regard to circumstances that may well be within the recollection of the arrested person and a warrant that is issued in a Part 1 country, and which was hundreds if not thousands of miles away, in respect of matters that may have arisen a very long time ago? The case is really made in real life simply for the reason of his having to be shown the warrant as soon as is practicable; if it is, it will not be in the possession of the arresting officer at the time. Tidiness and consistency are not enough, I respectfully suggest. There is a significant difference in practice in this regard and in terms of real life. It might be wise for the Minister to reflect on the matter a little further.
  Viscount Bledisloe: I fully accept that the person cannot always be shown the warrant at the time of his arrest. A nationwide search may have gone out for the person and the warrant may be held in London but the person may be arrested in Carlisle. Clearly, not every constable in the country can carry a copy of the

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  warrant at the time. However, I suggest—this is somewhat in line with the proposal of the noble and learned Lord, Lord Mayhew—that the Minister is asking too much in terms of tidiness and perhaps also putting too much on the word "warrant". This document is the entire statement of the case that is made by the foreign country as to why the man should be extradited. It is not merely an authority to arrest the man; it is also a statement of the offence and the information relied on for it. Unless and until he is not just shown but given a copy of the warrant, he is not in a position to do anything about his arrest at all. I cannot see what the difficulty is. It may well have to be as soon as practicable because, in my example, one may have to get a copy to Carlisle and so on. Why the person should not be shown the warrant as soon as possible, what he is being charged with and what he will be extradited for is extraordinary. The Minister did not answer my question, which is: if I am charged in a police station, surely I have an absolute right to be given a copy of that charge so that I can take advice on it? As well as being a warrant, that is surely equivalent to the charge, indictment or whatever it may be.
  Lord Filkin: I shall respond first to the question of the noble Viscount, Lord Bledisloe. In practice, it is not the case—noble Lords may find this surprising—that under domestic warrants for arrest there is not an absolute right to a copy of the warrant. I pressed officials fairly significantly on that point because one expected that that would be the case. However, I am told that it is not the case in law, and that in practice if someone asks for a copy, they are usually given one. That is a statement of fact.
  Viscount Bledisloe: I said that that surely means that one could be given a copy of the indictment with which the person is charged after he has been arrested. We are concerned with an indictment that a foreign country brought against him.
  Lord Filkin: I am informed that he is always given a copy of the charge.
  Viscount Bledisloe: Yes.
  Lord Filkin: On that point, the noble Viscount is quite right and there should be no concern. I am glad to give that assurance.
  I turn to the point of the noble and learned Lord, Lord Mayhew, about tidiness. In principle, one is always suspicious about whether tidiness is a sufficient reason because tidiness in itself does not necessarily convince one. I do not feel uncomfortable about arguing the case about consistency with domestic procedure because, by having the arrangement four square with domestic procedure, one reduces the risks of procedural mistakes. The last thing that one wants to happen is that someone, at probably one of the most crucial stages, manages to evade arrest for nothing more than a procedural mistake.
  Clearly, the thrust of the discussion is whether that places the person in danger of having their liberty infringed as a consequence. That would be the case if
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  the arrangement were effectively a removal action; in other words, the person was being arrested to be put into a vehicle and taken off to Dover, Heathrow or wherever. In fact, all that is happening is that the person is being taken into a position of security so that they cannot escape the process of law. They are then taken before a domestic judge to start the procedure of establishing whether they meet the tests for being bailed or not bailed and so on, and then be brought before the district judge on the second occasion for the substantive hearing. For that reason, I do not believe that consistency with domestic law is just a bureaucratic request. It makes it more likely that the police will understand the procedure and get it right, and someone will not escape as a consequence of people inadvertently not being consistent in their procedures or meticulous about getting the right procedure. If the consequence is that someone who should be brought to face at least a request for extradition escapes doing that, that would be highly regrettable.
  Lord Lamont of Lerwick: Every time, in almost every argument, the Minister says that the consequence of not doing this is that some terrible terrorist or murderer will not be brought to justice. Each time he uses that argument, he should invert it and say, "What is the risk that an innocent person will be falsely accused?". He should do that each time.
  Lord Filkin: I will not always do so because that would be wearisome to the Committee. I made the point involving terrorists and murderers because the current pressure of extradition bears at this end of the pitch for all sorts of practical reasons. We are talking about serious crime and international crime in the vast majority of cases. Having said that, I thought that in the last point I made I also signalled that I was alive to the civil liberties issue about the risk of exposure of the person through their being—how shall I put it?— wrongly arrested by the police. What, for example, would be the consequences if a venial offence were involved and as a result of a procedural mistake by the arresting officer, they had been arrested when they should not have been? The consequences of that are set out pretty clearly in the legislation. They would have a pretty fast right of redress and escape. One is always balancing the issue of potential seriousness about not addressing international crime against the risks to an individual of an error. It appears to me that the error is relatively minor in these circumstances.
  Lord Lamont of Lerwick: But surely the pattern of extradition in the past is not necessarily the pattern of extradition in the future. The characteristic of the Bill is that extradition will now be possible for offences that carry sentences of as low as one year's imprisonment.
  Viscount Bledisloe: The point that the Minister made in response to the question of the noble Lord. Lord Lamont, could perfectly easily be dealt with merely by saying that failure automatically to give a copy does not entitle him to automatic discharge. I appreciate that for a terrorist to go free because the policeman did

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  not hand over a copy as quickly as possible involves a relief for a fault that is wholly disproportionate to that fault. The problem in that regard is not the absolute right to have it but that the remedy is automatic discharge.
  Another problem is that if one does not get a copy until one gets to the judge, the judge's job is to decide whether the person brought before him is the person in respect of whom the warrant was issued. If the man has not seen what is in the warrant, how on earth can he have there witnesses about who he is and so on to demonstrate that he is not the person described in the warrant? If he has not seen it before he gets to the judge, he is deprived of that right.
  Lord Mayhew of Twysden: Would it save time before the Minister responds if I came back briefly on his very helpful reply? It appeared that it was scraping the bottom of the barrel and does not stand up to examination in terms of what happens in real life. Let us suppose that the procedure has not inadvertently been followed by the police. The man or woman would then go in front of the district judge, someone takes the point and he is discharged. What would happen? He would immediately be re-arrested. There would be no cordon sanitaire that must be observed by which he must be given 24 hours' start. That appeared to happen in Ireland sometimes in this regard. If he were immediately re-arrested, the procedure would be correctly followed because the point would have been made and everyone would know where the mistake happened. This really does deserve to he thought about again.
  5.30 p.m.
  Lord Stoddart of Swindon: I have been listening to the debate and confess that I have not yet been convinced by the Minister that the European arrest warrant should not be different from a warrant in domestic circumstances. This is different. It will not be a domestic arrest warrant; it will be a European arrest warrant. It will be exercised over a much wider area. I cannot understand why it cannot be conceded on this particular point that a person does not have to request a copy of the warrant to be shown it.
  I would have thought, under the circumstances of the Bill, and given the desire of the Government to make it acceptable, that this is an amendment they would be glad to accept. It would allay people's fears as to what could happen. To relate it to domestic arrangements is patently absurd. The whole thing is completely different from what we have been used to. We have never had a European arrest warrant. This is something new. Why do we have to remain entirely with the domestic situation? This is a new provision which affects a much wider area than the United Kingdom. Why then, in this particular piece of legislation do we not insert something that, so far as I can see, every Member of this Grand Committee is in favour of, except the Ministers and those who sit behind them?
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  I wish that the Minister would listen to my noble friend Lord Wedderburn and say when he sees the word "resist", which often appears in Ministers' briefs. I know because I have been a Whip on a number of committees in the House of Commons and they always put "resist" at the top. I want the Minister to resist the resist. It seems to me that if he does that he would please the Committee and we would get on very much faster.
  Baroness Carnegy of Lour: Very briefly, if the Minister is to carry out his instructions to resist and is to use the argument of tidiness and that what happens should be that with which the constable is familiar, has he checked that the procedure is exactly the same for a Scottish constable? If he has not, could he do so, because the argument will not stand up if it is not so.
  Lord Filkin: I clearly have considerable dissent from the Committee on this issue. In response to the noble Lord, Lord Stoddart, it has not been my practice to blindly and obdurately dig in irrespectively. I believe that the Committee process serves a purpose, which is sometimes to identify issues which we have not always thought of. I say that genuinely. That has been my approach to legislation.
  I shall go through some of the points raised and then conclude. The noble Lord, Lord Lamont, said that in future we will be extraditing for offences which attract a penalty of one year's imprisonment. That has been the case since 1870. All I can say is what is the nature of the bulk of extradition cases currently. The noble Lord is right; that may change in future with a simpler system but our expectation would be that it will still tend to focus on the most serious offences. Even with a more simplified procedure it is not simple to find someone abroad, trace them and to go through the process. But it will not serve a purpose if I debate that point in detail.
  If the person is wrongly arrested, they must be brought before the court as soon as is practicable, where the error will be notified and the person discharged. The point raised by the noble Viscount, Lord Bledisloe, is that if no copy is then available they will not automatically be released. I am not certain that I have correctly seized that point. I shall have to double check that when I reflect on reading Hansard.
  The fundamental point is that we are referring at this stage to the warrant for the arrest when the real issue is whether the person will get a copy of what they are charged with. That is the fundamental issue. We have already signalled, in what I said earlier, that they will be given a copy of what they are charged with.
  Viscount Bledisloe: With respect, that is precisely what this warrant is. Clause 2(2)(a) states that the warrant,
  "contains … the statement … and the information".
  The warrant is the whole document. That is why I dealt with what the noble Lord said about domestic authorities in relation to an arrest and this document, which is the entire case against the person. I entirely agree with the noble Lord that what is important is

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  that one knows what one is being charged with and what the information that is relied on is. That is what is in the warrant; it says so in Clause 2(2)(a).
  Lord Filkin: I thank the noble Viscount, Lord Bledisloe, for that.
  I was going to conclude by saying that I am no longer going to try to make water flow uphill this afternoon on this issue. I will go away and look at the arguments. I will question whether the argument in terms of reduction of risk by having a standard procedure outweighs the arguments put to me by Members of the Committee from a number of quarters. I do so with my usual caution: that is not to imply that we are signalling that we will change but it does signal that we will give further serious consideration to the matter, and in the awareness of what noble Lords will seek to encourage us to do on Report. I conclude with that commitment.
  Lord Hodgson of Astley Abbotts: We have had a most interesting debate, and I am grateful to the Minister for those concluding comments. I am also grateful to noble Lords who contributed.
  I do not wish to re-till the ground except to make two points. First, I am not a lawyer and have never been arrested, so I speak without any experience. I find it staggering, in relation to the Minister's comments on our trying to follow domestic legislation, that I can leave a police station on bail without a copy of the charge. Can I leave a police station without a piece of paper telling me what I have been charged with? Perhaps I can; I do not know.
  Secondly—this may also be the point of the noble Viscount, Lord Bledisloe—we have become confused in the legislation between the warrant and the charge or indictment. The Council framework decision, which has the warrant at the back of it, is what I regard as a charge sheet and indictment as well. That may be the source of some of our difficulties. Instead of having a one-liner, as it were, we have a warrant that is combined, as the noble Viscount said, with a charge or indictment. Somehow, we must separate those so that the person knows what he has been charged with in advance of getting to Clause 8(1)(b)—the domestic judge—to which the Minister rightly referred. I am afraid, however, that his fox was subsequently shot by a Member of the Committee. I take the point of my noble and learned friend Lord Mayhew and the noble Lord, Lord Stoddart, that this is a different system. Neatness cannot carry the day, particularly when one is dealing with non-UK nationals' who may not be familiar with the language or the practices and will be in a very different situation.
  We look forward to hearing the Minister's reflections and considerations. I am particularly interested to hear whether I can leave a police station without any piece of paper giving information about what I have been charged with. I believe that the Minister's team said that that was the case. In the mean time, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 34 not moved.]
  Lord Hodgson of Astley Abbottsmoved Amendment No. 35:
  Page 3, line 31, after "him" insert "in a language he understands"
  The noble Lord said: We are still on the vexed issue of Clause 4(2). The amendment relates to language. It brings us back in part, but not centrally, to Amendments Nos. 13 and 155, which we discussed at a previous sitting. This amendment is grouped with other amendments that run through the Bill. Amendment No. 35 deals with Part 1, Amendment No. 156 deals with Part 2 and relates to arrest, Amendment No. 171 deals with the provisions of arrest under Part 2, Amendment No. 209 deals with competing extraditions and Amendment No. 213 deals with information that has to be provided to the Secretary of State if he decides to order an extradition in Clause 99.
  Lord Goodhart: By the Secretary of State.
  Lord Hodgson of Astley Abbotts: I beg the Committee's pardon. Amendment No. 213 deals with information that has to be provided by the Secretary of State. The noble Lord, Lord Wedderburn, has tabled some amendments that head down the same kind of track, and indeed follow on from some of what he discussed on the previous group.
  The group of amendments addresses an issue that is quite straightforward. Any person faced with an arrest warrant—should I now say charge sheet?—must have it translated into a language that he or she understands. We debated earlier the merits of ordinary language. The point here, although of the same ilk, is even more fundamental. Extradition invariably involves language and communication barriers. I shall refer in a moment to the case of Teresa Daniels, which is currently in the papers; Members of the Committee will have heard of it in relation to the communication harrier. Every person must be able to understand the crime for which they are being charged and the subsequent proceedings at the extradition hearing and eventual court case that results in them going back to the issuing country.
  The right is already enshrined in the European Convention on Human Rights. Article 5.2 reads:
  "Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him".
  Article 6.3 goes on:
  "Everyone charged with a criminal offence has the following minimum rights … to be informed promptly in a language which he understands and in detail, of the nature and cause of the accusation against him, and … to have the free assistance of an interpreter if he cannot understand or speak the language used in court".
  It is stated in note 1 of the annex to the framework decision that the,
  "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".

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  The amendment of the noble Lord, Lord Wedderburn, makes use of that fact. However, we believe that there is still merit in insisting in the Bill that the warrant be shown to a person in a language that he understands. His first language might be the language of neither the issuing nor the executing state, but a different one altogether.
  There has been a briefing from Fair Trials Abroad that I am sure many Members of the Committee will have seen, which highlights the divergence of standards in legal translation and interpretation in a significant number of countries throughout Europe and the resulting miscarriages of justice. A foreigner is invariably at a disadvantage if he is arrested, charged and prosecuted in a country other than his own. Communication problems due to language barriers in many cases cause considerable discrimination.
  It is worth stating very briefly the case of Teresa Daniels, mentioned by Fair Trials Abroad, which is a long-running saga and the sort of case that we have to make sure cannot happen in future. She was arrested in June 1997 at the airport in Gran Canaria, travelling with a companion who had drugs. He said from the beginning that she knew nothing about the drugs. Nine months later, having been asked at trial a total of five questions—she had no interpreter present and could not understand the proceedings—she was sentenced to 10 years but was allowed to go free. Eighteen months after that, two-and-a-half years after the first case, there was an appeal against her sentence, which was dismissed. She returned to the United Kingdom and remained here until three weeks ago, when, on 2nd June—six years after the original case—she was arrested by United Kingdom police officers and has to appear at Bow Street Magistrates' Court very shortly.
  That has now taken six years. She is not clear what she has done. She did not understand what she was charged with in the first place. She was not able to speak the language. We need to ensure that that sort of case cannot happen under the extradition proceedings and the revision thereof, which we are considering now. I beg to move.
  5.45 p.m.
  Lord Goodhart: I offer somewhat equivocal support. I support some of the amendments in this group but not all. I can see grounds for why the warrant should not be required to be translated out of English—we were originally told that the warrant will be in English as the appropriate official language. There are certain problems that could arise. First, one may not know what languages a particular person understands. They are not necessarily the language of the country which seeks the extradition. There is also the problem that it is even more important that the warrant should be comprehensible to the detainee's legal adviser than that it should be comprehensible to the person concerned. That means that I cannot support Amendments Nos. 35, 156 and 171.
  However, I very much support Amendments Nos. 209 and 213, which apply in entirely different situations. In the case of Amendment No. 209 the
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  information is being provided by the judge and in Amendment No. 213 by the Secretary of State. In both those cases the information should be transmitted in a translated form. Clearly, the judge cannot be called upon as an individual to provide information in a language that he or she does not know. It should be transmitted through an interpreter who is able to interpret it into the appropriate language.
  In the case of a Secretary of State, where clearly the information will be provided in writing, again it should be in writing in a language which the recipient of the information will understand. Therefore, I support the last two amendments.
  Viscount Bledisloe: I confess that, with respect to the noble Lord, Lord Hodgson, it seems to me that the amendment is misconceived. Obviously translation and interpreting facilities must be available as soon as possible. But to require that the warrant is shown to a person on his arrest in a language he understands seems to me to be wholly wrong.
  First, it is most important that he gets the same document that the judge will be working from. As the noble Lord, Lord Goodhart, said, his adviser has to work from that. Secondly, no one may know at the time what language he does understand. Thirdly, if the man is ingenious he may decline to tell you what language he understands. If the document is not provided to him within a language he understands within the time allowed, the provision would not have been complied with. After the time has elapsed he might reveal the language he does understand and say, "The document was not in that language and therefore I must be discharged". Clearly, facilities for translation are needed. But, like every other process in England, the document should be served in English. We do not translate our writs—they are no longer called writs—into foreign languages to serve on defendants who do not understand English. Legal proceedings in England are conducted in English and the document must he served in English.
  Lord Wedderburn of Charlton: I rise to support the spirit of Amendment No. 35 and to explain a small matter. An amendment tabled in my name and that of my noble friend regarding translation was withdrawn. Amendment No. 39, which we discussed in a previous group, also had a reference to translation removed. Perhaps I may explain that and aver to something to which the Minister may refer in his reply. Members of the Committee may remember that we discussed translation in a previous debate. It was a rather odd discussion in which the relevance of the framework decision annex about language was mentioned. The annex reads:
  "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".
  A previous debate raised the question of whether or not that should be available in Welsh. It was pointed out by the Minister—at any rate for this purpose, although I think he said he risked a minor explosion in doing so—that Welsh is not an official language for this purpose. My memory is that we left it at that.

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  The framework decision, which I assume we want to implement, states that the warrant must be written in or translated into one of the official languages of the executing member states. So far, that is English. I appreciate the comments of the noble Viscount, that normally such things are done in English. But this is a transnational matter. It is no good being tremendously patriotic about this matter when it is European because it has transnational dimensions. We note that it must be written either in English or any other language accepted by the executing member state. Therefore" it is perfectly possible for us to accept a language which we describe as one which will be intelligible to the person arrested. I appreciate the other points that were made. It may be that you cannot know what he will understand. It may be that he denies understanding anything and that he understands only Esperanto. But the spirit of Amendment No. 35, albeit that its language is perhaps a little too brutal, is that you should do your best to have the person arrested understand what it is he is being arrested for.
  This is ground we have already covered. It was the point which commanded, as I apprehend it, unanimity among the Members of the Grand Committee; namely, that the person arrested should understand as far as is humanly possible what it is he is being arrested for, and that he should not have to wait to be hauled before a judge before he understands that very simple point. It is not a question of being carted off in a van tomorrow—no one has said that. What we have said is that the person arrested should understand what he is being arrested for.
  Of course, wily criminals can be even cleverer than Members of the Grand Committee and can think of all sorts of reasons why they say they do not understand a measure, but that should not take away the responsibility of the police, whose convenience, I must say with great respect, is being consulted as usual by the Home Office with such trepidation. I hope that the Minister thinks of this when he goes to sleep reading the Bill again tonight. As he dozes off, I with respect suggest to him that he for a moment suspends disbelief and thinks that perhaps human liberties and human rights are being put aside in the balance that he has drawn between police convenience—which he calls consistency—and the rights of a person arrested.
  The spirit of Amendment No. 35—I urge the Minister to address that spirit as well as the actual words—is that we try our best to explain to the person arrested what it is he is arrested for. As we all know, there will be cases—surely it is common ground that there will he such cases—where, if English is the only obligation in this regard, we know very well that the person arrested will not understand what he is being told. Will the Minister take the matter away and come back to us with a measure in the spirit of Amendment No. 35 to inform the person arrested what it is he is arrested for—at least where you know the languages that he understands—in the language that one well knows is the only one that he understands?
  Lord Filkin: I will not promise that I always went to sleep reading the Bill. But this is a proper challenge to
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  seek to balance the interests of justice in bringing to trial people charged with serious crimes and the risks of an infringement of civil liberties as a consequence of that process. That is why I support the spirit of what is being attempted but riot the mechanism. Justice cannot clearly be done if the person brought before justice does not understand what is being done to him or her. Therefore, we are debating how to achieve that objective.
  We do not believe, however, that the amendments as drafted, requiring a police officer to translate the content of the warrant into a language that the person understands, are the right way forward. The noble Viscount, Lord Bledisloe, spoke perhaps more clearly and succinctly on that than I might. I have already explained that the central thrust of how we will operate extradition in this part of the Bill will be to require that the requesting state translate all documentation into English. That is for a good reason: we understand English, as do our lawyers and procedural processors. To not have it in that way seems to be starting off the process wrongly. That is why we are categorical about that.
  But it is imperative that the arrested person understands what is happening to him or her, why he or she has been arrested and what the charges are. If the police were required to fulfil that linguistic task, the problem is that it would be asking quite a lot of them to have the relevant fluency and languages, and to get it right. In practice, therefore, a highly multilingual policeman is not required, but the arrested person must have access to an interpreter. That is as set out in the Prosecution of Offenders Act 1985.
  The code of practice under the Bill will require, under Part 4, to provide for that explicitly—in other words, that a person will and must have access to an interpreter—as well as including a requirement for the police to ensure as far as possible at the time of arrest that the person understands that he or she is being arrested and why. If it were done as the amendment currently states, there would be all sorts of problems apart from finding a police officer with the relevant linguistic skills. There would be the danger of the policeman translating the warrant wrongly and messing up the process before it even started.
  I shall re-emphasise the procedures that we are trying to put in place to ensure that the person understands that he or she is being arrested and why. Again, we have tried to follow as closely as possible the procedures set out in the Prosecution of Offenders Act 1985, which requires that. if necessary, the person have access to an interpreter. Although the Committee is right that there will probably be more cases where a person does not understand English in these matters, that already happens in our domestic legislation. Our domestic law, therefore, already provides for provision of an interpreter service, as it should do.
  The code states that the need for an interpreter will be fully assessed by the custody officer on arrival at the police station, and, if necessary, the process of arrest can be repeated to ensure that the person understands that he or she has been arrested and why.

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  Furthermore, Annex A to the code includes a checklist for use by custody officers requiring them to assess whether the person understands English and to record on the custody record whether or not the person requires an interpreter. The code also makes it explicit that custody officers should have regard to current domestic procedures in the assessment of an engagement of interpreters set out in Code C 3.5 and 3.12 under the Police and Criminal Evidence Act 1984. Interpreters are engaged as soon as practicable, depending upon their availability and location. Where the language of the arrested person has been identified, a notice of rights is printed out and given to the person in a language they understand before a full explanation can be given in the presence of an interpreter.
  Finally, I turn to Amendments Nos. 209 and 213 which also seek to insert the concept of language that the person who is subject to extradition understands. Clause 91 requires the district judge in a Part 2 case which he sends to a Secretary of State to inform the person in ordinary language that he has a (deferred) right of appeal to the High Court. Clause 99 requires the Secretary of State, if he orders a person's extradition in a Part 2 case, to tell the person and to inform him of his right of appeal—again, in ordinary language. Clearly, "in ordinary language" means language that the person can understand. Therefore, if one does not expect a district judge to be multi-lingual, it implies that that means that the person has to understand it, if necessary, through the provision of an interpreter facility.
  I totally support the thrust and purpose behind the amendments but suggest that the way in which we intend to implement it, building on our current domestic practice where suspects do not understand English and reinforced by the code of practice, should address the matter adequately.
  6 p.m.
  Lord Hodgson of Astley Abbotts: I am grateful to the Minister for that. As the noble Lord, Lord Wedderburn, said, we are talking here about "spirit" and what we are trying to achieve. These are probing amendments. I am again not entirely convinced when the Minister says that this is in line with our domestic arrangements because, as we have discussed several times today—I shall not labour the point—this is a different type of arrangement. This is a transnational arrangement which involves a European arrest warrant.
  The noble Viscount, Lord Bledisloe, took me to task for the way that some old lags or experienced hands would be able to turn any amendment of this type to their advantage. I accept those strictures, but there is another side of the coin. The position of Teresa Daniels is a very good example of this. It is now six years since the alleged offence is supposed to have taken place and she is due to go to Bow Street on Friday. She has had no clear understanding of what she has been charged with. Indeed, it now transpires that, having received some court documents, her
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  conviction was based on entries in her personal diary which was written in English and translated into Spanish. The translation has been shown to be largely inaccurate.
  That is the type of issue that will come back to cause us a great deal of trouble. Of course, I accept the point that there may be people who will use the fact that their language is not available or refuse to make clear what their language is—although I suspect that could be dealt with in legislation—or choose an obscure language. But nevertheless the dangers of mistranslation are very great indeed. The person able to see most clearly is the person arrested for the alleged offence, but who needs to see this in terms of the language that they understand.
  This is an issue to which we shall need to come back. We feel that the spirit needs a fresh look. I hope that the Minister may be able to help us before we get to further stages of this Bill. In the mean time, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 36 to 39 not moved.]
  Baroness Carnegy of Lourmoved Amendment No. 40:
  Page 3, line 32, leave out "as soon as practicable" and insert "not later than the first day after he is taken into custody"
  The noble Baroness said: In moving Amendment No. 40, I shall speak also to Amendments Nos. 42, 48, 160, 161, 174 and 175. I have tabled these amendments following discussion with the Law Society of Scotland. The amendments relate not just to the extradition process in Scotland but to the whole of the United Kingdom, although they come from a Scots' viewpoint.
  The Law Society of Scotland considers—I agree—that in these proposed new extradition proceedings, the maximum time that can elapse between a person's arrest and his or her initial appearance in court should be clearly stated in the Bill. As drafted, that is not so. In Clause 4(3), a person arrested because of a Part 1 warrant must,
  "be brought as soon as practicable before the appropriate judge".
  The same applies in identical terms to arrest under a Part 2 warrant at Clause 71(3) and arrest under a Part 2 provisional warrant at Clause 73(3). Following arrest under all these types of warrant, the Bill states that the person must be brought to court "as soon as practicable".
  It was pointed out with some force at Second Reading in Your Lordships' House that to be arrested with a view to extradition is a traumatic experience for anyone. Clearly, a delay at the outset, for whatever number of days the authorities happen to decide is practicable, could be quite unnecessarily inhumane. The Law Society of Scotland suggests that there seems to be no reason why a person should not come to court the day after arrest—allowing, of course, for weekends and public holidays on which the court might not be available. In fact, that is normal practice after most arrests in Scotland and it works perfectly well.
  The Law Society also suggests that the same rule could apply following arrest under a Part 1 provisional warrant. In that case, Clause 6(3) states that the maximum delay would be 48 hours. That is on the face of the Bill. The effect of this group of amendments is that following arrest under all four types of warrant—a Part 1 warrant and provisional warrant and a Part 2 warrant and provisional warrant—a person would have to be brought before a judge the next day. The wording used in the amendments is simply for convenience—taken from the Criminal Procedure (Scotland) Act 1995.
  It may he that the Government will reply that the next-day rule is simply not practicable. They may prefer a maximum delay of two or three days or even longer. My point, and the Law Society of Scotland's point, is that the maximum delay should be on the face of the Bill. The arrested person should not languish in custody for however many days those concerned at the time consider practical.
  Lord Clinton-Davis: I thank the noble Baroness for giving way. If the words, "unless the judge extends the time" were inserted, would that satisfy the noble Baroness?
  Baroness Carnegy of Lour: I still do not understand why a maximum time should not be on the face of the Bill. It seems that there is no reason at all. Of course it should be "as soon as practicable", but the maximum time should he there. That is the purpose of the amendment. I hope that the Committee will see the point of this. Above all, I hope that the Minister will because it is an extremely important point. I beg to move.
  The Earl of Mar and Kellie: I have added my name to this group of amendments which obviously come from the Law Society of Scotland. My noble friend—to address her incorrectly—has well explained the point of view of the Law Society. It is important that this type of United Kingdom legislation should mesh into Scottish legislation and Scottish practice. There is no reason why, in this case, there should not be an extra subsection described as "in Scotland" if the Committee considers that it wants a different arrangement for England.
  I should like to say to the noble Lord, Lord Clinton-Davis, that we are talking about the time that the person would spend in the police station. It is true that in Scotland the person will have to appear before the sheriff. In our amendment, we have proposed how soon a person should appear before the sheriff. Indeed, the sheriff or a judge in England can extend that, but that is another matter.
  My time as a prison social worker and probation supervisor reminds me that there was nothing that the boys disliked more—but presumably the police on occasion enjoyed—than being picked up on a Friday afternoon. That meant that they enjoyed—or endured—the whole weekend in the police station before appearing in the sheriff court on Monday morning. I suspect that it was quite a useful informal
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  punishment. Therefore, it is important that we reduce the amount of time that these people spend in the police station by stating it on the face of the Bill.
  Viscount Bledisloe: Has the noble Baroness fully taken into account the fact that the appropriate judge, under Clause 66, is a very specific judge—for example, in Scotland, it is to be the sheriff of Lothian and Borders? It is not any old judge who can he found in the locality. I suspect that in the deepest of winters in Scotland there may well be portions of the Kingdom in which it would be rather difficult to take the arrested person to the specific judge within 24 hours. It is not the normal case where the arrested person could be hauled in front of any old magistrate: he or she has to be taken to the very specific judge laid down by Clause 66. Therefore, if one is arrested in one part of the Kingdom and has to be taken to the other end of it, it may not be as practical as the noble Baroness suggests.
  Lord Stoddart of Swindon: It may not be practicable that it should be the day after arrest. Nevertheless, there is no reason why there should be any great delay. After all, there is no case to prepare because no prima facie evidence has to be provided and therefore no great preparation has to take place. I should think that the only bar to getting the arrested person before the court within a day, or very shortly after that, is that there may be some congestion in the courts. If that is so, that should be explained and the arrested person ought to be housed in conditions other than in a police station. The Minister ought to take into account what has been said because this is a fairly simple warrant to exercise. As I have said, there is no prima facie evidence, so there is no case to prepare. I hope that the Minister will give the amendment his consideration.
  Lord Pearson of Rannoch: In supporting this amendment, could I also ask the Minister to explain why we have the sheriff of Lothian and Borders? What is the significance of that particular sheriff? The Minister may be aware that some of us live a wee bitty further north and a fair number of people live a long way further north than that. Could he explain why Lothian and Borders have been singled out for this privilege?
  6.15 p.m.
  Lord Filkin: The amendments deal with the requirement to bring an arrested person before a judge. The Bill is currently drafted with the words "as soon as practicable" or, in the case of a provisional arrest under Part 1 in a circumstance in which not all the documentation is in place, within 48 hours.

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  The intention behind both forms of drafting is similar in that all of us want to see that persons arrested in the UK for extradition are brought before a British judge quickly. I also note that the noble Baroness and the noble Earl, Lord Mar and Kellie, acknowledge that bringing a person before a judge on the day after arrest is not always possible, as the second limb of their amendment makes express provision for weekends or court holidays.
  However, on this occasion the noble Viscount, Lord Bledisloe, is absolutely right. The issue is not so tightly defined in the legislation that one frustrates the ability to achieve justice, while not leaving it so without remedy that a dilatory public body leaves it open for an abuse of a person's right to be brought before a court.
  The Government's position is to allow for flexibility if there are reasonable problems in bringing someone to court. I think that everyone would recognise that a balance needs to be struck between allowing for the police and the court to have a reasonable amount of time to fix up a hearing and the rights to personal freedom of the arrested person. The common ground, therefore, is on that principle. I shall explain how we think that we have met that double challenge by the way in which we are intending to proceed.
  Under Section 46 of the Police and Criminal Evidence Act 1984, arrested persons must be,
  "brought before such a court as soon as is practicable".
  That was replicated in our drafting of the Bill. That the phrase is in PACE asks the question that if that period is suitable for persons arrested on domestic charges, why is it not suitable for those arrested for extradition? That seems to us to be a workable legislative tool that as far as we are aware has been working without problems. Therefore. we cannot see why there should be a problem with it in this context.
  I should also ask if the amendments foresee problems of getting the person a hearing at weekends and court holidays. What about the situation where a court is understaffed due to sick leave—that should not happen but can happen—and cannot get through its case list? What about, as was touched on, an arrest in a remote part of the country where the police cannot get the person before a judge within a day due to bad weather? What about a court which has a large backlog and simply cannot list the case that quickly? Those should be exceptional circumstances but one would not want a person to be able to escape just because they applied even in a limited number of cases.
  We fully expect that "as soon as practicable" will mean in the vast majority of cases the first sitting of the appropriate judge after the person has been arrested. That is what we expect will happen and what should happen in the vast majority of cases. Because it will not always happen, and because there is a concern about whether public bodies might be dilatory without good reason, there is a powerful sanction in the Bill for the district judge to decide that if the person was not brought before him as soon as is practicable, he can order discharge. That is a pretty fierce sanction on public authorities. If they muck about, to speak
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  colloquially, they could lose their suspect. Therefore, there is a difficulty in specifying that so precisely that one does not allow for the circumstances. The sanction that we have given to the district judge seemed to us to be rightly powerful.
  As to why the sheriff is from Lothian and Borders when there are, thank heaven, large parts of Scotland much further north than that, the answer is that the sheriff from Lothian and Borders currently handles all extradition cases in Scotland and has the necessary expertise. That is the Scottish practice. As regards the point raised by the noble Lord, Lord Stoddart, he is right; there is no reason why there should generally be a great delay. As I have indicated, in most cases we would expect that a person would come before the court quickly. However, we are talking about getting the person to the court for the initial hearing rather than the main hearing at which the bars to extradition are considered at the second stage.
  For those reasons, I hope that we share the objective of persons being brought before the judge very early, but the Bill allows flexibility and the appropriate protections which need to go with it.
  The Earl of Mar and Kellie: Before the noble Baroness replies, as regards inclement weather and remoteness, in those circumstances might it not be reasonable for the person to appear at the local sheriff court? I have in mind the idea of someone who has been arrested in, perhaps, Lewes and in the event of inclement weather appears at the sheriff court in Stornoway before being flown to Edinburgh. Who would pay for the flights for both the person liable to extradition and the policeman who must accompany him or her?
  Lord Filkin: I speak with some caution about Scottish matters knowing who I have against me on these issues. All I would say is that this is how Scottish authorities have chosen to handle their extradition cases. I am respectful of their argumentation, which is that it is desirable to have a sheriff who is expert in these matters hearing all cases. In my view, that outweighs the argument that if that led to a delay of a day or two it is better than the alternative of having someone inexperienced. If that is the way they want to conduct their affairs, I am respectful of that.
  As regards the second point raised about who would pay for the flights, the respective public bodies have to pay for the transport costs of bringing people into judicial processes. That is no different from domestic cases.
  The Earl of Mar and Kellie: Perhaps the Minister misunderstood me. I merely mentioned the idea of appearing before the local sheriff in order to fulfil the requirement of having to appear before a sheriff who could then remand the person to Edinburgh in the event of inclement weather, rather than that just being part of the warrant procedure.
  Viscount Bledisloe: Before the noble Baroness decides what to do with her amendment—I suppose that she does not have much choice in this Committee—I must say that the more I listen to the Minister, the more it occurs to me that Clause 4(4) is really the root of many of his problems. There we have a situation where, if formalities are not complied with, the person is automatically discharged even though that has done him no harm at all.
  The noble and learned Lord, Lord Mayhew, may be right, but it makes remarkably little difference because the person will go out through one door, be arrested and come back in through the other door immediately. That is not a very satisfactory situation and he might just get away. Would it not be better if subsection (4) was discretionary so that the judge decided whether the informality had really mattered and could say, "Well, I grant that you got the document 10 minutes late", or "I grant that it has taken 36 hours to get to you from Stornoway to Lothian, but it has not done you any harm and I am not going to let free someone charged with blowing up the twin towers merely because they spent 30 hours on the journey and not 24"?
  Would not the Minister's life be a great deal easier if subsection (4) was less stringent, or does that appear in the European document, so that it has to be in the Bill as well?
  Lord Filkin: I would welcome anything that made my life easier, but I am not certain that that would. It is right that one wants a discretionary power here for the reasons advanced by the noble Viscount. However, there is a discretionary power under Clause 4(3) in the sense that the judge has the power to make a judgment about whether he or she thinks that the respective authorities have brought the person before the judge as soon as is practicable. If, for example, they had done nothing about the person and had forgotten about them for a couple of days, the judge would have the power to decide that they had not brought the person as soon as practicable, which would trigger the discharge. If, on the other hand, they heard the argumentation that there had been deep snow in Argyle, if that seemed to fit with common sense knowledge no doubt they would not decide that discharge was justified.
  Viscount Bledisloe: Let us suppose that it is not as soon as practicable. Let us suppose that Constable Plod took some time off to have a rather large breakfast on the way down and missed the connection. It would seem a little extreme that that would lead to the automatic discharge of someone charged with an extremely serious offence. The judge can say that it was as soon as practicable, but once he is convinced that it is not, he then has no choice but to discharge. I suggest that in those circumstances, or when documentation had inadvertently not been given, it should be discretionary and not absolute.
  Lord Filkin: This is an occasion when we have sought to he tough and to give the clearest possible
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  signals to Parliament that procedures have to be complied with and if not the police will lose their suspect. I shall reflect on this but I do not think we will be minded to change it because it is a powerful incentive on public authorities.
  As regards the 48 hours on provisional arrest, again we put in 48 hours because we recognised that there will be circumstances when, for example, France asks us urgently to see someone but if it cannot get the documentation to us within 48 hours that is bad luck; it has lost the person. It is for those reasons that we think it is right to be clear and strong. I shall reflect on this, but I do not think we shall be minded to change that.
  Baroness Carnegy of Lour: I thank those who have spoken and, indeed, the Minister. Perhaps my amendments have misled one or two people by referring to a next-day appearance. When moving the amendments I explained that the wording was used for convenience and was a process that works in Scotland in other respects. I was making a point for a maximum time to be in the Bill.
  As to the problems of fixing a time and then, in Scotland, taking people to Lothian and Borders to appear before the sheriff, there seems no objection at all in Scotland to that one sheriff continuing to perform the function that he does at present on extradition. I understand that the legal system is quite happy with that and I was not questioning that.
  My noble friend—I think that he is my noble friend—Lord Mar and Kellie suggested that there might be a different arrangement in Scotland. That is not the suggestion. I do not think that people in Scotland want a different arrangement. There is a next-day rule in Scotland and the Law Society wanted to point out that that was the case. However, I do not think there is a lot of pressure for that necessarily being the length of time. I think that the Scots law system wants the same system and was just suggesting that it should be stipulated. That is the thinking in Scotland; that is, that the idea of what is practicable, which the Minister quoted, comes from England. I understand that that is not the way it is treated in Scotland. It is much more precise. That is the way that Scots lawyers think. I hope I speak correctly on that. I am alone at present and do not have any Scots legal advice.
  The noble Lord, Lord Stoddart, who is not in his place, suggested that not all that much information is needed, so it should be possible to stipulate a maximum time. That is a very good point, provided, of course, that it is possible to extend it in particular circumstances.
  There is an important point here. I hope that the Minister will consider what has been said and see whether he is sure that what I think is a south-of-the-border approach—that it is always all right just to say what is practicable—is in order. I do not think I would like to be incarcerated waiting for someone to decide what is practicable before they let me appear in court

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  and decide whether or not I am to be extradited. Having said that, I shall read carefully what has been said and beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  6.30 p.m.
  Lord Hodgson of Astley Abbottsmoved Amendment No. 41:
  Page 3, line 32, leave out "as soon as practicable" and insert "within 24 hours"
  The noble Lord said: I do not want to detain the Committee unnecessarily on this matter as it is a rerun of many of the arguments we have had in connection with amendments tabled by my noble friend Lady Carnegy. I wish to raise just two points.
  My first point picks up the point made by the noble Viscount, Lord Bledisloe. Under the Bill a person must be brought before the appropriate judge "as soon as practicable". We understand why the Government want flexibility on that matter. However, the measure seems to place an awful weight upon the judge, particularly in the light of the strictures in subsection (4) of Clause 4. That is to say, if the provisions of subsection (2) or (3) of that clause are not complied with, the judge must effectively let the person go. The interlocking nature of subsections (3) and (4) of Clause 4 seems to me to raise great difficulties.
  In seeking flexibility, I believe that the Government have made a rod for their own back. They have placed a huge weight on the appropriate judge who will be under very great pressure, in the extreme cases that the Minister likes to mention of terrorism and so on, never to rule that the phrase "as soon as practicable" was not complied with. I believe that stipulating a time limit would take a lot of the heat off the judge and, indeed, the authorities.
  My concern is emphasised by the fact that under Clause 6(3), which deals with provisional arrests, a time limit is stipulated. The Minister argues that we must have flexibility in one part of the Bill in this regard but in another part a time limit of 48 hours is stipulated. My Amendment No. 49 seeks to change that 48-hour time limit to 24 hours. It is a probing amendment.
  We believe that to have flexibility in one part of the Bill and a time limit of 48 hours in another will cause the Government unnecessary difficulty now and will cause the courts and the police unnecessary difficulty in the future. It would be better to have a hard line running through the Bill, whether that is a time limit of 24 hours or 48 hours or whatever rather than have the term "as soon as practicable". For all the reasons that my noble friend raised it is inordinately difficult for a judge or a police force to comply with such a term. The adoption of a hard line or a straight edge on the matter would be far preferable. I beg to move.
  Lord Filkin: We are talking about provisional arrest. It is probably self-evident that it is an important tool in the kit of police officers effecting arrest in extradition cases. By its very nature extradition implies travel and
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  flight from justice. The use of provisional arrest is a vital part of the UK's ability to extradite fugitives and is especially useful in cases where the person's whereabouts may be known only for a few hours.
  Provisional arrest means that a person is arrested before the Part 1 warrant or Part 2 request has been received, and therefore I can understand that Parliament is rightly concerned that persons are not held in police custody for undue periods.
  For Part 1, we have specifically laid out exactly how long the police have to get the person in front of a judge and 48 hours for Part 1 does not seem an unreasonable period to the Government. That is in contrast to domestic proceedings where the person, once charged, is required only to be,
  "brought before such a court as soon as is practicable"
  under Section 46(2) of the Police and Criminal Act 1984.
  Therefore, under the Bill, if the person is not brought before the judge in 48 hours, he is discharged. I would say that that is a relatively swift process, allowing the requesting state to issue its warrant and have it brought before the judge while ensuring that no requested person is subject to an overly lengthy detention.
  The amendment to change this period to 24 hours, we believe, goes too far. It must be remembered that adequate regard must be given to a district judge's ability to hold hearings at such short notice. A two-day period in which to set that hearing seems about right; cutting that by half looks unworkable. We are talking about two variables here: the requesting state having put its documentation in place and there being an appropriate court ready for the police to bring that before. Both of those measures have to be in place for the warrant to be triggered.
  We would not want serious criminals to walk free purely because a court date could not be fixed quickly enough. That clearly is not in the interests of the victims of crime.
  Turning to Part 2, the time period differs because, in these cases, a domestic warrant under Clause 72 has been issued by a justice of the peace. That warrant is issued only if the magistrate believes that the request is for an extradition offence and that there is evidence that would justify the issue of a warrant for the arrest of the person.
  Therefore, we have a domestic warrant issued by a British magistrate and it seems reasonable therefore to apply provisions with a similarity to the existing domestic provisions.
  As I have said, the phrase,
  "as soon as is practicable",
  appears in PACE and it has been placed in the Extradition Bill also. We believe that that phrase will mean in practice, in the vast majority of cases, that the hearing will be no later than the first sitting after the

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  provisional arrest. In the light of those comments, I hope that the noble Lord will feel minded to withdraw the amendment.
  Lord Hodgson of Astley Abbotts: I am disappointed that the Minister cannot see the practical problems that might arise from having different timescales in different parts of the Bill. I recognise the force of the arguments that have been put with regard to a period of 24 hours and 48 hours, but I believe that an extraditee could spin the matter out by saying that the various measures in Clause 4 had not been complied with "as soon as practicable".
  The Minister referred to a safeguard if the various measures had not been complied with. However, as I say, the safeguard that a person must be discharged if various measures have not been complied with "as soon as practicable" could be manipulated by a cynical extraditee to spin out the matter. The measure will not confer the protection that the Minister thinks it will. We would prefer a firm time-scale in both parts of the Bill to which I referred which all authorities and all the people involved would be aware of. But we can come back to that. We have had—
  Lord Lamont of Lerwick: Before my noble friend sits down, I should like to ask the Minister a question. As I understand it, Amendment No. 49 refers to Clause 5 which deals with provisional arrest. I was absent from the Committee for 10 minutes to listen to a debate which largely concerned Scotland. I apologise for missing part of the debate in Grand Committee during that time although I heard my noble friend's opening speech. Will the Minister explain how exactly provisional arrest—which was not, as I recall, raised very much on Second Reading—will work? In what circumstances will a person be allowed to be arrested if there is a belief that a warrant from a Part 1 country will be issued? Why should someone be arrested on the basis that a warrant will be issued? On what basis will people believe that a warrant will be issued?
  Lord Filkin: I believe that I spoke to that matter briefly but let me try to answer the point by way of an example. I do not wish to re-open the debate about which of the cases that we are discussing are serious or trivial; we all agree that some people who are fugitives from justice are serious criminals. Take, for example, who it is believed has committed a major bank robbery in France, whatever his or her nationality. He flees to Britain. The French police believe that they know where he is. They ask the British authorities, through the systems set out in Part 1, to arrest that person. Due to the timescale involved and the urgency of the matter they do not have all the documentation. Provisional arrest allows that person to be seized and held pending the provision of the documentation. If the documentation is not provided within 48 hours, the whole process collapses. But not to have such provisional arrest would significantly tilt the position
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  in favour of fugitives of justice involved in serious crime. I did not speak at that length but that was the thrust of the explanation of provisional arrest.
  Lord Wedderburn of Charlton: I want to speak about this but my noble friend the Minister has been lured—
  Lord Hodgson of Astley Abbotts: When we discuss Amendment No. 44 we shall discuss removing the words "or will be". I believe that that would be the appropriate moment to kick the matter the noble Lord wishes to discuss round the room a little.
  Lord Wedderburn of Charlton: Quite right.
  Lord Hodgson of Astley Abbotts: We were discussing Amendment No. 41. As I said, we would prefer a straight edge to make the position clear to everyone. We do not want problems of obfuscation, with people cynically manipulating the situation or with the "good man" being manipulated. We should like to return to the matter but, in the mean time, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 42 not moved.]
  Clause 4 agreed to.
  Clause 5 [Provisional arrest]:
  Lord Hodgson of Astley Abbottsmoved Amendment No. 43:
  Page 4, line 3, leave out "reason to believe" and insert "reasonable grounds for believing"
  The noble Lord said: Clause 5 concerns provisional arrest which my noble friend Lord Lamont just mentioned. Amendment No. 43 seeks to delete the words "reason to believe" in subsection (1) of Clause 5 and replace them with "reasonable grounds for believing".
  Amendment No. 149, which is grouped with Amendment No. 43, has exactly the same impact in Part 2 of the Bill as subsection (2) of Clause 70, which deals with category 2 country arrests.
  Amendments Nos. 43 and 149 were proposed to us by the Law Society of Scotland. Essentially they aim to change the test of whether a provisional arrest should be made from subjective to objective grounds.
  The Bill as presently drafted states that if a constable "has reason to believe" that a Part 1 warrant has already been "or will be" issued, he may make an arrest. There are no details of what evidence or grounds he must have to support his belief. It is, essentially, a subjective test.
  Similarly, as currently drafted, under Clause 70 a judge may issue a warrant on a subjective assessment of the circumstances. Given the importance of the decision being taken, the Law Society of Scotland believes that an objective test is more appropriate. It believes that the phrase "reasonable grounds"

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  provides a much firmer protection for the person subject to the provisional warrant.
  As has been said, provisional warrants are clearly a necessary instrument to provide in the Bill but we need to make sure that, due to their "provisional" nature, we add the necessary safeguards to ensure that they are used appropriately. I beg to move.
  Lord Wedderburn of Charlton: There was I just now trying to save my noble friend the Minister—I had not realised that he is not present, but I shall explain the matter anyway—from showing his hand too early. We are now discussing the amendments to Clause 5 that raise a very serious matter. Each word must be looked at very carefully.
  Lord Lamont of Lerwick: When the noble Lord says that we are now discussing the matter, may I point out that we were previously when I raised the issue?
  Lord Wedderburn of Charlton: I do not want to quarrel with the noble Lord about procedure. Let us look at what we are now on. We are now on Clause 5. Both Amendments No. 43 and 44 do indeed raise the issue on which my noble friend Lord Filkin has said more than once, I believe, that people get paranoid—and that is arrest by foreign police.
  One possibility is that, under Clause 5, the British constable acts merely as an arm of the foreign police—taking into account the further provision in Amendment No. 46, which the Minister will move. I am not trying to anticipate the debate, but it is fair to the Government to take Amendment No. 46 into account. Either they say that where you think this is a judicial authority of the issuing country and have reason to believe that a warrant has been issued, or will be issued, then you must simply execute the whole thing, or else some amendments will be accepted that tell us that you must have some reasonable grounds for your belief. Those amendments would also tell us that you must have reasonable grounds to believe that such a warrant has been issued by the right people, and, I would have hoped, within the general compass of the scheme. In other words, there is a big distinction in this provisional arrest scheme, which, in a sense, is at the heart of the matter, because that will often be the situation.
  Either you say that, where you have reason to think that there will be something of this sort, you must just do it, or else you must introduce safeguards. Therefore, although I do not anticipate my arguments on Amendment No. 44, Amendments Nos. 43 and 44 go very much together in the direction of introducing more safeguards. So this raises the issue of simply doing what the issuing authority and, in effect, the foreign police force want to do or introducing greater protection for civil liberties. The issue has arisen so often today that the balance the Government are striking is wrong. I would have thought that at least Amendment No. 43—and, I hope, Amendment No. 44—would be acceptable to the Government when they consider the matter.
  6.45 p.m.
  Lord Goodhart: The name of my noble friend Lord Mar and Kellie is attached to these amendments because they were originally suggested by the Law Society of Scotland. They are intended to be of general, not merely Scottish, application. Having looked at the matter again, so far as concerns Amendment No. 43, I find a little difficulty in seeing the difference between "reason to believe" and "reasonable grounds for believing".
  However, Amendment No. 149 raises important issues, as Clause 70 states:
  "The judge may issue a warrant for the arrest of the person whose extradition is requested if it appears to the judge that—
  (a) the offence…is an extradition offence"
  and so on, and that the evidence would justify the issue of a warrant. There is a real difference in substance. If the test is whether it appears to the judge, the issue is subjective and the decision cannot be reviewed unless the judge's decision is clearly unreasonable. If the test is whether the judge has reasonable grounds for believing, an appellate court could take its own decision on whether there were reasonable grounds for believing what the judge believed. There is, therefore, a difference in substance. Given the consequences of extradition, it would perhaps be desirable to make clear that in Clause 70 the test required is objective, not merely subjective.
  Lord Clinton-Davis: I am bound to say that both Amendments Nos. 43 and 149 are precisely the same. The Court of Appeal can look at whether a judge has behaved sensibly. I cannot see any difference between Amendment No. 43, which the noble Lord has said is perfectly OK, and Amendment No. 149. It is not as though there would not be checks; there would be. For that reason, we are arguing about something very unreal.
  Baroness Carnegy of Lour: My noble friend probably made this point, but I wish to clarify that, in suggesting the wording, the Law Society of Scotland is saying that in Scots law "reasonable grounds" is considered an objective criterion whereas "reason to believe" is less so. Therefore, the society thinks that "reasonable grounds" is crisper, more solid and better grounds. As the noble Lord, Lord Goodhart, said, the wording applies to the whole United Kingdom; it is not intended to be a Scottish issue.
  We have heard from distinguished lawyers south of the Border that they do not see the point of that. I can understand that, because they are accustomed to the other phraseology. It is a matter of wording. It is an interesting point, but it is not an enormous one, as my noble friend would probably agree.
  Lord Bassam of Brighton: The noble Lord, Lord Hodgson, has stimulated an interesting, diverging debate. There is value in that. I tremble in trepidation of tackling Scots law, particularly given that the noble Baroness, Lady Carnegy of Lour, is a Member of the

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  Committee. I shall run through the points that I think need to be considered. Some of them have already been made.
  I shall deal first with Amendment No. 43, which concerns provisional arrest under Part 1 of the Bill. Clause 5 currently provides that a police or customs officer may arrest a person without a warrant if,
  "he has reason to believe"
  that a Part 1 warrant has been, or will shortly be, issued in respect of that person. The amendment would change the wording of the clause, requiring the arresting officer to have "reasonable grounds for believing"—
  Lord Hodgson of Astley Abbotts: I thank the Minister for giving way. He inserted a very important word, "shortly", between "will" and "be". There is no "shortly" in the Bill. The provision contains the words "will be", not "will shortly be". It would be wrong for the Committee to allow that to go unchecked, as it makes quite a different inference on what we are talking about.
  Lord Lamont of Lerwick: Does the Minister's brief contain the word "shortly" or did he just say the word?
  Lord Bassam of Brighton: Actually, the brief contains the word "shortly".
  Noble Lords: Oh!
  Lord Bassam of Brighton: However, I have taken advice, and the noble Lord, Lord Hodgson of Astley Abbots, is right. He was right to pull me up.
  Amendment No. 43 would change the wording of Clause 5 to,
  "have reasonable grounds for believing"
  that a Part 1 warrant would be forthcoming.
  The last thing that I wish to do at this stage is to become embroiled in a discussion on semantics, but I have little space in this argument to do otherwise. I ask the Committee to consider how the approach might work. If I have reasonable grounds for believing that a warrant will be issued, then I have reason to believe that that will he the case. If I do not have reasonable grounds, I do not have reason to believe that it will be so. Although that reasoning may seem slightly facile, the point it illustrates is that, regardless of the exact formulation of words, the provisions would have the same effect with or without the amendment. That was the point that the noble Lord, Lord Goodhart, made. I think that it is fair to say that I do not disagree with the sentiment of the amendment, but I suggest that it is unnecessary. There is already provision in the Bill that will have the same effect.
  Amendment No. 149 touches on the issue of an arrest warrant in this country pursuant to a "full"—that is to say, not provisional—extradition request under Part 2 of the Bill. Clause 70 currently provides for a warrant to be issued if it appears to the judge that extradition is requested in respect of an extradition offence and there is sufficient evidence and information to justify the issue of a warrant. The
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  amendment would provide that the judge should have "reasonable grounds for believing" the conditions are met before he could issue a warrant. Although the difference in the wording here may be more obvious than in the previous amendment, it will not surprise Members of the Committee to hear that my answer to this amendment is the same.
  Let us try to suspend reality and assume that I am judge—I am no longer Lord Bassam; I am Judge Bassam. I know that it is quite hard to conjure up different images of me wearing wigs and so on, but let us make that assumption. I will issue an arrest warrant only if it appears to me that the necessary conditions are met. The decision is for me, the judge, to take, based on the information before me. I can decide that the conditions appear to be met only if there is good reason for me to believe that to be true. If there were no reasonable grounds to believe that to be the case, it could not, by definition, appear to me to be true. Again, I am trying to demonstrate that, in spite of the different words, the Bill already does what the amendment seeks.
  In drawing up Clause 70 and similar provisions in the Bill, it is clear that the wording has a history. It was taken from the drafting of the existing legislation on the subject. The phrase,
  "if it appears to be"
  is used throughout the Extradition Act 1989. Although there are many things in that statute that the Government seek to change, this form of words is not one of them. The meaning and intention of the provision is clear: those involved in extradition understand what decision is to be made and on what basis.
  We are agreed on what we expect these provisions to achieve. I hope that Members of the Committee will accept the assurance that we can meet those expectations with the Bill as it is drafted. I hope that the noble Lord will feel able to withdraw the amendments in the light of that explanation.
  The Earl of Mar and Kellie: If the Minister were Sheriff Bassam, I believe that he would be very glad to have the aide memoire of the words that the sheriff must have reasonable grounds. He would know that he had to have reason and not just be swayed by an interesting argument.
  Lord Wedderburn of Charlton: Perhaps the Minister will want to reflect again when he reads Hansard. There is a difference between having a reason to believe something and having reasonable grounds to believe something. I might believe that the noble Lord, Lord Lamont, is my cousin because, from the age of six months onwards, an aunt told me that his father was my father's brother. I find out that that is false. I would have thought that anyway, because my aunts were very curious people and I did not believe everything that they told me. It would not be reasonable, if it became a serious matter, just to believe what your aunt had told you from the age of six months onwards. It would be reasonable to make a little inquiry to find out more about the noble Lord, Lord Lamont, to see if he really

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  was my cousin. It would not take very long, but there is a difference between having a reason to believe and having reasonable grounds to believe.
  I cannot understand why the Minister resists the idea that the person committing the extremely serious step of provisionally arresting someone on the say-so of someone else abroad. I have been trying to jog my memory as to whether his argument has an undistributed middle or some rule about fallacious reasoning, but it is wrong. In my submission, surely that is wrong. A "reason to believe" is not the same as "reasonable grounds" to believe. When there is a provisional arrest, we should begin the notion of protection by saying that there must be "reasonable grounds". What is wrong with that?
  7 p.m.
  Lord Lamont of Lerwick: "Reason to believe" implies any reason to believe—a slight reason as opposed to a significant reason. "Reasonable grounds" implies looking at something in the round—at all the evidence available and whether the conclusion is reasonable. To me, that is the difference between the two phrases. Respectfully, I do not agree with those who think that there is no difference. It is pretty clear what the difference is, as well exposed by the noble Lord, Lord Wedderburn.
  I am puzzled by the provisional arrest requirement. The Minister said that the wording was not being altered. Will he clarify whether provisional arrest is already allowed for under the Extradition Act? He is consulting advisers, who are nodding, so perhaps we know the answer already. As said by the noble Lord, Lord Wedderburn, it seems very extraordinary to allow that. We are told all the time that it is for only very serious offences, yet we know that the provisions of the arrest warrant apply to offences that are not the most serious—not only to murder and terrorism.
  It is worth observing that there have been very large numbers of arrests in this country of people on terrorist offences in the past few months, but so far as I am aware only one of them has been charged. We have to bear in mind the rights of those arrested for terrorism as well. There has been a certain amount of trigger-happy locking-up of people in recent months, which has caused some disquiet.
  If we are to have the provision, the Minister ought to say what sort of evidence would be relevant. Will it be simply the facts from a policeman in another country? Will there be any reference to a domestic warrant being in issue in that country already? Will the officer have to be senior? What sort of grounds are relevant? The Minister is again consulting his advisers, so perhaps we can hear about that.
  Lord Bassam of Brighton: I shall first answer the noble Lord, Lord Lamont. The provisional arrest has been there since 1870. What we seek to do in the Bill is already in the 1989 legislation. I cannot quite remember what he was doing at that stage, as my memory is not absolute on such matters—perhaps he was First Secretary to the Treasury—but he was part
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  of the government who put that important legislation through. At that stage, he clearly would have supported it, believing it to be proper and important.
  The test that was applied then is exactly the same as is intended to be applied now. The judgment will have to be made by the judge as it appears to him—that is the expression used in the 1989 Act—based on sufficient evidence and information to justify the issue of the warrant. There must be sufficient evidence and information to justify the issue of the warrant. That is how the provision is intended to operate.
  The noble Lord, Lord Hodgson, wanted to move from what he described as a subjective assessment to a more objective test. The Committee heard from the noble Lord, Lord Goodhart, that "reason to believe" is, in effect, that larger element of objectivity that the noble Lord, Lord Hodgson, was after. I have argued that Amendment No. 149, with which the noble Lord, Lord Goodhart, had some concerns and doubts, is in effect exactly the same and falls within exactly the same range of argumentation as Amendment No. 43.
  I appreciate that Members of the Committee will not be entirely satisfied. The noble Lord, Lord Wedderburn, is of course right to argue that we should have protection for civil liberties. We feel that we have struck the right balance. The current legislation has worked extremely well. I have not had a chorus of complaints that it is faulty or defective in terms of how it operates. We simply seek to replicate it in this legislation, and make sure that it works well and effectively for the public's protection from people committing a range of very serious offences. In the main, that is where the measures will apply.
  Lord Wedderburn of Charlton: I appreciate that some provisions may have been there since 1989, or 1899 for all I know, but that does not justify them if they are based on a fallacy. Is the Minister making a Pepper v Hart statement that having a "reason to believe" means having "reasonable grounds" to believe? That is a very serious matter. Do we have ministerial assurance that "reason to believe" has the same meaning as "reasonable grounds" to believe? He has already supported the noble Lord, Lord Goodhart, with whom I disagree on the point. They do not mean the same thing. If the Minister is saying that they do, we had better have a ministerial statement to that effect. We shall then know how to interpret the Bill, and it will have to be amended on Report.
  Lord Bassam of Brighton: I shall not fall into the trap of making such a ministerial statement. That would not be right. I have made the argument and acknowledged the importance of the issue raised by the noble Lord, Lord Hodgson. Obviously there is a dispute in the Committee as to what is right. The noble Lord, Lord Goodhart, effectively supported the Government's position. I think that we have got the balance right. I made it clear that there had to be sufficient evidence and information and an element of

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  objectivity—a reason based on fact—to ensure that a warrant could be justified in the circumstances. That is our case.
  Lord Wedderburn of Charlton: I am sorry, but that really will not do. If I promise not to quote the Minister when I am instructed in relevant action, so that we do not have a Pepper v Hart statement, can I first quote what he just said? I believe that he said—we shall see it in Hansard; I apologise if I am wrong—that a "reason to believe" means a reason founded on fact. That does not include a reason founded on falsity. The Minister is saying that "reason to believe" in this clause does not include reasons based on something that is not a fact—something that is wrong. The reason is based on "reasonable grounds". If it is based on fact, it is not just any old reason but a special sort of reason.
  I promised not to quote my noble friend when I was instructed on the matter, but I cannot give any assurance to him that some other counsel may not do so. I am not trying to get him on the hop in some ill-judged assurance, I promise. I am asking him to give us an assurance that he will consider the simple proposition that having a "reason to believe" is, in ordinary English, not the same as having "reasonable grounds" to believe. If he says that they are the same, we had better come back to the matter to see whether the words should not be adjusted. That is a reasonable proposition to put to him, and he has not addressed the point so far, except in so far as he says that in this special case a reason means a reason based on fact.
  Lord Bassam of Brighton: As ever, the noble Lord has vigorously pursued the point in his forensic way. I am not trying to flatter him; I do not need to. He makes a very good case based on his argumentation. I have set out our position very clearly. No reasonable judge would want to make a decision based on falsity, which was the proposition towards which the noble Lord tempted me. Obviously they have to base decisions on there being sufficient evidence and information to issue the warrant. That is how the provision has worked in the past, and it is how we envisage it working in future.
  Lord Hodgson of Astley Abbotts: As the Minister pointed out, I began by saying that we were trying to move a subjective test to an objective test on "reason to believe" and "reasonable grounds for believing". I was disappointed that the noble Lord, Lord Goodhart, as an eminent jurist, shot my argument full of holes, and was then relieved to be supported by the noble Lords, Lord Wedderburn and Lord Lamont.
  The Minister gave the game away when he inserted "shortly". Later, when he talked about "reason", he kept inserting "good". I did not pull him up at the time, but readers of Hansard will see that he kept saying "good reason". He was always trying to shift the ground ever so slightly with such words, and that is not good enough.
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  We simply cannot have a situation where, on half the Bill, we pray in aid the 1870 Act and the 1989 Act as holy writ, while, on the rest of the Bill, we say that that they are absolute rubbish, hopeless and that we should get rid of them.
  Lord Bassam of Brighton: That is almost to suggest that no piece of legislation is beyond improvement. Of course what we are trying to do—what the Committee is trying to do—is improve the quality of the legislation. I cannot take that point.
  Lord Hodgson of Astley Abbotts: On Amendment No. 149, the Minister said that we were bringing forward concepts from 1870 and wording from 1989. That was in respect of Part 2 and the provisions were therefore not capable of being improved. However, in respect of Clause 5, in Part I, the whole history of the activity is to be swept away in favour of a completely new circumstance. We need to come back to that and, frankly, we shall do so on Report. In the Committee, there is no confidence that "reason to believe" gives sufficient safety for the important matter of a provisional arrest.
  We will want to seek either a change in the Bill, or a statement of the sort that the noble Lord, Lord Wedderburn, invited the Minister to make. I quite understand that he did not want to make it on the wing this afternoon, but he will have a few weeks—perhaps even a few months—to consider whether he can make it, in which case we will no doubt feel reassured. In the meantime, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Hodgson of Astley Abbottsmoved Amendment No. 44:
  Page 4, line 4, leave out "or will be"
  The noble Lord said: This is the second barrel in the gun. We are in Clause 5 on the provisional arrest again, and debating the "will be" issue. We have been through a number of the arguments on the previous group of amendments and, without rehashing them all, it seems reckless to say that someone may take a subjective decision about a future warrant, possibly hypothetical, and on that basis arrest a British citizen. We need some explanation from the Minister as to why the provision is appropriate. At the same time, we need an example of circumstances in which it would be of invaluable and proper assistance to the authorities. It is hard for me to think of circumstances in which, were our amendment accepted, a criminal could evade justice.
  The summary of our position is that an arrest can now take place without a warrant, with the arresting officer having "reason to believe" that a warrant will be issued. Someone does not have to be shown the warrant unless he asks for it. He can be held for 48 hours—two days—before he appears in front of a judge. Several times at Second Reading and in Committee, the Minister has said, "We are talking about a balance. We are balancing the rights of the citizen and the need to make sure that the guilty do not go unpunished". In the circumstances where we are talking about a provisional—
  7.15 p.m.
  Lord Lamont of Lerwick: My noble friend keeps talking about a balance, but I do not see any balance in the Bill. Can my noble friend name one thing that the Bill does to strengthen the rights of the accused?
  Lord Hodgson of Astley Abbotts: I was not saying that. If I had been able to finish my last sentence, I would have said that the balance was not being struck here at all. In the case of a provisional warrant, we are not striking the right balance; the balance is unfair and skewed against people of this country. Therefore, the words should be struck out. I beg to move.
  Lord Goodhart: The amendment should be supported. When a Part 1 warrant has been issued and there is reason to believe that the information has been provided to the effect that a Part I warrant has been issued, it is legitimate to make a provisional arrest. However, I am concerned about situations in which there is only a belief that a provisional warrant will be issued. At that stage, there is no warrant and no evidence before the judge, except the information that a warrant is to be issued.
  If one compares that situation with the provisional arrest under the category 2 procedure, which is dealt with in Clause 72, one finds a somewhat different situation. The judge in that case can proceed with issuing a provisional warrant only if, under subsections (3) and (4), he has evidence before him to justify the issue of a warrant for the arrest of that person. In other words, he must have the prima facie evidence in front of him, which must have been supplied by the territory that seeks the extradition. It is not sufficient in that case to say that that judge believes that such evidence will be provided.
  The two measures are not in line with each other. The equivalent would be to say that a provisional arrest can be made under Part 1 if it is known that a Part 1 warrant has been issued—that, even if it has not got to the United Kingdom yet, it is known to be on its way. To say that all that is needed is information that a Part 1 warrant is going to be issued is not good enough. I support the amendment.
  Lord Wedderburn of Charlton: I support the amendment, at any rate contingently. The provisional arrest measure presumably relates to people who are passing through and have to be got quickly. I am in favour of catching criminals—let us have no nonsense about that. There are parts of the Bill where the Government have tried to put a bit of balance in, such as the provisions relating to the Convention on Human Rights—although we shall come to the defects of that. However, this clause represents the worst attack of vertigo that Ministers have had.
  Let me put the case at its very lowest to my noble friends the Ministers, and hope that there is no heading of "Resist absolutely to the death", as we saw earlier this afternoon. We also hope that there are no words written in—that came as a great shock to me, I must admit.
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  The Minister can either have "reason" or "will be". If he had accepted "reasonable grounds", I would have accepted that I might not like it when it happened, but that there was some sort of a case for going after someone who was at Prestwick for only a few hours. I could see a case for doing that if it were done on the basis that the arrest warrant had not arrived from the issuing authority but there would be one, and there were reasonable grounds.
  However, the Minister resisted "reasonable grounds"—unless we can get "reasonable grounds" out of "reason", which he resisted putting on record. The clause says that any old reason will do. To have any old reason to believe that the "judicial authority"—which the Government will insert in the clause—will issue the warrant is really so unbalanced that, with the greatest respect, it shows a defect of understanding of what is being urged on Ministers.
  I urge my noble friend the Minister to say that, in reconsidering the matters under the last amendment, he will balance the provisions under this amendment and come up with some slightly different formula. It should at least require that the person provisionally arrested, who under these provisions will not see anything at all, will be arrested by someone with reasonable grounds to believe that the process will be properly effectuated. If not, the person making the arrest should have a reason, untrammelled, that there has been a warrant issued. The Minister really cannot have both.
  Lord Lamont of Lerwick: The noble Lord, Lord Goodhart, made a rather devastating point about the contrast between the treatment of Part 1 and Part 2 countries. That is one of the puzzles of the Bill—why there is an entirely different philosophy between Part 1 and Part 2. Many people have argued that our systems of law have more in common with those of the United States than those of the European Union. I do not know whether I have the Minister's attention—perhaps I should sit down while he consults his officials.
  Many of us are puzzled about why the procedures that apply to Part 1 countries do not apply to the United States, for example, although the legal system in that country seems to have much in common with ours. As an opponent of capital punishment, I entirely accept that there must be an exception for offences that are capital. The point made by the noble Lord, Lord Goodhart, is powerful: if there is going to be a provisional arrest and evidence is required for a category 2 country, evidence should be required for the category 1 country as well.
  Clause 72(4) has two types of evidence. The first is,
  "evidence that would justify the issue of a warrant for the arrest of a person",
  if the person had been accused. The second type is when a person has actually been convicted of an offence and has somehow escaped from prison or escaped going to prison. That is obviously a very different category. Will the Minister comment on that?

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  I refer again to a point that I made earlier. I am puzzled by the sort of evidence that a person could have that a warrant would be issued. A warrant requires judicial confirmation. Surely, there must be some rules for what justifies reasonable grounds for arresting a person without a judicial authority.
  Lord Bassam of Brighton: It is only right that I acknowledge that the drafting of the clause may at first sight seem slightly odd, allowing officers to arrest a person purely if they have reason to believe that a warrant will be issued, and not just if they believe that a warrant has been issued. I acknowledge that point. However, it is not hard to consider an example—which the noble Lord, Lord Hodgson, was seeking—where such a power would be useful and, I would suggest, absolutely necessary.
  The provision will hardly ever be used. That is the point. It is in those situations of extremis in terms of law enforcement that the provision would be called on.
  I shall give some life to the argument by providing an example. Let us imagine that someone commits a bank robbery in Rouen and makes his way to a hovercraft in Calais just before the French police can catch up with him, or someone commits a terrorist outrage in Paris and the police are well aware that the person whom they are pursuing is making his way out of the country to the United Kingdom. In those circumstances, the French police might very well telephone their counterparts in Dover and seek to have the person detained on arrival.
  The provision would be used in exactly that sort of circumstance, which will occur very infrequently. That needs bearing in mind. The police would doubtless confirm that they would go to a magistrate to seek a European arrest warrant. At the moment when the person arrives in the United Kingdom, the Kent police would have every reason to believe that a European arrest warrant would be issued, though not that it had been issued.
  The question that Members of the Committee should ask is this: "Do we believe that in such cases such people should be arrested?" Common sense dictates that they should.
  Lord Wedderburn of Charlton: I am sure that the Minister is aware that the examples that he has given are cases in which there are very good reasonable grounds for a belief that the issue of a warrant is imminent. However, could he give us an example where he could continue to justify keeping the words "will be" but where the reason is a false reason and the Kent police are totally misled that a warrant will be issued?
  Of course, I understand the Minister's examples. Someone has committed an outrageous act. That is perfectly clear, and there are reasonable grounds for believing that has happened and that the warrant will be issued. That is fine. The Minister can either have
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  "reason" in the clause, or he can have "will be". Will he give an example where any old reason is linked with "will be" and justify that?
  Lord Bassam of Brighton: I am not going to do that because, as I have already explained, the provision will be used only in a few instances.
  Lord Wedderburn of Charlton: That does not matter.
  Lord Bassam of Brighton: It does matter, because if we do not have that wording in the legislation, it will create an almost insurmountable barrier for law enforcement agencies in the circumstances that I have described. If they believe that a warrant will he issued, they are obviously perfectly able to apprehend and detain someone arriving in this country when they have good knowledge. That is extremely important. It is common sense that they should have that facility. If they do not, the warrant may be issued only when there is confirmation and the proceeds of the crime may have disappeared. That could be the consequence of the amendment.
  The noble Lord, Lord Wedderburn, has said that he believes in law enforcement and wants to ensure that serious criminals are apprehended. In those circumstances, the provision is important.
  Lord Lamont of Lerwick: Why could the law not be framed so that provisional arrest could apply only to very serious crimes such as terrorism or murder? The Minister keeps saying that the provision will be only rarely used, but the significance of the arrest warrant is that it applies to many offences that are not regarded as serious. Some of us object to that balance—the freedom to extradite someone to another country for relatively minor offences. I have made the point again and again that we should bear in mind the way in which justice works; a person facing legal procedures in another country is at a natural disadvantage. The Minister always wants to concentrate on murder and terrorism, but our argument is actually about the lesser offences.
  7.30 p.m.
  Lord Bassam of Brighton: Will the noble Lord take this point? How many cases has he come across in which a situation such as he describes has been abused in the past? Frankly, I cannot see that there have been such situations. In fact, something not too dissimilar to these provisions currently operates.
  I have said clearly to the Committee that the measure will be used only in very few circumstances—hardly ever—and only when an extreme outrage has been committed and it is plain that an arrest warrant will be issued.
  Lord Lamont of Lerwick: That is not what the Bill says—it does not say that the provision is only for serious offences. Furthermore, what makes the situation different is that extradition will be much easier. It will apply also to offences that are not offences in British law. The principle of double criminality is being abolished.

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  It is all very well for the Minister to shake his head and say that it is all very theoretical, but we know what can happen. People suddenly turn around and say, "Oh my goodness, we've got to change the law because such and such has happened and we never thought it would be used in this way". The Minister gives an example of someone who has robbed a bank, but let us suppose that some football fans behave very badly and in a xenophobic way at a football match. The police pursue them, trying to arrest them, but the fans get on the ferry and come back. Will they be placed under provisional arrest in Canterbury, for example, when they arrive after crossing the Channel?
  Lord Bassam of Brighton: It depends on the circumstances of the case. The noble Lord is trying to construct a broader case based on some fallacious thinking. Let us focus on some practicalities. If the full papers are not produced at a hearing within 48 hours of the arrest, the person must be discharged. That means that there is obviously a safeguard.
  Lord Goodhart: Is there anything in Clauses 5 and 6 to prevent the following scenario from happening? The French authorities ring up Inspector Knacker of the Yard and say, "Will you arrest this man? We promise that we will get you the papers within 48 hours". The inspector arrests the man, the French authorities fail to get the papers there within 48 hours and the man has to be discharged. However, just before he is discharged, the French ring up Inspector Knacker and say, "Look, I'm sorry we haven't made it in time, but we absolutely promise you that we will get it to you in another 48 hours, so please arrest this man again, as soon as he is discharged". Is there anything in the Bill to prevent that from happening? Is it contemplated that that is permissible?
  Lord Bassam of Brighton: My understanding of the clause is that that will not do.
  Lord Wedderburn of Charlton: Why?
  Lord Bassam of Brighton: Because the authorities will not have conformed with that part of the legislation and the person will have to be discharged. If the papers are not properly there within that 48-hour period, the person will have to be discharged.
  Lord Goodhart: The person could be discharged, but what is to prevent him from being re-arrested if there is a promise that the papers will be there within the next 48 hours from then?
  Lord Bassam of Brighton: In those circumstances, my understanding is that the promise will not do. The noble Lord has raised a good question; clearly, we need to be absolutely clear about it and we will seek to clarify the matter before we move on to the next stage of the legislation.
  This is an important part of the legislation for us to retain. I have made the case that it will be used only in exceptional circumstances. It will be very rarely used, but the law enforcement agencies clearly believe that it
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  is important, and we as a Government believe that it is important. In the kinds of cases that I have described, it will be very important indeed. We are not dealing only with people moving from France or from mainland Europe over here. It is worth remembering that we also have a land border, and a scenario could well occur with someone crossing the border from the Republic of Ireland. In those circumstances, if a particular outrage had been committed and there was a need for law enforcement to act swiftly, the words in the Bill would have a real meaning and significance.
  Lord Lamont of Lerwick: Why not then draft the legislation so that these powers apply to serious offences such as terrorism and murder?
  Lord Wedderburn of Charlton: Before my noble friend the Minister concludes, why does he not go away and draft what he says he wants? The provision at present allows someone to be unjustly, unfairly, improperly and provisionally arrested, re-arrested and re-arrested. With the greatest respect, it appals me that a Labour Minister does not seem to care that one individual can suffer that fate.
  Lord Bassam of Brighton: I, like all members of the Labour Party, care a great deal about people's civil liberties. I do not take offence at the noble Lord's concern about those things, because he clearly shares my concerns as well. However, he made the point earlier that we have the responsibility to ensure that we protect the public from serious criminals.
  The challenge has been made that we should restrict the measure to serious criminal acts. There may well be other criminal acts of importance and significance in which it is right to use the facility that this particular part of the legislation provides to law enforcement agencies.
  I have made the case clearly, in terms of the practical effect of using the law and its impact on real people in real circumstances. I made the point very clearly that there will probably be very limited circumstances in which it will need to be used, when law enforcement agencies will need to move quickly. However, it is important that the provision is there.
  Lord Hodgson of Astley Abbotts: The hour is late, but I should like to say three things. The debate that we have had on this group of amendments underlines why my party believes that the Part 1 arrest warrant is not needed. We believe that what can be achieved should be achieved through Part 2. Most of the safeguards that have been requested by Members of the Committee are available in Part 2. Part 1 is superfluous and gets the balance wrong. We have suggested that in extremis a major offence such as terrorism could be included, but that only shows why Part 1 is misconceived.
  The Minister gave the game away when he used the word "shortly". That is how his Home Office team thinks about matters such as these; it must always he "shortly" and quick, and we have seen why it will not

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  necessarily be quick. I will be interested to see whether the Government introduce an amendment that says "shortly". That would be interesting.
  The Minister told the noble Lord, Lord Lamont, that the measure would be used infrequently. However, limes change and new Ministers come along. We are supposed to be making sure that we look after and guard civil liberties. The balance is all over the place as regards the provisional arrest. I hope that
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  the Minister will go away and think about how we can get the measure into better shape before Report stage. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Filkin: This might be a convenient moment to propose that the Committee adjourns until tomorrow at 3.45 p.m.
  The Committee adjourned at twenty-two minutes before eight o'clock.