Grand Committee Report of 10 September 2003

Official Report of the Grand Committee on the

  Extradition Bill
  (Ninth Day)
  Wednesday, 10th September 2003.
  The Committee met at half past three of the clock.
  [The Deputy Chairman of Committees (Lord Ampthill) in the Chair.]
  The Deputy Chairman of Committees (Lord Ampthill): With the agreement of the Committee, I do not propose to waste time reading out something which we have now heard eight times over; we may proceed straight away to Clause 163 and Amendment No. 245.
  Clause 163 [Entry and search of premises after arrest]:
  Baroness Anelay of St Johns moved Amendment No. 245:
  Page 88, line 42, leave out subsection (9).
  The noble Baroness said: As the Deputy Chairman has rightly reminded us, we now have the joy of a ninth day in Committee on the Bill, which I think we all hope will be the last such day.
  Clause 163 provides for the entry and search of premises after the person in question has been arrested. The clause lays out conditions for search and entry, the relevant offences that relate to the power to search and details of what may legitimately be seized during that search. Subsection (8) states:
  "The powers conferred by subsections (2) and (5) may be exercised only if a police officer of the rank of inspector or above has given written authorisation for their exercise".
  As one might expect, we entirely support that subsection. It seems sensible for authorisation to be given before any entry and search is made after the person in question has been arrested. In such circumstances, there is none of the urgency of the type that we have already discussed in relation to searches at the time of arrest itself. However, our query relates to subsection (9), which states:
  "But the power conferred by subsection (2) may be exercised without authorisation under subsection (8) if—

  (a) it is exercised before the person arrested is taken to a police station, and

  (b) the presence of the person at a place other than a police station is necessary for the effective exercise of the power to search".

  I should be grateful if the Minister would tell the committee what sort of situations that provision is intended to address. Why does the Bill include one subsection ensuring that a search after arrest must he by authorisation only and then, in the following subsection, allow a search without senior officer
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  authorisation? We read the Explanatory Notes, but they took us no further forward, so I hope that we may receive some clarification today from the Minister. I beg to move.
  The Earl of Mar and Kellie: It is popular when discussing such criminal justice matters to object to anything that might authorise a fishing trip. In fact, it is a hit of a ritual to do that, so I shall do so now. I am also interested that subsection (10) states that subsections (8) and (9) do not apply in Scotland. Presumably, that is because the matter is already dealt with in Scotland.
  The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin): I shall be glad to give the clarification that the noble Baroness, Lady Anelay, seeks through this probing amendment. Let me turn directly to her question of why, having provided the basic power of prior written authorisation, subsection (9) appears to allow for exceptions.
  Let me give an instance of why we think that to be necessary. One can envisage the circumstance in which the police find a person who is wanted for, say. a hank robbery in Portugal, at address A and the person indicates that he is willing to co-operate with the police and that there is further evidence or money at another address—just further down the road, for example. In those circumstances, as a consequence of having to obtain prior authorisation, one would significantly reduce the likelihood of being able to seize the evidence or proceeds of crime.
  However, although such a power is necessary, there must clearly be safeguards against it. In drafting the clause, we have again sought to follow provisions in our domestic legislation. Section 18(5) of the Police and Criminal Evidence Act 1984 makes almost identical provision allowing a constable to conduct a search before the person is taken to the police station, without obtaining authorisation. There must he safeguards against the abuse of such a power, and there is therefore a further safeguard in the police code of practice, which has been open for consultation during the summer.
  Chapter 3, paragraph 4.4 of the draft code states:
  "If authorisation has not been obtained…an officer of the rank of inspector or above must he informed that a search has been made, as soon as practicable after it has been conducted".
  That information will be supported by the normal action after a search, which includes making and filing a record of the search and explaining the grounds under which it was made. That is spelt out in the code of practice in paragraph 4.13. For those reasons, we believe that the provision is necessary, albeit circumscribed in the way I described.
  As for the question posed by the noble Earl. Lord Mar and Kellie, there is no legality for the undertaking of fishing trips in such circumstances. He is of course absolutely right to say that the situation is different in

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  Scotland; I shall speak in considerably more detail to that later when we discuss subsequent amendments, if the noble Earl will bear with me.
  Lord Goodhart: I understand that there may be circumstances in which it is desirable to have a power to search without obtaining previous authorisation, but should it not be on the face of the Bill that that should be done only where it is impracticable to obtain authorisation? Otherwise it would leave too much open if you could simply go ahead and then notify the inspector. Where it is practicable to consult an inspector before a search is carried out—that may even be done orally rather than in writing; an inspector will surely be at least at the end of a radio or mobile telephone—should it not be a requirement that such consent should be obtained?
  Lord Filkin: It would clearly be technically possible to do what the noble Lord, Lord Goodhart, suggests, but one of the themes running throughout the Bill is an attempt to use and to build on police and criminal evidence procedures. This is not only for the purpose of reducing parliamentary draftsmen's time—which is not an issue—but it is essential that, as far as possible and where it is appropriate, to have similar codes and practices so that the police may deal with a matter using similar procedures. It will increase the likelihood of errors not being made where there is no need to do so if one follows PACE practices and a code which is built on PACE. For that reason—particularly when it is reinforced by the commitment that the Government have given to clarification—I do not believe there is a danger.
  Lord Lamont of Lerwick: Is there not a possibility of obtaining authority retrospectively? If this exception is not to lead to fishing expeditions, why could it not be approved by an authority subsequently that it was necessary in the circumstances to conduct a search expeditiously and without prior permission? That would ensure that it was an exception and that some discipline was placed on an authority; otherwise it could make the excuse that it was in a hurry.
  Lord Filkin: In practice, as regards the requirement to notify an inspector or a more senior officer after the event has happened, in a sense it will be difficult to authorise something that has already happened. It is germane that if circumstances arose in which there did not appear to be any good reason for a subsequent search taking place without authority—I am thinking on my feet here—the inspector or other senior officer would have to draw attention to the fact that the evidence was possibly suspect because it had not been carried out necessarily in compliance with PACE.
  If, on reflection, I can add anything further, I shall be happy to write to the noble Lord, Lord Lamont.
  Lord Clinton-Davis: Does my noble friend agree that it is quite impossible for a Bill of this kind, which we hope will become an Act, to specify all the possibilities
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  that could arise? What is happening now so far as the Bill is concerned is that a possibility is being covered by a number of subsections. This is most important.
  [The Sitting was suspended Or a Division in the House from 3.40 to 3.50 p.m.]
  Lord Clinton-Davis: I was put off by the constant ringing of the Division Bell. My simple question is whether my noble friend agrees that it is quite impossible in a Bill of this kind or any Bill to rehearse all the possibilities that may exist. Here, there is a certain degree of implicit understanding of the procedure. Having said that, does he agree that the Bill establishes a practice and, from that, certain events follow? I believe that what has been expressed here is the possibility that constables will not be able to follow the procedure envisaged earlier in the Bill and that is why this particular provision has been inserted.
  Lord Filkin: I am not sure that I can agree with my noble friend Lord Clinton-Davis because good scrutiny sometimes makes one feel that one is not trying to answer every single eventuality, which we sometimes seek to do, as we should.
  Speaking more seriously, the inspector will clearly have a duty to write down the grounds for the search on notification of the search and he would also check that against the officer's report of the search. I was saying that officers would be used to following those procedures as they are the same as those in PACE and the PACE codes of practice. We are currently consulting on the code of practice, but as yet we have not sensed that anyone feels that it was inappropriate to mirror PACE in those circumstances. I return to the initial point that, although this is a rarely used power, it is necessary to have such a power for the kind of circumstances that he instanced.
  Baroness Anelay of St Johns: I am grateful to the Minister. He is absolutely right to say that there should be some consistency between the practice of PACE and the practice within this Bill in the sense that it is helpful for the police to know the correct form of procedure so that they follow it. It is equally important for there to be consistency in order to assist practitioners and those who may fall foul of the law to know what good or bad practice may be.
  It was important that the noble Lord, Lord Goodhart, raised the issue about areas where it may be impractical to achieve consent. Those areas are the only ones governed by this. I want to look further at that, but I assume that it would be the case that if evidence were gathered in a way that contravened the PACE rules, one would not be able to use that evidence anyway in a court of law. We have been trying to obtain the explanation from the Minister and to ensure that we have considered the issues properly, as he said. The Committee stage provides the opportunity to probe and seek clarification. I believe that he has given us that. I shall look more carefully at the issue raised by the noble Lord, Lord Goodhart, but, at this stage, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 246 not moved.]
  Clause 163, as amended, agreed to.
  Clauses 164 to 169 agreed to.
  Clause 170 [Other treatment and rights]:
  Baroness Anelay of St Johnsmoved Amendment No. 247:
  Page 92, line 26, leave out subsection (2).
  The noble Baroness said: I tabled Amendment No. 247 because we have some concerns about the provisions of subsection (2) which states:
  "In relation to those cases the Secretary of State may by order apply the provisions mentioned in subsections (3) and (4) with specified modifications".
  That seems rather curious. It seems to imply—we assume this is wrong—that Sections 54, 55, 56 and 58 of PACE will not otherwise apply to persons arrested under the Bill. Presumably the protections contained in those provisions should be set out specifically in the Bill. They would include, in particular, access to legal advice and to translators—Section 58—where necessary in the interests of justice. Therefore, I am unclear why in extradition proceedings the arrested person does not have the same protection under PACE as anyone normally arrested. I assume that that is simply a case of misreading the Bill or of thinking that there is a meaning that is not there at all. Perhaps the Minister can shed some light on what appears to be an alternative procedure unique to extradition hearings. I beg to move.
  Lord Davies of Oldham: I am grateful to the noble Baroness for introducing this amendment because it gives us a chance to clarify the position. I should like to reassure her that the concept of "with specified modifications" is very minor in the context of the Bill. The noble Baroness is right to query the point as, indeed, did the Delegated Powers and Regulatory Reform Committee, although it is important to point out that the Committee's comments were made in respect of a completely different part of the Bill which we have yet to reach. We regard the issues in this part of the Bill as very minor indeed.
  Clause 170 allows for some specific provisions in the Police and Criminal Evidence Act and its Northern Ireland equivalent to be applied in extradition cases. The power to apply these provisions with specified modifications is necessary simply to take account of the fact that we needed to distinguish between extradition cases and normal domestic ones. All these sections in PACE and the Northern Ireland equivalent refer repeatedly to the terms "offence" and "serious arrestable offence". Sections 54(4)(c), 52(6)(a), 58(a), (b) and (c) of PACE are just a few examples.
  One of the key findings in the judgment of Rottman, which is the case that has caused us to spell out police powers on the face of the Bill, was that PACE in its unmodified form could refer only to offences committed in the UK or over which the UK takes extra-territorial jurisdiction. A reference to an offence in PACE cannot refer to offences committed overseas.
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  Accordingly, unless we make these minor modifications, these sections of PACE cannot apply in extradition cases, which would deny important safeguards to fugitives, as the noble Baroness indicated.
  That is why we believe that we need the power to apply the relevant sections of PACE with specified modifications. However, I can reassure your Lordships that we will be applying the appropriate sections with only the minimum of modifications required to make them work in the extradition context. I can say that with considerable confidence because if your Lordships care to look at the police code of practice which we put out for consultation earlier this month, you will see that all of it is covered in Chapter 1.
  The draft codes cover all these areas—including the right to have a person informed when arrested and the right to legal advice—in considerable detail and mirror very closely what happens in domestic cases. We would, of course, welcome any comments on the draft code, but I hope that the Committee will be reassured that by the inclusion of the words "with specified modifications", we are not seeking to make any substantive changes.
  The sections in PACE and the Northern Ireland equivalent that we are talking about provide important safeguards for those arrested. The right to legal advice and the right to have a person informed of your arrest are clearly very significant. Similarly, it is very important that all searches—intimate or otherwise—are conducted in accordance with approved procedures, and that a proper record is kept of them.
  It would be a pity if these provisions could not apply in extradition cases. That would be the position unless we could make the necessary modifications. I hope the Committee will therefore see why the amendment is not attractive. Nevertheless, it has given rue the opportunity to clarify the position, I hope to the satisfaction of the Committee.
  4 p.m.
  Baroness Anelay of St Johns: I am grateful to the Minister for casting some light on that and, in particular, for giving the commitment that the Bill means that the Government would not be making, as he said, substantive changes while providing the protections required. That is important. He referred to Chapter 1 of the code of practice. I will not respond to that at the moment, as we deal with the code of practice as a separate matter in the next amendment. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 170 agreed to.
  Clause 171 agreed to.
  Clause 172 [Codes of practice]:
  Lord Filkinmoved Amendment No. 247A:
  Page 94, line 29, at end insert—
  "(8) If the Secretary of State publishes a draft code of practice in connection with a matter specified in subsection (1) before the date on which this section comes into force—

  (a) the draft is as effective as one published under subsection (2) on or after that date;

  (b) representations made to the Secretary of State about the draft before that date are as effective as representations made to him about it after that date;

  (c) modifications made by the Secretary of State to the draft in the light of any such representations before that date are as effective as any such modifications made by him on or after that date."

  The noble Lord said: I hope that this will be seen as an utterly procedural amendment by the Government. Its purpose is to provide that the consultation exercise on the code of practice on police powers in extradition cases will be valid even though it will have taken place before Royal Assent. When the Bill was debated in another place, the Official Opposition spokesman asked that publication of the code of practice be as early as possible, and we were certainly pleased to make it so. The code was published on 9th June and has been distributed widely for comment to every police force, the Court Service, the Bar Council, the Magistrates' Association and others. The consultation closed two days ago on 8th September, although as discussed we have 12 weeks for people to comment.
  The thrust of the purpose of the amendment is to put beyond doubt that the consultation and the draft code of practice are still valid, even though they took place before Royal Assent. The amendment is no more and no less than that. I beg to move.
  Baroness Anelay of St Johns: I certainly welcome the amendment and, of course, the publication of the draft codes that took place this summer. As the Minister stated in his letter of 4th June, that meets the requests made by my honourable friend Nick Hawkins. It is right that the codes should be ultimately subject to affirmative procedure when they come before this House. I am glad that the Government have made that clear.
  The Minister mentioned that the consultation finished on 8th September, two days ago. I understand from the Government's press releases and the draft code of practice itself that the Government's response is expected to be published in October. Is that still the Government's intention? Obviously, it would be very helpful to the Committee to know that the Government will give a response before the Bill leaves this House, because we will be able to take that into constructive consideration before it passes to another place.
  In the meantime, might the Minister be able to answer one or two administrative questions on the code of practice that occurred to me as I read through it this summer in our so-called holiday, before we came back to the joy of this Bill? When will the responses of the consultees be made available on the Internet? I confess that I have not looked today, so they may
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  already be there and I shall be given good news. I notice that, as always in these cases, the Government made it clear that if any consultees did not wish their responses to be made public they should so signify. Are the Government able to tell us whether any consultees have given that indication, or whether we are likely to see all the responses?
  I was intrigued by some of the questions in the code of practice, particularly that on clarity on page 8. The Government said that they would welcome comments on whether the distinction between,
  "investigation of the extradition offence",
  and,
  "obtaining evidence for the prosecution of the extradition offence",
  in Chapter 2, paragraph 1.4, needs further explanation. That is in respect of search-and-seizure warrants and production orders. Paragraph 1.4 states that:
  "Searches under warrant should only be conducted for the purposes of obtaining evidence for the prosecution of the extradition offence and officers may not conduct searches which in any way constitute investigation of that offence".
  The Minister will be well aware that I raise the matter because of the strong discussions that we had on the point earlier in the Bill, when Members of the Committee expressed concerns about it. The way in which Clause 2 is drafted makes it possible for proceedings to be launched when the overseas authority seeks extradition for a process that in this country would not readily be recognised as one where the accused faces charges. To us it always appears as though there is an ongoing investigation. That lack of certainty of prosecution has been translated into the consultation document, we think, in Chapter 1, paragraph 2.1.ii, which states that an officer may make an arrest under Section 4 where the warrant contains information that the person has been accused or convicted of an offence in the category 1 country.
  The whole point at issue, both in another place and here, has been that more than accusation must be required. That is a detailed query on the code of practice. I raise it now because we are in Grand Committee, where we can probe. I do not expect the Minister to give me a full answer today. I do it because we have a two-week break in which I hope that his Bill team can consider the matter. I am certainly not doing it simply to prove that I have read the document during the lovely summer holiday, but it is something that we will need to consider very carefully when we come back to such matters on Report.
  I wonder whether the Minister will be able to indicate—it is unlikely today, but at a later stage and before October—what the response has been to the issue in chapter 2, paragraph 1.4, regarding the clarity of the difference between obtaining evidence of prosecution as opposed to investigation, and whether responses have acknowledged the different systems of judicial procedure overseas in that respect. That is

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  something that we will need to home in on when we come to Report. However, I repeat the welcome that I gave to the amendment.
  Lord Filkin: We are still receiving some responses but they have slow delivery dates. As is usually the way, one is not officious about those things. They will therefore he available on the Home Office website by the end of September.
  To date, we have received about 22 responses and given what I have just said that number may have risen. Of those, two have stated that they wish to preserve their confidentiality.
  With regard to the noble Baroness's last point—I have sufficient recollection of the issues which arose before the summer holidays—it was rightly an important one in Committee. We are concerned that officers do not conduct fishing trips or investigations, as we have signalled. We recognise that this requires further clarification. Almost all respondees have requested this. We will certainly give the matter consideration. I am therefore pleased to accept the thrust of the noble Baroness's questioning, to take it away and to come back when we produce the draft. We should be able to show our likely responses before the Bill leaves the Lords, which I hope will be helpful.
  On Question, amendment agreed to.
  Clause 172, as amended, agreed to.
  Baroness Carnegy of Lourmoved Amendment No. 248:
  After Clause 172, insert the following new clause—
  "CODE OF PRACTICE IN SCOTLAND
  (1) The Scottish Ministers must issue codes of practice in connection with—

  (a) the exercise of the powers conferred by this Part;

  (b) the retention, use and return of anything seized or produced under this Part;

  (c) access to and the taking of photographs and copies of anything so seized or produced.

  (2) If the Scottish Ministers propose to issue a code of practice under this section. they must—

  (a) publish a draft of the code;

  (b) consider any representations made to them about the draft;

  (c) if they think it appropriate, modify the draft in light of any such representations.

  (3) The Scottish Ministers must lay the code before the Scottish Parliament.
  (4) When they have done so they may bring the code into operation by order.
  (5) The Scottish Ministers may revise the whole or any part of a code issued under this section and issue the code as revised; and subsections (2) and (4) apply to such a revised code as they apply to the original code.
  (6) A code issued under this section is admissible in evidence in proceedings under this Act and must be taken into account by a judge or court in determining any question to which it appears to the judge or the court to be relevant.
  (7) The power conferred by subsection (4) on the Scottish Ministers to make orders shall be exercisable by statutory instrument.
  (8) A statutory instrument containing an order under subsection (4) shall not be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament."
  The noble Baroness said: We have been discussing Clause 172, which requires the Secretary of State to issue codes of practice relating to this part of the Bill. But elsewhere, the Bill states that Clause 172 does not apply to Scotland. I can find no explanation of that either in the Government's Explanatory Notes on the Bill as a whole or in the Home Office notes on Scotland which the Minister kindly supplied for us.
  The Law Society of Scotland feels that there should be a code in Scotland in much the same way as for the rest of the United Kingdom. I expect that the Minister may refer to the reply he gave at the end of business on the eighth day at col. GC164. He explained in another context that in all cases other than under Clause 5, police officers will be required to act directly under the instructions of the Crown Office and the procurator fiscal and that that will include questions of search.
  If that explanation were part of the Minister's reply today, I feel that the Law Society of Scotland must be aware of it. I had not spotted his answer until recently because I had gone home and my noble friend Lady Anelay moved the amendment. However, the Law Society may feel, as do I, that it might be helpful for the police in Scotland to have a code of practice in their hand when dealing with this part of the Bill.
  There is no reason why a code of practice should not exist. Obviously, it would not be that which appears in the amendment, because that assumes that the supervision is not carried out by the procurator fiscal. Is it impossible to require a code of practice under the circumstances prescribed in the Bill for Scotland? In such a tricky operation, the police will need something to refer to. I shall be interested to hear the Minister's reply. I beg to move.
  The Earl of Mar and Kellie: In the context of devolution, it is becoming increasingly important to make certain that everyone knows exactly what is to happen. It is not directly relevant to extradition, but I cite the false crisis that has blown up over the use of Dungavel House, part of the Home Office's immigration system and a former semi-open prison now used as—I think this is the terminology—a removal centre. In the past fortnight or so, many Scottish parliamentarians have clearly got themselves into a considerable tangle about that.
  Hoping that we will not get ourselves into a tangle over the Bill in future, I think that it would be very useful if a code of practice had to, first, be constructed for Scottish use and, secondly, go through the Scottish Parliament. That would mean that there was less chance of muddle, misunderstanding and false crises in future.
  [The sitting was suspended for a Division in the House from 4.12 to 4.22 p.m.]
  Lord Filkin: In practice, this is a matter for the Scots. Under the devolution settlement, it is for them to decide how they want to undertake these issues.
  The fuller answer is that Clause 172 extends only to England, Wales and Northern Ireland for that reason. In Scotland, the power in Part 4 of the Bill will be exercised under the power of the Crown Office and the procurator fiscal service. Section 17(3) of the Police (Scotland) Act 1967 makes it clear that police officers must comply with the lawful instructions of the procurator fiscal in the investigation of crime. The procurator fiscal must apply to the sheriff for a warrant to search under Clause 155 and is responsible for the decision to deliver up any evidence seized to the requesting state. By virtue of Section 17 of the Police (Scotland) Act 1967, the chief constable of any area, in directing the constables of the police force in relation to the investigation of offences, must comply with the lawful instructions of the procurator fiscal.
  Secondly, Section 48(5) of the Scotland Act provides that any decision of the Lord Advocate, in his capacity as head of the system of criminal prosecution is to be taken by him independently of any other person. Therefore, there might be an area of debate about whether a code of practice issued by Scottish Ministers to the police might be seen as an interference in the role of Lord Advocate.
  At the practical level, I should signal that there are relatively few extradition requests to Scotland. For that reason, the tendency has been that the Lothian and Borders Police Force carries out the work for all of Scotland. One can see the sense in that: one force develops out of a limited case the experience and expertise in the matter.
  In short, the issue is one for the Scots to decide whether a code of practice is necessary. We have received no indication that they think that, but no doubt this debate will alert them to consider the matter. I would doubt that that were the case.
  Baroness Carnegy of Lour: I thank the Minister for that answer. This is an interesting issue. As my noble friend Lord Mar and Kellie said, devolution is gradually being worked through and that involves tight, complicated arrangements.
  I am a little surprised to learn that the Lothian police will search a house in North Uist. I am not sure whether that is the case, but perhaps it is.
  Lord Filkin: I am so advised.
  Baroness Carnegy of Lour: That is interesting. I had not caught on to that point. It is understandable because in law the arrangements of the police in these and most circumstances are made by the Crown Office through the procurator fiscal. That clears up the matter.
  I would like to go back to the Law Society of Scotland to see why it put forward the amendment. It may believe that the police, whoever they are, may need a code of practice. However, it sounds as though it should not be prescribed in the Bill. I shall return to
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  them and if there is a further issue to raise I shall do so on Report. In the meantime, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clauses 173 to 175 agreed to.
  4.30 p.m.
  Lord Davies of Oldhammoved Amendment No. 248A:
  Before Clause 176, insert the following new clause—
  "EXTRADITION FROM BRITISH OVERSEAS TERRITORIES
  (1) This section applies in relation to extradition—

  (a) from a British overseas territory to a category 1 territory;

  (b) from a British overseas territory to the United Kingdom;

  (c) from a British overseas territory to a category 2 territory;

  (d) from a British overseas territory to any of the Channel Islands or the Isle of Man.

  (2) An Order in Council may provide for any provision of this Act applicable to extradition from the United Kingdom to apply to extradition in a case falling within subsection (1)(a) or (b).
  (3) An Order in Council may provide for any provision of this Act applicable to extradition from the United Kingdom to a category 2 territory to apply to extradition in a case falling within subsection (1)(c) or (d).
  (4) An Order in Council under this section may provide that the provision applied has effect with specified modifications."
  The noble Lord said: In moving government Amendment No. 248A, I shall speak also to Amendment No. 248B and explain why we seek to remove Clauses 176 to 180 from the Bill.
  These are drafting amendments. At present, Clauses 176 to 180 provide for extradition arrangements between British Overseas Territories and the rest of the world. The effect of these amendments is to replace five clauses with two. I can assure the Committee that in seeking to make these changes we are not in any way changing the policy or effect of the legislation as it would apply to the overseas territories.
  For the record, I should explain the policy. Gibraltar, as a party to the European arrest warrant, will apply Part 1 procedures. All our other overseas territories will apply Part 2 in all their extradition arrangements, including those with the UK. We simply concluded that, in the name of clear and concise drafting—which I am sure the Committee will appreciate—what was already in the Bill could be improved upon. This is the result of our improvement. I beg to move.
  Lord Hodgson of Astley Abbotts: I am grateful to the Minister for that explanation and for the letter that we were sent explaining these amendments. The letter stated that the amendments make no substantial difference. We obviously share the Minister's wish to shorten legislation wherever possible and two clauses for five seems a good exchange. We are content with the changes on the understanding—as he has stated and as was stated in the letter—that it is the drafting rather than the substance that is being altered.
  On Question, amendment agreed to.
  Lord Davies of Oldhammoved Amendment No. 248B:
  Before Clause 176, insert the following new clause—
  "EXTRADITION TO BRITISH OVERSEAS TERRITORIES
  (1) This section applies in relation to extradition—

  (a) to a British overseas territory from a category 1 territory;

  (b) to a British overseas territory from the United Kingdom;

  (c) to a British overseas territory from a category 2 territory;

  (d) to a British overseas territory from any of the Channel Islands or the Isle of Man.

  (2) An Order in Council may provide for any provision of this Act applicable to extradition to the United Kingdom to apply to extradition in a case falling within subsection (1)(a) or (b).
  (3) An Order in Council may provide for any provision of this Act applicable to extradition to the United Kingdom from a category 2 territory to apply to extradition in a case falling within subsection (1)(c) or (d).
  (4) An Order in Council under this section may provide that the provision applied has effect with specified modifications."
  On Question, amendment agreed to.
  The Deputy Chairman of Committees: I am required to take the proposal to remove the next five clauses individually. If the Minister would indicate his wish that they should not stand part of the Bill, I shall proceed in that way. It may take rather a long time, but it requires the Minister to say that he wishes to delete the next five clauses.
  Lord Davies of Oldham: Yes. I beg to move that the next five clauses of the Bill should be deleted.
  Clause 176 negatived.
  Clause 177 negatived.
  Clause 178 negatived.
  Clause 179 negatived.
  Clause 180 negatived.
  Clause 181 [Competing claims to extradition]:
  Lord Hodgson of Astley Abbottsmoved Amendment No. 249:
  Page 97, line 36. leave out from beginning to third "a"
  The noble Lord said: It will not take long to explain the thinking behind Amendment No. 249, which is tabled in my name and that of my noble friend Lady Anelay of St Johns. It has been grouped with the debate on Clause 181 stand part in the interests of not rehearsing the arguments twice over. Both Amendment No. 249 and the clause stand part debate focus on ensuring clarity of drafting in the interests of workability when the Bill becomes an Act.
  Clause 181—"Competing claims to extradition"—deals, as one would expect, with the occasions when conflicting claims for extradition occur between category 1 and category 2 territories. Amendment No. 249 may at first sight seem somewhat pedantic but it is intended to draw the Government's attention to the different drafting adopted in the two paragraphs of subsection (1).
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  We believe that the words in subsection (1)(a),
  "there is a Part 1 warrant in respect of a person",
  are superfluous. The situation which is being addressed is where a certificate under Clause 2 and a certificate under Clause 69—that is, from a category 1 and category 2 territory respectively—come into conflict in relation to the extradition of the same person. As a certificate under Clause 2 cannot be issued unless there is a Part I warrant in existence—that is, a European arrest warrant—which has been presented to the relevant authority in this country from a category 1 territory, the existing phrase,
  "there is a Part 1 warrant in respect of a person",
  is unnecessary; the fact is implicit in the provisions of the Bill. In the interests of tidier drafting and to make paragraph (a) correspond more closely to paragraph (b) in its wording, we believe that Amendment No. 249 should be adopted.
  Let me now address our concerns about Clause 181 as a whole. We understand the necessity for including a clause in the Bill which addresses the problem of conflicting simultaneous requests from a category 1 and a category 2 territory. We have tabled the debate on clause stand part in order to probe the Minister and to give him a chance to explain the workability of the clause.
  Subsection (2) gives a number of options to the Secretary of State in terms of how he should proceed when faced with two warrants. He may order proceedings on one of them, the warrant or the request—be it a Part 1 or a Part 2—to be deferred; he may order an extradition in respect of a warrant to be deferred until the request has been disposed of; and he may order an extradition in pursuance of a request to be deferred until the warrant has been disposed of. In other words, all options are open. This offers no advice or help to the Secretary of State; it merely states that all options are open to him.
  However, subsection (3) sets out what the Secretary of State must take into account, and his decision must be based on the criteria set out in paragraphs (a) to (d) of that subsection. These include the relative seriousness of the offences; the place where each offence was committed; the date when the warrant was issued and the date when the request was received; and whether, in the case of each offence, the person is accused of its commission or is alleged to be unlawfully at large after conviction.
  I understand the reasons for those paragraphs, but does the Minister consider that the list of criteria is exhaustive? Surely other factors should be taken into account. Is there any reason why there should not, or could not, be a new paragraph which might include "any other factor which is deemed relevant"?
  The European arrest warrant seems to support such a non-exhaustive approach in terms of the criteria on which the Secretary of State should make his decision. Article 16 of the framework decision—entitled "Decision in the event of multiple requests"—states:
  "If two or more Member States have issued European arrest warrants for the same person, the decision on which the European arrest warrants shall be executed shall be taken by the executing

  GC 15
  judicial authority with due consideration of all the circumstances and especially the relative seriousness and place of the offences, the respective dates of the European arrest warrants and whether the warrant has been issued for the purposes of prosecution or for execution of a custodial sentence or detention order".
  I note here that it refers to a consideration of "all the circumstances". This might include, for instance, considering the date of the alleged offence, which is not currently mentioned in the Bill. This perhaps should also be considered when deciding between two requests.
  The clause relies on the discretion of the Secretary of State to come to the decision he thinks best in relation to two conflicting extradition requests. We want to ensure that the clause is workable in order that the Secretary of State may reach his decision with the best possible ease.
  The noble Lord, Lord Filkin, has on frequent occasions—during the Second Reading debate and thereafter—referred to the delays in the current procedure caused by potential judicial reviews of the Secretary of State's discretion. I should be grateful for the Minister's reassurance that he feels this clause has been sufficiently well drafted in the light of the difficulties experienced by the Home Secretary under the present regime when faced with conflicting simultaneous requests. It would be helpful to the Committee if he could explain how often such requests occur and how, if at all, the clause has been redrafted from the corresponding provisions in the existing Acts. I beg to move.
  Lord Filkin: As the Committee knows, Clause 181 is concerned with the important area of competing claims to extradition. We discussed this matter in some detail earlier when we considered an amendment tabled by the noble Earl, Lord Mar and Kellie.
  The Bill deals with competing requests in three separate places. Where there are two Part 1 requests in respect of the same person, it falls to the district judge to decide which one should be given priority. That is set out in Clause 43. Where there are two Part 2 requests in respect of the same person, it falls to the Secretary of State to decide which one should be given priority. That is set out in Clause 124. Clause 181, which we are currently considering, is concerned with the third possible combination-—that is, where we receive a Part 1 and a Part 2 request in respect of the same person. In that case, it is the Secretary of State who decides which one should be given priority.
  The noble Lord is right that in each of the three situations that I have described the factors which must be decided between the two requests are the same: the relative seriousness of the offences; the place where the offence occurred or was alleged to have occurred; the dates when the request was made; and whether the person is accused of the offences or is alleged to be unlawfully at large after conviction of them. For completeness, in Scottish cases, Scottish Ministers perform the function of the Secretary of State.
  GC 16
  At first, we believed that the amendment was seeking to remove the reference to a Part I warrant in subsection (1)(a) of Clause 181. We tended to jump to the slightly paranoid assumption that that was part of the effort to remove Part 1 from the Bill. But we understand the Opposition's position on that and no doubt we shall return to the matter at another time and place.
  I turn to the first point in relation to the drafting. I believe I would be wise not to seek to engage in debate on this issue now but, instead, to say that, in essence, we believe that subsection (1)(a) corresponds to the wording in subsection (1)(b) in respect of a request for a certificate for a person not yet extradited. But we are happy to consider whether the drafting can be improved and we shall take it away with an open mind to see whether that would be helpful.
  I turn to the point concerning criteria and whether there is a need to add to them. The criteria in Clause 181(3) are not exhaustive and the Secretary of State can consider any matter. The clause simply requires that he must consider the matters listed in paragraphs (a) to (d). It does not prohibit him from considering other matters.
  To the question of how often competing requests occur, the answer is: very rarely. We should be happy to go back and carry out research if further details would be helpful. In fact, there is nothing in current legislation under the Extradition Act 1989. Therefore, these are new provisions, which seek to lay down some clearer and tighter rules of process. I hope that, with the undertaking that I gave to consider the drafting. my response has been helpful.
  Lord Hodgson of Astley Abbotts: I am grateful to the Minister and am very happy with his reassurance that he will reconsider the wording of Clause 181(1)(a). I am also grateful for his assurance that the list is not exhaustive. I believe that failure to include the date when the offence is committed is a strange omission. The date when the warrant is issued is one thine. but it seems to me that the date of the offence is probably more important.
  Lord Filkin: This may be an issue to which we shall return later. There can be confusion, argument or doubt as to when an offence is committed. There can be circumstances when it is not clear when an offence was committed. We shall return to that matter later. Therefore, the order—that is, when a warrant is made—is a certainty, whereas, in some circumstances, there can be considerable confusion about exactly when an offence occurred.
  Lord Hodgson of Astley Abbotts: I am grateful to the Minister for that further comment. I take comfort from the fact that, in any case, the list is not exhaustive. Therefore, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 181 agreed to.
  Clauses 182 and 183 agreed to.
  4.45 p.m.
  Lord Davies of Oldhammoved Amendment No. 249ZA:
  Before Clause 184, insert the following new clause—
  "LEGAL ADVICE, ASSISTANCE AND REPRESENTATION: ENGLAND AND WALES
  In section 12(2) of the Access to Justice Act 1999 (c. 22) (meaning of "criminal proceedings") for paragraph (c) substitute—
  "(c) proceedings for dealing with an individual under the Extradition Act 2003,"."
  The noble Lord said: In moving Amendment No. 249ZA on behalf of my noble friend, I shall speak also to the other amendments in this group—albeit very briefly.
  As the Committee will be aware, the Bill was amended at Report stage in another place to provide that our existing legislation—the Extradition Act 1989 and the Backing of Warrants (Republic of Ireland) Act 1965—will he repealed in their entirety. That has avoided any suggestion of a Henry VIII power, and I am sure that that is welcome to the Committee.
  However, the consequence is that we now need to pick up, and repeal, references to those Acts in other legislation, and that is the purpose of this group of amendments. As I said, I do not want to go into detail but I should probably explain why I shall shortly invite Members of the Committee to remove Clause 190 from the Bill.
  Clause 205 repeals the 1965 and 1989 Acts outright. That was not the case when Clause 190 was originally included in the Bill. As consequential amendments to existing legislation are required as a result of Clause 205, the amendments to the International Criminal Court Act 2001 arc best addressed, with the other amendments. in the schedule. Paragraph 13 of the new schedule replaces the existing Clause 190 in the Bill, amending Schedule 2 to the 2001 Act. With that explanation, I beg to move.
  Lord Hodgson of Astley Abbotts: These are fairly technical amendments and we should like the chance to read what the Minister said rather than react too extempore. With regard to the question of bringing the definition of "criminal proceedings" within the Access to Justice Act, throughout the Bill we have had a great deal of discussion about access to legal advice and assistance. I believe the overwhelming view on all sides of the Committee has been that we should ensure that the defendant has access to independent legal advice at all stages of the extradition process. It seems to me that, if that is what will now happen, that is a welcome development and obviously it is in line with the ECHR. Therefore, we would support the amendment if that is what it achieved, but perhaps we may have the opportunity to look through what the Minister said.
  Perhaps I may ask the Minister one question in relation to Amendment No. 267B on page 18 of the Marshalled List. This point may be too detailed and the Minister may like to return to it later. In the wording of the amendment which relates to Section 5 of the Suppression of Terrorism Act, there is a
  GC 18
  substitution under the heading, "Power to apply section 4 to non-convention countries". What caught my eye was Section 5(1), which states:
  "The Secretary of State may by order direct that section 4 above shall apply in relation to a country".
  Where we have orders on important matters such as this, I should like to know what the implications are. Perhaps the Minister can either provide an explanation—if his officials can give him a briefing now—or write to us. In addition, can he tell us whether the order is to be made under the positive or the negative procedure?
  Lord Davies of Oldham: My expertise was exhausted after the first sentence of the noble Lord's contribution. I am unhappy to say that I am not sure whether my officials can respond quite that quickly to a very technical point. The noble Lord will recognise that in moving the amendment I sought to assert clearly that this is merely a drafting position. However, I recognise the noble Lord's anxieties and we shall of course write to him so that he is fully reassured on that point.
  On Question, amendment agreed to.
  Clauses 184 to 188 agreed to.
  Lord Davies of Oldhammoved Amendments Nos. 249A to 249D:
  After Clause 188, insert the following new clause—
  "RE-EXTRADITION: PRELIMINARY
  (1) Section (Re-extradition hearing) applies in relation to a person if the conditions in subsections (2) to (6) are satisfied.
  (2) The first condition is that the person was extradited to a territory in accordance with Part I or Part 2.
  (3) The second condition is that the person was serving a sentence of imprisonment or another form of detention in the United Kingdom (the UK sentence) before he was extradited.
  (4) The third condition is that—

  (a) if the person was extradited in accordance with Part 1, the Part 1 warrant in pursuance of which he was extradited contained a statement that it was issued with .t view to his extradition for the purpose of being prosecuted for an offence;

  (b) if the person was extradited in accordance with Part 2, the request in pursuance of which the person was extradited contained a statement that the person was accused of the commission of an offence.

  (5) The fourth condition is that a certificate issued by a judicial authority of the territory shows that—

  (a) a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment (the overseas sentence) was imposed on the person in the territory;

  (b) the overseas sentence was imposed on him in respect of—

  (i) the offence specified in the warrant or request, or

  (ii) any other offence committed before his extradition in respect of which he was permitted to be dealt with in the territory.

  (6) The fifth condition is that before serving the overseas sentence the person was returned to the United Kingdom to serve the remainder of the UK sentence."

  GC 19
  After Clause 188, insert the following new clause—
  "RE-EXTRADITION HEARING
  (1) If this section applies in relation to a person, as soon as practicable after the relevant time the person must be brought before the appropriate judge for the judge to decide whether the person is to be extradited again to the territory in which the overseas sentence was imposed.
  (2) The relevant time is the time at which the person would otherwise be released from detention pursuant to the UK sentence (whether or not on licence).
  (3) If subsection (1) is not complied with the person must be taken to be discharged.
  (4) The person must be treated as continuing in legal custody until he is brought before the appropriate judge under subsection ( 1 ) or he is taken to be discharged under subsection (3).
  (5) If the person is brought before the appropriate judge under subsection (1) the judge must decide whether the territory in which the overseas sentence was imposed is—

  (a) a category 1 territory;

  (b) a category 2 territory;

  (c) neither a category 1 territory nor a category 2 territory.

  (6) If the judge decides that the territory is a category 1 territory, section (Re-extradition to category 1 territories) applies.
  (7) If the judge decides that the territory is a category 2 territory, section (Re-extradition to category 2 territories) applies.
  (8) If the judge decides that the territory is neither a category 1 territory nor a category 2 territory, he must order the person's discharge.
  (9) A person's discharge as a result of this section or section (Re-extradition to category I territories) or (Re-extradition to category 2 territories) does not affect any conditions on which he is released from detention pursuant to the UK sentence.
  (10) Section 139 applies for determining the appropriate judge for the purposes of this section."
  After Clause 188, insert the following new clause—
  "RE-EXTRADITION TO CATEGORY 1 TERRITORIES
  (1) If this section applies, this Act applies as it would if—

  (a) a Part 1 warrant had been issued in respect of the person;

  (b) the warrant contained a statement that—

  (i) the person was alleged to be unlawfully at large after conviction of the relevant offence, and

  (ii) the warrant was issued with a view to the person's arrest and extradition to the territory for the purpose of serving a sentence imposed in respect of the relevant offence;

  (c) the warrant were issued by the authority of the territory which issued the certificate referred to in section (Re-extradition: preliminary) (5);

  (d) the relevant offence were specified in the warrant;

  (e) the judge were the appropriate judge for the purposes of Part 1;

  (f) the hearing at which the judge is to make the decision referred to in section (Re-extradition hearing) (1) were the extradition hearing;

  (g) the proceedings before the judge were under Part 1.

  (2) As applied by subsection (1) this Act has effect with the modifications set out in Part 1 of Schedule (Re-extradition: modifications).
  (3) The relevant offence is the offence in respect of which the overseas sentence is imposed."
  GC 20
  After Clause 188, insert the following new clause—
  "RE-EXTRADITION TO CATEGORY 2 TERRITORIES
  (1) If this section applies, this Act applies as it would if—

  (a) a valid request for the person's extradition to the territory had been made;

  (b) the request contained a statement that the person was alleged to be unlawfully at large after conviction of the relevant offence;

  (c) the relevant offence were specified in the request;

  (d) the hearing at which the appropriate judge is to make the decision referred to in section (Re-extradition hearing) (1) were the extradition hearing;

  (e) the proceedings before the judge were under Part 2.

  (2) As applied by subsection (1) this Act has effect with the modifications set out in Part 2 of Schedule (Re-extradition: modifications).
  (3) The relevant offence is the offence in respect of which the overseas sentence is imposed."
  On Question, amendments agreed to.
  Lord Filkinmoved Amendment No. 249DA:
  Before Clause 189, insert the following new clause—
  "CROWN PROSECUTION SERVICE: ROLE IN EXTRADITION PROCEEDINGS
  (1) The Prosecution of Offences Act 1985 (c. 23) is amended as follows.
  (2) In section 3 (functions of the Director) after subsection (2) insert—
  "(2A) The Director may—

  (a) have the conduct of any extradition proceedings;

  (b) give, to such extent as he considers appropriate, and to such persons as he considers appropriate, advice on any matters relating to extradition proceedings or proposed extradition proceedings."

  (3) In section 5(1) (conduct of prosecutions on behalf of Crown Prosecution Service) after "criminal proceedings" insert "or extradition proceedings".
  (4) In section 14 (control of fees and expenses etc paid by the Service) in subsection (1)(a) after "criminal proceedings" insert "or extradition proceedings".
  (5) In section 15(1) (interpretation of Part 1) in the appropriate place insert—
  ""extradition proceedings" means proceedings under the Extradition Act 2003;"."
  The noble Lord said: The amendment simply seeks to put beyond doubt that the Crown Prosecution Service can act in extradition proceedings. The Committee may ask why, the Crown Prosecution Service having done so for many years, we are now spelling this out. It is merely because it has been pointed out that there is nothing in the statute to indicate that the CPS can act in extradition proceedings and we believe that it is prudent to put the issue beyond doubt by making a specific reference to it. Amendment No. 249E makes a similar provision for the Lord Advocate in Scotland and Amendment No. 249EA for the Director of Public Prosecutions and the Crown Solicitor in Northern Ireland. I beg to move.
  Lord Hodgson of Astley Abbotts: We have no particular problem with the amendments. Obviously extradition proceedings will involve co-operation between our legal system and that of the requesting

  GC 21
  state and we welcome provisions in the Bill which state explicitly the role that the CPS may play in assisting such extradition proceedings.
  On Question, amendment agreed to.
  Lord Filkinmoved Amendment Nos. 249E and 249EA:
  Before Clause 189, insert the following new clause—
  "LORD ADVOCATE: ROLE IN EXTRADITION PROCEEDINGS
  The Lord Advocate may—

  (a) conduct any extradition proceedings in Scotland;

  (b) give, to such extent as he considers appropriate, and to such persons as he considers appropriate, advice on any matters relating to extradition proceedings or proposed extradition proceedings, in Scotland."

  Before Clause 189, insert the following new clause—
  "NORTHERN IRELAND DPP AND CROWN SOLICITOR: ROLE IN EXTRADITION PROCEEDINGS
  (1) The Prosecution of Offences (Northern Ireland) Order 1972 (S.I. 1972/538 (N.I. 1)) is amended as set out in subsections (2) to (4).
  (2) In article 2(2) (interpretation) in the appropriate place insert—
  ""extradition proceedings" means proceedings under the Extradition Act 2003;".
  (3) In article 4(7) (conduct of prosecutions on behalf of DPP) after "prosecution" insert "or extradition proceedings".
  (4) In article 5 (functions of DPP) after paragraph (1) insert—
  "(1A) The Director may—

  (a) have the conduct of any extradition proceedings in Northern Ireland;

  (b) give to such persons as appear to him appropriate such advice as appears to him appropriate on matters relating to extradition proceedings, or proposed extradition proceedings, in Northern Ireland."

  (5) The Justice (Northern Ireland) Act 2002 (c. 26) is amended as set out in subsections (6) to (8).
  (6) After section 31 insert—
  "31A CONDUCT OF EXTRADITION PROCEEDINGS
  (1) The Director may have the conduct of any extradition proceedings in Northern Ireland.
  (2) The Director may give to such persons as appear to him appropriate such advice as appears to him appropriate on matters relating to extradition proceedings, or proposed extradition proceedings, in Northern Ireland."
  (7) In section 36(2) (conduct of criminal proceedings on behalf of DPP) after "criminal proceedings" insert "or extradition proceedings".
  (8) In section 44 (interpretation) after subsection (6) insert—
  "(7) For the purposes of this Part "extradition proceedings" means proceedings under the Extradition Act 2003."
  (9) The Crown Solicitor for Northern Ireland may—

  (a) have the conduct of any proceedings under this Act in Northern Ireland;

  (b) give to such persons as appear to him appropriate such advice as appears to him appropriate on matters relating to proceedings under this Act, or proposed proceedings under this Act, in Northern Ireland."

  On Question, amendments agreed to.
  [Amendment No. 249F had been retabled as Amendment No. 249DA.]
  Lord Filkinmoved Amendment No. 249G:
  Before Clause 189, insert the following new clause—
  "SPECIAL EXTRADITION ARRANGEMENTS
  (1) This section applies if the Secretary of State believes that—

  (a) arrangements have been made between the United Kingdom and another territory for the extradition of a person to the territory, and

  (b) the territory is not a category 1 territory or a category 2 territory.

  (2) The Secretary of State may certify that the conditions in paragraphs (a) and (b) of subsection (1) are satisfied in relation to the extradition of the person.
  (3) If the Secretary of State issues a certificate under subsection (2) this Act applies in respect of the person's extradition to the territory as if the territory were a category 2 territory.
  (4) As applied by subsection (3), this Act has effect—

  (a) as if sections 70(4), 72(5), 73(10)(b), 83(6) and 85(6) were omitted:

  (b) with any other modifications specified in the certificate.

  (5) A certificate under subsection (2) in relation to a person is conclusive evidence that the conditions in paragraphs (a) and (b) of subsection (1) are satisfied in relation to the person's extradition."
  The noble Lord said: The amendment is very similar in purpose and drafting to our existing legislation and, in particular, Section 15 of the Extradition Act. What that section does, and what this new clause will do, is to enable the UK to respond to ad hoc extradition requests from countries with which we do not have general extradition arrangements. Such ad hoc requests are very rare indeed, and successful ones even more so. Indeed, to be blunt, we can find no record of a successful ad hoc request.
  The reason for this is that we have extradition agreements with more than 100 countries but the ones with which we do not have them—often for good reasons—are the kinds of country which we believe are unlikely to meet our standards and tests in regard to human rights. Nevertheless, we believe that it is important to preserve the ability to deal with ad hoc requests because they may arrive from countries with which we feel it is possible to agree extradition.
  We also believe that it is useful to have such a provision in our legislation because it may help us in a reciprocal situation where we make a request: to another country. There have been occasions when ad hoc requests from us to other countries with which we do not have extradition agreements have been acceded to. Therefore this provision may slightly bear on and assist such a situation. It is for those reasons that we feel it wise to include this provision in the Bill. I beg to move.
  Lord Hodgson of Astley Abbotts: I am grateful to the Minister for his explanation and for the comments I hat he has made by letter. He commented that he originally thought he would deal with this issue by order, but we entirely support the view that it is better to make explicit provision for it on the face of the Bill. We also support the provision that any ad hoc requests must be accompanied by prima facie evidence.

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  As the Minister said both in his letter and this afternoon, such requests are very rare. It would be helpful to know whether the similar provisions in Section 15 of the Extradition Act 1989, to which he referred in his letter, have ever been used. We would be reluctant to support the inclusion of these provisions in the Bill if there is no evidence that they have ever been used. Why accept something merely because it has precedent in legislation?
  The colleagues of the noble Lord, Lord Filkin, recently managed to remove three clauses from the Bill by replacing five clauses with two. During the Second Reading debate and in Committee, many noble Lords have spoken graphically about the fact that this legislation is far longer than the legislation it seeks to replace. There is a view that we need to be diligent in cleaning off the barnacles of outdated, unused and irrelevant clauses.
  No doubt officials have said to the Minister, "Come on, Minister, put it in. Belt and braces. It is a jolly good idea to have it there. We may need it. You never know", but that is not good enough. We should like to be convinced that the new clause is necessary. For us, good evidence of that would be the fact that the provision has been used to good effect in the past under the existing Section 15 of the Extradition Act.
  Lord Goodhart: Simply on a drafting point, why is a reference to the belief of the Secretary of State in subsection (1) of the proposed new clause? Surely whether arrangements have or have not been made is a question of clearly ascertainable fact. Why do we not simply leave out the words,
  "if the Secretary of State believes that"?
  Lord Filkin: I was asked whether the powers under Section 15 of the 1989 Act have ever been used. The answer is yes. An outgoing request to Morocco was successful under this provision in a large fraud case in 1999. Even if that had not been the case I would nevertheless—despite advice from officials—have felt that it was prudent to keep the power given a joint wish for adequate powers to combat international crime.
  As to the word "belief", I suspect the issue turns on its defendability, but I am racking my brains and hoping that an idea comes to me. I am advised that the Secretary of State certifies the arrangements. We shall have to give the matter more thought and more time. I hope that the noble Lord, Lord Goodhart, will bear with us. I apologise for not being sufficiently inspired at this point.
  On Question, amendment agreed to.
  On Question, whether Clause 189, as amended, shall stand part of the Bill?
  Lord Lamont of Lerwick: Perhaps the Deputy Chairman can advise me. The previous amendments related to new clauses. Are they incorporated in this or not, or are we on different numbers?
  5 p.m.
  The Deputy Chairman of Committees: No, if I have understood the noble Lord's question correctly. That is why I made them go through the rigmarole for each clause.
  Lord Lamont of Lerwick: There is not a separate debate?
  The Deputy Chairman of Committees: No. This is a separate matter now, referring to the previous amendment that was moved by the Minister. If you wish to debate clause stand part, you can do that.
  Lord Lamont of Lerwick: I think I would be out of order. Unfortunately, I had a point on a previous new clause which was proposed as an amendment and I was wondering whether there was a "clause stand part" opportunity for me to raise the issue that I omitted to raise earlier because I was not quick enough.
  The Deputy Chairman of Committees: If I may say so, the noble Lord had an opportunity to do that, and that is why I raised each one separately.
  Lord Filkin: If it would help, outside the Committee we would be pleased to have a conversation with the noble Lord, Lord Lamont, on the point to see whether we can deal with it through correspondence.
  Clause 189, as amended, agreed to.
  Clause 190 negatived.
  Clauses 191 to 193 agreed to.
  Clause 194 [Bail: Scotland]:
  The Earl of Mar and Kelliemoved Amendment No. 250:
  Page 107, line 14, at end insert—
  "( ) In the application of the Extradition Act 2003 to Scotland, references to granting bail shall be read as references to admitting to bail."
  The noble Earl said: This amendment is not a difficult one and does not distort the Bill in any sense at all. I suggest that the context for this amendment is the long-standing habit of United Kingdom Bills riding roughshod over Scottish legal terminology. This is not a devolution issue, but a pre-Union issue that has been running for a while and I believe that we should draw it to a close.
  This is a United Kingdom Bill that focuses on all three legal jurisdictions. There is no reason why we should not get right the terminology for all three, particularly as Clause 194 deals only with bail in Scotland. The amendment clarifies that where the Bill refers to "granting bail", which I believe is the correct expression in England and Wales—it may be in Northern Ireland but I am not qualified to say so—the expression in Scotland is "submitting to bail". The amendment ensures that that expression is recognised by the Bill so that this part of the Bill will read more easily in Scotland. It merely concerns getting right the terminology. I beg to move.
  Lord Davies of Oldham: I understand that this point was raised at the very useful meeting held on 21st May

  GC 25
  with the noble Earl, the noble Lord, Lord Goodhart, and the noble Baronesses, Lady Anelay and Lady Carnegy. At the end of that meeting my noble friend asked the Scottish Executive officials who were present to consider whether an amendment was necessary to meet the point. Since then we have considered the issue carefully indeed. I am mindful of the modest way in which the noble Earl presents the charge that the legislation often rides roughshod over Scottish sensitivities. I certainly do not want to be a party to that. The amendment is a minor one, but it concerns the correct legal terminology in Scots law for the liberation of a person on bail. The amendment would have the effect that where references are made in the Bill to "granting bail", such reference will be construed in Scotland as references to "admitting a person to bail".
  We do not believe that the amendment is necessary. As we understand it, the Scottish courts would have absolutely no difficulty at all in understanding the term "granting bail". I am advised that the expressions "granting bail and "admitting a person to bail" are both used in the legislation setting out the law in relation to bail in Scotland. Neither expression is definitive; they are interchangeable. There is certainly no great point of principle here and we do not believe that both references need to be put in the Bill. I hear with the greatest respect the point made by the noble Earl, but in this area I feel that we are discussing a matter that is very acceptable in Scottish courts, so I hope he will not press the amendment.
  Baroness Carnegy of Lour: On this occasion, I think that the Government have done extremely well in setting the Bill into Scots law. We had a meeting, which is unprecedented, at which they explained everything and they then wrote to us. I see no offending phrase referring to bail in the wrong way; the noble Earl may have spotted one. but I cannot see it.
  We must give credit where credit is due on the matter. It is not easy to legislate for England and Wales and for Scotland at the same time when so many devolved matters are included. Personally, I very much appreciate what has been done in that respect. I realise that the noble Earl is using the amendment to make an important point which I am sure will come into play in future, but on this occasion, we really cannot pick holes in the way in which the matter has been dealt with. I have been rather disappointed not to have been able to score a single direct hit during the Committee, because I rather enjoy doing that.
  Lord Davies of Oldham: And you usually do.
  The Earl of Mar and Kellie: I certainly acknowledge the use of the meeting which we had beforehand and hope that that may become part of the more normal format for legislation. The Minister's answer only heightens for me the corrupting effect that UK legislation has had on Scottish legislation. I agree that as in both Scotland and England we all attempt to speak English, we can of course understand the difference between granting bail and admitting to bail.
  GC 26
  I am unhappy with the Minister's answer. I draw his attention to the corrupting effect in Scotland which has led to our appearing to have three verdicts: guilty, not guilty and not proven. The origins of that in Scotland are that, historically, cases were either proven or not proven. But juries then started coming in with the English words "not guilty", which was not the correct terminology. So we have ended up with an unsatisfactory situation. Based on the corrupting effect of that, I should have liked the correct terminology to be used. However, we are in Grand Committee, so I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 194 agreed to.
  Clauses 195 and 196 agreed to.
  Clause 197 [Extradition for more than one offence]:
  Lord Hodgson of Astley Abbottsmoved Amendment No. 251:
  Page 110, line 2, leave out "with specified modifications"
  The noble Lord said: I tabled this probing amendment and asked for a stand part debate on Clause 197 at the same time in order to elicit a little more detail from the Ministers on the provisions and effect of the clause. Clause 197, entitled:
  "Extradition for more than one offence",
  is remarkably brief. I am concerned—I think I have cause to be—that in only four lines, the Secretary of State is given power by order subject to the negative procedure to modify the provisions of the Bill in relation to a extradition requests for more than one offence. The Explanatory Notes are hardly more helpful or explanatory, because they consist of only three lines. They give no comprehensible explanation of what is intended.
  At first glance, it seemed to me that there was a dangerously fine line between providing for modifications for multiple offences and overriding the speciality rule, which we have discussed at great length during various debates in Committee. The noble Lord, Lord Davies, mentioned the Select Committee on Delegated Powers and Regulatory Reform. I was heartened by its comments when it stated:
  "This clause allows the Secretary of State to modify the provisions of the Bill in cases where there is more than one offence for which extradition is requested. The extradition procedure will be the same as it is set out in the Bill. There will be a procedure for accommodating multiple requests which will be laid out in the order. It is possible for an extradition request to be submitted for multiple offences and provision should be made for that. An order made under this power will be subject to the negative resolution procedure by virtue of Clause 209(5). This is felt to be the appropriate level of parliamentary scrutiny given the technical nature of this provision".
  I take it, then, that the purpose of the clause is to allow for one extradition request to be made for someone accused of multiple offences committed at the same time. It would clearly be nonsense for five individual requests to be made for a number of offences committed simultaneously on one occasion. It would be helpful for the Committee if the Minister would clarify what form those "specified modifications" might take. That is why I tabled

  GC 27
  Amendment No. 251 on a probing basis. The clause would benefit from some proper explanation. The Minister may be able to give us some examples in which the clause would be necessary.
  Finally, as far as I can see, the European arrest warrant makes no provision for such circumstances. I should be interested to hear whether the Minister knows of any other countries that have adopted or proposed similar provisions in their domestic legislation. I beg to move.
  Lord Filkin: I thank the noble Lord, Lord Hodgson, for tabling this probing amendment; I understand the need for it and its purpose. I also thank all Members on the Opposition Front Bench for their co-operation on groupings today, which has allowed us to hold this debate together with that on clause stand part.
  It is not uncommon for extradition requests to cover more than one offence. A person who has robbed one bank may well have robbed two. Although those are separate charges, the requesting state will want to put the person on trial for all of them at once. So the extradition request we receive may well cover more than one offence.
  In the vast majority of cases, all the offences in the request will succeed or fail together. For example, if we judge that a person is unlikely to get a fair trial, that is likely to cover offences A, B and C, rather than just one of them. If we think that a person's state of health is a bar on his extradition, that will apply to all the offences rather than only to one.
  However, it is possible to conceive of circumstances in which one offence on a request is extraditable and another is not. For example, one offence could be covered by the double jeopardy bar even if the other was not. It is precisely to cover this situation—rare though it may be—that we need Clause 197 and the ability to apply the provisions of the Bill with "specified modifications" to make it workable.
  Indeed, the Select Committee on Delegated Powers and Regulatory Reform was concerned about the use of the phrase "specified modifications" in Clause 210 and suggested that the Government should provide a fuller justification, which I am happy to do today. However, the Committee made no comment or criticism about Clause 197—that applies to both its wording and the order-making power it contains.
  Perhaps I should set out in broad terms how we envisage the system working in cases where a request covers more than one offence. In cases where all the offences either succeed or fail, the Bill can apply without any modification, except possibly very minor linguistic ones.
  We are concerned with where one or more offences are thrown out at some point in the process while others survive. A number of principles then apply. The first is that the person should not be extradited until all the legal proceedings in respect of all the offences have been completed. What is the effect of that? Imagine a person's extradition has been sought in respect of two offences. The judge orders extradition in respect of
  GC 28
  offence A and the person decides not to appeal. However, the judge decides that extradition is barred in respect of offence B and the requesting state decides that it wants to appeal. In such circumstances the person should not be extradited for offence A—although there is strictly speaking no legal impediment to doing so—until a final decision has been reached in respect of offence B.
  There are two reasons for that. First, we think it important that at the time when a person is actually handed over, it is clear to all concerned the totality of the offences for which the extradition is taking place. That of course is made particularly important because of the existence of the rule of speciality. As the Committee knows by now, that rule is a long-standing feature of extradition and provides that a person cannot be tried for an offence other than the one for which he was extradited. That being so, we need something in the Bill that enables us to deal with an incoming extradition request which is concerned with more than one offence. That is the purpose of the clause.
  The second reason for not extraditing the person, even though it was cleared to do so on the first offence, is that it is desirable for the person to be present at the hearing in respect of offence B. So the second principle is to preserve the notion, which the Bill enshrines, that there should be a single appeal hearing rather than the many that we have under the present system.
  Again, let me set out what that means in practice. Imagine that a request covers four offences, just to make life really complicated. The judge may decide that extradition is barred for offence A because of double jeopardy; he may decide that extradition is barred for offence B because of the passage of time since the offence occurred; however, he may order extradition in respect of offences C and D.
  In that situation, the requesting state may want to appeal against the judge's decision in respect of offences A and B while the fugitive may want to appeal against the decision to order extradition in respect of offences C and D. We therefore envisage a single appeal hearing before the High Court where each side can argue about the particular decisions that went against it.
  In Part 2 cases where the matter has had to be considered by the Secretary of State, this single appeal will be held after the Secretary of State's consideration so that the decisions that he has taken can also, if necessary, be subject to appeal.
  That is broadly how we envisage the system operating. As I hope is appreciated, so far as is possible we have sought to preserve the essential features of the extradition system as provided for in the Bill. Equally, however, we need some modifications to cover the situation where a request contains offences which meet a different fate. Although that explanation has been extremely long, I hope that is has been helpful.
  The modifications also allow one offence to be withdrawn or discharged without affecting other offences contained in the same Part 1 warrant or Part 2 request. The amendments are therefore technical.

  GC 29
  Some EU states will issue Part 1 warrants for more than one offence; others will not. All states will therefore need to be able to accommodate a request for more than one offence and each state will do so in its own way. I do not yet know how they have sought to do that in practice.
  I apologise for speaking at length. I hope that my explanation has been helpful.
  5.15 p.m.
  Lord Hodgson of Astley Abbotts: I am grateful to the Minister for that long reply. We shall read carefully what he said but I think that he has answered our concern about the latitude that could be implied by the use of the phrase "specified modifications". Bearing in mind the reassurances that he has given, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 197 agreed to.
  Clause 198 [National security]:
  Lord Filkinmoved Amendment No. 251A:
  Page 110, line 13. leave out "pursuant to" and insert "for the purpose of assisting in the exercise of"
  The noble Lord said: On the next amendment, we shall have to engage in an important debate about the scope of Clause 198. I shall not seek to pre-empt that discussion. Let me say that we all recognise that there needs to be protection when issues of national security arc at stake whatever view we may take about how much wider we should go, if at all. We need to be able to protect those who are employed by the security and intelligence agencies as they undertake their work to protect national security.
  However, we also need to recognise that, on occasion, the people involved will not be direct employees of the agency but people working on its behalf. Such people also need to be protected when carrying out lawful acts operating on behalf of the security services. That is the purpose and effect of the amendment. I therefore hope that the Committee will agree to it. I beg to move.
  Lord Hodgson of Astley Abbotts: I need say no more than that we agree with the amendment and the principle behind it and support the altered drafting.
  On Question, amendment agreed to.
  Lord Hodgson of Astley Abbottsmoved Amendment No. 252:
  Page 110, line l9, at end insert "(including, in particular, the protection of the United Kingdom against threats from espionage, terrorism and sabotage, from the activities of agents of foreign powers and from actions intended to overthrow or undermine parliamentary democracy by political, industrial or violent means and the safeguarding of the economic well-being of the United Kingdom against threats posed by the actions or intentions of persons outside the British Islands)"
  The noble Lord said: As the Minister said, Amendments Nos. 252, 253 and 254, which are grouped, relate to the use of the term "national security" in Clause 198. That was extensively debated in Committee in another place. We should like to raise it again this afternoon hut in a slightly different form
  GC 30
  from that in which it was debated at the other end of the building. The wording used in our amendments comes directly from two statutory sources that already use the concept of national security. The wording in Amendment No. 252 comes from the Security Service Act 1989 and that in Amendments Nos. 253 and 254 from the Intelligence Services Act 1994.
  Amendment No. 252 seeks to insert after the words "national security" almost exactly the same words that appear in Section 1(2) of the Security Service Act 1989 after the words "including, in particular". 'We seek clarification from the Government of what they understand by the term "national security". I anticipate that the Minister will respond to that question by saying that "national security" means "national security", but as the 1989 Act includes similar words to amplify the meaning of the words "national security", I should be grateful for reassurance from the Government that they believe that all the issues raised by the wording of Amendment No. 252 are already covered by the broad term, "national security", namely:
  "the protection of the United Kingdom…from espionage, terrorism and sabotage, from the activities of agents of foreign powers and from actions intended to …undermine parliamentary democracy …and the safeguarding of the economic well-being of the United Kingdom".
  Amendments Nos. 253 and 254 seek to insert two criteria additional to national security to trigger the operation of Clause 198: namely, the economic wellbeing of the United Kingdom and the prevention and detection of serious crime. These amendments replicate Section 1(2)(b) and (c) of the Intelligence Services Act 1994, which set out the grounds on which the intelligence services may operate. We have tabled them simply because in that Act the intelligence services are given three alternative grounds on which they may operate: namely, national security in Section 1(2)(a) and the grounds in Amendments Nos. 253 and 254.
  The question for the Government is, therefore, if the term "national security" is the sole ground for the exercise of the Secretary of State's powers under Clause 198, are the other two criteria excluded? As I said, they are given as alternatives in the 1994 Act. I therefore take it that they fall outside the term "national security", at least as far as that Act is concerned, or they would not need to be separately specified. If I am right in that assertion and the position is as I have described, have the Government intentionally excluded them from Clause 198 even though they are closely related to the concept of national security, given the wording of the Intelligence Services Act 1994?
  I should especially welcome the Minister's comments on why the Government have not chosen to include the words specified in Amendment No. 254: namely, "the prevention or detection of serious crime". The Minister has reminded us about that several times. Indeed, during an earlier debate this afternoon, a 1999 fraud case involving Morocco was mentioned.

  GC 31
  In relation to the economic well-being of the United Kingdom, will the Government make clear whether they think that that is already covered by the term "national security"? I note that the wording of Section 1(2) of the 1989 Act that I cited appears to imply that national security includes economic well-being, whereas the 1994 Act gives economic well-being as an alternative to the concept of national security. Plainly the two are closely related, but the Committee would welcome clarification of the Government's position.
  I have no doubt that the Government have already considered those points and that the Minister will have the answers to hand and be able to reassure the Committee about these important issues. I look forward to hearing his response. I beg to move.
  Lord Filkin: I thank the noble Lord, Lord Hodgson, for the clarity with which he spoke to his probing amendment and hope that I can be equally clear in my response. Although I may occasionally be slightly more reticent, given the nature of some of the national security issues on which we are touching, I hope that I shall not be unduly so. Let me first address Amendment No. 252 and then the wider questions raised by Amendments Nos. 253 and 254.
  Clause 198 essentially allows the Secretary of State to intervene in any extradition case in Parts 1 or 2 to prevent extradition taking place. He can do so only if a person was acting pursuant to a statutory function or acting following an authorisation from the Secretary of State. We are here discussing where the conduct that forms the extradition request was being carried out in pursuance of one of the statutory functions conferred on the security and intelligence agencies themselves. Additionally, if the Secretary of State wants to intervene to halt the extradition process, he must decide that extradition would be contrary to the interests of national security. So in a sense there are two tests.
  Amendment No. 252 would amplify what is included in the term "national security" and make an addition about economic well-being. As the noble Lord said, the definition comes from an amalgamation of subsections 1(2) and (3) of the Security Service Act 1989. The question is whether it is necessary and appropriate to include that clarification. My first point is that the 1989 Act was breaking new ground, so no doubt the Government of the day thought it useful to illustrate what the term "national security" included, but in no way was that illustration exhaustive nor, importantly, was there any intention to define or limit the term "national security". The description was illustrative, not definitive. Subsequent legislation that employs the term "national security", notably the Intelligence Services Act 1994, has not included that amplification.
  More broadly, as I think the noble Lord suggested, we have always felt that national security is something that one recognises when one sees it—which leads us into a tautological situation. Under the Bill, it is the Secretary of State who determines whether national security issues are raised by an extradition request. I
  GC 32
  suggest that the Secretary of State is well-placed to perform that task without the need for further clarification or embellishment. The present formulation gives the Secretary of State the broadest possible discretion, a margin of discretion recognised by both domestic and European courts. There are good reasons for that, and we should be unwise to disturb it. I think that answers the specific question: are we fettering ourselves in any way by not including more specific detail? The answer is no.
  [The Sitting was suspended for a Division in the House from 5.30 to 5.41 p.m.]
  Lord Filkin: I think I had spoken to Amendment No. 252 and was just about to start on Amendments Nos. 253 and 254.
  The Security Service Act 1989, as amended by the Security Service Act 1996, and the Intelligence Services Act 1994 gives the intelligence agencies three statutory functions, broadly summarised as protecting national security, safeguarding the economic well-being of the United Kingdom and supporting the prevention and detection of serious crime.
  These amendments seek to extend Clause 198 to cover cases in which an extradition would be contrary to the interests of the United Kingdom's economic well-being or the fight against serious crime. We contend that since Section 7 of the 1994 Act, which is concerned with the agencies' operations abroad, covers all three of the statutory functions, the amendments do not appear to be necessary. The reason for this is that the methodology, operating techniques, personnel and resources employed by the agencies are common to each of their statutory functions.
  Revelations about their economic well-being or serious crime work would, therefore, inevitably damage the work which they do to protect national security and therefore could endanger national security itself. So it would be perfectly possible for the Secretary of State to take the view that it would be contrary to the interests of national security to prevent anyone connected with the work of the agencies being questioned in a foreign jurisdiction. This would therefore allow him to intervene in any case where we receive an extradition request which relates to any of the activities of the agencies, even if the activity was in connection with the economic well-being or serious crime function. I think that goes to the heart of the purpose of the probing amendment.
  This would be the case under the Bill as it is currently drafted, which is why, as I have said, we believe the amendments are unnecessary.
  I can assure the Committee that the Government are very conscious of the need to safeguard the work of the security and intelligence agencies and, in particular, to ensure that those acting on behalf of the agencies do not inadvertently find themselves subject to extradition processes.
  Clause 198 has been very carefully drafted to ensure that it offers protection to the agencies and those working on their behalf. We are satisfied that it offers

  GC 33
  the requisite degree of protection for all the activities which the agencies are permitted to engage in. No doubt your Lordships will infer from that that it will be after the fullest internal consultations.
  I hope, therefore, on the basis of what I have said, that the noble Lord, Lord Hodgson, will feel reassured that the important issues he raised in his probing amendments are adequately covered by existing legislation.
  Lord Hodgson of Astley Abbotts: I am grateful to the Minister for what he has said because we are all pulling on the rope in the same direction. He talks about the danger of exposure, the inadvertent risks—exactly the matters that we are trying to get at. That having been said, I am not sure whether what was in the response quite answered the points we made.
  The Minister said that it would be a mistake to accept Amendment No. 252 because as the existing provisions were not exhaustive and there was no fettering in the existing provisions, Amendment No. 252 therefore represented a restriction rather than a freedom. But our amendment contains the words "including. in particular. It is not meant to be exhaustive, but focused. I am not sure that the Minister's response went to the heart of that matter.
  The Bill will give additional clarity about economic well-being and prevention of financial crime. However, I am not clear why mentioning those matters in the Bill, as suggested in Amendments Nos. 253 and 254, would lead to the dangers of exposure or inadvertent risk. They would make it clear beyond peradventure that the Secretary of State has powers to act in the full definition of existing legislation, the 1994 Act.
  I accept that the Minister gave a long and helpful reply; I accept that what he was aiming at was what we were aiming at. I would like to read through what he said and consider it further. In the meantime, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 253 and 254 not moved.]
  5.45 p.m.
  Clause 198 agreed to.
  Clauses 199 and 200 agreed to.
  Lord Davies of Oldhammoved Amendment No. 254A:
  After Clause 200, insert the following new clause—
  "ARTICLE 95 ALERTS: TRANSITIONAL PROVISION
  (1) This section applies in a case where an article 95 alert is issued before I January 2004 by an authority of a category 1 territory.
  (2) In such a case, this Act applies as if—

  (a) the alert were a Part 1 warrant issued by the authority;

  (b) any information sent with the alert relating to the case were included in the warrant.

  (3) As applied by subsection (2), this Act has effect with these modifications—

  (a) in sections 2(7) and (8), 28(1), 30(1) and (41(d), 32(2)(b), 33(6)(b), 35(4)(h), 36(3)(b), 46(3)(b) and 48(3)(b), for "authority which issued the Part I warrant". substitute "authority at the request of which the alert was issued";

  (b) omit section 5;

  (c) in sections 33(4)(b), 41(2)(a), 42(2)(a) and (4) arid 60(1)(d) and (e), for "authority which issued the warrant" substitute "authority at the request of which the alert was issued";

  (d) in section 65(2), for the words from "believes. to the end substitute "believes is the authority at the request of which the alert was issued".

  (4) An article 95 alert is an alert issued pursuant tc. article 95 of the Convention implementing the Schengen agreement of 14th June 1985."
  The noble Lord said: The amendment gives effect to a commitment we made previously in the Bill. At our third meeting on the 18th June, the Committee agreed to remove Clause 211 from the Bill, and we were grateful for that co-operation. The reason we asked the Committee to do so was because Clause 211 was a transitional provision, relating to pre-existing Alerts on the Schengen information system, or SIS. We took the view that, on reflection, it would be better to have a free-standing provision for that purpose. Thai t is why we have tabled this amendment to replace that clause.
  The reason we think we need a special provision is that while requests on the SIS require there to be a previous judicially issued domestic warrant, they may, on rare occasions, be placed on the SIS at the instigation of police officers. We therefore wanted to forestall arguments as to whether such warrants had come from a judicial source. Our view is that hey do, but your Lordships can imagine all the legal fun and games that could be had on this point.
  The new clause is very limited in its scope. It applies only to alerts issued under Article 95 of the Schengen Convention and only to those issued before 1st January 2004. The Committee will recognise that this is purely a short-term measure, since the problem will not arise once the EAW is in operation. On that basis I hope that, as before, the Committee will support the amendment. I beg to move.
  Lord Hodgson of Astley Abbotts: I am grateful to the Minister for this explanation. We appreciate the problems that may occur during the transitional period in relation to pre-existing alerts on the SIS system. We also appreciate that, as with any new system, it is important to have special arrangements during the transitional period until all outstanding requests from the old system have been dealt with.
  I hope, however, that the Minister does not think that we have actually dealt with commencement in this amendment. There are more issues to be dealt with, and we will come to those in Amendment No. 257, which will be spoken to by the noble Lord, Lord Goodhart. With that proviso, we are happy that this is a short-term measure to provide some meshing between the old and the new system, and we are content.
  On Question, amendment agreed to.
  Lord Hodgson of Astley Abbottsmoved Amendment No. 255:
  After Clause 200, insert the following new clause—
  "COMPATIBILITY WITH CRIME (INTERNATIONAL CO-OPERATION) ACT 2003
  The Secretary of State shall certify that the provisions of this Act are compatible with the provisions of the Crime (International Co-operation) Act 2003."
  The noble Lord said: Amendment No. 255 inserts a new clause concerning compatibility with the Crime (International Co-operation) Act 2003. It is designed to ensure that there is compatibility between the provisions of that legislation, which is being debated in another place, and the Extradition Bill, which we are debating here today.
  My noble friend Lady Anelay already raised the issue when debating the Crime (International Cooperation) Bill in your Lordships' House earlier this year. There was an extensive debate on the 3rd February in col. 41 of Hansard. At that time, my noble friend tried to delay the commencement of the Crime (International Co-operation) Bill until the Extradition Bill had come into effect. In answer, the Minister suggested that delaying commencement was not the right way to go about things since the two Bills dealt with,
  "entirely different circumstances and powers"".—[Official Report, 3/2/03; col. GC41.]
  The same point was raised on the 21st January in another place during a Committee debate on an amendment to the Extradition Bill. We have used the same wording of that amendment in our Amendment No. 255. The wording meets the Government's point about not imposing linked commencement dates for either Act but requires the Secretary of State to certify that the two are compatible.
  I share the unease of my noble friend Lady Anelay at the response of the noble Lord, Lord Filkin, that the powers in the Crime (International Co-operation) Bill and the Extradition Bill are unconnected. We are agreed, I think, that only British law enforcement personnel can make an arrest following a European arrest warrant. The Minister has been adamant on this point on several occasions during our debate, although we have at times been less convinced that the actual drafting of the Bill reflected this intention. However, that is an issue we have been over before and to which we will no doubt return.
  As I understand it, the Crime (International Cooperation) Bill is concerned only with surveillance by foreign police for up to five hours when following a suspect across a border in hot pursuit. It is this that gives rise to concerns about the compatibility of these two pieces of legislation. The two sets of provisions are slightly at cross purposes in their interaction. For example, presumably French police can pursue a suspect for surveillance purposes for up to five hours, but if at that point they feel they have sufficient grounds for an arrest for the purposes of prosecuting the suspect, they presumably have to withdraw, and the process for issuing a European arrest warrant to the UK must then be started. That might take some time and then must presumably be handed over
  GC 36
  entirely to British police to enforce. Perhaps the Minister could explain to the Committee if this is how he sees the two pieces of legislation meshing together and operating.
  In answer to the amendment put forward in another place, the Minister, Mr. Ainsworth, said that both Bills were in Parliament at the same time. He said that the Government had obligations that they had entered into that they must try to enact in a reasonable period of time. However, they wanted to ensure that both Bills went into Parliament at the same time so that nothing would be hidden.
  Of course I accept that this was the Minister's intention, but it is probably confusing rather than enlightening for both Bills to be debated before two Houses of Parliament at the same time because both parts of the machinery are moving around and being changed. In the interests of clarity, it would have been helpful to have included a positive obligation on the Secretary of State to ensure compatibility.
  I have no doubt that the Minister will, in his courteous way, dismiss the amendment, as was done in another place, and give us an assurance on the record as to the compatibility, which he will deem to be a sufficient guarantee. Both Bills are about foreign jurisdictions pursuing suspects who have fled to our country. One is about surveillance by foreign officers for a limited period; the other about the arrest of suspects by our officers. I believe it is important to have this debate at this stage of the Bill; we would all benefit from a more detailed clarification about the interaction of the two Bills. I beg to move.
  [The Sitting was suspended for a Division in the House from 5.55 to 6.6 p.m.]
  Lord Davies of Oldham: I am grateful for the way in which the noble Lord presented the case before the adjournment, and I hope that I can give him some reassurance about the matter. He referred to the debate in another place, where the focus was on an anxiety about foreign police officers coming to this country to make arrests using European arrest warrants. I am glad to say that a government amendment on Report assuaged those anxieties.
  It remains the case that we have never intended to extend any coercive powers such as the power of arrest to anyone other than those who already enforce the law in this country. I am pleased to say that this aspect of the matter ought therefore not to trouble the Committee today. I would like to add my gratitude to the noble Baroness, Lady Anelay, for her acknowledgement of that, putting the question beyond any doubt. I am glad that we have been able to make progress in Committee on that understanding.
  Given that it is understood in Committee that the two Bills, when read in tandem, do not and cannot represent that thin end of the wedge that would see foreign police officers arresting people on these shores, I am a little puzzled as to why the amendment has been moved. After all, Acts of Parliament are necessarily compatible with each other. Any later legislation would amend that which preceded it, were there to be any incompatibility.

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  Of course, as the noble Lord indicated, I cannot say at this stage which Bill will receive Royal Assent first. Those questions are matters for the business managers as the two Bills proceed through both Houses of Parliament. I can say that, whatever way round it is, the two Acts will indeed be compatible. Such are the burdens on parliamentary time that we all have to deal with various pieces of legislation that are being processed through these buildings at one and the same time. Nevertheless, the Government are mindful of that and the need to ensure that no Bill contradicts or counteracts another. That does not mean that every Bill in any way connected to another debated during the same Session contains a clause such as that sought in the amendment. That clearly would be excessive. We believe that it is superfluous in the Bill. If it were necessary here, we would have to put it into a number of Acts where consideration was carrying on in parallel in any parliamentary Session.
  I assure the Committee that provisions of the two Bills will be compatible, as will all other Bills that have been passed or are passing through Parliament this Session. We do not believe that there is any need to set a precedent here by asserting that fact in the Bill. I recognise the anxieties. However, the Committee has made progress on the recognition of the broad intent of the Government behind the measures and the fact that we are not seeking to extend coercive powers. I hope that the noble Lord will recognise that it would not be appropriate for us to make the amendment to the Bill. With those assurances, I hope that he will feel able to withdraw it.
  Baroness Carnegy of Lour: Of course Bills have to be compatible, and my noble friend was merely trying to make sure that that was the case. However, can the Government assure us that there is no circumstance in which a person could use the powers in one Bill for the purposes of the other? That seems the question that really has to he asked. Having taken part in debates on both Bills, one realises that they are in a sense about the same subject. I cannot give an example, but that is my anxiety, because we are dealing with concepts unfamiliar to us and taking into account the various international arrangements.
  Lord Davies of Oldham: I would not have made my earlier remarks if they did not give the obvious intent that that assurance should be able to be given. The noble Baroness has asked quite specifically for it, but I am not really in the right position. We will reflect on that representation and look very carefully at the matter. We have time, with regard to the Bill, and will be able to respond. She will recognise that my request that the amendment be withdrawn is against the background that such an assurance could be given.
  Lord Hodgson of Astley Abbotts: I am grateful to the Minister, and indeed to my noble friend Lady Carnegy for her important point. We were trying to stress that there was an inherent danger of crossover. Once there was hot pursuit for one, information there gained could be used in the other. We did not see how that could be avoided or eliminated. The Minister made a
  GC 38
  valiant attempt to deal with that concern by saying that this was not the thin end of the wedge, and I accept his stricture that if we are to ask about compatibility there are all sorts of clauses in all sorts of Bills requiring compatibility. That is perfectly fair.
  I shall leave the matter by saying that we are grateful for the Minister's undertaking to reflect with the Bill team and come back to us if he can take our discussions any further forward. I am happy to beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Hodgson of Astley Abbottsmoved Amendment No. 256:
  After Clause 200, insert the following new clause—
  "ANNUAL REPORT
  The Secretary of State shall publish, and lay before both Houses of Parliament. an annual report on the operation of this legislation."
  The noble Lord said: The amendment takes us hack over further familiar ground, which is the provision of an annual report on the operation of the legislation. The purpose of the amendment is perfectly straightforward. The Bill is a new and supposedly streamlined piece of legislation that, in effect, is a roo-tand-branch overhaul of our existing extradition system. We have, for the first time, a situation where our extradition partners are divided into two categories, with very different procedures for each. Moreover, in the case of category 1 territories, we have an added complication in that Part 1 implements the framework agreement on the European arrest warrant and brings it into our domestic legislation.
  It is fair to say, however, that during the Committee it has become clear that our category 1 partners may choose to implement the same framework agreement in their own domestic legislation slightly differently. We may find ourselves in the situation where we agree to the framework decision but discover that our standards—for example, in terms of the one-year/three-year argument for dual criminality—are different. That is both confusing and problematic.
  Alternatively, I have to accept that we may find, contrary to the concerns of those of us on these Benches, that the new extradition arrangements are efficient and highly satisfactory and do not give rise to public controversy. Whatever way the cookie crumbles, we are embarking on a new policy on the sort of co-operation on—one might say the beginnings of an attempted harmonisation of—judicial decisions within Europe of which we have not seen the like before. In addition, as we have mentioned and will mention again in a moment, there are important issues about transitional arrangements and the integration of the old and new systems of extradition.
  In the light of those important considerations, do not think it too much to ask the Secretary of State that an annual report be prepared on the operation of this legislation and laid before Parliament. However, I am not so naive as to fail to anticipate what the Minister's reply will be—that the Secretary of State is always accountable before Parliament for any legislation

  GC 39
  stemming from his department, and that at any time he can be called to account by parliamentary Question or other means to comment on the operation of this extradition legislation or indeed any other legislation. We all know that that is true in theory and indeed practice, but if there is no positive obligation, defects in the operation of the Bill may slip through the net.
  I understand why the Government may have some hostility to the amendment. We were talking about compatibility a minute ago and it could be argued that, if we included an annual report for the Bill, on every other piece of legislation in future there would be calls for an annual report using the Extradition Act 2003, assuming it becomes that, as a precedent. There are Members on our Benches who believe that the Sexual Offences Bill and what is now the Licensing Act deserved an annual report for similar reasons.
  It could be argued, however—and I do argue—that in the special circumstances of this Bill, incorporating this particular piece of European legislation into our domestic law for the first time, an annual report would he one way in which the Government could make some positive move to alleviate the very real fears and concerns that abound, particularly in respect of the operations of Part I and how the proposed legislation would work in practice. It would be helpful. It might even be possible to do it for a few years, perhaps four or five, while the legislation was settling down.
  Given the importance and the groundbreaking nature of the European arrest warrant, there is enough here for us to have some special report on the operation of the Bill, at least for the first few years. I beg to move.
  6.15 p.m.
  Lord Goodhart: I have some sympathy with the thinking behind the amendment. This is a Bill of a good deal of importance, and it would be very helpful were it possible to bring together in one place the principal statistics related to it. It would be a matter of great interest to see whether the simplified Part 1 procedure led to a substantial increase in the number of extraditions and, if so, to which countries. It would also he very interesting to see whether the average time for extradition proceedings was reduced, as is the intention of the Bill. There are other matters that would also be of interest.
  Having said that, speaking for myself and I hope for those on our Benches, we would be content with an undertaking to put that information into the annual report of the Home Office, or possibly into the judicial statistics. I would be satisfied with an undertaking that the material information on the progress of the then Act would be published, as was said by the noble Lord, Lord Hodgson, for a period of year—at least until it has bedded down. I hope that the Minister will be able to say something on that point.
  Lord Filkin: I feel again that it is a shame that my noble friend Lord Bassam is not with us today but is downstairs, because this is his territory. In a sense, to
  GC 40
  show the danger of his not being present to deal with questions on annual reports, I shall say something slightly different from what he normally says.
  The Committee would expect me to say, as signalled by the noble Lord, Lord Hodgson, that we are resistant to a formal annual report. It has not been the tradition that even major and contentious legislation has had annual reports. An annual report could not cover some of the issues that might be of interest as to whether cases could have been resolved differently under the old system, as that could be only speculation, and it could not indicate what effect the absence of the Secretary of State's role had in Part 1, as that again would be pure conjecture.
  The argument given in the past against annual reports is that for ever and a day one sets up a bureaucratic commitment and costs that lead to more paper being produced and consumed, and that is why the Liberal Democrats have often supported us on the matter. We also say on such occasions that, clearly, there is a retinue of mechanisms—Starred Questions, Unstarred Questions, PQs and debates—that allows proper scrutiny of the Government on such issues.
  Having said all that, I think it would not be unhelpful if, after a period that allows enough cases through the system to make some analysis and reflection possible, one put into the public domain some of the monitoring information that we will undertake. I do not know quite what the period would be; there must be time to allow enough through the system, so I do not want to give a commitment by saying, "After one year", or, "After 18 months". That might be foolish. Am I going to be told to resign? No.
  The information that I mean is on the operation of the legislation, particularly in relation to the number of requests received, the operation of time limits in the Bill, especially in Part 1, and the numbers extradited and discharged. There could be an analysis in some form of the time taken from request to fulfilment for both incoming and outgoing requests for Part I and Part 2 cases, because that goes to the heart of some of the issues about which we have talked. Officials are considering what additional categories of information they will gather, and how that can best be achieved.
  I am happy to give a commitment that we will cover that information—we may go a little further if it seems sensible—on the operation of the Act after a period with the intention of putting it before Parliament if' it so wishes to use it. I do not want to commit to doing that every three years, because that takes us hack to the same trap from which we are trying to escape, but it would not hurt for us to find a mechanism for putting the information into the public domain. How to do that—whether through a PQ or the annual report—is a second-order issue on which we can reflect.
  I do not wish that to be seen as precedental. I recognise the strength of feeling on the issue. Because of that concern, I am happy to say that in this circumstance we will be pleased to put into the domain, in a suitable form and after a suitable period, the sort of information about which I have talked.

  GC 41
  However, I hope that I will not have this quoted back at me or other Ministers in future, but I am a naïve optimist.
  Lord Hodgson of Astley Abbotts: I am grateful to the noble Lord, Lord Goodhart, for his practical contribution in support of what we are trying to achieve. The Government set some very ambitious objectives for the Bill, on Second Reading here and in the other place, as to how we would radically transform the extradition procedure and the reasons for doing so. It is not unreasonable for us to see to what extent we have achieved those objectives. The noble Lord's points about simplicity, time and so on are issues well worth pursuing.
  My second point is that the Minister has said several times during our debates that there is a balance between what we get and what we give up. We want to be able to check that the balance is maintained. Of course there are worthwhile objectives in the legislation that we should pursue, but we are giving some things up as a result—that is in the order of things—and we want to make sure that the balance works properly.
  Thirdly. the Minister talked about cost implications and said that something should not go on for ever and a day. I said at the end of my remarks that the report was not meant to be for ever and a day. I can see how the provisions would bed down and the report would then drop away once we had some confidence in how the system was operating. That said, he was kind enough to offer half a loaf—perhaps a quarter of a loaf, or a slice or two—and on that basis, and promising that I will not quote his words to him, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clauses 201 to 205 agreed to.
  Lord Filkinmoved Amendment No. 256A:
  After Clause 205, insert the following new clause—
  "AMENDMENTS
  Schedule (Amendments) contains miscellaneous and consequential amendments."
  On Question, amendment agreed to.
  Clause 206 agreed to.
  Clause 207 [Commencement]:
  Lord Goodhartmoved Amendment No. 257:
  Page 114, line 25, at end insert—
  "( ) This Act shall only apply to requests relating to acts committed after 7th August 2002."
  The noble Lord said: For the first and only time today, I have moved an amendment. I am afraid that I have to start with an apology. It is entirely my fault that the drafting of the amendment is defective. It was intended to read:
  "( ) Sections 63(2) and 64(2) of this Act shall only apply to requests relating to acts committed after 7th August 2002".
  Sections 63(2) and 64(2) are, of course, the subsections that apply the abolition of the dual criminality rule for the 32 listed offences. I have notified the Minister and the noble Baroness, Lady Anelay, of the intended
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  wording, and I hope that I will be excused. I have discussed it with the Bill Office, which says that given that this is a Grand Committee it is not necessary to table a manuscript amendment.
  We believe that it is wrong in principle to allow extradition for an offence that was not extraditable when it was committed because of the absence of dual criminality, which was a requirement at that time but had subsequently ceased to he a requirement. Under Article 32 of the framework decision, the European arrest warrant is required to come into force on 1st January 2004. However, Article 32 provided that, at the time of the adoption of the framework decision by the Council in June 2002, any member state might make a statement indicating that it would continue to deal with requests relating to acts committed before a specified date in accordance with the extradition systems applicable before 1st January 2004. The specified date had to be not later than 7th August 2002.
  Had the United Kingdom made a statement in June 2002 to that effect, therefore, the result would have been that the dual criminality rule would have continued to apply to offences on the list if committed before 7th August 2002. So far as I am aware, the United Kingdom did not make such a statement and it is now too late to make it. I strongly believe that the Government should have made such a statement. I would have had no objection to backdating the restriction to the 7th August 2002, which is the latest date up to which such a restriction could have been applied. By that date the framework decision had already been adopted, so any offenders, if they chose to take legal advice on this, could have been on notice of a prospective change in the law. Of course, that principle does not apply to offences committed before the date of the adoption in 2002.
  Given the failure to make the statement, I recognise that the amendment is now inconsistent with the framework decision and I realise that the Government will not be willing to accept it. Nevertheless I move the amendment as I believe that this is an issue on which the Government should have taken action. Retrospective legislation creating a new criminal offence, of course, is forbidden by Article 7 of the European Convention on Human Rights. The retrospective extension of the power to extradite is not itself a breach of Article 7, but in my view it comes pretty close to it. For that reason I regret that the Government have not taken the option offered to them by Article 32 of the framework decision. I beg to move.
  6.30 p.m.
  The Deputy Chairman of Committees(Lord Haskel): Page 114, line 25, at end insert—
  "( ) Sections 63(2) and 64(2) of this Act shall only apply to requests relating to acts committed after 7th August 2002".
  That wording is slightly different from the wording in the Marshalled List.
  Lord Hodgson of Astley Abbotts: In this group we have Amendments Nos. 259 and 260. We have a good deal of sympathy with the amendment moved by the noble Lord, Lord Goodhart. Having just been told

  GC 43
  about the change when I arrived this afternoon, I am not sure that I have understood the full import of it all, but as he explained it, it seemed to have a good deal to commend it.
  Amendments Nos. 259 and 260 would require that any commencement order made by the Secretary of State that applied the provisions of the Bill to extradition proceedings which had already been commenced under the Extradition Act 1989 should be approved under the affirmative resolution procedure.
  In essence, the amendments seek clarification from the Government on the way in which they propose to manage the transition from the procedures set out by Parliament in the Extradition Act 1989 to those that are in the Bill. Will extradition proceedings that have already started when the Act comes into force continue under the provisions of the 1989 Act, or will the provisions of this Bill be applied to such proceedings in any way, with or without modifications? Do the Government propose any kind of specified cut-off date, as envisaged in Amendment No. 257, and will that be in relation to the date on which extradition proceedings commenced or to the date on which the extradition offence was alleged to have been committed?
  We do not seem to be able to find any provisions in the Bill setting out the arrangements that will govern this transitional period other than the traditional Henry VIII provision that orders made by the Secretary of State, including commencement orders, may,
  "include supplementary, incidental, saving or transitional provisions".
  The Minister will be aware that this is not always the case, and that the Government often set out on the face of Bills, in some detail, the way in which they intend transitional arrangements to operate. For example, Schedule 18 of the Criminal Justice Bill, which we are currently discussing, sets out the transitional arrangements that will apply when the new sentencing regime for murder is introduced. Given that extradition law and procedures can be quite complex, even the streamlined procedures introduced by the Bill—the operation of the European arrest warrant is potentially controversial, particularly until the procedure has bedded down—can the Minister explain to the Committee why the Government do not appear to have placed any such clear transitional provisions on the face of the Bill? I hope that the Minister will be able to provide clarification on those points as well as dealing with the important point raised by the noble Lord, Lord Goodhart.
  Lord Filkin: I shall do my best, but I do not believe that it will necessarily be easy, given the complexity of some of these issues. If I do not fully satisfy both Opposition Front Benches, my noble friend Lady Scotland will have an opportunity at a later stage in the passage of the Bill when I am no longer here.
  The amendments are concerned with the important question of to which particular cases the new arrangements, for which the Bill provides, should
  GC 44
  apply. Clearly, the new legislation should apply to all requests received after the point when the new Act is brought into force. There is a slight gloss on that to which I shall return shortly.
  So if the new Act comes into force on 1st January 2004, for example, a request received on 31st December 2003 will be handled under the 1989 Act procedures while a request received on 2nd January 2004 will be handled under the new procedures. We think it is much better, and less confusing, that the procedures to be used should be determined by when the request was made rather than by reference to when the alleged offence took place, as I trailed earlier in our discussions.
  The reason for that is that it is not always apparent at precisely what point an offence was committed. Earlier I referred to a new Act coming into force on 1st January. Imagine that a person has gone away for a few days over New Year and comes back to find that his house has been burgled. In those circumstances it might not be clear whether the crime had taken place on or before 31st December or after 1st January, in which case the new procedures would apply. Similarly, a complicated fraud case might straddle the cut off date. The other difficulty with determining what procedures should be used by virtue of the date of the offence is that we may get requests many years after the event.
  The amendment standing in the name of the noble Lord, Lord Goodhart, provides that Sections 63(2) and 64(2) of the new Act's procedures will apply only to acts committed after 7th August 2002, although we had not spotted the significance of that date about which he enlightened us. We understand that the effect of this amendment would be that someone wanted for a "list" offence in another EU country could not be extradited where the conduct occurred prior to 7th August 2002 and where the dual criminality test is not met.
  I appreciate the position from which the noble Lord proposes this amendment and his concern for the rights of those who are the subjects of extradition requests. However, the fundamental principle remains that, regardless of when the conduct occurred, it is incumbent upon the individual to act within the laws of the country where he is present. As we have previously explained from these Benches, the Government do not believe that a person should be able to escape prosecution simply by crossing a border within the EU, whether the conduct occurred before or after 7th August 2002. I hope that the Committee will see why this is not desirable and instead agree that the date of the request is what should determine which procedures are used.
  I now turn to the two amendments standing in the name of the Official Opposition. Those seek to provide that any order that has the effect of transferring existing cases already in the system to the new arrangements should be subject to the affirmative resolution procedure. Perhaps I can set out the Government's position on the whole issue of transferring existing cases to the new arrangements. I

  GC 45
  do not believe that I can do any better than to quote from the Government's response to questions that were posed by the Home Affairs Committee in another place in its first report of 2002–03. The response is appended to the committee's report on the Bill. The Government's response stated:
  "In principle the new arrangements will apply to all European arrest warrants received after the new Act has been brought into force even if the conduct to which the warrant relates occurred before that date. However, the Bill also contains a power to transfer existing cases to the new arrangements. It is the Government's intention that this power should only be used very sparingly and only if it is justified and there would he clear benefits in doing so".
  For the avoidance of doubt I should make it clear that the passage I have quoted referred to the EAW simply because the question to which it was a response did so. Exactly the same principle applies to Part 2 of the Bill. So the position is, I hope, clear. The power to transfer cases, if it is used at all, will be used only sparingly and if it is in the interests of justice.
  Fugitives whose cases are transferred will no doubt seek to challenge the transfer through judicial review and I am sure that the courts would be very alive to any abuse of process arguments. If they felt that the fugitive was being seriously disadvantaged they would no doubt uphold his challenge.
  Lord Hodgson of Astley Abbotts: Perhaps the Minister could answer one question. Do his officials have information on what is now the longest outstanding extradition case? How long might we have a transitional period? If a case has been outstanding for four or five years, as I believe could occur, then if something is received on 31st December 2003—that is, the day before the coming into force of the Act in his example—we could be talking about 2008, 2009 or 2010 before the old procedure dropped away. Is that what the Government envisage?
  Lord Filkin: I pause while cogitation is taking place on that—cogitation has been very fast. The longest outstanding case is approximately seven years.
  Turning to the specifics of the amendments, I am sure that Members of the Committee are aware that it is virtually unprecedented for commencement orders to be subject to the affirmative resolution procedure. There is good reason for that. Parliament has expressed its wishes by enacting the legislation, and it should then be brought into force as soon as practicable without the need for further parliamentary debate. Therefore, we see no need to depart from established practice in this respect, and that is why we cannot support the amendments.
  However, I repeat that we do not expect many, if any, cases already in the system to be transferred to the new arrangements. That will happen only if it is clearly in the interests of justice.
  I have done my best to explain why we believe that the amendment in the name of the noble Lord, Lord Goodhart, would be impractical. Similarly, I have sought to explain why I do not believe that we should take the unprecedented step of making commencement orders subject to the affirmative
  GC 46
  resolution procedure. I hope that, in the light of what I have said, the noble Lord will feel able to withdraw the amendment.
  Lord Goodhart: I obviously feel unhappy with the fact that the Government are unable to shift their position on Amendment No. 257. Of course, I recognise that they have now put themselves in a position where they cannot do so without breaching the international obligations entered into by not making a declaration at the time when they agreed to the terms of the framework decision. Having said that, I shall of course beg leave to withdraw the amendment today. I shall consider how far, and whether or not, it would be desirable to bring hack this matter on Report for further discussion. However, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 207 agreed to.
  Clause 208 agreed to.
  Clause 209 [Orders and regulations]:
  [Amendments Nos. 258 to 260 not moved]
  Clause 209 agreed to.
  Clause 210 [Orders in council]:
  [Amendments Nos. 261 to 266 not moved]
  Lord Hodgson of Astley Abbottsmoved Amendment No. 267:
  Page 115, line 26, leave out subsection (4).
  The noble Lord said: I believe that this is the last amendment at the end of nine hard days. It takes us back to one of the early days in Committee and the vexed issue of Orders in Council. It seems to be a long time since we discussed this matter on our first day in Grand Committee. I want to repeat our thanks, which we gave then, to the Minister for his commitment to making Orders in Council under Sections 1 and 68, designating category 1 and category 2 territories, subject to the affirmative rather than the negative procedure. We were very grateful to him for that.
  My purpose in moving Amendment No. 267 is simple. It is to query the power in Clause 210(4), which allows orders for such designations to have specified modifications in relation to specific territories. That seems to be a wide-ranging and potentially dangerous power to propose. I am not clear, and should welcome an explanation, as to what the purpose of such a clause is and what "specified modifications" might be.
  I appreciate that we are nearing the end of our lengthy discussions on the Bill but I should like some clarification from the Minister as to why we should not strike out Clause 210(4). I beg to move.
  6.45 p.m.
  Lord Filkin: I thank the noble Lord, Lord Hodgson, for his probing amendment that seeks clarification on this issue. There are various references in the Bill to specified modifications on which, understandably and rightly, the Opposition have probed.

  GC 47
  The Ministers responding have generally pointed out that the Select Committee on Delegated Powers and Regulatory Reform queried only the use of the term in one place and that we would provide the explanation when we got to that point, and we are now here.
  The first point that I should put on the record is that the Delegated Powers Committee did not consider that Clause 210(4) was inappropriate. All that the committee suggested was that the Government should provide an explanation as to why it was necessary, which I shall endeavour to do. We expect to designate all of our existing extradition partners as either Part I or Part 2 countries under the new legislation, as one would expect. There is no obvious reason why, broadly, the new Act cannot apply to all of them in the form that Parliament has enacted it.
  The only likely problem is that, as we have already discussed at some length, we may need to vary the period in which papers have to be supplied following provisional arrest to take account of the terms of our various bilateral extradition treaties. However, we have specially catered for that by means of Clause 73(10). So, to put it simply, I do not believe that we will need to make any great use of the "specified modifications" provision when it comes to designating our current extradition partners under the new legislation. However, that provision is necessary to enable us to cope with the future.
  The Committee may recall that at the seventh sitting of the Committee, my noble friend Lady Scotland read onto the record the list of the UK's extradition partners. It is a pretty comprehensive list so, currently, there are no plans to extend it or to negotiate any new bilateral treaties. Nevertheless, there are gaps. To cite one interesting omission, we do not have extradition relations with Japan. That has not given rise to any problems but were it to do so in future and the Japanese to approach us about the possibility of a treaty. it would obviously be sensible to proceed. I am sure that Members of the Committee could not be opposed to that in principle.
  As part of that treaty, we may want to insist on a two-year threshold when negotiating a treaty with a new country, because the sentence thresholds in that country were much lower than elsewhere, so that a two-year sentence there was equivalent to 12 months in the rest of the world, to give an instance. Again we would want to use Clause 210(4) to ensure that the operation of the Act reflected the terms of a treaty. That, in a nutshell, is the purpose of Clause 210(4)—to allow us to ensure that the peculiarities of any future treaties can be accommodated.
  I remind your Lordships that as a result of an earlier concession, all orders designating countries, as the noble Lord, Lord Hodgson, indicated, as extradition partners will be subject to the affirmative resolution procedure so Parliament will know fully what is happening and have the fullest opportunity to consider whether any such modifications are appropriate.
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  I repeat that we would not expect to use this facility very often, but equally I do not think that we should put ourselves in the position where our future room for manoeuvre is unnecessarily limited. I hope that this explanation answers the concerns that lay behind the probing amendments to which the noble Lord, Lord Hodgson, spoke.
  Lord Hodgson of Astley Abbotts: I am grateful to the Minister for that fairly full reply. As I expected, he said, "It's in there but we don't expect to make any great use of it". That always begs the question why it is needed. I accept that he then went on to raise issues concerning the peculiarities of the extradition system, and I consider that the example of Japan was a very good one.
  I believe I am happy with what he said but, without going over other ground that we have discussed this afternoon, this type of matter could be dealt with usefully in an annual report. One talks about some of the places where specified modifications have had to be made because at issue is the liberty of a subject and the subject being moved to countries around the world. The kind of issues mentioned by the noble Lord, Lord Goodhart, and which I raised, come up again when one looks at Clause 210(4). We shall return to that matter but, in the meantime, I am happy to accept the Minister's explanation and beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 210 agreed to.
  Clause 211 agreed to.
  Clause 212 [Extent]:
  Lord Filkinmoved Amendment No. 267ZA:
  Page 115, line 35, after "Sections" insert "(Restriction on bail where undertaking given by Secretary of State),"
  The noble Lord said: I shall be brief in moving this amendment. It relates to Clause 212, which specifies the constituent part or parts of the United Kingdom to which certain clauses do or do not apply. The need for the amendment has arisen from the amendment of the Bill in another place to insert a new clause—Clause I94—modifying existing Scots law—
  Baroness Carnegy of Lour: Is the noble Lord not speaking to Amendment No. 267ZB?
  Noble Lords: Yes.
  The Deputy Chairman of Committees: Amendment No. 267ZA has already been spoken to.
  Lord Filkin: I am so sorry. I beg to move.
  On Question, amendment agreed to.
  Lord Filkinmoved Amendment No. 267ZB:
  Page 115, line 36, leave out "Section 184" and insert "Sections 184 and 194"
  The noble Lord said: I thank the Deputy Chairman for giving me a further opportunity to speak to this amendment. It relates to Clauses 212, which specifies the constituent part or parts of the United Kingdom to which certain clauses do or do not apply. The need

  GC 49
  arises from the amendment in another place to insert Clause 194 modifying existing Scots law on bail in relation to extradition proceedings.
  The effect of Clause 194 is that Scots law on bail applies to persons facing extradition in so far as this is consistent with the Bill. Obviously as Clause 194 applies only to Scotland, it is necessary for it to be added to the Scotland-only provisions listed in the extent provisions in Clause 212. The intention of the amendment is to do so. I hope that your Lordships will understand and welcome the amendment and I now invite the Committee to agree to it.
  As this may he the last occasion on which I shall speak on this Bill—I sincerely hope that it is—I should like, although it is improper, to thank all Members who have taken part in the nine days of proceedings. It has been a good process and, as the temperature has reduced, the quality of exploration has improved and increased. Perhaps I should not have said the latter.
  Baroness Carnegy of Lour: Clearly this is simply a draft amendment. However, I want to suggest that it is not absolutely correct. It should read,
  "leave out 'Section 184 extends' and insert 'Sections 184 and 194 extend'".
  The word "extends" should read "extend".
  Lord Filkin: I give an undertaking to look at that point and I shall write to the noble Baroness, Lady Carnegy, about it before we reach Report stage.
  On Question, amendment agreed to.
  Clause 212, as amended, agreed to.
  Clause 213 agreed to.
  Lord Filkinmoved Amendment No. 267A:
  Before the Schedule, insert the following new schedule—

  Extradition Bill

    RF-EXTRADITION: MODIFICATIONS PART 1 CATEGORY 1 TERRITORIES
    1 In section 11(1), omit paragraphs (c), (g) and (h).
    2 Omit sections 14. 18 and 19.
    3 In section 21(3), for "must" substitute "may".
    4 In section 31(2), for paragraphs (a) and (b) substitute "would (apart from section (Re-extradition hearing) (1 )) be released from detention pursuant to the UK sentence (whether or not on licence)".
    5 In section 39(2)(a), for "a certificate is issued under section 2 in respect of the warrant" substitute "the person would (apart from section (Re-extradition hearing) (1)) be released from detention pursuant to the UK sentence (whether or not on licence)".
    6 In section 43(2)(a), for "following his arrest under this Part" substitute "under section (Re-extradition hearing) (1)".
    7 In section 44(1), for the words from "arrested" to "issued" substitute "brought before the appropriate judge under section (Re-extradition hearing) (1) may consent to his extradition to the territory in which the overseas sentence was imposed".
    8 In section 187(2), for the words "a certificate is issued under section 2 or 69 in respect of the extradition claim" substitute "the person would (apart from section (Re-extradition hearing) (1)) be released from detention pursuant to the UK sentence (whether or not on licence)".

    PART 2 CATEGORY 2 TERRITORIES
    9 In section 77, omit subsections (2), (3), (5) and (8).
    10 In section 77, for subsection (4) substitute—
    "(4) The judge must decide whether the offence specified in the request is an extradition offence."
    11 In section 77(6), for "any of the questions" substitute "the question".
    12 In section 77(7), for "those questions" substitute "that question".
    13 In section 78(1), omit paragraph (c).
    14 Omit section 81.
    15 In section 86(3), for the words from "must send the case" to "extradited" substitute "may order the person to he extradited to the category 2 territory".
    16 In section 86, after subsection (3) insert—
    "(4) If the judge makes an order under subsection (3) he must remand the person in custody or on hail to wait for his extradition to the territory.
    (5) If the judge remands the person in custody he may later grant bail."
    17 In section 101(1)—
    (a) for the words from "sends a case" to "extradited" substitute "orders a person's extradition under this Part"; and
    (b) for "the relevant decision" substitute "the order".
    18 In section 101(2), for the words from "the person" to "the Secretary of State" substitute "the order is made under section 126".
    19 In section 101, omit subsections (3), (5), (6) and (7).
    20 In section 101(8), for the words from "the Secretary of State" to "extradition" substitute "the order is made".
    21 In section 102, omit subsections (1)(b), (6) and (7).
    22 In section 104, omit subsections (1)( b), (7) and (8).
    23 In section 115(1)(a), for "the Secretary of State" substitute "the appropriate judge".
    24 In section 115(1)(b). for the words from "permitted period" to "extradition" substitute "period permitted under that section".
    25 In section 115, after subsection (1) insert—
    "(1A) But this section does not apply if the order is made under section 126."
    26 In section 115(2), for "the Secretary of State" substitute "the judge".
    27 In section 117(1)(a), for "the Secretary of State" substitute "the appropriate judge".
    28 In section 117, in subsections (2), (3) and (4) and in each place in subsection (5), for "the Secretary of State" substitute "the judge".
    29 In section 118, after subsection (1) insert—
    "(1A) But this section does not apply if the order for the person's extradition is made under section 126."
    30 In section I 19(2)(a), for "a certificate is issued under section 69 in respect of the request" substitute "the person would (apart from section (Re-extradition hearing) (1)) be released from detention pursuant to the UK sentence (whether or not on licence)".
    31 In section 125(1), for the words from "arrested" to "requested" substitute "brought before the appropriate judge under section (Re-extradition hearing) (1) may consent to his extradition to the territory in which the overseas sentence was imposed".
    32 In section 125, omit subsections (4) and (5).
    33 In section 125(3), before paragraph (a) insert"—
    "(aa) must be given before the appropriate judge;".
    34 In section 126, after subsection (I) insert—
    "(1A) The judge must remand the person in custody or on bail.
    (1B) If the judge remands the person in custody he may later grant bail."
    35 In section 126(4), for the words from "send the case" to "extradited" substitute "within the period of 10 days starting with the day on which consent is given order the person's extradition to the category 2 territory".
    36 In section 126, after subsection (5) insert—
    "(6) Subsection (4) has effect subject to section 126B.
    (7) If subsection (4) is not complied with and the person applies to the judge to be discharged the judge must order his discharge."
    37 After section 126 insert—
    "126A EXTRADITION TO CATEGORY 2 TERRITORY FOLLOWING CONSENT
    (1) This section applies if the appropriate judge makes an order under section 126(4) for a person's extradition to a category 2 territory.
    (2) The person must be extradited to the category 2 territory before the end of the required period, which is 28 days starting with the day on which the order is made.
    (3) If subsection (2) is not complied with and the person applies to the judge to be discharged the judge must order his discharge, unless reasonable cause is shown for the delay.
    126B EXTRADITION CLAIM FOLLOWING CONSENT
    (1) This section applies if—

    (a) a person consents under section 125 to his extradition to a category 2 territory; and

    (b) before the judge orders his extradition under section 126(4), the judge is informed that the conditions in subsection (2) or (3) are met.

    (2) The conditions are that—

    (a) the Secretary of State has received another valid request for the person's extradition to a category 2 territory:

    (b) the other request has not been disposed of.

    (3) The conditions are that—

    (a) a certificate has been issued under section 2 in respect of a Part 1 warrant issued in respect of the person;

    (b) the warrant has not been disposed of.

    (4) The judge must not make an order under section 126(4) until he is informed what order has been made under section 124(2) or 181(2).
    (5) If the order under section 124(2) or 181(2) is for further proceedings on the request under consideration to be deferred until the other request, or the warrant, has been disposed of, the judge must remand the person in custody or on bail.
    (6) If the judge remands the person in custody he may later grant bail.
    (7) If—

    (a) the order under section 124(2) or 181(2) is for further proceedings on the request under consideration to be deferred until the other request, or the warrant, has been disposed of, and

    (b) an order is made under section 182 for proceedings on the request under consideration to be resumed,

    the period specified in section 126(4) must be taken to be 10 days starting with the day on which the order under section 182 is made.
    (8) If the order under section 124(2) or 181(2) is for further proceedings on the other request, or the warrant, to be deferred until the request under consideration has been disposed of, the period specified in section 126(4) must be taken to be 10 days starting with the day on which the judge is informed of the order.
    126C EXTRADITION FOLLOWING DEFERRAL FOR COMPETING CLAIM
    (1) This section applies if—

    (a) an order is made under section 126(4) for a person to be extradited to a category 2 territory in pursuance of a request for his extradition;

    (b) before the person is extradited to the territory an order is made under section 124(2) or 181(2) for the person's extradition in pursuance of the request to be deferred;

    (c) the appropriate judge makes an order under section 183(3)(a) for the person's extradition in pursuance of the request to cease to be deferred.

    (2) The required period for the purposes of section 126A(2) is 28 days starting with the day on which the order under section 183(3)(a) is made."
    38 In section 187(2), for the words "a certificate is issued under section 2 or 69 in respect of the extradition claim" substitute "the person would (apart from section (Re-extradition hearing) (1)) be released from detention pursuant to the UK sentence (whether or not on licence)"."
    On Question, amendment agreed to.
    Lord Filkinmoved Amendment No. 267B:
    Before the Schedule, insert the following new schedule—

    AMENDMENTS
    Introduction
    1 The amendments specified in this Schedule shall have effect.
    Parliamentary Commissioner Act 1967 (c. 13)
    2 In Schedule 3 to the Parliamentary Commissioner Act 1967 (c. 13) (matters not subject to investigation) for paragraph 4 substitute—
    "4 Action taken by the Secretary of State under the Extradition Act 2003."
    Criminal Justice Act 1967 (c. 80)
    3 Section 34 of the Criminal Justice Act 1967 (c. 80) (committal of persons under twenty-one accused of extradition crimes) shall cease to have effect.
    Suppression of Terrorism Act 1978 (c. 26)
    4 Sections 1 (offences not to be regarded as of a political character) and 2 (restrictions on return of criminal under Extradition Act 1870 or to Republic of Ireland) of the Suppression of Terrorism Act 1978 (c. 26) shall cease to have effect.
    5 For section 5 of the Suppression of Terrorism Act 1978 (c. 26) substitute—
    "5 POWER TO APPLY SECTION 4 TO NON-CONVENTION COUNTRIES
    (1) The Secretary of State may by order direct that section 4 above shall apply in relation to a country falling within subsection (2) below as it applies in relation to a convention country, subject to the exceptions (if any) specified in the order.
    (2) A country falls within this subsection if—

    (a) it is not a convention country; and

    (b) it is a category I territory or a category 2 territory within the meaning of the Extradition Act 2003."

    Criminal Justice ( International Co-operation) Act 1990 (c. 5)
    6 Section 22(1) of the Criminal Justice (International Cooperation) Act 1990 (c. 5) (offences to which an Order in Council under the Extradition Act 1870 can apply) shall cease to have effect.
    Computer Misuse Act 1990 (c. 18)
    7 Section 15 of the Computer Misuse Act 1990 (c. 18) (extradition where Schedule 1 to the Extradition Act 1989 applies) shall cease to have effect.
    Aviation and Maritime Security Act 1990 ( c. 31)
    8 Section 49 of the Aviation and Maritime Security Act 1990 (c. 31) (extradition by virtue of Orders in Council under Extradition Act 1870) shall cease to have effect.
    Criminal Justice Act 1991 (c. 53)
    9 In section 47 of the Criminal Justice Act 1991 (e. 53) (persons extradited to the United Kingdom) subsection (4) shall cease to have effect.
    United Nations Personnel Act 1997 (c. 13)
    10 Section 6(1) of the United Nations Personnel Act 1997 (c. 13) (offences to which an Order in Council under section 2 of the Extradition Act 1870 can apply) shall cease to have effect.
    Terrorism Act 2000 (c. 11)
    11 Section 64(5) of the Terrorism Act 2000 (c. 11 )(offences to which an Order in Council under section 2 of the Extradition Act 1870 can apply) shall cease to have effect.
    International Criminal Court Act 2001 (c. 17)
    12 Section 71 of the International Criminal Court Act 2001 (c. 17) (extradition: Orders in Council under the Extradition Act 1870) shall cease to have effect.
    13 (1) Part 2 of Schedule 2 to the International Criminal Court Act 2001 (c. 17) (delivery up to International Criminal Court of persons subject to extradition proceedings) is amended as follows.
    (2) For paragraph 7 (meaning of "extradition proceedings") substitute—
    "7 In this Part of this Schedule "extradition proceedings" means proceedings before a court or judge in the United Kingdom under the Extradition Act 2003."
    (3) In paragraph 8 (extradition proceedings in England and Wales or Northern Ireland) after sub-paragraph (5) add—
    "(6) References in this paragraph to a court include references to a judge."
    (4) In paragraph 9 (extradition proceedings in Scotland) after sub-paragraph (3) add—
    "(4) References in this paragraph to a court include references to a judge."
    (5) In paragraph 10 (power to suspend or revoke warrant or order) for sub-paragraph (1) substitute—
    "(1) Where a court makes a delivery order in respect of a person whose extradition has been ordered under the Extradition Act 2003, it may make any such order as is necessary to enable the delivery order to be executed."
    (6) In paragraph 10(2) omit the words "by a court or judicial officer".
    Enterprise Act 2002 (c. 40)
    14 Section 191 of the Enterprise Act 2002 (e. 40) (offences to which an Order in Council under the Extradition Act 1870 can apply) shall cease to have effect."
    On Question, amendment agreed to.
    [Amendments Nos. 268 to 269 not moved.]
    Schedule [Repeals]:
    Lord Filkinmoved Amendments Nos. 270 to 276:
    Page 116, line 5, at end insert—

    "Criminal Justice Act 1967 (c. 80)

    Section 34.

    Criminal Jurisdiction Act 1975 (c. 59)

    In Schedule 3, paragraph 1."

    Page 116, line 11, column 2. at end insert—
    "In Schedule 2, paragraph 33."
    Page 116, line 13, at end insert—
    "Suppression of Terrorism Act Sections 1 and 2.

    1978 (c. 26)

    In section 8—

    (a) subsection (5)(a);

    (b) in subsection (6) the words from "an order made under section 1(4)" to "or"."

    Page 116, line 14, at end insert—

    "Criminal Justice (International Co-operation) Act 1990 (c. 5)

    Section 22.

    Computer Misuse Act 1990 (c. 18)

    Section 15.

    Aviation and Maritime Security Act 1990 (c. 31)

    Section 49.

    Criminal Justice Act 1991 (c 53)

    Section 47(4)."

    Page 116, line 18, at end insert—

    "Criminal Justice Act 1993 (c. 36)

    Section 72.

    Section 79(7).

    Criminal Justice and Public Order Act 1994 (c. 33)

    Sections 158 and 159.

    United Nations Personnel Act 1997 (c. 13)

    Section 6.

    Justices of the Peace Act 1997 (c. 25)

    In Schedule 5, paragraph 9.

    Access to Justice Act 1999 (c. 22)

    In Schedule 11, paragraphs 18 and 31 to 36.

    Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)

    In Schedule 9, paragraph 124.

    Terrorism Act 2000 (c. 11)

    Section 64."

    Page 116, line 19, column 2, at beginning insert "Sections 71 to 73."
    Page 116, line 20, at end insert—

    "Proceeds of Crime Act 2002 (c. 29)

    In Schedule 11, paragraph 18.

    Enterprise Act 2002 (c. 40)

    Section 191."

    On Question, amendments agreed to.
    Schedule, as amended, agreed to.
    Bill reported with amendments.
    The Committee adjourned at four minutes before seven o'clock.