Grand Committee Report of 6 May 2004

Official Report of the Grand Committee on the

  Fire and Rescue Services Bill
  (First Day)
  Thursday, 6 May 2004.
  The Committee met at a quarter past three of the clock.
  [The Deputy Chairman of Committees (Baroness Gould of Potternewton) in the Chair.]
  The Deputy Chairman of Committees (Baroness Gould of Potternewton): There has been a request that gentleman may wish to take off their jackets; I suppose it falls on me to say, "Yes, gentlemen have permission to take off their jackets".
  Before I put the Question that the Title be postponed, perhaps I may remind your Lordships of two points of procedure. Noble Lords will speak standing and the House has agreed that there will be no Divisions in Grand Committee. Unless an amendment is likely to be agreed to, it should be withdrawn. If there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
  Title postponed.
  Clause 1 [Fire and rescue authorities]:
  On Question, Whether Clause 1 shall stand part of the Bill?
  Baroness Hamwee: I apologise if there has been confusion as to whether or not we are opposing the clause—we are not. Our opposition to it was tabled as a result of a misunderstanding. I hope that the Minister received a message this morning outlining the question I wish to raise on the clause.
  In the Commons, Nick Raynsford said that the fire and rescue authorities would be able to call themselves whatever they want. I think the words he used were that they could rename themselves in line with the new definition. Can the Minister confirm whether that extends to the London Fire and Emergency Planning Authority, which has that name as a result of the Greater London Authority Act 1999? It is actually enshrined on the face of the Act, which then goes on to refer to it as "the Fire etc Authority".
  To table an amendment on this point would be going too far; it is not a huge matter of urgent moment. I do not think that the London Fire and Emergency Planning Authority—which has only quite recently changed from its previous title of the London Fire and Civil Defence Authority—is anxious to go into a great deal of reprinting and rebranding. Nevertheless, if the Bill's predecessor is any precedent, it will last for some
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  decades, and "emergency planning" in its title may or may not be appropriate as new arrangements are undertaken for cross-service resilience arrangements. Indeed, as the new and very welcome powers are established and better known, it may appear to be a rather outdated title.
  The Minister of State, Office of the Deputy Prime Minister (Lord Rooker): I have a brief answer to the noble Baroness's question, which I hope she will find satisfactory. I am not up to date with the matter being raised in the other place, but it is a matter for individual authorities, including the London Fire and Emergency Planning Authority, whether they wish to call themselves a fire and rescue service in line with the changes in the Bill. The definition in the Bill has been changed to comply with what is, in reality, a fire and rescue service.
  In order for that to happen, an amendment to Section 328 of the Greater London Authority Act would be required to change the name formally. Such an amendment would be within the scope of the Bill but we understand that no formal request to this effect has been received from the London Fire and Emergency Planning Authority. In other words, it could be done through the Bill if it so desired, but it does not have to do it.
  Baroness Hamwee: I am grateful for the Minister's reply. It seems to raise the possibility of putting in the Bill some kind of enabling provision so that the authority can decide—this year, next year or in 25 years time—whether it wants to change its name. Perhaps I may leave that thought with the Government. As I said, the authority does not want to do anything now, but it would be a pity if we passed legislation which prevented it saying what it is. I would be grateful to the Government if they were to come back on that.
  Clause 1 agreed to.
  Clause 2 [Power to create combined fire and rescue authorities]:
  Baroness Hanham Baroness Hanham moved Amendment No. 1:
  Page 2, line 7, leave out subsection (1) and insert—
  "(1) Fire and rescue authorities may constitute, with the agreement of the Secretary of State, a fire and rescue authority for the combined area of two or more existing fire and rescue authorities."
  The noble Baroness said: In moving Amendment No. 1, I shall speak also to Amendments Nos. 7, 9 and 10. The noble Baroness, Lady Hamwee, has two amendments in this group. It seems that daily the noble Lords, Lord Rooker and Lord Bassam, and myself face each other across the Dispatch Box on successive legislation.
  In principle, there are many matters in the Bill on which we are in agreement, but we want to test some issues. As with all Bills, we shall want to see that it is improved where necessary and build on it during the course of debate. The Bill contains flaws and, if it were enacted as it is, I believe that the effect and capability

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  of our fire service to perform its duty to the best of its ability would be reduced. We do not want that; we want it to be effective.
  The background to the Bill is well known. Not all that long ago in Grand Committee, we considered other measures and we aired the background at Second Reading. However, in drafting the Bill, I believe that the Government have departed from the good intent of the Bain report and of their own White Paper. As well as taking this opportunity to bring much-needed modernisation to the fire service, which we are happy to support, the Government have taken upon themselves to introduce once again little-needed structural reform. Quite apart from introducing additional bureaucracy, it is clear that regionalisation of the fire service, as the Bill intends, has more to do with the Government's obsession with devolution and providing work for regional assemblies than bringing about real reform of the fire service. So far as we are concerned, that is not a promising start.
  I hope that during the passage of the Bill the Government will listen to the arguments and—dare I say?— see the light and back down on the Bill's more unwelcome elements. On these Benches, we do not believe that the possibility of forcing fire authorities to combine on what may be unnatural and artificial regional boundaries is at all sustainable. Hand in hand with regionalisation, the Bill gives almost unprecedented powers to the Secretary of State—almost unprecedented since the planning Bill. The two themes of regionalisation and centralisation run throughout the Bill; that comes from a government who miss little opportunity to proclaim their belief in localism.
  Turning to Amendment No. 1, we strongly believe that there should be democratically accountable fire and rescue authorities, based on viable, recognisable and publicly understood administrative units—not on artificially created boundaries drawn up by the Secretary of State in Whitehall. Provision of the fire and rescue service should reflect local circumstances, and the constitution of any fire and rescue authority should be democratically accountable to the community that it serves.
  However, we recognise that not all services can be delivered at the lowest level because of the economies of scale, the need for specialisation, which is well addressed in the Bill, and reinforcement patterns and various other aspects about which we have no disagreement with the Government.
  It is entirely appropriate that fire and rescue authorities should work together in collaborative units. I use the term loosely because some may wish to combine fire authorities, but others may wish to organise themselves into clusters for certain purposes only while retaining their independence for other purposes. Amendment No. 1 seeks to achieve that objective by giving fire authorities the ability to come together as they wish and removing the unwelcome hand of central government in forcing them to do so.
  Amendment No. 7 is a consequential amendment to Amendment No. 1, removing the power of the Secretary of State to compel authorities to combine if Clause 2(1) is amended, as my first amendment designs. Amendment No. 10 is, again, a consequential amendment, removing the unnecessary subsection that empowers the Secretary of State to consult under subsection (3)(b), which the two previous amendments would, if accepted, remove.
  Amendment No. 9 seeks to require the agreement of authorities to any modification by the Secretary of State to a combination scheme that they themselves have proposed and, as such, it reinforces an important principle of local decision-making and discretion, as opposed to the excessive dead hand of the centre once again being imposed without due regard to local circumstances. I beg to move.
  Lord Rooker: I am grateful for the way in which the noble Baroness introduced the amendment. So that I can get it off my chest and not repeat myself later, I say at the outset that I reject the arguments about excessive centralism. On behalf of my right honourable friend the Secretary of State, I can say that he does not take personally all the references to removing his alleged centralist powers.
  The final thing that I want to say in order to help things along is that many of the amendments, but not all, were considered in the other place. That is not a criticism of how they are considered here but, as one can imagine, my answers will be the same as those given in the other place. Nevertheless, sometimes it is worth taking a second look at issues, and, in any event, that is the purpose of this House.
  This group of amendments, taken together, seeks to prevent the Secretary of State combining the fire and rescue authorities under any circumstances other than those in which the authorities themselves have requested it. The amendments even require the initiating authorities to give their agreement to any modifications that the Secretary of State might suggest. As Ministers in the other place pointed out, this latter restriction could lead to an extraordinary situation. They gave the example that if Cheshire, Shropshire and Staffordshire were to propose to combine, they could veto a modification to restrict the combination to Shropshire and Staffordshire, even though the people of Cheshire were due to vote in a referendum on whether to have a north west regional fire and rescue authority. Therefore, in an example such as that, massive complications would be caused. Obviously, such a proposal is hypothetical but it is an example. As I have already said, many of these issues were raised in the other place.
  The amendments mean that the Secretary of State will have no power at all to act on his own initiative—even if, and when armed with an independent Audit Commission report, there is evidence that improved economy, efficiency and effectiveness might well result from combining authorities or when faced with an urgent need to combine authorities which have failed to deliver on a vital issue of public safety, such as the creation of cross-regional control rooms. We say that

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  that is simply untenable. We are dealing with a national service which is locally delivered and locally governed in many ways. Therefore, it would be untenable to remove the Secretary of State completely.
  The fire and rescue authorities cannot exercise individual vetoes, which is what the amendments would amount to. As we shall deploy over the coming sessions, the Bill requires extensive consultation, including an inquiry in all but the most urgent circumstances or where the matter is, in any event, uncontroversial. To suggest that even then the Secretary of State should be unable to act in the interests of the public as a whole is to say that the Government should abandon their responsibility to ensure an effective emergency service and the best use of taxpayers' money.
  As I said, I reject the arguments of excessive centralism. It is a national service and it is delivered locally in many cases by extremely local people, as in the case of the retained firefighting staff. Nevertheless, there needs to be a power at the centre in the sense that the holder of the purse strings is held accountable if things go wrong—and, believe you me, it will be the Secretary of State who is blamed and not individual fire authorities.
  Therefore, I believe that it would be wrong to cut out the Secretary of State completely in all the circumstances that I have mentioned, and there may be others. Where there are clearly major problems and where, following inquiry and armed with Audit Commission reports and so on, initiation at the centre is required, it would seem preposterous to remove the Secretary of State from that role.
  I hope therefore that, as the answers and questions have not changed—indeed, the example has not changed; it was the one given in the other place—that will satisfy the noble Baroness. However, there will be plenty of opportunities to test the details of the arrangements in the amendments with which we shall deal later.
  3.30 p.m.
  Baroness Hanham: I thank the Minister for his reply, but he will not be astonished to hear that I am not totally satisfied with it. In fact, it is difficult to achieve in amendments the absolute fineness that one wants. It will be no surprise to him to know that, by and large, we think that the Secretary of State's ability to control and direct should be taken out of the Bill. I have some sympathy with the fact that there might be odd occasions when it is necessary, but the Bill makes no such provision. At the moment, the Bill simply makes it very clear that the Secretary of State may, under no circumstances delineated, intervene and force fire and rescue authorities to come together. It is also clear that, under Clause 1, the people who are authorities are laid out but they are subject to Clauses 2 and 4, which we shall consider today.
  I note the example that was brought to the other place, and I also note the role of the regional assemblies, which again come roaring into the Bill. We shall come to contest further the fact that the regional assembly areas—and indeed, the regional development agency
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  areas, on which we had a small skirmish yesterday—are democratic areas, even if the assemblies are elected. We shall also contest whether they are the right way sensibly to combine fire authorities.
  I do not think that I can take the amendment any further at the moment. The whole issue of the Secretary of State's power will come up again as we go through the Bill. In some cases, we may accept that it is justified. However, on a general basis, which is what appears under Clauses 2 and 4, we are not happy with it at present. For today's purposes, I beg leave to withdraw the amendment.
  Amendment. by leave, withdrawn.
  Baroness Hamwee Baroness Hamwee moved Amendment No. 2:
  Page 2, line 7, leave out "may" and insert "shall"
  The noble Baroness said: With Amendment No. 2 are grouped Amendments Nos. 3, 8, 15 and 18. The arguments on both sides are probably much the same as they were on the previous group. I thought to myself that I would not repeat the points, but I will say that none of them are personal so far as we are concerned. I hope that they are not taken personally.
  Our amendments differ from those of the noble Baroness in that we have specifically provided that, if authorities notify the Secretary of State that they want to combine, he shall make an order. However, we have left in the possibility of modifications under subsection (4). I heard what the Minister said about where the buck stops if there is a problem, but why not combine if asked to combine by the authorities in question? That point must be answered as everything else is consequential on it. I beg to move.
  Lord Bassani of Brighton: My noble friend Lord Rooker made all the arguments that needed to be made on the previous amendment, and I would save him the task of repeating them. In truth, I can see very little—and the noble Baroness, Lady Hamwee, has said that there is little—between the two groups of amendments. The only question that was asked in the contribution made by the noble Baroness was: why he should not make an order if there is already local agreement to a form of combination? My guess is that in most circumstances, if the authorities were bringing forward a combination proposal, the Secretary of State would probably be very happy with it.
  There might not be a circumstance when that happens, and you must allow for that. It may be completely ridiculous; it may be a barmy proposition. I cannot believe that sensible fire and rescue authorities would come forward with such a barmy proposition, but there may be circumstances when it just does not make sense in terms of the way in which the services need to be organised. I do not think that we could allow that to creep into the Bill.
  We come back to that important point made by my noble friend Lord Rooker, which is that there might be circumstances where the Secretary of State—by the effect of the drafting of this amendment, were it to be put in place—would be prevented from acting effectively in the public interest, even where he is well

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  armed and well prepared with the proper Audit Commission evidence. The point is that sensible means of combining authorities could be prevented because of the way in which this set of amendments would work.
  One further point that is perhaps worth making—it is an oddity really—is that if we were to agree to Amendments Nos. 15 and 18, and if they were passed in isolation, they would have a strange and perverse effect of allowing schemes initiated by the Secretary of State to proceed without an inquiry. That seems to be very odd, given where the noble Baroness, Lady Hamwee, comes from. Nearly every time that we discuss and debate things such as this, certainly the Lib Dems and our colleagues on the Conservative Benches are keen to ensure that there is the utmost consultation, and in most instances we agree with that. Amendments Nos. 15 and 18 would prevent any sort of consultation or local inquiry as to the effectiveness of the combination scheme. For those reasons, we cannot accept these amendments, both in principle and in detail.
  Baroness Hamwee: The noble Lord knows of course that Amendments Nos. 15 and 18 are not proposed in isolation, but are part of this package. I accept that finding appropriate legislative language to restrict barminess is quite a task, but as it was described, the Secretary of State might not agree with authorities, first in terms of the organisation of the fire and rescue services, and secondly in terms of the public interest.
  The noble Lord has made me think that I want to reread this part after today. It comes hack in one way to what the noble Baroness was saying, but what are the criteria that must the Secretary of State use, and what criteria should be excluded? Are we talking just about the fire and rescue services, or can the Secretary of State say, "I have some other game plan, something else that is related to other bits of organising how government is delivered"? What is the relationship to those? I apologise to Hansard that that is nothing like a proper sentence. He has made me interested in the question of the criteria that will be applied. For today, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 3 not moved.]
  Baroness Hamwee Baroness Hamwee moved Amendment No. 4:
  Page 2, line 12, leave out "economy,"
  The noble Baroness said: Amendment No. 4 is a probing amendment, and not one that the Minister should use as a basis for teasing us for being spendthrift. It is to seek to understand what weight the term "economy" has in this context.
  We are all used to the term "economy, efficiency and effectiveness". The three go together. It has almost become a technical term covering those three limbs. But it is not a technical term. And it must be possible to have one or two of the triumvirate without the others.
  The rationale for the Bill—modernisation—is very much about effectiveness and delivering a modern service in a modern context. We know that modernisation should carry savings in its wake, but that is not its purpose. So I have tabled the amendment in the hope that the Minister can explain the weight of the term judged against efficiency and effectiveness and to help me decide whether that is the right combination of characteristics and whether economy, while always laudable, should have first place, or indeed a specific place on the face of the Bill. I beg to move.
  Lord Rooker: On that last point, if you try to read out these three words in any other combination you get really tongue-tied. They are always presented in this fashion because you would really have to think about saying them the other way around. That answers that point. I do not think that any one word is more important than another; it is just for clarity of reading out. Obviously, this is a probing amendment and I shall not be nit picking on that.
  In Committee in the other place, comments were made that to some Members of Parliament—very suspicious people—"economy" is a euphemism for cost-saving. You could argue that such economy would be an excuse for wasting money. No one in his or her right mind is going to stand up and say that we should proceed with this policy in order to waste money.
  We have the point about efficiency and effectiveness. It was also said that they were euphemisms for cost-savings. In other words, "Let it rip; there's loads of money; please sign the cheque". That is what people normally say to the Government. We have gone over that. That is not the position.
  If the concern is that there is a subtext to any of these words—this is just one chosen for the amendment—I can assure the Committee and the noble Baroness that this is not what "economy" means in this context. It is our intention, and I am sure it is one the opposition parties endorse, that the fire and rescue authorities should continue to be best-value authorities. As such, the Audit Commission will assess them on the extent to which they are achieving economy, efficiency and effectiveness. That wording of course follows Section 3 of the Local Government Act 1999. My three years on the PAC back in 1989–90 branded the words on my forehead and this was the way of tracking taxpayers' pounds to make sure that they receive value for money and we achieve an efficient use of public resources.
  The general use of the term in the National Audit Office and the Audit Commission seems quite uncontentious. It is true if you are a suspicious Member of the other place—there are no such people in this place—you can see other agendas. I want to make it clear that there is no other agenda. We want them to be best-value authorities, assessed by the Audit Commission. These are the words that guide the Audit Commission in its duties. One is no more

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  important the other. I genuinely think that they are always presented that way around simply because they trip off the tongue a lot easier.
  Baroness Hamwee: I suppose they would trip off the tongue more easily if they had started off in a different order. It is often difficult to follow the other place because I have points that I want to raise which may look as though they are the same as those raised at the other end and they are actually quite different. How one ever explains that in tabling amendments, I do not know. They are indeed best-value authorities but, at this point in the Bill, the issue is not how they perform and how the Audit Commission judges them but the decision of the Secretary of State. These are the criteria to which he has to have regard.
  I have hard what has been said and I am not wholly convinced. However, I thank the Minister and beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  3.45 p.m.
  Lord Hanningfield Lord Hanningfield moved Amendment No. 5:
  Page 2, line 13, leave out from "area" to end of line 15.
  The noble Lord said: The amendment seeks to delete Clause 2(2)(b). As it stands, Clause 2(2) is schizophrenic. The first paragraph provides for a proper test for the creation of combined fire authorities—that the scheme can be made if it is in the interests of greater economy, efficiency and effectiveness. Although we believe that such a scheme should be voluntary, that is the kind of test that makes sense.
  However, paragraph (b) completely undermines that test by allowing the Secretary of State to create combined fire authorities if the boundaries are coincidental with those of the Government Offices for the Regions. We have had this argument before. This subordinates the appropriate operational and economic criteria to the political agenda of the Government, which is the regionalisation of England according to entirely inappropriate regional boundaries. As paragraph (b) makes clear, the regions we are talking about were created for regional development agencies, not combined fire authorities.
  Public services should not be strategically organised on the basis of convenience and coincidence. If paragraph (a) sets a proper test for the public, paragraph (b) exposes the Government's real objective regardless of what is best for the public. I can think of no arguments for allowing the Secretary of State to create fire authorities for regions without proving that the sensible criteria in paragraph (a) have been met or would be promoted by the scheme proposed under paragraph (b).
  The Government have not attempted to demonstrate that the Government Offices for the Regions would be the most appropriate operational boundaries for fire authorities, presumably because they know that facts as well as public opinion is not on their side. Let me illustrate my point. The south east has a population of 8 million; the north east has a population of 2.5 million;
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  the north east has an area of 8,500 square kilometres; the south west has an area of 23,000 square kilometres. It seems inconceivable that the most effective way of managing a fire service stretches between these two demographic and geographical situations. It beggars common sense.
  Public safety must be the first criterion for any reorganisation of the fire service. We assume that the word "effectiveness" is underpinned by the principle of promoting public safety. However, paragraph (b) undermines that principle. The Government need to convince a sceptical public that the aim of modernisation is not to promote a political agenda for the regionalisation of England but to improve our fire and rescue services.
  There is no evidence—no supporting arguments at all—that the existing nine Government Offices for the Regions will be the most operationally effective units of our fire and rescue services. If there were no Government Offices for the Regions or the Regional Development Act 1998, and if the Government were modernising the fire and rescue service from a purely "best practice" perspective, we all know that the answer to the question of how best to organise and deliver fire and rescue services would not be based on the current regions.
  That is the case. Fundamentally, the amendment will improve the Bill because it will shift the burden of the argument from convenience and coincidence to improving a public service. I am sure that we will come back to this issue. I beg to move.
  Baroness Maddock: My noble friend Lady Hamwee and I have added our names to the amendment. As usual when we talk about regions, the two parties approach the issues from slightly different angles.
  I am particularly concerned about the very large size of the regions. I probably live in the smallest one—the north east— but even there, in the southern part of our region, there will be difficulties in trying to organise the service across the area and making it accountable to local people. This is what concerns me about the Bill and a great deal of the other legislation on public services that has been dealt with recently.
  For that reason, we do not want this provision in the Bill. However, if the Government carry on with it, what kind of criteria will they use to judge whether the regions are a suitable size to be run as a single fire and rescue authority? It is asking a great deal of people who want to run such an authority effectively.
  On the previous group of amendments, we discussed the criteria of economy, efficiency and effectiveness. However, in regard to other legislation I read that some areas in south-west England, which runs from Gloucestershire to the end of Cornwall, are nearer to Scotland than to the end of Cornwall. The Minister therefore needs to clarify the issue because the areas are large.

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  My main concerns, therefore, are the size and criteria. I believe that the areas are too big and that we will not achieve democratic accountability. I say that much as I agree with regional government, provide of course that it is democratically elected.
  Lord Rooker: Here we go! We cannot escape it. This is the fourth Bill in the past 12 months in which regional boundaries have arisen. I have my own views on them, but the views I give at the Dispatch Box are always those of the Government—unless they are my own personal views.
  The noble Baroness, Lady Hanham, gave a good example. I have never measured the distance but I have seen on a map that Chipping Camden is one of the most northern parts of Gloucestershire. The bit that sticks up, which is about 40 miles south of Birmingham, is in the same region as Land's End. I have given that example previously—it is not new—but I shall resist the temptation to redraw the regional boundaries.
  As this is the fourth Bill in a row where the issue could be raised, there may be an idea that the Government have a plan, a plot or a deadly scheme for regionalisation by stealth. One cannot call open debate in a House of Parliament "by stealth". On the other hand, each Bill has a purpose and in this case it is the fire and rescue authorities. I hope that the concerns were allayed by Nick Raynsford in the other place during Committee stage and Third Reading when he made it clear that the only circumstances in which the Government envisage using the provisions of Clause 2(2)(b) are ones of public safety where the fire and rescue authorities have failed successfully to work together to ensure resilience.
  He cited the example of the failure of the authorities to agree on the siting of, or the operational arrangements for, a regional control room. We believe civil resilience requires that the fire and rescue service is equipped to meet the challenges of the new dimension of both the terrorist threat and environmental disaster. They can be the same thing, but that is why it is important. In order to meet that challenge, the service must be integrated into the work of the regional resilience teams based within the Government Offices for the Regions.
  I realise there is a natural suspicion and I hope that I have given an assurance. Every time we bring forward such legislation, it is possible to raise the issue of the shape of the boundaries and the south east is a good example because Banbury is in the same region as Hastings, Thanet and Guildford. One can look at them and make points about the geographical size of an area as opposed to its population. Heaven forbid that we made everything the same because the beauty of this country is that it is not all the same. The regions are different in size and so forth.
  When the previous Conservative government, in their wisdom, set up the Government Offices for the Regions they wrote these regional maps. That is what they are—they are not new. It may appear to an outsider and onlooker that we are talking about
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  regions constituted under an Act of Parliament of 1998 and that they are therefore Labour-drawn boundaries. We all know that that is not the case. The simple fact is that that legislation mirrored the Government Offices for the Regions. We have not changed the regional boundaries. We have also stated that they are not there forever—I hope that I can knock that idea on the head.
  We have said repeatedly in relation to the other legislation that the place to start was not by redrawing the boundaries through legislation because that would take for ever. It was important to deal with the matters in hand. One issue was a form of elected regional government, which was not the purpose of this legislation. I nearly said "Madam Chairman" but we do not have a chair in this place; there are no orders. I cannot be ruled out of order. That is what is so crazy about this place. I am still working to the rules of the other place and trying to stay in order.
  The point that I was making was that it is important to do the job in hand. We must see whether we can set up regionally elected assemblies. In this case, that is relevant because they would become the fire authorities. We must look at the fire and rescue service and, if it has to be regionalised for various reasons, those boundaries should be used. That is the key job—it is keeping our eye on the ball. It does not mean that at a later date the boundaries will not be reviewed. I can say that because I have said it in relation to other legislation and it would apply no differently to this Bill. Obviously, if the boundaries did change, they would change in sequence for all the items of administration and delivery of functions that we have talked about in the past, whether they are the regional planning bodies, the regional housing boards or the elected regions.
  Throughout the Bill, many of the Secretary of State's powers, although I am not claiming that here, are, indeed, reserve powers. It is not the case that he will wake up one morning and say, "We are going to do this today". He must have a reason for doing it. Criteria must be laid down. What he does must be subject to judicial review and it cannot be done on a whim or a hunch. Nor can it be done as a party-political fix. It cannot happen in that way. I hope that, with those reassurances, which I am sure I shall repeat throughout our debates on the Bill, the noble Baroness will withdraw the amendment.
  Baroness Hamwee: Before the noble Lord responds, in brackets I want to say that I have always thought that it takes a huge talent to chair the House of Lords or a Committee of the House of Lords because of the self-discipline that is required not to intervene and call us to order.
  The Minister made a great exhibition of Clause 2(2)(a) but, if I may say so, he has not begun to explain Clause 2(2)(b). Surely all that he said relates to Clause 2(2)(a). If anything needs to be done in relation to the regional aspect, that can be picked up when we deal with the regional assemblies powers Bill, which we hope to see before too long, and dealt with on a regional basis. But

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  everything that he has explained as justifying the Secretary of State's decision to use the power in Clause 2(2)(b) is set out very clearly in Clause 2(2)(a).
  Lord Hanningfield: I want to ask the Minister one or two questions arising from his comments. When he talked about resilience—I do not really want to quote my own county again—Kent or Buckinghamshire in the south east were very much involved with London resilience. That is certainly a matter in which I have to become involved as the leader of a local authority. Clearly the boundaries—even those relating to terrorist problems, although I hope that that will never be the case—are not regional boundaries; they are based far more around large conurbations or other areas which might be affected by terrorism. The same applies to difficult situations in respect of the fire and rescue service. If there are big fires in London, we all have to come and provide support in those situations.
  I cannot see why the Government want to proceed in this way when we could have smaller systems. Our regions, if we ever have the regions envisaged by the Government, are about the size of a German Länder. Every other European country has much smaller regions. Spain has one or two big regions but all the other countries have far smaller ones. The south-east is about the same size as Austria and yet Austria has 10 regions in it; therefore the south east could have perhaps 10 regions.
  I cannot understand the Government's thinking. I can understand that because of modern technology one could perhaps have fewer control rooms as long as they all work. However, from a fire authority's point of view, most of the world has relatively local fire authorities which are supported by their communities. In Germany people are proud to belong to the fire authorities. They are almost like a club and they are very much supported.
  I do not understand the Government's thinking. I do not understand why they want the areas to be so enormous and so impersonal. The regional paper in the east of England, called the East Anglia Daily Times, ran a campaign and thousands of people wrote in support of the Suffolk fire authority and the Norfolk fire authority and the Essex fire authority. It is not a popular move at all. I really cannot understand the thinking behind the Government in wanting to create these enormous, remote bodies. Although there needs to be efficiency, which can be achieved technically, I cannot understand why they cannot do something that the public might like more.
  4 p.m.
  Lord Rooker: The Government do not want to create these authorities. In the areas where there are no elected regional assemblies, it is not our intention to force this on regional authorities. So for the good people who want to support their local fire services, that is fine. It is only where the local fire authorities do not work together and are clearly operating against the issues of public safety—that would have to be judged as a criterion—that the Secretary of State would use
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  the powers. We do not want to create them where there are no elected assemblies. The east of England and Essex is such a case because no referendum is being held there.
  Lord Hanningfield: Surely the Minister would not expect Cornwall to co-operate with Gloucestershire? That would not make sense. Cornwall would rarely go near Gloucestershire because Devon is in between. There may be times when Devon and Cornwall need to co-operate. I cannot understand why the Government are going in for large regions, although I agree that neighbouring fire authorities would need to co-operate.
  Lord Rooker: I know that Devon and Cornwall have a joint police authority, but I cannot answer the noble Lord. Quite clearly Cornwall is a long way from Gloucestershire. For one to come to the aid of the other would mean travelling through several counties to do so. One would assume that the more local counties would give support. If that were the case, it would mean that they were working successfully together. There are good reasons why there may be contact between Cornwall and Gloucestershire, as they are in the region, but I suspect that there are no issues of public safety and resilience because they are not very near to each other. The local county authorities would be the obvious ones to work together successfully. If they work together successfully there would be no reason for the Secretary of State to intervene.
  Lord Hanningfield: I thank the Minister for those answers. This is an issue that we shall continue to explore as the Bill proceeds. I still want to question why any authority should be forced into this, although I agree that local authorities should work together. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Baroness Hamwee Baroness Hamwee moved Amendment No. 6:
  Page 2, line 15, at end insert—
  "and provided in either case that the Secretary of State does not consider that, in the interests of public safety, a scheme should not be made"
  The noble Baroness said: This amendment does not refer to the point on public safety made in the Commons, which I believe was answered by safety falling within effectiveness. It is provoked by the reference in Clause 2(9)(d) to public safety being taken into account in deciding whether the Secretary of State is to hold an inquiry into making a scheme, varying it or revoking it. I wonder why the same should not be explicit in Clause 2(2). If we are talking about effectiveness and public safety is within the framework of effectiveness, why is the issue dealt with differently in Clause 2(9)(d)? Is it a reason not to hold an inquiry? The decision in the first place and holding the inquiry are clearly different, but is it enough that the Secretary of State has a view to lead him to determine that there will not be an inquiry? I beg to move.
  Lord Rooker: The noble Baroness asked questions about whether the action was in the interests of public safety. She is obviously indicating a genuine concern that Clause 2(2) does not incorporate a specific reference to public safety.
  That being the case, all that I can do is follow what was said by the Minister for the fire service in the other place. I shall repeat the assurance that he gave to the Committee there, which was that the Secretary of State is expected under Clause 21 to discharge his or her responsibility for the fire and rescue national framework in a way that appears best calculated to promote public safety. There are no conceivable circumstances where a Secretary of State would approve a combination over which there was any question mark of such a nature. Indeed, we claim that the whole purpose of the Bill is to improve and extend the protection of the public.
  The issue that the noble Baroness raises is of genuine concern, but in some ways it is answered by the duties in Clause 21. There is no real difference between us there. I shall take advice on the points that she raised about subsection (9)(d), but I do not think that they mitigate what I said about Clause 21.
  Baroness Hamwee: I thank the Minister for that; of course there is nothing between us on the issue of safety. He has heard me ask before why a couple of clauses are not the same, or are the same, and about the issues that that raises. I understand his reference to Clause 21, which I would have thought applied to holding the inquiry. Perhaps not; perhaps the function dealt with under Clause 21 is different. I come at the matter with a small but nevertheless noticeable niggle that, if safety is referred to in subsection (9)(d), it raises a question mark over subsection (2). That is the extent of the niggle. I am not trying to make trouble, but to be clear. As we are in Grand Committee, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 7 to 10 not moved.]
  Broness Hamwee Broness Hamwee moved Amendment No. 11:
  age 2, line 25, after "question," insert—
  "() all local authorities in the area affected,"
  The noble Baroness said: In moving Amendment No. 11, I shall speak also to Amendment No. 12. Again, we are dealing with the issue of consultation. Our amendments would provide that,
  "all local authorities in the area affected",
  would be consulted in the making of a scheme. The amendment was raised in the Commons and is intended to make the same point as was made there. However, I had some difficulty in quite understanding the answer, no doubt because it was a compendium response by the Minister to a lot of amendments that covered related but not exactly the same ground.
  The consultation that we propose does not amount to a veto on the part of any individual or group of authorities.
  It seems to us that to consult all the authorities— after all, they are democratically elected public authorities which would debate the matter in public—is the correct democratic way to go about it. It is also common sense. Anyone who has undertaken a consultation exercise—I am not suggesting that the Government are inexperienced—know that consultees often come up with things that are not wholly expected. They often make good points and they reinforce the importance of consultation.
  In much of this, the name of the game is partnership. All authorities, because of their other roles in dealing with anti-social behaviour and so on, will have views about the fire and rescue services. Perhaps as the services' powers and remits are extended under the Bill, they will have even more comments and directly applicable experience. We may hear that of course the Minister will consult all local authorities, but if that is so, I would like to see it on the face of the Bill. I beg to move.
  Lord Bassam of Brighton: On the face of it, this seems an extremely reasonable proposition. We have had the same debate in many pieces of legislation and we are all in favour of consultation. But it comes down to whether it is proper, right, sensible and practicable to list each and every organisation in the legislation. The difference between us is that we do not believe it makes much sense to do that. However, we are fully committed to the widest possible involvement of all the affected authorities and organisations which might be caught up in a proposal for combination, an alteration in the pattern of their services and so forth.
  We believe it is more flexible to leave listing out of the legislation. For instance, 52 organisations were listed as formal consultees in Annexe E to the draft national framework. The inclusion of some organisations but not others would inevitably mean that those not listed might fear they would not be consulted. That would be especially unfortunate when we have shown in practice that we want to be as inclusive as possible in the way in which we consult.
  Picking up an argument made by the noble Baroness, it may well be that consultees come up with the unexpected. There may well be unexpected consultees—people who suddenly find that in their organisation there is a real and genuine reason for them to be included. Therefore, an exclusionary list would work against their interest.
  I hope that I can reassure the noble Baroness that if it is relevant for an adjacent local authority to be consulted, of course we will want to see it consulted whatever tier of local government it is. There is therefore no desire to exclude people from consultation; our desire is to have maximum flexibility. If an organisation is relevant and important, whether it is a local authority or a voluntary organisation, it has access to the consultation process. We are trying to be inclusive rather than exclusive.
  Baroness Hanham: I want to follow that up. Local authorities are probably one of the most important organisations to consult as their members are representative on the fire authorities. It is not wholly

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  unknown for representatives of local authorities and fire authorities to disagree with their own local authority when the time comes for a decision to be made. There can be disagreements.
  Lord Bassam of Brighton: It is called "going native".
  Baroness Hanham: I did not put it that way, but that is exactly what I am talking about. A proposal as important as this should be tested out with the lead organisation of the representative. Other organisations are involved in fire authorities and the same applies to them. The bodies which provide the representatives are, sine qua non, at least as important as any others. In fact, I think I am probably supporting the amendment.
  4.15 p.m.
  Baroness Hamwee: I shall see you in the Chamber for the next stage. This is not intended to exclude anyone. I want to make that clear. I believe that democratically elected authorities are different from quangos and from practically everyone who is listed in Annexe E of the draft framework. I could make a case for referring to those who currently work in the service. I would not expect to list them in detail. There is a difference of quality when one refers to local authorities.
  The annex to which the noble Lord has referred mentions the Local Government Association, quite rightly. This is not intended to be a criticism of the Local Government Association, but if it is collecting other people's views inevitably there will be a filtering exercise. I do not believe that that is right. Chairs of fire authorities are mentioned and I am sure that we shall return to this matter. There is something very important here. By including this in the Bill, the Government will not lose out, but will gain Brownie points and will certainly make me feel more comfortable, without impugning what the Minister has said.
  Lord Bassam of Brighton: Perhaps I can ask the noble Baroness which authorities she believes in the end we would exclude by adopting what I see as the more flexible approach that the Government wish. Is she worried that people may not listen to adjacent authorities? Is she worried that people may not listen to constituent authorities? About which authorities is the noble Baroness concerned?
  Baroness Hamwee: I cannot answer that question. I am not in the Government and the Minister may not be in the Government who operate the clause in 20 years' time. We have been here before. We shall not make headway today so I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 12 and 13 not moved.]
  Baroness Hamwee Baroness Hamwee moved Amendment No. 14:
  Page 2, line 37, at end insert "by an independent inspector"
  The noble Baroness said: Amendment No. 14 is grouped with Amendment No. 17. The amendment probes who will undertake the inquiry referred to in Clause 2(9). Will it be an independent inspector? Can the Minister explain who will carry out the job?
  In Amendment No. 17 I refer to Clause 27 which provides for the appointment of inspectors, but those are inspectors to check on how an authority is performing, not on the making of the scheme in the first place. I have tried to find another reference in the Bill to inspectors and there is one in Clause 55. which has the title "Inquiries: supplementary", but that appears to concern the powers that apply to an inquiry, and not to its function or objective. I beg to move.
  Lord Rooker: I hope that I shall be able to satisfy the noble Baroness. Amendment No. 14 seeks to ensure that an independent inspector should carry out an inquiry held into a combination scheme. On the face of it, this is unnecessary. However, there is a problem. When the amendment is read, as we believe it must be, in conjunction with Amendment No. 17, it clearly intends that those appointed under Clause 27 as Her Majesty's inspectors of the fire and rescue services should fulfil this role.
  There are many important roles to be fulfilled by Her Majesty's fire services inspectorate, not least the professional advice it provides to the Secretary of State. But its expertise does not extend across the full range of issues of an inquiry under Clause 2(8) that it would be expected to address. These include a range of governance issues, the extent to which a proposed combination will test economy, efficiency and effectiveness, and the impact on public safety.
  I am advised that it would be normal to appoint as chair of such an inquiry someone with expertise in considering evidence from a wide range of parties, drawing conclusions and making recommendations. He or she would need the benefit of the operational side and technical advice, for whose provision the fire services inspectorate would be ideally suited, as well as an input from the Audit Commission on best-value matters and others as appropriate. However, because Amendment No. 17 misunderstands the role of the inspectorate in relation to such inquiries, we believe that it is fundamentally flawed. As a result, Amendment No. 14, which would otherwise simply be redundant, is flawed by extension.
  I know it is horrible and I feel bad about saying it—it is terrible what I used to say about them—but the kind of person I have just described is the pinstriped barrister twit sent from London to Birmingham to conduct parliamentary boundary inquiries because he had the expertise in listening to arguments, weighing up evidence and writing a report. Most of that they did successfully but sometimes unsuccessfully.
  Lord Hanningfield: And on the same lines throughout the regional agenda.
  Lord Rooker: It is a terrible thing to say about my learned friends, but it is one of those things. In other words, because of the nature of the job of chairing, it is not for the fire services inspectorate. It would have a massive input because of its technical expertise, but the job of drawing the evidence together is beyond the range of expertise and experience of the fire services inspectorate.
  I will never take through a Bill for the lawyers in this place, that is for sure! With that explanation, I hope that I have satisfied the noble Baroness. The points she raises are legitimate, but the nature of the inquiry is such that another class of expertise would be best chairing it.
  Baroness Hamwee: Personally, my entirely prejudiced assessment of these people is in direct relationship to the width of the pinstripes. I am not sure that the Minister has answered the point technically about what an inquiry is under subsection (9). One is so used to seeing inquiries hedged about with provisions on how they are to be held and here the term arises without explanation in the middle of a Bill;
  "cause an inquiry to be held".
  I do not know how you define "pinstriped twit", but I take the point made about the expertise being different. It seems to me that "inquiry", even if it is put with "held", could be something quite informal. That is really what I was driving at. However, having exchanged sartorial comments with the Minister, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 15 not moved.]
  Baroness Hanham Baroness Hanham moved Amendment No. 16:
  Page 2, line 39, at end insert—
  "and shall only proceed with the proposed scheme, variation or revocation as the case may be if the inquiry concludes that the making of the scheme, variation or revocation is in the interests of greater economy, efficiency and effectiveness of the fire and rescue service or services concerned"
  The noble Baroness said: I am just ruminating as to whether the Bar Council is at the moment leaping to find out whether it can sue the Minister for undermining its members. I am sure that we will see about that later.
  Both Amendments Nos. 16 and 30 would ensure that the powers of the Secretary of State both to initiate a scheme for creating combined fire authorities and to revoke or vary such a scheme—in effect his powers of intervention, control and pursuing a regionalist agenda at the expense of what is best for the public—would be limited by the findings of an inquiry that would focus only on answering the question whether the Secretary of State's plans would deliver greater economy, efficiency and effectiveness of the fire and rescue service concerned.
  This is a modest hurdle. The fire and rescue services and the public will need to be assured that the modernisation, or the bringing together of formation service, is not premised on regionalisation and centralisation, but on delivering improvements and the best possible service structure. They need to know that there is a process that protects the public interest. An inquiry that finds that the Secretary of State's regionalisation plans would not promote greater economy, efficiency and effectiveness of the relevant fire services cannot be ignored. It would need to be taken into account. Only an inquiry can decide whether the Secretary of State's plans are genuinely in the public interest, or possibly, a political agenda with no operational merit.
  I say that not in terms of doubting this Government but, as the noble Baroness, Lady Hamwee, keeps reminding us, this legislation might last for a long time, and its implementation will not be carried out by those of us who had anything to do with it. The Minister may say that there will be consultation—I am sure that he will. That is insufficiently rigorous, because the Government can, if they wish, ignore the results, or some of the results, of that consultation. The Bill needs teeth to ensure that the Government are obliged to act in the interests of the people, and, most importantly, of the service. The principle behind this amendment is important. Central government control and the political agenda of regionalisation need to be judged according to what is best for the public and the future of the service. I beg to move.
  Lord Rooker: This is another amendment that limits scope for action by the Secretary of State, and I am fairly confident that I can give a response that will be acceptable. The point is made that only if an inquiry agrees that a combination scheme or a variation or revocation of existing schemes is justified on grounds of economy, efficiency and effectiveness can it proceed. The primary purpose of this is to prevent combination along regional lines envisaged in Clause 2(2)(b). I hope that I have already given assurances there. They are significant assurances about the limited circumstances in which we would use that power.
  Indeed, in those limited circumstances, sometimes to wait for an inquiry might not be in the interests of public safety. I remind your Lordships that the Government agreed to an inquiry being the norm, in response to representations made in the other place. This was not in the Bill to start with. We have accepted that it should be the norm, and having agreed to it, I assure noble Lords that we are hardly likely to ignore the findings of the inquiry. If an inquiry came to the conclusion that economy, efficiency and effectiveness were not best served by a particular combination, or a change to a combination, the Secretary of State would be obliged to have regard to it. It would be a foolish Secretary of State who decided to proceed on the basis of such an inquiry. He would have to have very good reasons, having had such an inquiry. The point is that the Secretary of State must take account of an inquiry that came to such a conclusion. He cannot simply ignore what an inquiry would say.

  GC 257
  Therefore, we think that the amendments are unnecessary in the circumstances. I cannot be any stronger than that, because one cannot envisage the hypothetical circumstances—that is all we are dealing with—of what might happen as a result of one inquiry in one part of the country, as opposed to another inquiry in another part of the country. The Secretary of State might take a different view, and circumstances might be different. Needless to say, as I have said before, he would not be able to act on a whim or a hunch, having had the results of an inquiry that said, "Don't do it on these grounds". If one proceeded down that road without a good, clear and transparent reason, that would be the subject of a judicial review by interested parties.
  Baroness Hanham: I thank the Minister for that reply. I appreciate that he will become tarred with the issue of regionalisation. It is important to be certain that in an inquiry that found against regionalisation and against the whole process, matters would not be overridden because of a wish to regionalise. That is what lies behind this matter. Even with regional assemblies, if that were the situation it may still not be appropriate for the service to be regionalised and it might still be the wish of the Secretary of State to do so. One has to be very clear that with an inquiry held under those circumstances there would be no question of the Secretary of State not bowing to the result of the inquiry. I have heard sufficient from the Minister on this amendment. It is an area to which we shall return at a later stage. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 17 and 18 not moved.]
  4.30 p.m.
  Baroness Hanham Baroness Hanham moved Amendment No. 19:
  Page 3, line 12, leave out subsection (10).
  The noble Baroness said: To some extent Amendments Nos. 19 and 20, which would remove subsections (10) and (11) of Clause 2 respectively, are probing amendments. Whether they were discussed in the other place or not, I cannot make head or tail of them. I hope that the Minister will clarify why the subsections are in the Bill. Perhaps I can try to make sense of this matter. Subsection (11), which is dependent on subsection (10), bypasses the requirement that an order must come into force to have effect. Although at the end of subsection (11) there is a proviso that a scheme,
  "may not come into force before the order or provision does",
  in subsection (11)(a) the Bill states that a scheme under Clause 2,
  "may be made as if the order or provision referred to in subsection (10)(b) were in force".
  Perhaps the Minister can explain the reasoning behind the two subsections or perhaps the reasoning behind the explanation of the two subsections. If the issue concerns the sequence of order making in
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  establishing a particular scheme, can he illustrate how and why the two subsections might be necessary and how and why they are expected to work? I beg to move.
  Lord Bassam of Brighton: As the noble Baroness said, these issues were debated in another place although they did not proceed to a vote. Consequent to that, we thought that the technical explanation provided by our ministerial colleague in the Commons was considered to have answered the point. As I understand it—I have not read Part 4 of the Local Government Act 1972 or the other related pieces of local government legislation—the intent of this provision is to ensure that local government reorganisation, and any consequent reorganisation of fire and rescue service boundaries, proceeds in tandem. That is what those two parts of the clause achieve. I do not suppose that I need to spell it out much more than that, other than to say that obviously if there is a local government reorganisation, and it does have implications for the reorganisation of fire and rescue services, it makes sense to do these things in an orderly fashion and to achieve transition in as smooth a way as possible.
  I have been involved in a local government reorganisation, and I know that the noble Baroness, Lady Hanham, has also been involved by implication. That is what the technical impact of these two parts of Clause 2 achieve. Where boundaries need to be changed, the Government would have to be satisfied that existing fire and rescue services continued to cover their current areas of responsibility until new authorities were established, and that the new authorities operate seamlessly from day one. That is difficult to achieve in any reorganisation, as we all know. Subsections (10) and (11) allow the development of a combination scheme to proceed in parallel with any relevant local government reorganisation, so that there are no gaps in the overlap or transition period. I hope that satisfies the noble Baroness. If not, no doubt she will come back.
  Baroness Hanham: I am as satisfied as I can be. I still cannot make sense of the orders of the sections. I am not a lawyer, as everyone will know. I cannot understand how lawyers can get themselves into such a confusion. The explanation given by the Minister was straightforward. The two subsections are completely opaque, it seems to me—
  Lord Bassam of Brighton: If it helps, when I read them at first, I thought, "What does this mean?". Clearly, it has something to do with the way in which a process is put in hand. That is actually the explanation, at the end of the day.
  Baroness Hanham: I had tumbled to that. It was just unclear how the process was legitimised by these two subsections. I will not tangle any more with the Minister or with the parliamentary draftsmen on this. We have had an explanation of what it means. I am grateful, and I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 20 not moved.]
  Clause 2 agreed to.
  Lord Hanningfield Lord Hanningfield moved Amendment No. 21:
  After Clause 2, insert the following new clause—
  "REGIONAL MANAGEMENT STRUCTURES
  (1) The Secretary of State shall within 12 months of the coming into force of any Part of this Act—

  (a) commission an independent study to establish the optimum geographical areas within England for the organisation of fire and rescue services; and

  (b) commission an independent study of the impact of any existing regional management structures on—

  (i) operational effectiveness of fire and rescue services,

  (ii) cost-effectiveness of fire and rescue services, and

  (iii) management capability of fire and rescue authorities.

  (2) Upon receipt of the reports of the studies referred to in subsection (1), the Secretary of State shall cause those reports to be published."
  The noble Lord said: Amendment No. 21 is drawn widely, and touches on all the fire authorities in England with the exception of the London Fire and Emergency Planning Authority. It addresses the compulsory and arbitrary regionalisation of the fire and rescue services on the basis of the existing regional development agencies or the Government Offices for the Regions. Clearly, that is the issue that we referred to in several other amendments this afternoon. The Commons ODPM Select Committee looked at the Government's proposals on regionalisation and said in paragraph 81 of its report:
  "The draft framework emphasises the importance of local solutions to local needs, and highlights that there is no national blueprint. Yet Fire Services and Authorities appear to have no choice about adopting a regional approach".
  We have always accepted that there is a case for harvesting the efficiencies of co-operation by doing certain things at supra-brigade level, but that must be a bottom-up process that starts with individual fire authorities collaborating together, not a top-down process in which the Secretary of State directs fire authorities to work in certain ways. It must be driven not by the Secretary of State's demands, but by the accountability of fire and rescue authorities to local taxpayers and by their best-value obligations. That is already happening, but not necessarily on the geographical boundaries that Ministers seek.
  We accept the case for common procurement to ensure interoperability and the need to co-ordinate the response to non-conventional threats at a higher level than that of the individual brigade. None of those arguments, however, points to a government-dictated organisation of fire and rescue services along the geographical lines of the Government Offices for the Regions. Fire and rescue services are a local government function and, under modernisation, they are charged with becoming more of a community
  GC 260
  service. They must be managed and run closer to, not further away from, the local community that they serve. We must never forget that, even in the environment in which, sadly, we now find ourselves, at least 90 per cent of a fire and rescue authority's work will continue to be performing community-based traditional roles as well as the new, important role of fire prevention and education.
  The Government have not produced a shred of evidence to establish the benefit to public safety of choosing the structure of the existing Government Offices for the Regions as the basis for imposing regional management boards, the use of those regions as the basis for the combined fire authorities of the future, or, indeed, for reducing the 49 existing control rooms to just nine in England. We need convincing evidence that the regions chosen by the Government are the optimum regions for fire and rescue purposes and that they will not merely reduce costs but will meet the Government's avowed criterion of improving public safety.
  I was interested in the fact that earlier the noble Lord, Lord Rooker, said that he might have his own views about regions. When he replies, perhaps he will be able to give us some of those views. For example, the Government have not explained why it is right and appropriate to have one control room in the north-east region with a population of 2.5 million spread over 8,000 square kilometres, and one control room in the south-east region with a population of 8 million—the size of Austria—spread over 19,500 square kilometres.
  Resilience will be achieved by common equipment and operating standards. The reduction of 49 control rooms to nine is about saving costs. There is nothing wrong with saving costs, but it is not the Secretary of State's role to deal with such matters in a locally based, locally accountable service. He should deal with resilience, but economy of operation should be dealt with under the best-value arrangements and through the accountability of democratically elected fire and rescue authorities to their local electorates.
  The truth is that the Deputy Prime Minister has been scratching around to try to find some powers for his pet regional tier to counter the repeated accusation that it is a hollow promise. The fire and rescue services are being regionalised by stealth through the regional management boards, the inevitable withering of the management capability of individual fire and rescue authorities, and by the regional fire authorities that the Secretary of State will impose on any region that elects to have a regional assembly in a referendum. Incidentally, that demonstrates the untruth of the Government's repeated statement that any extra powers given to elected regional assemblies will be handed down from central government and not drawn up from local government. Those extra powers will clearly come from a diminution of local government power and responsibility.
  We will never accept that public safety should be subordinated to the Government's regional agenda through the imposition of a sub-optimal regional structure. I re-emphasise that we object not only to the

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  introduction of a supra-brigade level for certain purposes but to the transparently political use of existing government office regions.
  This new clause would also require an independent study to be carried out on the impact of the existing regional structure. That will be a structure of regional management boards and any regional combined fire authorities that the Minister creates when the study is conducted. That is the best that we can do within the structure of the Bill as the regional management hoards are not created by the provisions but are part of the national framework document.
  If the proposed reports were carried out, they would show whether there was a better way of organising supra-brigade level activity and whether the Government Offices for the Regions structure was really a cost-effective way of organising fire and rescue services. They would also show what impact it was having on fire and rescue authority management capability, which, inevitably, appears likely to wither as a result of the transfer of responsibilities up to regional management boards. That process would be entirely objective.
  If the Government are confident that the best interests of public safety are served by the Government Offices for the Regions and that they are the best and most appropriate units of organisation, they have nothing to fear in accepting the new clause and commissioning an independent report so that we can all see some independent underpinning of the Government's position. The public would then be able to see for themselves whether the structure was designed primarily to enhance public safety rather than to advance the Deputy Prime Minister's regional agenda. I beg to move.
  Lord McCarthy: How long does the noble Lord think this will take? He will have to commission an independent study, find people to undertake it and service them. They will then have to decide what the optimum geographical areas are within England for the organisation of fire and rescue services. People may not agree with that: they may want to debate the issue to decide whether it is right.
  The noble Lord would then have to commission another independent study of the impact of any existing regional management structures. Does that mean that while the second inquiry is going on it will be all right for the Government to set up new regional management structures? If not, there would not be many to be examined; they would not have much impact.
  How long will all this take? Does the noble Lord feel that all the matters the Government are suggesting to us, and which the Bain report suggested, about the need to get on and create new authorities based upon the formulae of integrated risk-based management are somewhat urgent? Is he saying that all this can go on irrespective of the consequences while the inquiry is sitting, or would it all have to stop?
  4.45 p.m.
  Lord Hanningfield: I thank the noble Lord for that question. We already have, of course, the regional management boards. They had to be established by 1 April and so they are there. Obviously the suggested new clause would open the door to something we have wanted for some time—a consideration of the boundaries for the regional areas. I would be interested in the Minister's comments because I believe everyone accepts that there should be some rethinking of the boundaries. The amendment offers the opportunity to do that and it could be done as quickly or as slowly as people wish to do it.
  The amendment would clearly open a new dimension, which the Government would be reluctant to do. One can understand sometimes why they are reluctant because, once one opens a Pandora's box on boundaries, there will be a great deal of debate on the issue. But, if we are going to proceed, surely it is better to have that debate and get the thing right.
  The Minister said in reply to my earlier amendment that the boundaries could be changed in due course. But how can they be changed if we continue to set up structures based on these boundaries? It would cost a lot of money to do so. We are talking about a very important emergency service for which the public has a tremendous regard. It has been through a series of difficulties over the past few years and therefore, if we are going to do it, now must be the time. We tabled the amendment because we feel that now is the right time to review the process in order that we may get the best possible structures for the safety of our country.
  Lord Bassam of Brighton: The noble Lord, Lord McCarthy, put his finger on one of my concerns: that essentially the amendment is a recipe for delay before we can proceed with what the noble Lord, Lord Hanningfield, agrees is an important agenda—that is, the modernisation of the fire service. We agree on that. Where we disagree, obviously most profoundly, is on the way in which that should be achieved. The noble Lord said, essentially, that any modernisation should be bottom up. We agree that that is highly desirable. But the Government obviously have a responsibility to ensure that they see through the modernisation, and we can probably both agree that there is a need for a fair amount of determination to ensure that that is the case.
  I shall deal with the specifics of the amendment. Our ministerial colleagues observed in the debate in the other place that, unless the Opposition are turning the clock back on the modernisation agenda, a study of the boundaries of Government Offices for the Regions—which the noble Lord's party introduced when it was in power—is rather academic. The pure research suggested in the amendment seems even more academic. I am not sure what its benefits would be today, and I am certainly not sure what its benefits would be in terms of this legislation. We all have our views about boundaries, but pure research on the optimum geographical boundary seems to be

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  somewhat rarified when we are considering the ways in which the services themselves can be better run, better modernised and better organised.
  The second issue is probably one of more practical concern. I can confirm what was said in another place. It was said that rather than wait for studies to be commissioned within 12 months of the Act, we have already agreed that the Audit Commission, which, after all, is an independent body—one not established by our Government but by the noble Lord's government when they were in power—will take on this task. On 25 February it published a consultation paper setting out its draft comprehensive performance assessment on fire and rescue authorities. It proposed to implement it early next year, with the outcomes publicly reported before the autumn of next year.
  An important part of the CPA process will obviously focus on value for money. It is also planned specifically to assess the effectiveness of the work undertaken through regional management boards and to report on the management capability of individual fire and rescue authorities. In other words, it is planned to address the very issues covered by the second part of the amendment. And it is planned to address them sooner rather than—as the amendment envisages—later. I hope the noble Lord can accept that and that that will enable him to withdraw his amendment.
  In this legislation we are trying to modernise and improve the way in which fire and rescue authorities work. We have no desire to take away from them the full responsibility for fire safety work, the response to fires, the response to road traffic accidents or any other emergencies to which they respond through their current service planning. Therefore, we do not see the need for the amendment. We think in any event that the second part of it is covered by the Audit Commission's proposed study into the way in which the original management boards operate. We think that the consideration of the boundaries in the way in which the noble Lord suggested is rather a secondary consideration. We want to make sure that these things work well. Navel gazing about getting to a state of perfection on regional boundaries does not best serve us when we are looking at the modernisation agenda for the fire and rescue authorities.
  Baroness Hanham: Does the noble Lord, Lord Rooker, think that this obsession with taking on the regional environment has waltzed a whole lot of legislation into considerable problems—perhaps this Bill almost more than any of the others? The regional management boards are already there. It keeps on being pointed out that the previous government set up the government offices. But the government offices were never meant to be anything more than an administrative base. They were never meant to be the centre for democratically elected government. Their whole purpose was entirely different. Somehow this Government seem impaled on regionalisation against those boundaries.
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  In fact, the whole Bill would work perfectly well without any question of regionalisation. The bringing together of authorities could be done perfectly well without any question of regionalisation. My recommendation to the Government would be to take the whole question of regionalisation out of the Bill and to concentrate on bringing the fire services together in the most useful, comprehensive and efficient way, and make it work not only in running the service but to protect the public.
  This whole obsession with regionalisation merely clouds issues all across this particular Bill and other legislation.
  Lord Hanningfield: I endorse what my noble friend said. No one is disputing that the fire service needs modernising. We all agree on that. The fire authority for the most part falls into substantial organisations. To be modernised they do not need to be regionalised. We agree that they need to co-operate. In particular, neighbouring authorities need to work together. That is different from creating regional fire authorities.
  As my noble friend said, we keep having it thrown at us that our government created the regional offices. We know that they created the regional offices. I was the regional chairman for further education colleges. We were based in one office. The highways office for the region was based in another office. Another group was based in another office. It made absolute sense to put all the offices together in one group of buildings. I was part of that grouping as regional chairman of the further education colleges.
  No services were run there: they were all run at different places. The Government are now trying to deliver services from what were supposed to be outposts of the Civil Service. So that is a totally different agenda altogether.
  If the Government want to pursue the regional agenda and to create regional fire authorities, it should be done on the logical basis of which ones should sensibly work together. I do not like to keep referring to my own authority, but it has much more business with London, Hertfordshire and Kent than with north Norfolk. It is crazy. Much as I love north Norfolk—my mother came from there—one feels as though one is going back 20 years or so. In Essex we are modernised, different and part of the London conurbation.
  Going back to the south west, we are creating artificial things, which will not make anything any better. If you want to have regional fire authorities, it would be much better to look at the map and say: "Well, these fire authorities are similar. They work together. They can help London if there is a problem". And to do it properly. Rather than do something that does not make any common sense at all.
  To continue to pursue a regional agenda, someone has to sit down at some stage and make sense of the boundaries. We might as well start some time. That is why we tabled the amendment. We are putting the issue together as necessary to modernise the fire service without regional fire authorities. It might take a few

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  months to do it. We can carry on the modernisation agenda without having regional fire authorities. But let us make some sense of it. I wish the Ministers would admit that and let us get on with it and start some time. Perhaps they would like to comment on when we can start to make some sense of this whole thing.
  Lord Bassam of Brighton: Let us go back to the core argument. The noble Lord is really suggesting that we have this massive regional agenda, but that it should be held up while we consider one piece of legislation that relates to the modernisation of the fire service. While that is going on we should hold up the whole process of modernisation so that we can just go back and check whether we have all these regional boundaries right, not just for the fire service presumably, but also for a whole range of other regional functions.
  If that is what the noble Lord is suggesting, clearly that is nonsensical. As we have said, we can have lots of arguments about whether boundaries are right. I lived in north east Essex for the first 19 years of my life. I am not sure I consider myself to be part of Greater London. I had more affinity with southern Suffolk on the borders.
  We can always have that argument. But I do not think it is right to hold up modernisation and then to have that argument. That is essentially what the noble Lord suggests. That makes no sense at all. There are many good reasons for working to ensure that we get that agenda moving more quickly, so that we can bring those efficiencies into place; so that we can work across services; and so that we can change how the service works and work with the service to achieve that change in a co-operative and understandable way.
  As to whether fire authorities are the wrong size to carry out some of the services, that is obviously a debatable point. This much must be the case: some fire authorities acting and working on their own are not always best able to carry out those functions. For instance, the Isle of Wight fire authority provides a service, which is there for the island, but there may well be times when it requires and needs support from other fire services. It is for such reasons that we need to move this agenda on and to carry on with the modernising approach. I am sure that the noble Lord would understand and appreciate the point I am making here.
  This is not the right way to deal with the issue the noble Lord identified. It is not about our obsession, it is about making some good sense and some progress in modernising the fire service; making it more relevant to the demands that are currently being placed on it; and ensuring also that we get good value for money.
  5 p.m
  Lord Hanningfield: We shall continue the debate for the rest of this legislation and probably other legislation, as we have done in past legislation.
  The Isle of Wight obviously has to work with someone. It is an island. Hampshire is the place it works with. I am not sure whether the Isle of Wight needs to work very well with Oxfordshire or Kent, as
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  it has to under these arrangements. They are rather a long way away. It would be much better to have some simple arrangement in which the Isle of Wight works with Hampshire.
  I still dispute that the modernisation could go on without this complication of talking about creating regional fire authorities. The whole thing is becoming a nightmare. One fairly obvious region of Newcastle and the area around it and the whole of the rest of the country is artificial. Perhaps Yorkshire and Humberside should be together. But the rest of the country is so artificial that I am describing it as a nightmare. I have to live with this nightmare all the time these days in various capacities. I wish other people would recognise that. Someone is going to have to undo the provision. We will have to undo it one day. It seems silly to keep on creating these provisions. But we shall carry on talking about the matter during the Bill, so I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 3 [Creation of combined fire and rescue authorities: supplementary]:
  Baroness Hanham Baroness Hanham moved Amendment No. 22:
  Page 3, line 30, at end insert "and which, in the case of a scheme made under section 2(3)(a), have been agreed to by the authorities in question, and in the case of a scheme made under section 2(3)(b), have been considered by the inquiry held under the provisions of section 2(8)"
  The noble Baroness said: This is a small amendment to ensure that the Secretary of State does not get carried away when dealing with Clause 2(3). In subsection (3) he has two possibilities, one is agreeing to a scheme that has been put forward to him by authorities and the other is on his own initiatIve. The amendment would seek to limit his ability to go outside the scheme—either one put forward initially by the authority or agreed to in an inquiry—and subsequently to make up some of his own rules or have his own ideas and put those forward without the agreement of the original authority or outside the inquiry.
  It is a small test to ensure that the Secretary of State does not go dancing off on his own frolics any more than he can do already.
  Can the noble Lord in reply—and if he cannot do so now he might let me know subsequently—enlighten me as to what a "body corporate" is on page 3, line 27? I beg to move.
  Lord Rooker: Amendment No. 22 is a continuation of the theme of other amendments. It suggests that in the case of a voluntary combination submitted by fire and rescue authorities, those authorities should have a right to veto any amendments the Secretary of State chooses to make. As we have said throughout the passage of the Bill, the fire and rescue service is—among many other things—an emergency service; and the Government must be able to take a wider view of the public interest than that taken by individual fire and rescue authorities themselves.
  We do not act lightly, nor, as I constantly say, on a whim or a hunch. Nor do we do so without consulting those affected. But to say that we cannot act in the best

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  interests of overall national resilience is to place an unreasonable restriction on our constitutional responsibilities.
  The suggestion that we might make provision in a combination scheme that has not been part of a detailed inquiry under Clause 2(8) is incorrect. Clause 3(3) covers the main issues that a scheme might include. I want to make it absolutely clear that there is no question of Clause 3(2) being a Trojan horse for unidentified further provisions. The phrase used is "supplementary and incidental". Subsection (2) states that the,
  "scheme under section 2 may, subject to this section, make any supplementary and incidental provision which the Secretary of State considers appropriate".
  That means what it says—in case that is queried—"supplementary and incidental". It does not mean "substantial" and it does not mean "subsequent". That is normal language.
  No notes have arrived on what "body corporate" means, but there are loads of bodies corporate about. It means legally a person. I am not a lawyer but I know that this makes it a person so that it can act and do things that people can do. Companies incorporated under the Companies Act are bodies corporate. It gives a legal entity to the structure of the organisation, so it can do things that people can do. It can buy and sell property and so on.
  Therefore, it is a normal term. It is not something we have invented for the Bill. It is not part of the regional agenda. There is no regional agenda in that sense. There is no ulterior motive in using that phrase. It is perfectly normal. So, it is a legal body; it is treated as though it was a person. The lawyers among us, of whom I think there is only one—there are plenty of barrack-room lawyers—will understand what I have said and that it is true. On that basis, I hope the amendment can be withdrawn.
  Baroness Hanham: I am grateful to the Minister for his reply, particularly about the body corporate. I am sorry I brought it in, but it has been bugging me for some time. People keep asking me about it in relation to regional assemblies. A number of RDAs are apparently being constituted as bodies corporate. It is an interesting construction of bodies that are using public money. It is something that I do not want particularly to pursue at the moment, but it is a matter of legitimate interest, which has suddenly arisen as a result of regionalisation. That is where it first started. I know of no local authority that is a body corporate. Indeed, under the Local Government Act it would not be allowed.
  Lord Rooker: Local councils are bodies corporate. The leader of a very powerful local authority, who is sitting next to the noble Baroness, will understand that. His local authority is a body corporate. Nothing has been invented for this Bill or the fire and rescue services, or the regional agenda, in terms of bodies corporate. It is not new.
  Baroness Hanham: I accept what the Minister says. I am glad I raised the matter because now I have been
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  enlightened. As far as the rest is concerned, I do not wish to pursue the amendment further. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  The Deputy Chairman of Committees (Lord Lyell): We come to Amendment No. 23. Your Lordships will see that in the list of groupings we are also covering Amendments Nos. 24 and 25. I have to advise the Committee that if Amendment No. 24 were agreed to, I should not be able to call Amendment No. 25.
  Lord Hanningfield Lord Hanningfield moved Amendment No. 23:
  Page 3, line 33, leave out "or by the Secretary of State"
  The noble Lord said: In moving Amendment No. 23, I shall speak to Amendments Nos. 25, 26 and 27. I accept that, as the Deputy Chairman said, they will fall if Amendment No. 24 is agreed to. They deal with supplementary and incidental provisions, which the unwary reader might be led to think are of minor consequence. In fact, a careful reading of the clause shows that those supplementary and incidental provisions include fundamental matters that relate to combined fire authorities that would be established under Clause 2.
  I suspect that the Minister will not be surprised to learn that these amendments target the right of the Secretary of State to appoint 50 per cent of the members of the combined fire authority, minus one, which would give him a huge say in the running of that authority. The Government have argued that, for reasons of democratic accountability, it would be appropriate for regional fire and rescue authorities to be accountable to elected regional assemblies, should regional assemblies be created. It is slightly disingenuous for the Government therefore to argue simultaneously that they must be allowed to appoint half the members of any such authority.
  If combined fire and rescue authorities were created other than as a result of the establishment of elected regional assemblies, there simply would be a naked transfer of power from local authorities to the Secretary of State; a provision that undermines most, if not all, of the Government's rhetoric about wanting to remove the hand of Whitehall from the affairs of running fire and rescue authorities. The Secretary of State has no such powers of appointment at the moment. I am curious to know how a government who profess to the creed of localism can possibly justify seeking to give themselves, in effect, the power to appoint half the members of a combined fire and rescue authority.
  The provision more than any other in the Bill underlines the Government's centralising tendency, and suggests the hollowness of the apparent commitment to decentralise.
  That is the essence of the reason for tabling Amendment No. 26. Amendments Nos. 23, 25 and 27 are consequential amendments, drafted to deal with changes to the Bill that would be required if the

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  Secretary of State's right to appoint members of a combined fire authority were deleted, as Amendment No. 26 seeks to do. I beg to move.
  Baroness Maddock: Several amendments are grouped here. I have a great deal of sympathy with what the noble Lord, Lord Hanningfield, has just said. We should be grateful if the Minister could explain the rationale behind this scheme; how it would work and why they are again creating a slight democratic deficit. I do not know who the Minister will appoint to these boards. We do not have any information on that. I note that in Amendment No. 27, which would delete subsection (5) of Clause 3, that there is some concern that when voting, particularly on the precepts, the majority is elected members. For my part, I am a little confused as to the rationale behind this provision and exactly who is going to be on these authorities. I concur with many of the points made by the noble Lord, Lord Hanningfield.
  Lord Bassam of Brighton: I am grateful to the noble Lord, Lord Hanningfield, and to the noble Baroness, Lady Maddock, for explaining their amendments. The noble Baroness is right to ask for the rationale behind this provision. That is only fair.
  The arguments were, however, well rehearsed in another place. I want to say at the outset that it is not the Government's primary motivation in seeking the power to appoint to enhance central control. Our primary motivation is to improve the quality and the delivery of a vital service. Clause 3(4) makes clear that Secretary of State appointees will be a numerical minority. It also makes clear that they will not be allowed to take part in votes on precepting—to deal with the point the noble Baroness raised—and that only elected members will be able to do so.
  Furthermore, to guarantee that Secretary of State appointees are independent, they will of course be appointed based on their ability. The advertising will be entirely open, as it should be, and entirely in accordance with the Principles of. Public Life, set out in the Commissioner for Public Appointments' code of practice—commonly described as the Nolan principles.
  I also want to make it clear that the Government's firm view is that where combination has to be undertaken to tackle failing authorities, it would be contradictory and counter-productive to restrict appointments to existing authority members. Where capacity is needed to deliver modernisation, Clause 3 will be used to bring into new authorities the wider experience and knowledge which they lack—whether that is managerial, financial, personnel or relating to other professional services that are important to the way in which the authority carries out its work. Elected members will still make the decisions, but assisted and advised by those with specific expertise, which members of the fire authority may not always possess.
  The body will operate with clear safeguards as I have outlined and it should be clear to noble Lords that we will use the power carefully and responsibly. Our primary purpose is to ensure that where there are
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  failing authorities and where a combination has to be undertaken to tackle that problem, this particular clause will come into play.
  I can almost hear the arguments made against this and the noble Lord as an echo of the arguments made against the appointment of independent members to police authorities in the mid 1990s. That was not on our watch, it was on the watch of the noble Lord's party. In that case, they were imposed on police authorities and were designed to dilute the work of the pace authority members—as they were then. As time has gone on, there has been much learning and the value of those independent members has been recognised. I am not making a direct comparison, but the appointment and use of those independent members in the context of police authorities has some relevance. It shows what that independent expertise—whether professional, financial, managerial or personnel-related—can bring to a body dominated by elected representatives. It is a parallel in that sense.
  I have heard the arguments, which sound like an echo of an old argument. For the reasons that I have outlined, they are no longer relevant on the matter, and the noble Lord needs to understand the circumstances in which we would seek to have independent members appointed.
  5.15 p.m.
  Baroness Maddock: I am grateful for the Minister's attempt to enlighten me but, I have to say, enlightenment has not really dawned. I would like to know how many people we are to have on the bodies. I do not know what a combined fire authority of elected members would be but, if we are to try to appoint all the people by Nolan principles, all I can say is that it is going to be a hell of a long job.
  We rightly agreed that, on the committee, the elected members would make the decisions about precepts and finance. However, what happens if the majority of the committee, with the non-elected members, votes through all sorts of provisions. They do not have anything to do with the money. I fail to see how the provisions will work in practice. Will we see some details about the matter before we get through our consideration of the Bill? I would like to see more detail on Report, as I am not convinced that there is a clear idea about how the provisions will work. I understand the principles that the Government are trying to get over on what they want to do, but the practicalities of how the provisions will work are far from clear.
  Lord Hanningfield: I echo that. I thought that the noble Lord, Lord Bassam, indicated that appointments would be made only to failing authorities. I would like that clarified, as it is an important point.
  Lord Bassam of Brighton: Obviously, the size of a fire authority will be set out in the statutory instrument that establishes it. However, as I made clear in my initial comments, we would expect the numbers of independent appointments to be small. We expect authorities to be somewhat less than 20 in

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  membership. The important point is that the independently appointed members would not have a majority on the authority. It could be that only one independent member was appointed to the fire and rescue authority. Alternately, a minority—a majority minus one, as it were—might be appointed.
  I shall take up the point made by the noble Baroness, Lady Maddock. My argument is based on the police authority experience. I hope that it would be recognised that the independent members have made a very important contribution to the way in which those police authorities have worked. They have brought in expertise and experience that was not there. They have offered the opportunity and scope to provide a broader social base as well, in some circumstances. Our firm view is that, where a combination has to be undertaken to tackle failing authorities, it would be both contradictory and counterproductive to restrict appointments to existing authority members. Other members would have a direct value in those circumstances, because they would bring something else with them. Our clear view is that they would help to strengthen and broaden the experience necessary, to ensure that the failing authority does not carry on failing under its new guise.
  For those reasons, we see the provision as having value. Of course, we need to approach the matter sensibly. We obviously want to ensure that the democratically elected element that is so important to the way in which Fire authorities now work is continued in any new arrangements. We want to see the provision working carefully and cautiously. We obviously want to ensure that we get maximum support for the new approach.
  Baroness Hanham: Before the Minister retires from the frame, we are all assuming—and I am not sure whether it is correct—that the members appointed by the existing authorities will be democratically elected members of that authority. There is nothing in the Bill which says that. All local authorities can appoint people who are not elected—shall I wait while the Ministers get the answer?
  Lord Rooker: My noble friend is dealing with this. The noble Baroness asked a question and we stated the obvious because we had assumed that the local authorities would be appointing elected councillors. That assumption is correct.
  Baroness Hanham: But the Bill does not say that and, as everyone involved in local authorities will know, local authorities are usually empowered and able to appoint people to all sorts of things and by definition they are members. School governors are an example in point. It is not necessary to have an elected member as a school governor—you can have, but you do not have to have one. You can have an elected member appointed to some of the outside bodies but you do not have to have one.
  The clause simply states,
  "the appointment of members by the existing authorities",
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  and that does not indicate that they must be elected members of the existing authorities. It may be resolved simply by producing an amendment on Report requiring elected members, but as things stand that is not what the clause requires.
  Lord Bassam of Brighton: I have listened to the noble Baroness and I am half way persuaded.
  Baroness Hanham: It is a new argument!
  Lord Bassam of Brighton: We like new arguments—we thrive on them. There may be 100 reasons further to clarify the issue. We will want to write to Members and we may well return to the matter at the next stage of the Bill. The noble Baroness is right, we want to be clear on that point.
  Baroness Maddock: I am pleased that the Minister has said that and I would appreciate something in writing before the next stage. I want to make it clear that I was not questioning what the Government were trying to do—and the Minister told me again about police authorities—but I was questioning the practicalities. Who will it be and how will it work? We would appreciate information on that.
  Lord Hanningfield: I agree with the noble Baroness, Lady Maddock, that we must have some answers. The noble Lord, Lord Bassam, did not answer my question about whether they would relate to more failing fire authorities rather than to the generality. I am not certain that everyone believes the police authorities work so well, and I gather that the Government have proposals for fully elected police authorities. People have all sorts of ideas about their future, but they are different from Fire authorities. They are bigger, have more staff and much larger budgets. Furthermore, magistrates are among those appointed to them. They are two totally different bodies.
  I would have thought that if the fire authorities wanted expertise on human resources or finance, they would look to officials for that support. It is demeaning to the officials who support the fire authorities to say they need other members to provide such support. The whole proposal will need much more scrutiny and the Government must be more rigorous in its defence. It does not seem to be the right thing to be doing when we are trying to improve democratically elected bodies and ensure that there is democratic accountability. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 24 to 27 not moved.]
  Clause 3 agreed to.
  Lord Hanningfield Lord Hanningfield moved Amendment No. 28:
  After Clause 3, insert the following new clause—
  "LIMITATION ON POWER OF SECRETARY OF STATE TO APPOINT MEMBERS OF A COMBINED FIRE AND RESCUE AUTHORITY
  (1) Where a scheme made under section 2 provides for members of a combined fire and rescue authority to be appointed by the Secretary of State, the provisions of this section shall apply.

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  (2) Before making an appointment to a combined fire and rescue authority, the Secretary of State shall invite each of the existing authorities with power to appoint members to the combined fire and rescue authority to submit to him a list of nominees for consideration for appointment by the Secretary of State.
  (3) The Secretary of State shall appoint from the lists of nominees received those persons who appear to him to be best qualified to serve as members of the combined fire and rescue authority unless there are an insufficient number of persons on the lists appearing to the Secretary of State to be suitable for appointment.
  (4) If the Secretary of State considers that there are an insufficient number of suitable persons on the lists to make all the necessary appointments, he shall advise each of the existing authorities of his reasons for considering each of their unsuccessful nominees as suitable for appointment and shall indicate the qualities, experience and other relevant factors required for appointment by the Secretary of State in the particular case.
  (5) Each of the existing authorities shall then be invited to submit a further list of nominees fulfilling the criteria set down in accordance with subsection (4) by the Secretary of State.
  (6) Upon receipt of the further lists referred to in subsection (5), the Secretary of State shall appoint from the lists those persons who appear to him to be best qualified to serve as members of the combined fire and rescue authority.
  (7) If there are insufficient numbers of persons appearing to the Secretary of State to be suitably qualified for appointment on the list submitted, the Secretary of State may appoint such other persons as he considers suitable to fill any remaining vacancy.
  (8) On the occurrence of any casual vacancy for membership of a fire and rescue authority which falls under the terms of the scheme to be filled by an appointment by the Secretary of State, the procedure set out in subsections (2) and (3) shall apply."
  The noble Lord said: Amendment No. 28 is consequential on what we were discussing just now. It seeks to limit one of the extraordinary powers of the Secretary of State under the Bill. The Bill seeks to create a combined fire and rescue authority and mirrors the power under the 1947 Act to create a combined fire authority. However, the power to appoint 50 per cent of the members of that authority, minus one, is new.
  While protesting that fire and rescue authorities remain a local service, the Government are not only grafting on a regional structure but are displaying the usual centralising instinct by taking draconian powers to appoint members. We have just discussed that point, but I shall continue to move this amendment today.
  The deployment of that power will fundamentally alter the nature of democratic accountability in the local services. If the Secretary of State can deploy the power to appoint 49 per cent of members, the political balance in a combined fire authority, which might be an elected regional assembly area fire authority, will be capable of being overturned by the Secretary of State's appointments. That seems to be a step too far in what is still supposed to be a democratically accountable service, as we have just debated.
  The Secretary of State will say that he needs a power to appoint as a reserve power, in case fire and rescue authorities do not nominate people of what he considers to be a sufficiently high calibre. That point arose in the discussion that we have just had. However,
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  that does not alter the preposterousness of suggesting that, whenever the electorate choose badly, Ministers can intervene.
  The amendment sets out a procedure to ensure that a Secretary of State appointment is made only as a last resort when no appropriate nominees are offered by the appointing authority. We may have an objection in principle to such a power of appointment, but the new clause is drafted in a spirit of compromise, recognising the argument that reserve powers may be needed. Combined fire authority members are appointed by the authorities that would be fire authorities if not for the existence of the combined fire authority.
  Under the proposed new clause, in circumstances in which the scheme gives the Secretary of State powers to appoint, he must exercise them by taking names from lists submitted to him by the underlying authorities. Furthermore, if he does not believe that there is a sufficient number of suitable people on the list, he can specify reasons for rejecting any of the nominees and ask the authorities to submit a further list, reflecting criteria that he set down in his rejection. I beg to move.
  Baroness Hamwee: Until the noble Lord was halfway through his speech, I thought that the amendment might be inconsistent with the points that he had just been making. However, I believe that it is intended to provide an alternative to the Secretary of State's appointments.
  As I understand it, the amendment talks about appointing from a list of nominees provided by the local authorities. Are those intended to be local authority members? If that was the route to be followed where a fire and rescue service was failing, I would be hesitant about putting the matter back to the local authorities as they themselves may have failed as part of the whole process. I am not saying that I support the amendment; I am trying to follow the logic of what is to be achieved here. If one is looking for "independent" members to bring along different expertise, and if one accepts the premise from the start, I wonder whether it is wise to confine the list of candidates in the way suggested.
  I am not trying to argue against what the noble Lord said because, as my noble friend said, we are very much with him in relation to the previous set of amendments. However, I think that the whole thing is a complete porridge.
  Lord Hanningfield: In moving the amendment, I tried to indicate that we had tabled it and I had written my speaking notes on it before the previous discussion. That discussion highlighted a lot of the difficulties of the whole area. The Minister recognised that as well, and clearly the Government will go away and look at the matter. We will have to look at it altogether before Report, and I hope that the Minister can clarify some of the points on it. I still object totally to the principle of having appointed members but, if there are to be appointed people, we need to find processes that can make them acceptable. I hope that we can resolve the issues as we go further with the Bill, but I would like to hear the Minister's comments.
  5.30 p.m.
  Baroness Hanham: Having got the clarification that local authorities can appoint elected members or non-elected members, can we now clarify the process of appointment? That was effectively what the amendment was trying to do. There are all sorts of examples of ways in which people are appointed to authorities. The Bill leaves appointment in the hands of the Secretary of State, effectively.
  The Minister said that people would be appointed along Nolan lines. That is all right; that makes sure that people are competent, straight, have no criminal convictions and are capable of fulfilling a public appointment. However, it does not set the scheme for appointment. There is no indication of that in the Bill. Will they be appointed by an appointments committee, or on behalf of the Secretary of State by a committee formed from the combined fire authorities? The Minister will say that all that will be part and parcel of the regulations, but it has not been aired and clarified in a way that would be helpful.
  We want to ensure that the authorities are made up of elected members and people who have been appointed through a proper, recognised process. There should be not only an advertisement in the Guardian, but a proper process so that we know who will do the appointing.
  Lord McCarthy: I wish to ask three questions. The provisions ought to get an alpha for ingenuity. I have never heard of it before but we are told that, in local government, all kinds of things are done in the way outlined. First, has such a method been used before? Is it something that the Government have particularly invented for the Bill, or is the ingenious and somewhat complex procedure well known in certain local authorities?
  Secondly, if some people are appointed but not others first time round, why do the Government think it a good idea to write to those who did not get appointed to say why? It is not usual to write to unsuccessful candidates to tell them why they failed.
  Noble Lords: It is.
  Lord McCarthy: Well, one must be very careful about the libel laws if one does. That brings me to my third and final question. The first time that such people go around the roundabout, one writes to tell them why they have failed. The second time that they do, one does not, so far as I can see. Perhaps that is done all round the country, too. Why the difference?
  Lord Hanningfield: In employment procedures, if we interview people we certainly have to tell them why we have not appointed them. We make notes and so on; people have the right to know why they have not been appointed. These days, other people who apply for jobs or positions under the Nolan laws have a right to know. I assume that most of that is enshrined in law. If it is not, it is a matter of good practice to tell people why they failed in various positions. It is common practice, certainly in local government and, I thought, in most organisations.
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  We have been going round in circles on the matter. At the moment, joint fire authorities are mostly comprised of elected members. A county fire authority is normally always made up of members of that county council. We now have a lot of joint fire authorities— counties and unitaries—and London as well with the metropolitan areas. As I understand it, the members appointed to them are mostly elected members of the authorities that constitute the joint fire authorities.
  We have had an interesting debate today on whether local authorities can appoint members who are non-elected. I do not know any instances where they have done so. Perhaps that can be clarified before the Report stage. I repeat that the amendment was tabled before the previous discussion took place. I am sure that there will be further amendments and discussions, and I hope that Ministers will try to clarify some of the issues and take them forward so that we can have a more positive idea of what the Government think. Then we can put forward potential alternatives before Report. After that discussion, I should probably withdraw the amendment.
  Lord Rooker: We will come back to it.
  Lord Hanningfield: I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 4 [Combined authorities under the Fire Services Act 1947]:
  Lord Hanningfield Lord Hanningfield moved Amendment No. 29:
  Page 4, line 27, after "must" insert—

  "(a) obtain the agreement of the fire and rescue authority constituted under the scheme or (in the case of an order to revoke the scheme) the agreement of all the authorities which would, apart from the scheme, be fire and rescue authorities under section I for any part of the area covered by the authority constituted under the scheme; and

  (b)"

  The noble Lord said: Amendment No. 29 is designed to safeguard against the Secretary of State misusing the powers under subsection (3)(a) in order to take a scheme for the creation of a combined fire authority that was presented as voluntary and change it out of recognition. The Secretary of State may want to review a scheme and to come back to the authorities and propose certain changes. So long as the authorities agree with that, there is no problem; it remains their scheme, with improvements proposed by the ODPM and agreed by the authorities.
  If the Secretary of State wants to propose something more radical which is not, in the view of the fire authorities concerned, acceptable, he should have to resort to the powers to create a combined fire authority on his own initiative rather than allowing one to be voluntarily created with his potentially substantial modification. Amendment No. 29 would require the authorities to agree all modifications. We believe that that is a more transparent approach. I beg to move.
  Lord Rooker: Although the word never crosses the lips of the noble Lord, this is basically another veto amendment. Its purpose is to prevent the Secretary of State taking a wider view in the interests of the public as a whole, and we therefore cannot accept it.
  I have already said in relation to a couple of previous amendments that the Bill requires extensive consultation on a range of issues including, in Clause 4(5)(c), with anyone other than fire and rescue authorities that the Secretary of State considers to have a potential interest. That is a very important point. To suggest, as the amendment does with its veto, that even after such wide consultation the Secretary of State should be unable to act is, in effect, to suggest that the Government should abandon our responsibilities. We simply cannot do that.
  Ultimately, it will be our responsibility to ensure that we have an effective emergency service and that the best use is made of taxpayers' money. That is done on the basis of the Secretary of' State undertaking extensive consultation outside of the fire and rescue authorities. Anyone who has a potential interest is covered. I cannot spell the matter out any more than that because I would then repeat what I said on earlier amendments. Amendment No. 29 is simply an amendment too far.
  Lord Hanningfield: I hear what the Minister says. We are concerned that sometimes the establishment of combined fire authorities may be imposed without the ownership of the local authorities. As we go on through the Bill, we may be able to clarify that rather more. I shall withdraw the amendment today, but we shall have to come back to the area to make certain that there is some acceptance locally of what happens and what the Minister might do. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 30 not moved.]
  Clause 4 agreed to.
  Clause 5 [Powers of combined fire and rescue authorities]:
  [Amendment No. 31 not moved.]
  Clause 5 agreed to.
  Clause 6 [Fire safety]:
  Lord Hanningfield Lord Hanningfield moved Amendment No. 32:
  Page 5, line 23, at end insert—
  "(iii) the use of sprinklers as an effective means of reducing deaths, injuries and damage as a result of fires."
  The noble Lord said: The amendment is an honest attempt to establish a clear role that a fire authority could play in the promotion of sprinklers in the fight against death and damage caused by fire.
  The most recent figures, published earlier this year, show that in 2002 there were 562 fire deaths—44 fewer than in 200 l—while the number of fires fell by 5 per cent to 519,400. However, I am sure that we all believe that that figure is still too high. No one can forget the tragic events of earlier this year at the Rosepark care
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  home in north Lanarkshire in which so many lost their lives. It is that kind of horrific incident that the use of sprinklers might have avoided.
  Furthermore, a recent survey from the Local Government Association found that the annual cost of fire damage in schools was around £100 million, and that one in 15 schools will suffer from a fire in any given year. Sprinklers would be a very simple, effective and cost-efficient method of protecting school property.
  The amendment does not seek to impose sprinklers on a mandatory basis—far from it. It merely encourages a fire authority, wherever possible, to promote their use. The number of lives saved and the protection of property would be substantial. I beg to move.
  Baroness Maddock Baroness Maddock moved, as an amendment to Amendment No. 32, Amendment No. 33:
  Line 2, after "sprinklers" insert "and misters and other devices"
  The noble Baroness said: I obviously support everything that the noble Lord said about his amendment; our amendment would widen its scope. We need to be clear in the Bill what methods we want to be used in trying to reduce the number of deaths and amount of damage caused by fire. Modern technology has moved on incredibly since the previous fire Act, whenever it was. The cornerstone of the reform programme that we are discussing is a move away from overdependence on intervention once fires have started.
  There was a long debate in another place—introduced by one of my honourable friends, I think—which was far more wide-ranging than this debate. It looked at how sprinklers, misters and so on could be put into all kinds of different buildings. I suspect that we may have a discussion on such matters at a later stage on the Housing Bill, under building regulations, as they are quite important.
  These are fairly modest amendments. It is an important issue. The Local Government Association takes it terribly seriously and has continued to push it. It and others who support it believe that such devices are a very effective way of reducing deaths and injuries, and particularly damage to property, which costs local authorities a huge amount. Although it obviously costs to install sprinklers, I am told that the amount that local authorities can save in insurance over five years more or less pays for them. Schools are particularly important. When a school is burnt down, the effect of that on the education of many children over a long period, let alone the cost of rebuilding a school, is enormous. The technology that we have today could make a huge difference.
  The Government have looked at some research in the area. The Building Research Establishment has considered it. I accept that it is not a panacea, and it is very important that sprinklers and other mechanisms using water are correctly installed, just as smoke alarms have to be. Our amendment includes all kinds of apparatus—not only those that use water.
  I hope that the Government will be a little more friendly about this than they were in another place and that they will consider the matter more seriously. If there is one area in which there is agreement across the board on what we want to see as we modernise the fire service, it is the use of modern technology to reduce the scale and number of fires. It would send a very powerful message if that was on the face of the Bill and I hope that the Government will seriously consider it.
  There is a huge amount of evidence from all kinds of bodies and, in terms of saving money, clearly the case has been very well made. We discussed the issue of money and finance earlier and I look forward to a more positive response than we had in another place. The Minister is very good at coming back with good news at later stages and, even if he cannot do anything today, I hope he will do the same on Report. I beg to move.
  5.45 p.m.
  Baroness Turner of Camden: As the noble Baroness said, there is a widespread view, right across the board, in favour of the amendment. Indeed, the unions are very much in favour of it. I have a note which states that they believe that steps need to be taken to ensure a far more widespread installation of sprinkler systems. This should include their compulsory installation in multiple occupation premises and in all new builds. This would be the most positive step forward in reducing all fire deaths and must form part of a holistic modernisation agenda.
  It is notable, of course, that the people at the forefront of the battle to prevent fire deaths and all the unions involved, including the professional organisations, are in favour of sprinkler systems. The FBU is in favour of compulsory installation of sprinkler systems in multiple occupation premises. I note that the amendment moved by the noble Lord, Lord Hanningfield, does not propose compulsion. Nevertheless, if this provision were on the face of the Bill it would lead to the installation of systems. I hope that my noble friend will receive it with agreement.
  Lord Rooker: I shall receive it with sympathy. However, I should remind the noble Baroness that basically it is the same Government in this House as in the other place; the line is not so different.
  I wish to make it absolutely clear, as the Committee would expect, that we believe that systems that suppress fire, stop fire and prevent fire have an absolutely crucial and central role to play. The fire service gains its success by preventing fires; it spends very little time on fighting fires and a great deal of time on preventing them. There is no question about that. It is what the fire service wants and what it is expert at. However, I fully accept that more people should listen to its advice.
  As was mentioned, the Government commissioned new research on the effectiveness of residential sprinkler systems, which is available from the research contractor at the Building Research Establishment. A summary of the work is available on the website of the
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  Office of the Deputy Prime Minister. It underlines the potential role of sprinklers in providing additional fire protection in homes for children, homes for the elderly, homes for people with disabilities and higher-risk houses in multiple occupation. As the noble Baroness said, we shall discuss this in extensive detail when the Housing Bill arrives in the House.
  We shall be undertaking further work on this as part of our current review of Part B of the building regulations which deal with fire safety. I am not using it as an excuse, but that is the place to deal with this issue and to tackle it head on. Part B deals with fire safety in new and substantially altered buildings. In some ways, dealing with a new building is easy; it is the stock that presents difficulties. I do not rule it out on the grounds of cost—that would be ridiculous—but there are difficulties with the practicalities of using these modern technologies in the stock.
  The research highlights the importance of having effective smoke alarms and the important role they play in increasing the chances of surviving a fire. I mentioned at Second Reading that I spent three-quarters of a day at the Fire Service College, where I went through the process of seeing a fire started and fighting the fire using breathing apparatus. When they said to me, "Okay, Jeff, you can put the lire out now", I could not see the fire. I knew it was there because I had watched it being started, but within five or 10 minutes the smoke was so black that I could not see the fire. I knew where it was, but I could not see a thing; I could not see the fire. By and large, most people die of smoke inhalation before the fire service gets there.
  The current building regulations already recommend that all new residential buildings are provided with inter-linked mains-operated smoke detectors. Sprinklers can help to protect particularly vulnerable groups, but only when properly maintained and in good working order. That applies to all preventative measures, of course. In any case, sprinklers cannot be a substitute for simple precautions, such as closing fire doors and installing smoke alarms, combined with fire safety education and the effective management of such buildings.
  That is not always the case. I know from my own certain knowledge that the Government can sometimes get contradictory advice on buildings. I shall not go into details, but when I was at the Home Office there was a large fire in one of our buildings in the Bedfordshire area. That building had been constructed at exactly the same time as a similar building carrying out the same function in the London area. The written advice from the two fire brigades about the installation of sprinklers at the point of construction was totally different. The Secretary of State at the time—this was before the election and the construction was well under way—received totally different advice for the installation of sprinklers in regard to two buildings, both used for a similar purpose and identical in terms of modular construction.
  One also has to consider costs and, if one uses sprinklers in certain buildings, one has to be very careful that they cannot be deliberately misused. Sprinkler systems are open to abuse and can cause difficulties. This issue should be considered in the sense

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  that the people in those buildings may not want to be in them. As I have said, sprinklers can be used to protect particularly vulnerable groups, but they are not a panacea. That may be why the reaction was as it was in the other place. It can sometimes look like an easy solution, but it is not necessarily the case.
  Watermist technology has been used for sometime now in specialist engineering and marine applications. There is no established standard for the design of watermist systems and each installation may indeed be different. Indeed, these days when fighting fires, the last thing the firemen will do is turn a full jet of water onto a fire. The delivery of the water and the use of watermist technology is totally different and much more effective in fighting fires.
  I regret to say that there is not sufficient reliable evidence about the effectiveness of these systems. In some situations they will work; in others they will not work as well. We have recently commissioned the Building Research Establishment to carry out an initial project to establish what kinds of innovative fire suppression systems are being used, where and to what standard. When we have this information available we shall consider whether further investigation of the potential benefits is warranted.
  In this context, the proposed amendment is unnecessary. Clause 6(2)(b)(i) already requires fire authorities to give advice, on request, about how to restrict the spread of fires in buildings. Where justified by a proper risk assessment, the fire service may already advise the installation of a sprinkler system.
  Amendment No. 32 could also be taken to imply that advice on sprinklers should be given without taking account of the research evidence on their effectiveness and without regard to a proper risk assessment of the building and its occupants. The risk assessment is the basis of our approach across the board, for work places and homes and for existing and new housing. As I said, there is an issue in regard to dealing with the stock.
  I am sure we shall come back to this issue. I did not intend to give a negative response and I hope that it has not appeared as such. We have commissioned further research and we wish to look at the issue in the context of the review of the building regulations. As with some of the other issues that were raised in regard to building, energy and installation, the best and most effective way of dealing with them is to consider them with the building regulations. They can be reviewed more quickly and keep pace with the changes brought about by modern technology.
  Baroness Maddock: I thank the Minister for his reply. I was right: it was more friendly than the reply in another place.
  I understand the point about the building regulations. However, I am particularly concerned about fires in schools. Perhaps when we return to the issue we can consider ways in which we can make it more difficult for schools not to use them. It is the one area where it works well and saves a lot of money.
  Lord Rooker: I have no evidence for what I am about to say, but I know that there are some 20,000
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  primary schools and 4,000 secondary schools in England. My experience as a constituency member was that when a school was set on fire, it was usually at night and at a weekend. It was usually when the building was unoccupied and not being used for its normal purpose.
  That is not to say you do not do anything about it. That is the point. Fires can occur when there is not enough staff and the caretaker's house can be somewhere on a campus where he has three or four schools on the go. One school burnt down whilst it was being rebuilt after a previous fire. It was heartbreaking. Now it has been built to world-class standards. Perry Beeches school has floods of visitors because of its modern technology and northern European architecture, by which I do not mean English architecture. It is a very startling building. As I say, I can also remember it being on fire when I was a young pupil there. But I shall be happy to look at the issue.
  My experience with local authorities—this may apply only to the large ones—is that they self-insure; they do not go out to insure their buildings as such. So it is not a question of saving on the premium, although they would save on the distress and the absolute waste of money spent on rebuilding as the result of a fire. I shall seek further and better particulars about the situation in regard to schools before Report stage.
  Baroness Maddock: I am grateful to the Minister for that. It occurred to me that we could have discussed the issue on the Housing Bill, but that would not affect schools. From the figures I have read, more fires are occurring when people are in schools than ever before. I thank the Minister for his answer. I am sure we shall pursue the issue at a later stage. I beg leave to withdraw the amendment.
  Amendment No. 33, as an amendment to Amendment No. 32, by leave, withdrawn.
  Lord Hanningfield: There has been a great deal of agreed discussion on the issue of sprinklers. I believe that sprinklers should be in every elderly persons' home and in every school. Certainly we should try to get sprinklers installed in new build. I totally accept the Minister's view that installing them in converted buildings and existing buildings is not so simple.
  I hope that we come back to this issue at later stages of the Bill. The discussion was agreed between us all. I hope that when we come back to it we shall show some enthusiasm for sprinklers becoming the norm in new build public buildings, especially where there are vulnerable groups. I beg leave to withdraw the amendment.
  Amendment No. 32, by leave, withdrawn.
  6 p.m.
  Lord Hanningfield Lord Hanningfield moved Amendment No. 34:
  Page 5, line 23, at end insert—
  "() All fire and rescue authorities are to be included in section 2 of the Local Government Act 2000 (c. 22) (promotion of well-being) and be given the power to undertake work that promotes or improve the economic, social or environmental wellbeing of the areas they serve."
  The noble Lord said: Amendment No. 34 is designed to probe the Government's thinking on giving all fire and rescue authorities the power of well-being afforded to local authorities, as set out in the Local Government Act 2000. The power of well-being applies to county, unitary, London borough and district councils. However, it does not apply to combined fire authorities, fire and civil defence authorities and the London Fire and Emergency Planning Authority, which collectively comprise more than half of the fire and rescue authorities in England and Wales. Can the Minister explain whether the Government are deliberately letting this difference stand? It is interesting to note that the Scottish Executive has given fire and rescue authorities in Scotland the equivalent power of well-being in Section 20 of the Local Government (Scotland) Act 2003.
  As is clearly stated on the face of the Bill, fire authorities are now expected to play a full role in tackling social issues and work to prevent fires as well as to extinguish them. They are also seen as increasingly mainstream authorities, with legislation such as best value, precepting powers and, shortly, the comprehensive performance assessment process, to which the noble Lord, Lord Bassam, referred earlier. However, they do not have the power to undertake activities that promote or improve the economic, social or environmental well-being of the areas they serve.
  There may be benefits in extending this provision to all fire authorities. After all, freedoms and flexibilities are usually required to enable local strategic partnerships to be both creative and innovative in delivering new patterns of working and new solutions. However, we recognise that there may be important reasons why this has been left off the face of the Bill—for example, the danger of mission creep or that the power of well-being that county fire authorities enjoy is really for the overarching county council rather than the fire authority.
  The aim of the amendment is to give the Government an opportunity to clarify their position on this issue. I beg to move.
  Baroness Hamwee: We support Amendment No. 34. I am unclear as to why Amendment No. 35 has not been grouped with it; they could hardly be more similar.
  Lord Rooker: I am not in charge of the grouping.
  Baroness Hamwee: We are not in charge of the grouping either. The trouble is that if one is not consulted on the groupings because the e-mail does not arrive, there is not much one can do about it—other than to seek the Minister's indulgence and ask him to reply to both amendments at the same time.
  Lord Bassam of Brighton: I was going to suggest that we should do that because it would make much more sense.
  Lord Hanningfield: Perhaps I may suggest that Amendment No. 47, which is grouped with Amendment No. 34, should be spoken to separately.
  Lord Rooker: Certainly. That is no problem.
  Baroness Hamwee: Fire authorities have, as we know, a wide, widening and prospectively wider role. To have the power of well-being—the promotion of well-being, as we abbreviate it—would enable them to fulfil that role.
  In response to a point made at Second Reading, the Minister said that he has not had examples of where there is a problem—there is a point to be made about what problem the Government see in putting this power into the Bill—and so I have sought some examples. I thought to do this only a couple of days ago. I shall read them and get them into the record. If I had thought to do it earlier, there may well have been many more.
  A point was made to me that the power in the Local Government Act 2000 is still in its relatively early days and local authorities may not specifically be using that power as they will as time goes on. I recall that the power was included in the Bill, perhaps, as the next best thing to a power of general competence, which many of us were arguing for on behalf of local authorities. It is close to being the best thing and certainly ensures that local authorities are not vulnerable to claims of ultra vires.
  One of the examples that I have received is from South Yorkshire where, in partnership with Humberside authority, the authority is engaged in hosting the World Fire Fighter Games. When I read that I thought, "What has that got to do with it?" hut, reading on, it became clear. The letter stated that the restricted nature of the fire authority's powers means that it cannot be involved to the degree that it would in an ideal world like to be.
  The games made an excellent platform on which to herald community fire safety to an audience which would not otherwise be attentive and the authority is disappointed at not being able to fully embrace the opportunities the event would offer in a whole raft of fire-related well-being areas. It refers to the occasion as an opportunity wasted in terms of the wider fire safety agenda, to say nothing of the scope for recruitment, advertising training, anti-arson initiatives, including crime reduction, and so on.
  In the area of partnerships, the lack of powers restrict the authority's ability to be pre-emptive in community safety issues. It refers to a local multi-services initiative of teaching good citizenship and life skills, including fire safety, to young people as part of its wider outreach initiative. The authority includes a current example. It states that its ability to engage in this is severely restricted by its being denied the power.
  It makes the useful point that the exercise of such powers would be auditable and confined within the ethos of the fire authority's raison d'etre The officer who contacted me said:
  "I would not envisage it being a mandate for reckless expenditure and as a legal adviser I would always advise restraint".
  The noble Lord, Lord Hanningfield, made points about the ODPM's apparent concern with "mission creep". From Hull—the same area but not the same authority—I have received information that it has no

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  powers to purchase equipment such as smoke detectors from its own budget. Considerable time is spent working with local businesses to raise funding from them for these. It is also unable to second officers to work with specific communities, or to use its budgets to carry out work with junior firefighters, the Duke of Edinburgh's Award or the Prince's Trust. Again, it spends time looking for alternative resources for these projects. The Lancashire authority also referred to the Prince's Trust and to a local community safety and combating crime initiative.
  Finally, from Essex, from the noble Lord's authority, an inquiry was made whether, when doing a fire home safety check, should a fire fighter ignore an obvious unsafe situation, such as a stair guard to prevent a child falling just because it is not related to his core function. Commonsense would suggest no. The chief fire officer refers to the Bradford race riots when the West Yorkshire Fire Authority demonstrated that, as a facilitator, it could contribute significantly to bring various groups together on neutral ground.
  As I say, if the counties and some fire and rescue services authorities have the power, and they have it in Scotland, and if there is concern that some things could not be done by confined authorities, why should the Government resist?
  Lord Rooker: I shall deal, first, with Amendments Nos. 34 and 35 and answer the specific points raised by the noble Baroness.
  Amendment No. 34 seeks to give all the fire and rescue authorities the power of well-being available under Section 2 of the Local Government Act 2000. We do not believe that approach is necessary or warranted. I am sure that the Committee is aware that the power of well-being is already available to all principal local authorities. This is in recognition of their role as directly elected bodies uniquely placed to provide vision and leadership for their communities. They have multi-service delivery responsibilities and a wide strategic role. As a result, county fire and rescue authorities have access to the power of well-being by virtue of being a service department of the principal authority for their area.
  However, we are not persuaded that a combined fire and rescue authority, the London Fire and Emergency Planning Authority or metropolitan fire and civil defence authorities, as single purpose authorities, need this particular power to aid the discharge of their statutory functions. Nor do we believe they should be able to assume the leadership functions of directly elected bodies. In taking decisions affecting their areas or their people, councils will have to weigh up the likely effects of a decision against the three objectives—economic, social and environmental—and, if necessary, strike a balance to ensure that the overall well-being of their areas is achieved. It would be difficult to combine fire authorities and fire and civil defence authorities, with their relatively narrow focus, to do this.
  In our view the duty to promote fire safety under Clause 6 will provide all fire and rescue authorities with powers to work with other agencies and local
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  partners to help save lives and create safer communities. The provisions in Clauses 5, 11 and 12, when taken together, provide significant local flexibility and discretion for all fire and rescue authorities to discharge their functions and provide a service that responds to local priorities.
  I should add that we have yet to receive—I must put this on record—robust examples of where the powers in the Bill would be insufficient or inadequate, despite what I said at Second Reading. I shall turn to the points made by the noble Baroness in a moment.
  The purpose of Amendment No. 35 is identical to Amendment No. 34, which I have responded to in part, in that it seeks to give all fire and rescue authorities the power. I have already made it clear that, in our view, the extension of the power is neither necessary nor warranted. We are not persuaded that the power of well-being should be extended to the combined fire and rescue authorities.
  One of the examples given by the noble Baroness referred to West Yorkshire hosting the games. It will be able to do this under Clause 5, once the Bill is passed, if it is ancillary or incidental to its functions. Clearly that would be the case. Smoke detectors, for example, can be purchased under Clauses 5 and 6. Seconding officers to other groups can take place under Clause 12.
  Let me give three examples of the use of the power of well-being. In regard to Gateway Employment Limited in the London Borough of Greenwich, the council has used the new power to set up a recruitment agency scheme to promote local employment. This has been established as a non-profit arm's-length company with the power to give financial assistance, enter into contracts and provide staff, good services and accommodation. The aim of the agency is to ensure better terms and conditions of employment, help to create permanent job opportunities and work with local employers to identify staff shortages. Savings to the council are projected to reach some £200,000.
  Hastings Borough Council has used the well-being power to promote safe sunbathing. This is a fairly crucial issue. A large number of people die from melanoma which does not stay only on the skin. It is a serious issue, as I know personally. A partnership between the council and a local manufacturer two years ago has led to lifeguards distributing suntan lotion, free of charge in the first year and then at a reduced price. The initiative promotes safer skin care as well as a positive image of the resort. So, as well as providing the council with new strategic opportunities, it is also a power to help people to stay well.
  Norfolk County Council—which I believe someone called "sleepy Norfolk" earlier—is plugging the gap in post office provision. Using the well-being power, the authority's economic development unit has developed an action plan in partnership with the Rural Shops Alliance, the Post Office and the Countryside Agency in a bid to help provide post office services. A pilot project planned will look at how mobile libraries can be used to plug the gap in some rural areas. The council

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  plans to use its own computer network located in schools, together with a radio link, to enable mobile libraries to log-on to the post office network remotely.
  As I said, we believe that there is enough flexibility in the Bill for the fire and rescue authorities to do what they are doing, but not necessarily to the extent of the single-purpose authorities that I listed earlier. I hope that that is a satisfactory response. I do not want to be a wet blanket, but an enormous amount can now be achieved. Once the Bill becomes an Act, under the clauses to which I have referred the fire and rescue authorities will have the power to undertake those other activities for the well being of our fellow citizens.
  6.15 p.m.
  Lord Hanningfield: I thank the Minister for that comprehensive response. I am not sure whether it answers all the questions that we posed in our amendments but it gave much food for thought. We shall return to the matter as the Bill progresses. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 35 not moved.]
  Clause 6 agreed to.
  Clause 7 [Fire-fighting]:
  Baroness Hamwee Baroness Hamwee moved Amendment No. 36:
  Page 5, line 27, leave out "life" and insert "people"
  The noble Baroness said: The amendment gives me the opportunity to ask the Minister how extensive is the duty of protection of people? Clause 7(1)(b) refers to making provision for,
  "protecting life".
  I do not argue with that, but is the phrase an inherited one? How would an authority make a judgment as to whether there is a threat of injury—protecting limb as distinct from protecting life? I do not know whether there is anything in this matter, but I wondered when I read it. I apologise to the noble Lord. Sometimes when colleagues in the House talk of lawyers going on, I bristle; and they say, "No, not you. You're only a solicitor". I apologise on behalf of my profession if this question is completely unnecessary. I beg to move.
  Lord Rooker: I can give a succinct and I hope satisfactory explanation for this. The wording in Clause 7(1)(b) re-enacts in modern form the existing wording of the Fire Services Act 1947. The requirement that that places on the fire and rescue authorities is well established and understood and we are not aware of any difficulties that have arisen regarding its meaning. Furthermore, no representations have been received by the fire and rescue service to lobby for the wording to be amended.
  The interpretation of the word "life" has not to our knowledge been tested in the courts. There can be no question but that it covers human life. On the basis that the wording is a tried and trusted—although maybe not tested—formula on which the fire and rescue authorities
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  have successfully operated for the past 50 years, and no one within the service is pressing for change, Amendment No. 36 is unnecessary.
  To ask a rhetorical question, does the existing duty cover protection from injury from fire? The answer is yes. To discharge the duty under Clause 7(1)(b) to make provision to protect life and property in the event of fire, a fire and rescue authority will need to consider a number of factors; for example, smoke inhalation, extraction from damaged buildings, and so on. That duty is there as well. I hope that that comprehensive answer will satisfy the noble Baroness.
  Baroness Hamwee: I will not seek to mend what ain't broken, but as the Minister was speaking, it occurred to me that life must be read to extend to animal life. There are issues that we will perhaps come to later about that—well, some people might think so. I make that point not wholly flippantly, because if there is to be a duty, there are issues about how extensive that duty should properly be.
  Lord Rooker: I can answer that. We do not need to come back to this. In terms of life of property, I accept that for a commercial person—such as a farmer—food production animals would be property, but for individuals, their pets, or companion animals would also be property. I hope that that means we do not have to have a long debate about burning pets and animals in the next stage of the Bill.
  Baroness Hamwee: I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Hanningfield Lord Hanningfield moved Amendment No. 37:
  Page 5, line 31, leave out "normal requirements" and insert "requirements which it is reasonable to anticipate, after taking into consideration any arrangements which the authority has entered into under the provisions of sections 13, 15 and 16"
  The noble Lord said: Amendments Nos. 37 and 38 would qualify what a fire and rescue authority must take account of when determining what constitutes the appropriate level of people, equipment and services to discharge its duty to extinguish fires and to respond to road traffic accidents.
  These two amendments deal with the same issue in relation to Clauses 7 and 8. The clauses require the authorities to,
  "secure the provision of the personnel, services and equipment necessary efficiently to meet all normal requirements".
  In the case of Clause 7, "normal requirements" relates to firefighting obligations, and in the case of Clause 8 it relates to road traffic obligations. "Normal requirements" seems a rather ambiguous term. These are probing amendments. They tighten up the language, and we wait with interest to see how the Minister reacts. Will he tell us that inserting the word in the amendments would result in something different from what is in mind when he uses "normal requirements"?
  It is important that account be taken of the arrangements entered into under Clauses 13, 15 and 16, which relate to the authority's re-enforcement

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  arrangements, any arrangements that it has with third parties for providing assistance and, under Clause 16, any arrangement that it has entered into with other parties, third parties, or other fire and rescue authorities to discharge any of its functions. Clearly, the optimally efficient operation of the service overall requires that each authority makes the provision that is required after taking into account those other arrangements.
  We certainly advocate an approach that encourages fire authorities, where appropriate, to engage third parties, or work with other fire and rescue authorities, to deliver specialist services or services that require a critical delivery mass to make them economic and efficient. Part of the purpose of these amendments is to emphasise the importance of those arrangements, and to make it clear to fire authorities that the requirement to provide services, personnel and equipment directly will be reduced to the extent that they have entered into proper arrangements under Clauses 13, 15 and 16. I beg to move.
  Lord Rooker: Amendments Nos. 37 and 38 qualify what a fire and rescue authority must take account of in determining what constitutes the appropriate level of people, equipment and services to discharge its duty to extinguish fires and rescue people from road traffic accidents and protect them from serious harm in the aftermath.
  Clause 7(2)(a) re-enacts in a modern form the existing wording within Section 1 of the Fire Services Act 1947. This requires that a fire and rescue authority must make arrangements for securing the resources necessary— that is, people and equipment—to discharge its duty to deal with fires and to meet efficiently "all normal requirements". This structure is also repeated in Clause 8(2)(a).
  The decision to retain the word "normal" in the Bill is deliberate. Within fire and rescue authorities, it is regarded as a helpful formula for defining responsibility in terms of limiting potential liability. The inclusion of the word "normal" accepts that it is for an authority, considering all its functions, priorities and available resources and arrangements with others, to determine what is an efficient service on a day-to-day basis.
  The noble Lord may be seeking to establish a degree of greater clarity. We would argue that the effect of Amendments Nos. 37 and 38 taken together would weaken the duty. We shall come to the relevant clauses in due course but, for the record, Clause 13 places an expectation on fire and rescue authorities to enter into mutual assistance arrangements and Clauses 15 and 16 offer the authorities other routes to deliver services. Nevertheless, in our view, a fire and rescue authority should not be forced by statute to give them undue weight.
  We believe it is right that such matters should be determined locally, taking into account all the relevant factors—for example, the integrated risk-management plans. I am not aware of any clamour or pressure from the fire and rescue service to replace the word "normal", which enjoys wide recognition and support within the service, and it has operated in that way for
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  the past 50 years. Therefore, I hope that that is a satisfactory explanation which will allow the noble Lord to withdraw the amendment.
  Lord Hanningfield: I thank the Minister for those comments. We shall read what he has said in Hansard. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 7 agreed to.
  Clause 8 [Road traffic accidents]:
  [Amendment No. 38 not moved.]
  Clause 8 agreed to.
  Baroness Hanham Baroness Hanham moved Amendment No. 39:
  After Clause 8, insert the following new clause—
  "EMERGENCY MEDICAL CARE
  (1) A fire and rescue authority must make provision for the purpose of—

  (a) delivering emergency medical care to persons seriously injured by fire or the effects of fire,

  (b) delivering emergency medical care to persons injured in road traffic accidents, and

  (c) providing other emergency medical care,

  in situations where employees of the authority are first on the scene of an incident in relation to which the authority has functions under sections 7, 8 and 9.
  (2) The level of provision that must be made under subsection (1) is that which it is reasonable to make having regard to—

  (a) the number of such incidents to which the authority is required to respond,

  (b) the typical period of time during which the authority's employees are at the scene before the arrival or specialist medical or paramedical personnel, and

  (c) the conclusions of the consultation referred to in subsection (3).

  (3) A fire and rescue authority must consult each NHS ambulance trust which has responsibility for responding to emergency incidents within its area not less than once in every two years about the level of provision it is appropriate for the authority to make in accordance with subsection (1)."
  The noble Baroness said: Amendment No. 39 touches on the issue of the first-responder and co-responder scheme and attempts to ensure that the fire service would be able to have emergency medical capabilities. The thinking behind that is that, if a fire appliance arrives at an accident before an ambulance, fire personnel are able to provide life-saving first-responder treatment. We hope that the proposal would encourage a proportion of fire officers to be trained in the use of defibrillators.
  Subsection (3) of the amendment requires that a fire authority consults the relevant National Health Service ambulance trust in its area to establish that the requirements contained within subsection (1) of the amendment are met.
  Much of the intent of Amendment No. 39 stems from the recommendations of the Bain report. Paragraph 6.26 of the report states:
  "The benefits to the public of First Responder schemes are immediate, direct and obvious. We recommend brigades investigate the potential for developing First Responder partnerships".
  Paragraph 10.16 comments:
  "We recommend that some firefighters are trained as first on the scene co-responders which would give them basic life support skills including training in the use of automated defibrillators. Currently there is no central guidance on or standards developed for co-responders. Rather than develop prescriptive central guidance, we suggest brigades will need to agree with their local Ambulance Service and NHS Trust what is expected and how appropriate training can best be provided".
  On 8 May 2003, in another place, the Deputy Prime Minister commented:
  "In some areas, there is flexible crewing or alternative shift patterns are in operation … In still others, firefighters are already using defibrillators and participating in co-responder schemes with the ambulance services, but elsewhere they are not. In too many areas, there are none of these things. Effectively, we have a postcode lottery for fire and rescue services, which is not acceptable".—[Official Report, Commons, 8/5/03; col. 858.]
  This amendment has its foundation solidly within the Bain report. We are not attempting to place increased burdens on the fire service, but merely acknowledging the modern environment that fire authorities now operate in. To us, it seems entirely sensible for the fire service to have the ability and the resources to offer immediate emergency assistance in the event that they are first on the scene in an accident.
  This amendment does not seek to replace the ambulance service, but to support it. Firefighters would not be replacing paramedics, but would use simple-to-operate, automatic defibrillators, following standard training in their use. The aim is that firefighters could stabilise, say, cardiac arrest victims, until trained paramedics arrived. Having defibrillators on some fire engines would mean that firefighters are better equipped to help people at fires and other incidents. As the comments of the Deputy Prime Minister touched on, it would additionally bring a much-needed uniformity in the provision of immediate emergency assistance across the country.
  I notice a recent ballot for industrial action taken by members of the FBU in Tower Hamlets against plans to introduce a trial lifesaver co-respondent scheme in the borough. I find this quite bewildering. This amendment would therefore effectively bypass the legitimacy of the FBU to take action on these grounds—something I hope that all members of this Committee would support. The amendment is not prescriptive; it leaves it as a possibility that this could be done.
  We would all say that in the circumstance where someone's life is in danger and there is a possibility that another organisation could be trained to deal with that—in an emergency situation where they are likely to be the first people on the scene—this would be a sensible measure. It is one that I would have thought that a number of firefighters would not be adverse to being trained to carry out. I beg to move.
  6.30 p.m.
  Baroness Hamwee: We mentioned the issue of co-responder schemes at Second Reading. I very much support what the noble Baroness has said, not least because it is in the expectation of the public these days that all emergency services should be able to undertake
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  what we have come to see as fairly basic care and assistance. We probably should not, because that may mean that we are devaluing what they provide.
  At a time when there is talk of defibrillators being made available in aircraft, at railway stations and so on—a blue light service—the public can now reasonably expect to be moving in this area. I realise that there will be some potential problems in this, because once one starts down this road, it is expected that all response vehicles will be equipped and that there will be one officer on each of them who is able to carry out the treatment. When one starts to think about this, one wonders whether they cannot all do it and whether people will worry about being sued for negligence if they do not. One has to consider the insurance problems that arise from all that. I think that it is not necessarily straightforward. Therefore, if I say "reasonable", I do not mean to make it sound easy. But I believe that we should take the opportunity provided by this legislation to encourage the process that the public are coming to expect.
  Lord Rooker: This is an important issue, and I fully take on board the noble Baroness's point concerning what the public have come to expect in this regard. The new clause is clearly intended to create a new duty on all fire and rescue authorities to make provision to deliver emergency medical assistance when the fire and rescue service is first on the scene.
  Each fire and rescue authority would have to judge what provision it was reasonable to make under the new clause, taking into account the likely number of incidents attended and the period of time before the arrival of specialist medical staff. In determining what constitutes "reasonable provision", a fire and rescue authority would be required to consult the National Health Service ambulance trust operating in its area at least once every two years. While we recognise the spirit in which the new clause has been tabled, we think that it is unnecessary and, at present, unhelpful to extend the duties of the fire and rescue authorities as proposed.
  The aim of emergency service response is, of course, to reduce the number of deaths and the number and severity of injuries. Increasing co-operation with other emergency services and adapting new ways of working can greatly improve the service provided to the public. For example, as has been said, the carrying of defibrillator equipment on fire appliances in some fire and rescue authorities has helped to save lives. We know that. Therefore, we made it clear through the draft Fire and Rescue National Framework that fire and rescue authorities should explore the benefits of working with others, including by implementing first and/or co-responder schemes.
  In our view, such schemes are to be commended and encouraged where fire and rescue authorities and their local ambulance trusts consider them appropriate. We are giving fire and rescue authorities the power under Clause 11 to equip for, and respond to, a range of scenarios, and co-responder initiatives could form a part of that response. However, we do not believe that it would be appropriate to make this type of activity a

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  core function. We need to see how the schemes which are already in existence develop and bed in before going further.
  In our view, this combination of policy expectations, backed up by intervention powers and supported by appropriate legislative underpinning, provides the right balance. In other words, not accepting the amendment means that there is no barrier to the duty being undertaken in the future, as it currently is in some areas. In our opinion, imposing a new core function, which would have significant implications for the fire and rescue service in terms of resources and training, is not warranted or helpful at present.
  In terms of training staff, it is the case that, for their own health and safety purposes and those of their colleagues, firefighters have first-aid expertise, which encompasses life-saving skills—for example, resuscitation techniques. Clearly, firefighters use those skills, where appropriate, on members of the public who are injured at the scene of an incident. No doubt, such assistance often proves to be important in the successful treatment and recovery of those who are injured and, indeed, in saving their lives.
  Making it a core function in the Bill at the present time is not warranted or helpful. That is not a criticism. We commend such schemes where the fire and rescue authorities and their local partners consider them appropriate. We give them all possible support. However, we do not see that being a requirement of a new core function in this legislation.
  Baroness Hanham: I thank the Minister for that reply. It is worth raising this matter as it is an important aspect. I do not know much about the London ambulance service but I am conscious of its reorganisation in having paramedics. One sees the yellow Rover cars travelling around containing paramedics who are first on the scene and they act before the ambulance arrives. That is now an enormously important part of the ambulance service's response to problems and it is enormously effective. It means that people are treated immediately. It seems neither wrong nor out of order to expect another public service to be in a position to do something similar—something that will help all the other public services—and stabilising people much more quickly so that far less harm is caused to them.
  I understand what the Minister says, although I have a question for him, but he may not know the answer at the moment. There is an understanding that there is a permissive nature that enables fire authorities to do such things at the moment. If that is correct, do they carry out such procedures under legislation or do they act through their own goodwill? If they are not required to do that, there may potentially be difficulties—as the noble Lord, Lord Hanningfield, has just said to me sotto voce—in relation to legislation if someone does not take action when expected to. Having such a provision in legislation would ensure that it was rational for them to perform in that way.
  Lord Rooker: We shall return to this matter and I want to give as much information as I can. My point
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  is not unimportant. I understand that defibrillators are legally carried on fire appliances at the moment for the use of the firefighters. They are covered. Making use of them for the general public is fully consistent. but they are one of the appliances primarily for the legal use of the firefighters themselves. There is no legal gateway for carrying them for the general use of the public.
  I was not happy with the answer that I gave, although it was a legitimate answer. I am not knocking what I have just said in answer to the debate. but we shall have to return to this area. We are trying to modernise the fire service in many ways and getting the services to work as partners. We are turning the service into a fire and rescue service, which is important. That is an important aspect. On the other hand, there is the aspect of training and the legal requirements about the position, and about who does what first. Next we shall be asking ambulances to carry fire extinguishers in case they arrive at the scene first. One has to be careful about this. I am sure we shall return to this point.
  I am happy to announce that the Bill gives clear authority to carry such equipment on fire appliances for the use of the general public. I am making a case and saying that such situations apply in some authorities and we think it is a good idea that services should work in partnership. We commend such a move. On one visit to the Fire Service College with the Deputy Prime Minister this issue was raised in relation to the appliances there. The legal aspect was drawn to our attention. However, the Bill gives legal authority in Clause 11. Clause 11 appears to be an important clause as I have referred to it many times today. I hope that that extra information will clarify future debates on this matter in relation to the current legal position.
  6.45 p.m.
  Baroness Hamwee: Before the noble Baroness comes back on that point, I wonder whether the Minister can also announce that Clause 11 gives clear legal authority to fire and rescue authorities to undertake training and administer treatment. I am getting a nod from behind the Minister.
  Lord Rooker: If that is the case, I am certainly happy to do so. Clause 11 seems to be a very widespread clause. Needless to say, I did read the Bill, but a long time ago. It is a power to respond to other eventualities. That is part of the original definition that we discussed earlier. A fire and rescue service is not only a firefighting service; it goes far wider than that.
  Baroness Hanham: I thank the Minister. I assume that the power is under subsection (2)(a). I am looking for someone to check or nod. If it is not there, I do not see where it is. I am not disputing that it is there; I simply want to clarify where it is.
  Lord Rooker: I confirm that the noble Baroness has correctly identified the power as being under Clause 11(2)(a).
  Baroness Hanham: I thank the Minister. It is a permissive power to enable the carrying of

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  defibrillators. At some stage, perhaps, we may come back to that briefly in order to see how it can be included in regulations or guidance—or the framework, if nothing else—so that it can be made clear that this is a perfectly reasonable thing for fire and rescue services to do. Frankly, I do not know much about defibrillators but I do not believe that it takes a million years to learn how to use them. However, I think that technical or insurance matters may arise as a result of their use. I believe that the discussion we have had will shorten the debate at the next stage of the Bill. I am very grateful to the Minister for his reply, and I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 9 [Emergencies]:
  Lord Hanningfield Lord Hanningfield moved Amendment No. 40:
  Page 6, line 24, at end insert "but such an order may only be made with the consent of each authority in the area of which such functions are to be discharged"
  The noble Lord said: Clause 9 deals with the fourth category of responsibilities—an unspecified category relating to emergencies—to be placed on fire and rescue authorities. Those responsibilities are to be defined by order. The Secretary of State has the power to specify a function for which a fire and rescue authority will have responsibility other than the functions that Clauses 6 to 8 already confer. The power to confer that function over a wider area than that of the authority is significant because, unlike in the draft order, it does not necessarily have to be done in a uniform way across all authorities. We are concerned about a situation in which a Secretary of State would confer functions on an authority to be discharged over the area of many authorities.
  Amendment No. 40 specifically provides that the recipient authority in whose area the function was to be discharged should consent to the discharge of the function by the other authority. We acknowledge that there is a perfectly sensible case for extra-territorial functioning by fire and rescue authorities but it must be based on consent in a planned and agreed way. However, the clause goes much further and allows the Secretary of State to make asymmetric arrangements without the consent of the recipient authority. I beg to move.
  Lord Bassam of Brighton: I understand the concern of the noble Lord, Lord Hanningfield, on this matter. However, I believe that the circumstances in which we see the authority acting outside the authority area are such that the noble Lord will probably see the sense of what I am about to say.
  We have supplied a copy of the draft order to those who spoke at Second Reading as an indication of what the fire and rescue authority will be required to do in the event of emergencies such as flooding or a
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  chemical, biological, radiological or nuclear incident. The Government's intention is that a fire and rescue authority which is required to act outside its own area could potentially carry out those functions anywhere in England. As the noble Lord explained, the amendment would require the consent of all fire and rescue authorities in England.
  Besides the practical problems that it would present, in our view, the amendment would undermine any duty to respond outside a fire and rescue authority's area. One purpose of the clause is to ensure resilience in the event of a major emergency. So far as we are concerned, it does not make a great deal of sense that if a terrorist attack took place, for example, in Surrey, a neighbouring authority, such as London, would be unable to assist unless Surrey's fire and rescue authority had consented to an order requiring London to act in the Surrey area. I am sure that people waiting to be decontaminated, or those needing to be rescued from collapsed buildings, would prefer to know that the authority with the most appropriate equipment and experience could respond to the emergency that had arisen.
  It may also help if I explain how we see that working. In the event of an emergency, the regional control rooms would direct the most appropriately equipped fire and rescue authority to supply equipment and/or personnel to the area where the incident had occurred. That would be no different to a control room directing the most appropriate fire and rescue authority to attend a fire, except that, for reasons of national resilience, they would be able to direct across boundaries.
  I am sure that the noble Lord will see the sense of this measure. It is about being practical in the circumstances and ensuring a swift and flexible response. Obviously the niceties of boundaries must be understood but, where there is a regional commitment and a regional need, it seems to us that having this inflexible barrier could act only to obfuscate, delay or prevent the service doing what it is there to do and would weaken national resilience.
  Lord Hanningfield: I take note, in particular, of what the noble Lord said in relation to emergencies. Obviously one has some fears about other occasions, but I shall look carefully at what has been said. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Rooker: In view of the phenomenal progress that we have made today, this may be a convenient moment for the Committee to adjourn until Tuesday 11 May at 3.30 p.m.
  The Deputy Chairman of Committees (Lord Tordoff): The Committee stands adjourned until Tuesday 11 May at 3.30 p.m.
  The Committee adjourned at eight minutes before seven o'clock.

Official Report of the Grand committee on the Extradition Bill
(Fifth Day)
Thursday, 26th June 2003.
The Committee met at a quarter before four of the clock.
[The Principal Deputy Chairman of Committees (Lord Grenfell) in the Chair.]
The Principal Deputy Chairman of Committees (Lord Grenfell): Before we start on our business, I remind the Committee that, if a Division is called in the Chamber, we shall have a short suspension, lasting 10 minutes from the time when the bells are rung, before we resume our business.
Clause 17 [Speciality]:
Baroness Anelay of St Johnsmoved Amendment No. 74:
Page 9, line 7, leave out paragraphs (d) and (e).
The noble Baroness said: Amendment No. 74, which stands in my name, is also supported by the noble Lords. Lord Goodhart and Lord Clinton-Davis. It may be for the convenience of the Committee if I remind it at this stage that, when Amendment No. 76 is called, in the fourth group, I will not move it. That was agreed in order to save some time. The leader of the Bill team was able to furnish me with satisfactory information, which means that I need not move that amendment.
Amendment No. 74 probes the Government on the detail in Clause 17, which deals with the complex issue of speciality. Speciality prohibits a person from being prosecuted after his extradition for an offence committed before his extradition. Clause 17 enforces that bar, except in situations in which there are speciality provisions as set out in subsection (3), or where subsection (4) is satisfied.
It is the list of offences in subsection (3) that worries me. Paragraphs (d) and (e) read as follows:
"(d) an offence which is not punishable with imprisonment or another form of detention;
(e) an offence in respect of which the person will not be detained in connection with his trial, sentence or appeal".
Both paragraphs seem to aim at offences that attract financial penalties. My attention was drawn to the potential problem posed by those paragraphs by a briefing from the Law Society, for which I am grateful. The point is that offences that fall within subsection (3) can be charged without the protections contained in the extradition procedures. For example, there is no mechanism or protection to guard against prosecution of those further offences on the extraneous considerations set out in Clause 13.
The community or financial penalty may be extremely burdensome. Indeed, their imposition may be the primary objective of the requesting state and the procedure could thus be open to abuse, especially with regard to the freezing of assets and financial penalties. We are told that that is increasingly likely given the growing emphasis on civil remedies. Such unassociated proceedings may last a considerable time, causing prolonged disruption to the suspect's life and career. It is wrong in principle to allow procedures and proceedings in by the back door, rather than be honest about them and have them addressed as offences that might give rise to a warrant for arrest.
In addition, there is no provision or safeguard to ensure that there is no risk of detention or imprisonment for non-payment of financial penalties. While I was considering how the list of offences under subsection (3) might have come into being, I looked at the framework decision. Paragraphs (d) and (e) appear similar in format to Article 27.3(b), (c) and (d). The last of those is particularly significant: speciality is waived,
"when the person could be liable to a penalty or a measure not involving the deprivation of liberty, in particular a financial penalty or a measure in lieu thereof, even if the penalty or measure may give rise to a restriction of his or her personal liberty".
I find it curious that the framework decision should draw attention to the possibility that a financial penalty might give rise to a restriction of personal liberty, yet it allows speciality to be waived in such circumstances.
It seems to be an odd situation, and the amendment has been tabled to probe the Government on their intent. I beg to move.
Lord Goodhart: I start by welcoming the noble Baroness, Lady Scotland of Asthal, to the hot seat in this matter in place of the noble Lord, Lord Filkin. May she enjoy it.
As the noble Baroness, Lady Anelay of St Johns, said, my name is also on the amendment. I am concerned about the possible abuse of financial penalties to impose what can be serious consequences on people who have been deported to a country. It is not a wholly imaginary or theoretical possibility. Although by no means on all fours, there have been examples of cases in which authoritarian governments—I have in mind Singapore and Malaysia—have found it too difficult to prosecute awkward political opponents and send them to gaol, so they have sought to knock them out of politics by bringing claims for enormous damages for defamation against them. The consequence has been to make the defendants bankrupt.
It is possible that a government who were determined to do something of that kind might choose, rather than using civil actions, to bring people back for a trial in their jurisdiction and try to impose on them a financial penalty that might make them bankrupt. With that in mind, I would prefer to see a more tightly

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drawn exemption from the speciality rule that would exclude cases in which there were potentially large fines, even if there was no liability to imprisonment.
Lord Bassam of Brighton: I too welcome my noble friend Lady Scotland of Asthal to the Committee. I am sure that her arrival will enliven proceedings and speed us along. We certainly need to make some progress. I have drawn the short straw and must respond to the amendment. I am grateful to the noble Baroness, Lady Anelay of St Johns, for tabling it. It will help us to explain how we see the system operating.
The amendment refers to the area of speciality, as the noble Baroness said. It is important to understand how we see it working. A person's extradition to a Part 1 country is barred by reason of speciality if there are no arrangements for that provision within that country. That is the first point to remember. Speciality provides that an individual cannot be proceeded against once surrendered for offences committed prior to surrender, for which they were not extradited, unless the consent of the requested state is obtained or the person has had the opportunity to leave the country to which they were extradited.
The rule, however, is not absolute, as has been explained this afternoon. The Bill provides that a person extradited from the UK can also be prosecuted, without our consent, for additional offences that do not attract a custodial sentence. Those are, by definition, the most minor of crimes. On a practical level, if we extradite Mr X—or Ms X—to France for bank robbery and it is discovered after his return that he has outstanding parking tickets or fines, the French will be allowed to prosecute him in respect of those. We see no objection to that. I hope that it is common ground between all of us that it is desirable that as many crimes as possible are cleared up and the perpetrator brought to justice. That principle must apply to all crimes, even minor ones.
I accept that, in the grand scheme of things, that, as in the example I gave, a few outstanding parking tickets or fines may not be of the highest importance, but I hope that the Committee will agree that it is more desirable that those offences should be dealt with than that they should not be.
We have a choice. We can leave the Bill as it is—allowing the French authorities to prosecute the person for his parking or other minor misdemeanours in the knowledge that, under the terms of the Bill, those offences cannot result in any loss of liberty for the person concerned—or we could make the amendment. We would then present the French authorities with a choice. They could decide not to pursue the minor offences, even though they knew who was responsible—that goes against the fundamental principles of justice—or they could seek the United Kingdom's consent to prosecute the person for the additional minor offences. That raises questions of proportionality.
The procedures for dealing with post-extradition requests are set out in detail in Clauses 53 and 54. In particular, there must be a full hearing before a district
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judge, with both parties represented. The judge must consider whether each of the bars to extradition applies. Is that what we want for dealing with minor offences such as parking tickets? I cannot believe that that is what we want to do or that the Committee would deem that to be appropriate in the circumstances.
I repeat that we are talking mostly about genuinely minor offences that do not and cannot attract any form of custodial penalty. Given that the liberty of the person who has been extradited is not at stake, we see no reason why we should not allow for prosecution for such offences without the full rigmarole of a consent hearing. We are allowing for further prosecution only for minor offences. The country concerned must still follow due judicial processes in order to convict the person.
I can see that some noble Lords might have some difficulty with this, but we must take a proportionate view of the issue. The cases concerned will be of a minor and generally inconsequential nature. The arrangements will help to clear up crimes that we would wish to see cleared up, even though they are of a minor nature. I hope that, having probed the issue, the noble Baroness will feel able to withdraw the amendment.
Baroness Carnegy of Lour: The noble Lord constructed his entire argument on the fact that the offences were minor ones. Can he answer the point raised by the noble Lord, Lord Goodhart? If I understood him correctly, he said that some countries, for reasons that he indicated, used financial penalties for big offences. Can the Minister answer that? That point interested me.
Viscount Bledisloe: Is there not another objection? Let us suppose that someone is extradited for, say, causing death by dangerous driving, an extraditable offence. Let us also suppose that, at the trial, it appears that he should be convicted of careless driving and only fined. Are we not saying that someone cannot be dealt with only for careless driving? That would be careless. We might have a situation—not in a driving case, obviously—in which one offender has been extradited and his partner in crime is local. In that case, a jury would have to be directed that, although they could convict one of them of the lesser offence, they could not convict the other of that offence because it was not in the section.
The example that the Minister gave related to different offences, such as parking. I am concerned with a situation in which the other offence arises from the same facts. The lesser offence may not be an extraditable offence and would not fall within (b).
The noble Lord, Lord Goodhart, referred to Singapore, of which I have considerable experience. I respectfully suggest that there are two flaws in his analogy. First, he dealt with defamation, which is a civil suit anyhow. Secondly, when the Singapore Government sue somebody for massive damages for defamation, they do so because he is in the country and they want to get rid of him. The last thing that they will

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want to do with a political opponent is haul him back if they have got rid of him and got him out of the country.
4 p.m.
Lord Stoddart of Swindon: As regards non-custodial penalties, if someone is in France, say, for a minor offence and is fined £2,000 rather than being sent to prison, what happens if he does not have £2,000 on him or immediate access to it? In this country he would be given time to pay. If the French do not wish to give him time to pay and he has not got the money to pay immediately, will he be prevented from coming back to this country and incarcerated until he can pay?
Lord Bassam of Brighton: I acknowledge that there may be difficulties in some circumstances. But I return to the central point—we are talking about minor offences. We may need to give further clarification of what those minor offences may be rather than covering them in the generality of Clause 17(3).
The situation envisaged by the noble Viscount is covered in Clause 17(3)(b), which refers to,
"an extradition offence disclosed by the same facts as that offence".
As to the point raised by the noble Lord, Lord Stoddart, other countries have their own systems of fine enforcement but all of them allow for money to be sent from abroad. I cannot see a practical difficulty being generated by the situation referred to by the noble Lord.
We do not foresee the circumstances described by the noble Lord, Lord Goodhart, occurring and creating a difficulty for us. Unless the noble Lord has further argumentation to illustrate how that may work practically, we do not think it falls within the range.
Baroness Anelay of St Johns: I am grateful to noble Lords who have taken part in the debate. It has shown that perhaps further clarification is needed in regard to how one draws up the exemptions from the speciality rule.
I was interested in the contribution of the noble Viscount, Lord Bledisloe, and I shall look carefully at the examples he gave. I do not believe Clause 17 resolves all of the points raised by the noble Viscount and we shall need to look at it again.
The Government state that the offences caught by the clause are, as the noble Lord, Lord Bassam, said, "inconsequential in nature". We would argue that in some cases they may not be inconsequential, particularly because of the hidden agenda behind particular cases being brought. I note what the noble Lord said about the importance of producing proper evidence for that argument and I shall speak to the Law Society to ascertain whether it can provide examples to back up the problems it feels; may ensue.
I welcome the fact that the noble Lord, Lord Bassam, said that further clarification of the definition of "minor offences" may be of assistance to the Committee. I hope that he will write to me in that
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regard between now and Report stage. That will help us to decide whether anything further needs to be brought back on Report.
Lord Bassam of Brighton: I am more than happy to confirm that we will do that. Perhaps I should have used a broader range of examples than parking tickets and so on. It will help the Committee if we provide further clarification of what other offences we see as being relevant. I do not believe that the case raised by the noble Lord, Lord Goodhart, would come about as an effect of this. I want to make sure that that is absolutely the case, and I am quite happy to put it in writing.
Baroness Anelay of St Johns: I am most grateful for that confirmation. Certainly it is the intention of this side of the Committee, too, that minor offences—whether they be parking fines or related matters—should be cleared up. It is not something that one wants to have as a bar to extradition. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 agreed to
[Amendment No. 75 not moved.]
Clause 18 [Earlier extradition to United Kingdom from category 1 territory]:
[Amendment No. 76 not moved.]
Clause 18 agreed to.
Clause 19 agreed to.
[Amendment No. 77 not moved.]
Clause 20 [Case where person has been convicted]:
Baroness Anelay of St Johnsmoved Amendment No. 78:
Page 10, line 13, leave out from "retrial" to end of line 14 and insert "and to be present at the judgement"
The noble Baroness said: In moving Amendment No. 78, which stands in my name, I shall speak also to Amendment No. 81, which stands in my name and that of the noble Lord, Lord Goodhart; to Amendment No. 82, which stands in the name of the noble Lord, Lord Clinton-Davies; and to Amendments Nos. 199 and 202, which stand in my name.
We turn now to the vital matter of the kind of retrial that should take place after the extradition of a person who has already been convicted. I have divided this originally rather large group of amendments into three separate issues in an attempt to allow the debate to flow more easily.
The first group asks what should comprise the elements that make up an appropriate retrial; the second group addresses the question of how a person's absence from the first trial should affect his or her right to a retrial; and the third group looks at the issue of how the interests of justice should be defined in respect of this clause.
I am the first to recognise that the Government have already taken significant steps to introduce safeguards into the clause. However, we feel that at the moment they have not quite rounded off the job. The

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Government have stated that no one convicted in absentia will be extradited without the guarantee of a retrial. That commitment was given in Committee in another place by the ex-Minister, Mr Ainsworth. He went on to state:
"The Bill unambiguously secures the commitment that … unless a fugitive has a right to a retrial, or a review amounting to a retrial, extradition cannot take place".—[Official Report, Commons, Standing Committee D, 14/1/03; col. 112.]
The Government are not as clear on this point as they maintain and this group of amendments seek to probe the nature of the retrial that is available under the clause as opposed to the kind of retrial that we believe it is vital should be guaranteed. For example, what is the "review amounting to a retrial"? I should be grateful if the Minister—I, too, can now welcome her as this is the first group of amendments to which she will respond—could tell the Committee what the procedures are that would qualify a retrial or a review to be considered so satisfactory that a district judge, when considering the matter, could decide that the extradition would go ahead.
Amendment No. 78 seeks to insert into the Bill the requirement that the extradited person should be present at the retrial. The framework decision does not provide that full guarantee. It merely states at paragraph 5.1 that,
"the returned person will be present at the judgment".
I realise that it may be a matter of translation—a "judgment" may mean exactly the same thing as a retrial—but my interpretation, as a layman, is that a judgment is merely the end of the process of a retrial. We say that the extradited person should have the right to be present throughout the retrial itself.
Amendment No. 81 goes further. It provides a full list of the elements that we believe should be an integral part of the retrial. It requires, first, that the suspect should be present, as does Amendment No. 78; that he or she should be allowed to recall prosecution witnesses where the prosecution is not itself required to call them; that the extradited person should be able to call defence witnesses; and that he or she should have the same right to publicly-funded legal services as would normally be available to defendants in that country.
I am grateful to the Law Society for its briefing. It points out that,
"without these features, we believe it can not be said that any review would satisfy the right to a fair trial as set out in article 6 of the ECHR".
I note that the amendment of the noble Lord, Lord Clinton-Davies, Amendment No. 82, has a similar objective. I support that amendment as far as it goes, but it fails to include within it the vital requirement that the suspect should be present throughout the retrial, or at least is given the opportunity to be present at the retrial.
Amendments Nos. 199 and 202 simply seek to put the same requirements into Part 2 procedures. I thought that it would be helpful to bring those amendments forward and debate them now to save time later on.
In another place the Minister rejected arguments on the whole issue of safeguards for retrial on the basis that the extradition will not take place unless the district judge is satisfied that there will be a retrial. We believe that it is important for the safeguards to be on the face of the Bill in order that the district judge will consider those requirements when coming to his or her judgment. It gives the security that a person will not be extradited to face a lesser standard of review than that which we believe is right. I beg to move.
Lord Clinton-Davis: Before speaking to the amendment which stands in my name, I should say that I accept what the noble Baroness, Lady Anelay, said: it is very important that the defendant should have a right to be present throughout. I hope my noble friend will say that that will be the case. If not, I should like her to indicate how the omission, as I regard it, is to be cured. I do not think that it is at the moment.
As the noble Baroness, Lady Anelay, pointed out, the Law Society has expressed considerable misgivings about this omission. It is for that reason that I am bringing forward the amendments standing in my name. In basic terms there is not much between what has already been said and what I have to say.
I am very perturbed that there seems to be some kind of dichotomy between what the Minister said at Second Reading and how the clause stands at present. He stated:
"A retrial is differentiated from a simple appeal by the fact that the process starts again from scratch with a presumption of innocence.—[Official Report, Commons, 9/12/02; col. 44.]
That is how I understand the position. But, unfortunately, the provision in the Bill is not like that at all. I shall be interested to hear what my noble friend has to say about that simple, but serious, omission.
Retrials are different in certain member states. We believe, in essence, that the accused should have a right to be present and to be able to recall witnesses. I do not believe that it is possible to have a retrial as we understand it if those notions are not met.
I hope that my noble friend will be able to satisfy the Committee on that issue. The noble Baroness, Lady Anelay, is quite right to make the point—as have the Law Society and I shall make it again—that if those features are missing there will not be a fair trial as established in Article 6 of the ECHR. It is not enough—I am anticipating what my noble friend will say—to rely on the provisions of Clause 21, which refers to human rights. I am glad that it does, but that provision should not prevail as far as concerns this issue.
I hope that the Government will avail themselves of the opportunity to take this matter back and look again at the situation.
4.15 p.m.
Viscount Bledisloe: When I spoke last time, I omitted to welcome the noble Baroness, Lady Scotland, to the proceedings. However, I am not as masochistic as the noble Lord, Lord Goodhart, and would therefore not dream of suggesting that I hope she will enjoy them. I

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fully agree with the noble Baroness, Lady Anelay, that something on the lines of Amendment No. 81 is desirable to ensure that the retrial is a real retrial. However, I venture to suggest that perhaps her wording is somewhat too nationalistic in talking about prosecution and defence witnesses. In other countries, many witnesses may not be prosecution or defence witnesses. I commend to her the thought that perhaps what she needs is words which state:
"The defendant will have like rights to hear and examine witnesses as he would have done at an original trial".
I think that her words are probably inappropriate to the proceedings in certain member states.
Lord Carlisle of Bucklow: I, too, support the principles behind the amendments tabled by the noble Baroness, Lady Anelay. As I understand it, the purpose of Clause 20 is to state that a person who has been convicted will be extradited provided that he was present at the time of his conviction. As it stands, is not the noble Baroness, Lady Anelay, right in saying that there is no reference to the need to be present at a retrial? Surely, the whole justification of returning a person on extradition, if there is to be a retrial, is to meet the necessary condition that he or she should be present when that trial takes place and when convicted and sentenced. I hope that the Minister agrees that something to that effect should be included in the Bill.
Secondly, will the Minister explain what is meant by the words,
"or … to a review amounting to a retrial"?
By the use of those words, it seems that something less than a retrial is indicated and more of a judicial review or something of that nature. That would be unsatisfactory in these circumstances because it would not require the person being extradited to be present at that review.
Lord Goodhart: I added my name to Amendment No. 81. I have little to add to what has already been said. It is important that we should clarify in the Bill what is meant by a retrial or a review amounting to a retrial. All the provisions in Amendment No. 81 are necessary. I hope that it will be possible to incorporate them. From what I have said, it will be apparent that I equally support Amendment No. 202, which applies exactly the same principles to category 2 extraditions.
Lord Clinton-Davis: I do not want to be regarded as churlish. I, too, would like to welcome my noble friend. I hope that what I have to say will enable her to reach out and say that she will meet my objectives. If, rather more ignobly, she says that being here today is a necessary step to advance her career, I do not think that she had to do that.
The Minister of State, Home Office (Baroness Scotland of Asthal): First, I thank all Members of the Committee for the warmth of my welcome. I heard a hint in what was said by the noble Lord, Lord Goodhart, that he believed that I would not enjoy it, but I should reassure the Committee that having had
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the delightful experience of sharing the company of virtually all those currently present on a number of Bills, I am confident that it will be a delight.
I hope that I shall be able to round things off for the noble Baroness, Lady Anelay, as she so graphically put it. I think that I shall be able to explain why we think the amendments are unnecessary. I listened with great interest to what several Members of the Committee said. Indeed, I agree with what they seek to achieve. The Government argue we achieve that by the Bill as drafted. I hope to explain why.
I assure the Committee that the Government share an equal commitment to ensure that the trial and retrial are fair and consistent with the ECHR rights to which we all adhere.It is for that reason that the Bill contains in both Parts 1 and 2 clauses that specifically require the judge to decide whether extradition would be compatible with the individual's ECHR rights. We shall shortly come to the first of those in Clause 21, to which my noble friend Lord Clinton-Davis has already referred.
These particular provisions concerning convictions in absentia also demonstrate our determination to make more explicit the rights of the person whose extradition is sought. Extradition is barred if a person has been convicted in his absence, unless he deliberately absented himself, and he will not be entitled to a retrial or a review amounting to a retrial.
As regards the term "retrial", in our view a retrial must confer the same rights on an individual as a trial. If it does not, it is not a retrial. The right to a fair trial is, of course, guaranteed by Article 6 of the ECHR. Extradition would be barred under the ECHR provisions where a judge or court is of the opinion that a person would not be afforded these rights, either at a trial or a retrial, on return to the requesting state. It may not then be such a surprise that we see no need for the amendments, but I shall endeavour to satisfy the Committee that there is a good explanation for that view.
Turning first to Amendments Nos. 78 and 199, they would remove the reference to,
"a review amounting to a retrial",
and replace it with a stipulation that the person must be entitled to be present at the judgment. To remove that reference would be counterproductive. As long as a review entitles the person to the same rights as he would get in a retrial, we suggest that it is not for the United Kingdom to dictate how other countries put that into practice and what they wish to call that process. What is most important is that the process and all the appropriate rights are extended to the individual, rather than what label it is given in each country. As the noble Lord, Lord Carlisle, said, there are many different terms for things such as prosecution witnesses, and so on. That can be extended further.
Lord Clinton-Davis: I thank my noble friend for giving way. If some of the countries in the European Union prefer not to abide by the definition of a retrial and, in my view, are in flagrant breach of their obligations, what action, if any, are the Government prepared to take?
Baroness Scotland of Asthal: It is contained in the Bill. The whole point of the applications being made before a district judge is that the district judge will have to satisfy him or herself that the Article 6 rights will be upheld and as to the precise nature of the retrial to take place.
Lord Clinton-Davis: Perhaps I have not made myself clear. For the sake of argument, accepting what my noble friend said, what happens if other countries have not carried out their duties under Article 6 of the ECHR by enabling prosecution witnesses to be recalled? As I understand it, in some instances, that is not regarded as necessary.
Baroness Scotland of Asthal: All EU countries must have in place systems which comply with the ECHR. Of course, we may do so in different ways, but the essential elements of the provisions of the ECHR must be met. When the district judge comes to decide whether there is to be a valid retrial, he or she has to be satisfied as per substance—not as to the word by which it is described but by what is actually going to happen.
We have made plain that a review must have the same features as a retrial. That includes re-examination of the evidence and the chance to call witnesses. We believe that the Bill provides for that. Therefore, I respectfully suggest to my noble friend that his proper anxiety is not securely based, because the Bill provides for that as he would wish. It is not the label, it is the procedure which is really important.
As the Bill stands, a person would be afforded the rights that I have just described. It is also clear, in accordance with convention rights, that the decision of the court would be explained to him. However, that is not to say that we should not set out in the Bill a hard and fast rule. In this country, on occasion a defendant may be removed from the court if he is particularly disruptive, for example. To include an absolute right to be present throughout the trial or the judgment itself might therefore jeopardise extradition on a technicality.
Amendments Nos. 81, 82 and 202 would introduce a specific description of what a retrial or review must include. They direct the judge to disregard any proceedings which do not include provision for the extradited person to have specified rights. A retrial, whatever form it takes, must comply with the right to a fair trial as guaranteed by the ECHR. The amendments are therefore unnecessary. If the judge considers that any of the rights listed would be breached, extradition could be refused under Clause 21. That is the penalty, as it were, that could be imposed for non-compliance.
With great respect, the amendments would make the provisions unnecessarily long. I do not make light of the subject, but I invite the Committee to imagine how much longer the Bill would be if we were to define all relevant ECHR issues. Once we alight on one, two or three of them, the suggestion can always be made that those are the issues that need to be proven and that other areas with which one should comply under the
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ECHR are irrelevant. The Government are loath to do that; all those rights should be available in such circumstances.
In short, I certainly appreciate the Committee's concern about the matter and why Members wanted to probe it to achieve clarity about our intentions, but in response to the noble Lord, Lord Carlile of Bucklow, I stress that convictions in absentia are rare and have not given rise to any problems to date. That is not to say that they may not in future, but such cases are rare.
Of course, we should not underestimate the importance of providing protection when such circumstances arise. That is why we have included much more detailed provisions on in absentia cases in the Bill than in any previous piece of extradition legislation. For the first time, we are making it an absolute condition that a person who has been convicted in absentia and who did not deliberately absent himself must have a guarantee of a retrial or an equivalent review.
I certainly accept the aims of the amendments. We agree without hesitation that no person's rights to a fair trial should be breached. I submit to the Committee that the Bill already provides protection against that. On the basis of that explanation, I hope that the amendment will be withdrawn.
4.30 p.m.
Lord Mayhew of Twysden: I think that I have already welcomed the noble Baroness on another occasion, when I spoke of her exhibiting a dangerous degree of charm. For ourselves, we shall certainly enjoy that. Whether we shall enjoy the considerable toughness that I also mentioned is perhaps more questionable.
Today, we are trying to establish whether the Bill, in order to demonstrate the necessary degree of clarity for which we all strive in legislation, needs to have inserted the language in Amendment No. 81. I quite see where the noble Baroness is coming from. She says, "You do not need to do that. We share the objective. We are all on the same side. It is all perfectly all right, because Clause 21 states that extradition shall not be granted unless the requirements of the ECHR are fulfilled". I am not sure that that is a sufficiently satisfactory answer, because it is not only district judges, admirable though most of them undoubtedly are, whose interests must be considered. Before the matter reaches a district judge, questions will have to be asked and answered by legal representatives.
I feel that if the words "in particular" were added to my noble friend's amendment, Amendment No. 81, that would provide a helpful guide to the essential conditions that must be fulfilled. I quite understand what the Minister said: if we include some matters but leave out others, there is an inference that the others are of secondary importance.
If the words, "in particular", were inserted, the amendment would state:
"the judge should not regard as a retrial or … a review … any proceedings that do not in particular include provision for".

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That would probably overcome the problem. We would then state in the Bill four matters that were absolutely essential. The noble Baroness said, "Anyway, consider the provision for the suspect to be present at the retrial, which is included in paragraph (a) of Amendment No. 81". The suspect may legitimately be thrown out of the court for misbehaviour, but is there any specific provision in Article 6 that deals with that? I doubt it; I am not an authority on Article 6, but it is necessarily written in broad conceptual language. It speaks of a fair trial; it probably speaks of certain particular matters; but I doubt that it speaks of that one.
I hope that the noble Baroness will undertake to reconsider the matter. There is much to be said for the amendment in the overall interests of clarity, notwithstanding the perfectly legitimate points that she made in response to it.
Baroness Scotland of Asthal: Everything said in Committee will be considered. Speaking for myself, the Bill appears to be robustly drawn, but I entirely understand the anxiety to which the noble and learned Lord refers. I am happy to say that we shall look with great particularity to see whether anything else could or needs to be added. As I said, I cannot guarantee that I shall not return with the same answer, but the noble and learned Lord's charm has had equal effect and I shall certainly consider the matter.
Baroness Carnegy of Lour: Moving from the subject of charm, which I do with difficulty, because I agree with what my noble and learned friend said, as a layperson, it seems to me that legal advisers—I think of those in my home country of Scotland—will have not only to interpret the Bill but to consider whether what happened in another country sticks to what that other country should be doing in terms of human rights. The Bill relies completely on the convention to do that. That could put legal advisers in a difficult position. I understand very well what my noble and learned friend Lord May hew said. The noble Baroness should put herself in the shoes of legal advisers and consider the judgments that they will have to make. I understand what she is saying, but does not the Bill totally rely on the convention?
Baroness Scotland of Asthal: In the normal way, people will have the advantage of what we have said in Committee. The Explanatory Notes, which will accompany the Bill, will make it absolutely clear what construction should be put on it. It is clear from our debate that the Government's intent and explanation adheres precisely to what the noble Baroness and the noble and learned Lord have said in Committee. There is nothing between us; it is just a question of how it is expressed. That should satisfy the Committee.
Baroness Anelay of St Johns: I am grateful for the support of Members of the Committee and for the words of the noble Baroness—especially her closing words. We all agree that there is nothing between us in
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what we are trying to achieve. It is how we get there that is in dispute. I agree with my noble and learned friend Lord Mayhew of Twysden that the Bill does not provide the necessary degree of clarity. He spoke about the broad, conceptual language in Clause 21. The noble Lord, Lord Clinton-Davis, was absolutely right to guess in advance that the noble Baroness would seek to rely on Clause 21 as a save-all. Our problem is that we do not think that it quite fulfils that duty at present.
We are aware that already in extradition cases, the district judge will bear in mind when deciding on extradition what would be the rights of the person if returned to the country from which the request has come. When I recently attended Bow Street magistrate's court to watch an extradition case for half a day, the district judge had to consider in great depth the conditions that would apply if someone were to be returned for a jury trial in Russia. I am aware that they have great expertise in such matters. We are trying to achieve a Bill that will stand for a generation or so and will serve as a model not only to district judges but to all others involved in or affected by extradition, as my noble friend Lady Carnegy said.
All Ministers are always worried about adding extra words to Bills. I note that the noble Baroness said that she does not want to extend the Bill. In her absence, when her predecessor was sitting in that seat, I had a solution. My solution was to knock out Part 1 altogether. That would shorten the Bill. However, for the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Anelay of St Johnsmoved Amendment No. 79:
Page 10, line 14, at end insert—
"( ) When determining whether the ground in subsection (1)(b) above has been made out, the issuing country must establish to the court's satisfaction that the person deliberately absented himself."
The noble Baroness said: I shall speak also to Amendment No. 200. The amendments are intended to clarify what is meant by "deliberately absenting" oneself. Clauses 20 and 84 provide safeguards where a person has been convicted in absence, except where that absence was deliberate. Our amendments attempt to probe that point.
My noble friend Lord Hodgson of Astley Abbotts has previously referred to the Theresa Daniels case, which makes it clear how easy it is for a foreign judicial system to fail to notify the defendant of prosecution and for the defendant to be unaware of subsequent conviction. Of course, in this country, one would not be in that position in respect of any serious matter; in any charges on indictment, one would have to have been present, at least in the first place. If absence is "deliberate" the defendant would lose a number of protections that are otherwise granted: extradition proceeds under Clause 21 with no entitlement to a retrial.
The question is: on what criteria is the judge to make the decision about whether absence was deliberate? What evidence must be provided by the foreign judicial system to demonstrate that? We have been briefed by Liberty on the matter. I am grateful to Liberty, which suggests:
"in order that this provision should provide full protection for the individual, it should be interpreted so that, in order for a person to be deemed to have deliberately absented himself"—
or herself—
"evidence must be provided that notice was personally served on that person and that he chose not to attend the hearing".
The Committee will remember that the Theresa Daniels case saw the Spanish lawyers and judges claiming that the required information was given, while it was clear that Theresa Daniels had no idea of her prosecution, conviction or, later, of the appeal taking place against her.
I consulted the Fair Trials Abroad website, which includes several examples of the dangers of in absentia trials. I shall refer to just one example. Mr O had been tried in Italy and acquitted. After he had left Italy for his home, the prosecutor appealed against the acquittal without actual notice of the appeal going to the defendant and he was convicted on the appeal in absentia—not knowing a thing about that. He returned to Italy for a holiday—rather a bad choice, in this case—and was flung into gaol to serve out his sentence. His state-provided lawyer believed that there was no court remedy. That is a hard case, but, as ever, one must consider hard cases.
We appreciate that some people may not know about extradition proceedings simply because they have removed themselves from the country with the intention of avoiding proceedings. We are not trying to protect them. If someone is trying to evade justice and has been properly dealt with, we are not concerned to protect them. We are concerned with hard cases. That is what the amendment seeks to probe. I beg to move.
Baroness Scotland of Asthal: I am grateful to the noble Baroness, Lady Anelay, for the way in which she moved the amendment. I can respond in a way that I hope that she will find helpful.
Earlier, we touched on findings made in absentia. I reiterate that they are rare. I do not intend to cover the detail again. Such cases will obviously be difficult. One of the most important considerations will be the quality of evidence produced before the judge in due course.
As I said earlier, we have included more extensive and detailed provisions on in absentia cases than we have ever previously had in any extradition legislation. The amendments would place the burden on the requesting country to prove that a person deliberately absented himself from his original trial. I am not sure in what way that would improve the Bill.
As the Bill is drafted, the judge must decide whether a person was convicted in his absence. If so, the judge must then decide whether he deliberately absented himself from the trial or not. As part of this process, it
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will be open to the requesting state to produce evidence to show that the person did deliberately absent himself. Similarly, the fugitive will be able to produce evidence to show that this was not the case. It will then be for the judge to weigh up the conflicting evidence and to reach the appropriate conclusion, deciding which piece of evidence he or she prefers.
That is in accordance with our normal law and practice; both parties to the case can advance arguments and adduce evidence on the issue, with the judge given the role to adjudicate. The noble Baroness was kind enough to say, after visiting Bow Street magistrates and watching these extradition hearings, that they can be very robust and are often pursued with great vigour by both sides. Ultimately, the district judge will have to make up his or her mind as to which bit of evidence satisfies them.
As the Bill is drafted now, that is how the matter will continue to be addressed. If the judge is satisfied that the person did not deliberately absent himself, the person must be extradited only if he is entitled to a retrial. If the judge is not satisfied that the person will receive a retrial or a procedure giving him those rights, the judge must discharge the person.
The Bill now allows the judge to weigh up the evidence to decide whether the relevant in absentia provisions apply. We believe this is the correct approach, and see no reason to add further and unnecessary wording to the three clauses. We do not believe these amendments would add anything, but they may muddy the waters and could represent a departure from our normal practice. I hope, with that explanation, the noble Baroness is more content and feels able to withdraw her amendment.
4.45 p.m.
Viscount Bledisloe: Will the Minister enlighten us as to what, in her view, deliberately absenting oneself means? If, on day three of a trial, someone skips bail and runs because the trial is going badly, he has obviously deliberately absented himself. But supposing he gets a summons informing him, in his home in this country, that a trial will take place, and he says to himself, "This is a load of rubbish; I can neither afford to go there nor can I afford all that time off work, so I won't go. I have just written a letter making it quite plain that I didn't do it". Is he deliberately absenting himself in that case? If it is, to prove that he did so, the prosecution has simply to demonstrate that it served notice of the process on him and he was not there. But if it depends on his reasons for not going, it is all much more difficult. This issue is relevant not only to this amendment but to the next one. I ask the noble Baroness to expound a little on what deliberately absenting oneself means.
Lord Mayhew of Twysden: I thought that perhaps the Minister would like a moment to look at the paper that has just been put in front of her as well as listening to a confession on my part that I am a little at sea on the resistance that she is putting up. She rightly says that the judge has to decide paragraphs (a), (b) and (c) in Clause 20(1). But by what standard of proof does he

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have to decide? He has to do it, of course, on the evidence, but what is the standard of proof and where does the burden of proof lie?
I can quite see that so far as paragraph (a) is concerned, he will hear evidence on both sides as to whether the person was convicted in his presence or in his absence, or he will make his mind up on the whole of the evidence, perhaps. Indeed, he would have to, and I am not certain where the burden of proof lies. But I am, at present, quite clear that the burden of proof ought to lie upon the requesting state if it is asserted that he was convicted in his absence but he deliberately absented himself.
If they are making an assertion of that character, which goes to the purpose of the defendant—or the intended defendant—then, it seems to me, as a matter of elementary justice, that the burden of proof has to rest upon the country that is making that assertion. That is what the amendment seeks to make clear.
What the standard of proof is, I am not so sure. Is it the civil standard of proof or is it the criminal? No doubt the noble Baroness will be able to assist us on that. But so far as paragraph (b) in particular is concerned, with its emphasis on the purpose that motivated the intended defendant, the burden must lie upon those who make that assertion, particularly where the liberty of this individual is at stake. Will the noble Baroness be kind enough to come back on that and tell us how she sees the matter?
Baroness Scotland of Asthal: First, I should like to deal with the points raised by the noble Viscount, Lord Bledisloe. Of course it will be a matter for the judge to decide. In the noble Viscount's example, the person receives the notice and deliberately decides not to comply with it. If that was the evidence that the judge heard—first, that the defendant knew of the trial, secondly, that he knew of the date, and thirdly, that he knew of the substance of the trial but chose deliberately not to comply—speaking entirely for myself, that is evidence which the judge could take into account in deciding whether the person was deliberately avoiding the trial. We would say that would be a matter for the judge to consider in the round.
On the assertions, the usual rule is that he who asserts must prove. These proceedings, as; far as I am aware—and I am sure I will be corrected if I am wrong—are dealt with by the criminal standard of "beyond reasonable doubt", and that is the basis upon which the court will have to determine it. It will have to hear evidence from the requesting state as to why it asserts that this person could have attended, failed and/or refused to attend, and why it was thought proper, in those circumstances, to try the individual in absentia. That will be down to the evidence heard on the day. It will be incumbent upon the defendant to demonstrate why he did not receive that information, did not know about the trial, could not have made proper arrangements to attend. It then comes down to evidence—evidence which the judge must hear and determine upon in the usual way.
Lord Mayhew of Twysden: Without being a bore about it, I hope, surely that is exactly what the amendment seeks to make clear on the face of the Bill. The matter is not self-evident, certainly not to a layman. Unless I am mistaking the purpose of the amendment, it is entirely to make clear what the noble Baroness has just explained, except that it possibly does not establish sufficiently clearly that it is a criminal standard of proof.
Baroness Scotland of Asthal: If I may say so, the legislation will, in the end, have to be construed by the courts and those who advise the individual parties. The noble and learned Lord will know that in these circumstances, it is very rare, unless the defendant deliberately chooses not to be represented and have the benefit of legal representation, that these submissions will be made before the court, and even if the person is not legally represented, the court itself usually judges with some expertise in these matters and will be able to make those judgments perfectly properly. I must respectfully say that we believe, contrary to what has been asserted, that these provisions are clear.
Lord Goodhart: With respect, is it not apparent that the standard of proof in Clause 20 as it stands must be the balance of probabilities and not proof beyond reasonable doubt? Clause 20(2) states:
"The judge must order the person's discharge if he decides that he—

"(a) was convicted in his absence,

"(b) did not deliberately absent himself from his trial, and

"(c) would not be entitled to a retrial".

Subsection (3) then provides that the judge must proceed under Section 21 if he decides that the person was convicted in his presence, or was convicted in his absence and deliberately absented himself or did not deliberately absent himself and would be entitled to a retrial. If it was the criminal standard of proof, potentially, neither subsection (2) nor (3) would apply, because the judge might come to the view that on the balance of probabilities, subsection (2) was satisfied but not beyond reasonable doubt. He then could not make the decision under subsection (2), but nor could he make the decision under subsection (3) because he would have decided on the balance of probabilities that subsection (3) did not apply. It seems to me that subsections (2) and (3) must, between them, catch every possibility. Therefore, the judge must be satisfied that either one or the other does apply, and that condition cannot be satisfied if he has to take the decision on the criminal standard of proof.
Lord Carlisle of Bucklow: I do not wish to add further to the confusion, but I was interested to hear the Minister say so clearly to the noble and learned Lord, Lord Mayhew, that so far as this matter was concerned, the standard of proof was clearly the criminal standard of beyond reasonable doubt.
I am not sure whether she was made aware that, before she took over the responsibility for this Bill, in an earlier debate we had as to whether the judge had to be satisfied that the person brought before him was the person referred to in the warrant—which one

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would have thought was an equally, if not more, important position—her predecessor Minister argued that that should only be on the civil burden of proof rather than the criminal burden of proof. In the end, he said he would look at it again. I hope that when she does so, the Minister will remember what she has said with regard to this issue. If she believes that the criminal burden of proof is the necessary one on this issue, then clearly it must influence her, must it not, in deciding what is the proper burden of proof when deciding whether the person brought before the judge is in fact the person referred to in the warrant?
Baroness Scotland of Asthal: In relation to the identity of persons arrested, Clause 7(3) specifically provides, in that instance:
"The judge must decide the question in subsection (2)—
which itself provides that the judge must decide whether the person brought before him is the person in respect of whom the warrant referred to was issued—
"on a balance of probabilities".
In relation to that issue, it is the balance of probabilities.
Lord Carlisle of Bucklow: I apologise if I did not make it clear, but my point was that before the noble Baroness became the Minister in charge, we had a debate on those very wordings. It was moved from the Opposition side that the burden of proof that should be satisfied in bringing the person before the judge was not the balance of probabilities but the criminal burden of proof of beyond reasonable doubt.
Lord Mayhew of Twysden: Standard of proof.
Lord Carlisle of Bucklow: I am sorry, the standard of proof of beyond reasonable doubt. I was saying that if the Minister feels that that is the right standard of proof in deciding this matter, clearly it must follow that on the issue of whether the right person has been brought before the court, that same standard of proof must equally apply.
5 p.m.
Baroness Scotland of Asthal: I shall take the issue away, examine it and return with a clear position on Report. If in the interim I am able to resolve the issue in a way that is significantly different from that which I described, I shall certainly write to noble Lords.
Baroness Anelay of St Johns: I am grateful to all noble Lords who have spoken and to the Minister for saying that she will consider further the clarity of the Government's position on whether the standard in the various parts of the Bill should be on a balance of probabilities or that of the criminal courts. As my noble friend Lord Carlisle of Bucklow said earlier, we were being told that a balance of probabilities would be fine for something as vital as identity. But here the standard is, as we would hope it to be, the criminal test of beyond reasonable doubt. I welcome the noble Baroness's confirmation of that.
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My noble and learned friend Lord Mayhew was right to point out that what we seek is clarity about the standard and the burden of proof. The burden of proof should be on the requesting state. We still have some serious matters to look at here. I shall have to consider the matter over the summer, and I think we will have to look at it again in the autumn, hopefully also with further clarification by the Government. I shall also seek advice from the Law Society on one or two matters of drafting.
Baroness Scotland of Asthal: Just before the noble Baroness sits down, perhaps I may say how I see it. The fact that Clause 7(3) specifically provides for the balance of probabilities leads me to construe that the remainder is beyond reasonable doubt. That is why I shall look to see whether more is needed.
Baroness Anelay of St Johns: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Anelay of St Johnsmoved Amendment No. 80:
Page 10, line 15, leave out from "that" to "entitled" in line 18 and insert "—

(a) he was convicted in his absence, and

(b) it would not be in the interests of justice to return him on the ground of that conviction taking particular account of the conduct of the proceedings which resulted in conviction and whether the person would be"

The noble Baroness said: In moving Amendment No. 80, I shall speak also to Amendment No. 201 and Clause 20 stand part. The amendments would allow judicial discretion in the extradition of anyone convicted in absentia, regardless of whether his absence was deliberate, only if it were in the interests of justice not to return him.
In the previous group of amendments I said that I did not have much sympathy if someone deliberately absented himself simply to escape justice. I stand by that. Here I look at different tests where the person is not trying to escape justice but a malevolent state that has carried out a wrongful action against him. So I am looking at an "interests of justice" test.
This country and many others recognise that conviction in the absence of an accused may be unjust. The question must ultimately rest on the conduct at the trial at which the person was convicted and the extent to which defence rights were preserved even in that person's absence. The test currently applied in this country extends significantly further than merely whether the person has deliberately absented him or herself. Section 6(2) of the Extradition Act 1989 provides that:
"A person who is alleged to be unlawfully at large after conviction of an extradition crime shall not be returned to a foreign state … if it appears to an appropriate authority—

(a) that the conviction was obtained in his absence; and

(b) that it would not be in the interests of justice to return him on the ground of that conviction".

The UK courts have found that the "interests of justice" test encapsulates such factors as whether,
"the trial was as fair as the circumstances permitted",
and in particular whether: first, reasonable steps were taken, both during the giving of evidence and in the summing-up to expose weaknesses in the prosecution case and to make such points on behalf of the defendant as the evidence permits; secondly, whether the applicant was represented by counsel of his choice at the first "trial" in absence and on appeal; thirdly, his legal representative was given all the relevant documentation in advance of the hearing; fourthly, that witnesses were called and cross-examined by counsel on behalf of the applicant; fifthly, that the applicant personally lodged an appeal; and, finally, that the applicant waived his right to appear at his appeal trial hearing.
We question whether Clause 20(2) should be amended to include an "interests of justice" test, so that the person's right to a fair trial is preserved. I beg to move.
Viscount Bledisloe: My understanding is that as the Bill stands at the moment, if the court decided that the man deliberately absented himself, then the country must return him even though he will not get any form of retrial, whereas under the amendment the court would have a discretion in those circumstances.
In the light of the answer which the noble Baroness gave to my last question, with which I have to confess I entirely agree as a matter of construction, it seems that there should be a discretion. Take a man who receives a summons to go to Greece to be tried for the harmless sport of train spotting. He has a job that he will lose if he goes. He has infant children and no spouse, which it would be difficult though not impossible to leave behind. He is at the very beginning of setting up his business. He has a contract. If he does not complete it, his business will he ruined. He writes a letter saying, "This is what I am doing. You really don't need me there. Please dismiss this silly charge".
He has deliberately absented himself on the definition given by the noble Baroness, with which, as I say, I agree. The court may very well think that it would be wholly unjust that he should be hauled back and stuck in prison for seven years without having had any chance for a retrial. Surely it is right that the court can say to the prosecution, "You can't have him back to imprison him unless you give him a retrial. You can of course extradite him for the offence and give him a trial, but you cannot extradite him before the conviction and just slap him in prison without any retrial". In those circumstances, surely a discretion in the court is right. The provision otherwise would work too fiercely on the people who had behaved perfectly reasonably, albeit—perhaps from a legal point of view—somewhat unwisely.
Baroness Scotland of Asthal: I have a little difficulty accepting that one can behave unwisely and illegally without there being some consequence.
Viscount Bledisloe: It is not illegal not to go back for a trial in Greece. Greece has no jurisdiction over a
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citizen of this country. It has sent him notice of a trial, not a warrant to attend; it does not have the power to. It has told him that there will he a trial, but it is not illegal for him not to attend.
Baroness Scotland of Asthal: We could now engage in a very interesting debate, which is probably not quite on the point. Notwithstanding the temptation, I shall restrain myself from responding, and direct my comments to try and deal with the amendments and the noble Viscount's questions.
Amendment No. 80 states that a judge must have particular regard, when considering a conviction in absentia, to,
"the conduct of the proceedings which resulted in coviction".
That is a very important criterion that the court will be able to take into account.
I recognise that the phrase "interests of justice" is taken from the Extradition Act 1989. That is the sole test provided by that legislation. As I said earlier, we seek to go further in the Bill. It sets out clearly the factors on which the judge is to base his decision. Therefore, we suggest there is no need for the Bill to include a general discretion. The amendments would also require the judge to consider the conduct of the original proceedings which resulted in the conviction.
Of course I understand the example of the noble Viscount and the difficulty with that particular case. The main characteristic of an in absentia case is that the person was not present at the original trial. Once the judge has decided whether or not the person deliberately absented himself, there is nothing else of relevance concerning the original conviction which the judge can examine.
In a Part 1 case the judge cannot verify prima facie evidence, in the same way that the judge does not examine such evidence at the moment. In a Part 2 case the same applies where the prima facie requirement does not apply—for example, requests from Council of Europe countries under the ECE. In a Part 2 case where the prima facie requirement stands, the judge will be required to examine the evidence anyway under Clause 85.
So, to demand particular attention to any other aspect of the original trial goes well beyond established in absentia principles. It also, I would suggest, goes well beyond the jurisdiction of the judges and courts in this country.
As Members are aware, the United Kingdom judiciary will be able to prevent extradition where there is a real risk that it would be in contravention of a person's ECHR rights. That will provide adequate protection for the individual against the risk of an unfair trial.
I acknowledge the thought that has gone into these amendments. We are clear, however, that the right to a fair trial must be an important factor in extradition proceedings. I also understand why noble Lords say, "Well, in those circumstances there should be a discretion". The provision has been framed in order to be very clear that there is parity of treatment between our "nationals" and EU "nationals" with whom we

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enter into agreement, and in order to accelerate the process through and by which we exchange those who have committed offences, in accordance with the laws of our respective partners. One knows that hard cases can make bad law. We are trying to make good law.
Lord Stoddart of Swindon: As one who is very much a layman in these matters, perhaps I may say that surely one of the problems in such cases is the removal of the necessity of providing prima facie evidence. If that were to continue, of course there would be adequate protection. However, let me give the example of the case of Mr Bond, a man of 74 years who was wrongly identified as a criminal by the American authorities. The innocent Mr Bond is over here and quite safe. When he gets summoned he says to himself, "The conditions under which remand prisoners are held in the United States would kill me", because very often remand conditions there are not of the same standard as we would expect in this country. So Mr Bond, being careful of his own life, and believing that to surrender himself would be a death warrant, says, "No, I am not going". The Americans say, "Under those circumstances, we will try you in your absence".
In my view, Mr Bond would be quite entitled, because of the harsh conditions under which remand prisoners are held, to be afraid for his life. He may fear being chained, for example, and put through a fairly rough regime. He would be sensible to resist a warrant to go to the United States. I do not know whether the noble Baroness can clear that matter up for me. It is certainly a great worry so far as I am concerned because I am 77. It may very well be that I shall find myself in a similar situation.
5.15 p.m.
Baroness Scotland of Asthal: I am sure that the noble Lord would not find himself in a similar situation. I am sure that a number of noble Lords would rush to his rescue if that were ever to befall him.
I should like to reassure the noble Lord on identity, which we have already touched on in this debate. Clause 7 provides that the issue of identity would have to be established by the district judge or the judge hearing the matter before an order could be made against the person. Of course one does not want to debate particular cases, but the case referred to really did turn on whether there had been a proper inquiry into whether the individual was who the American authorities asserted he was. I think that they made a frank and full apology for what happened.
The safeguard in this country would be that unless and until they established on the balance of probabilities that he was who they asserted he was, the court would be entitled to say, "No order in favour of the requesting state". So the noble Lord need not worry about his own position. I know that all Members of the Committee would verify that he is precisely who he asserts to be.
Viscount Bledisloe: With respect to the noble Baroness, I do not think that that answer is right.
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Section 7 requires the court only to decide whether the person before it is the same person as the one named in the warrant. As we discussed, the section does not enable the court to decide whether the person named is in fact the person whom the demanding country thinks committed the crime. They named Mr Bond in the warrant, and Mr Bond is the person named in the warrant. Mr Bond's point is, "I am not the person you think committed the crime". When I sought in a previous debate to allow the noble Lord, Lord Filkin, to raise that point, he turned it down.
Returning to the noble Baroness's answer to my point, I accept that her answer is an answer to the amendment as currently worded—namely,
"taking particular account of the conduct of the proceedings".
I am asking whether the court could not have a discretion to take particular account of the reasons for the person deliberately absenting himself, and then, if those reasons are in fact extremely reasonable and understandable, to say that it is not in the interests of justice to send him back.
Baroness Scotland of Asthal: I think that that would present us with a very difficult test to apply. We are, of course, discussing a treaty that will have international application. In my own personal practice, I have found that what one person considers absolutely reasonable is usually anathema to another person who thinks that it is the height of unreasonableness. In such circumstances we need an element of certainty. It is in the interests of justice for all of us that those who are asked to respond to proper summonses in relation to criminal activity should do so. They should take the opportunity to assert their case and have it determined in the proper way. That is how we shall be able to put parity of treatment, certainty and integrity into this situation, so that the international community feels confident about operating these provisions.
Baroness Anelay of St Johns: I think that the issue between us comes down to whether there needs to be sufficient flexibility to meet the situation which the noble Viscount, Lord Bledisloe, described not only today but previously by raising the very important issue of what happens when someone is patently innocent and yet is caught up within this machine of extradition. As the noble Lord, Lord Stoddart of Swindon, said, such people may get themselves in a position where although they know they are innocent and can prove their innocence when they reach the foreign jurisdiction, they surrender and find themselves held in conditions which—let us be frank—could kill them. That is why we are looking for some kind of flexibility whereby the judge can decide in the interests of justice that extradition is not the proper course.
The noble Baroness, Lady Scotland, says that the amendment goes beyond established principles. We argue that this part of the Bill already goes beyond established principles. We are therefore trying to explore ways in which proper safeguards can be built in. Between now and Report stage I shall look very carefully at what she has said.

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Before seeking leave to withdraw the amendment, it might convenient for the Committee if I pointed out that although the question on Clause 20 stand part is grouped with these amendments, I shall not oppose it. The list of amendments also shows that Clause 21 has already been debated, but I am aware that my noble friends Lady Carnegy and Lord Lamont wish to address issues as regards that clause. I beg leave to withdraw the amendment.
Baroness Carnegy of Lour: Contrary to my noble friend's belief, I have a further question on Clause 20. The last two lines of subsection (3), lines 25 and 26, deal with this business of the definition of,
"a retrial or (on appeal) … a review amounting to a retrial".
I was fascinated by some of the comments in our discussion on Amendments Nos. 81 and 82. I was puzzling away at the fact that the two amendments followed the style of the Bill in defining things by double negatives. I know that lawyers are very fond of that style. It almost needs another lawyer to sort it out, which is perhaps why they draft it in that way.
However, when the Minister reconsiders the questions raised under those two amendments, will she examine her first reply on what a retrial is? She compared it with a trial. As a layperson, I find it very much more helpful to have a positive description of what a retrial is and what a review amounting to a retrial is. When I first looked at the Bill, thought that the provision was too vague by half. I have become increasingly confused by these double negatives. I wonder whether that is a constructive suggestion which the Minister might like to take on board.
Baroness Scotland of Asthal: I can certainly say to the noble Baroness, Lady Carnegy, that her ability to construe these Bills far outdoes that of most lawyers. She puts them in the shade, but she need not worry about that. There is also the need for parliamentary draftsmen to ensure a consistent style in the Bill. I do not know whether my powers of persuasion are greater with the parliamentary draftsmen than they are with the Committee, but I shall certainly look at the issue.
Amendment, by leave, withdrawn.
[Amendments Nos. 81 and 82 not moved]
Clause 20 agreed to.
Clause 21 [Human rights]:
Baroness Anelay of St Johnsmoved Amendment No. 83:
Page 10, line 29, after "extradition" insert ", hearing and surrender"
The noble Baroness said: Since we are being welcoming, I welcome the noble Lord, Lord Filkin, back to his place.
Amendment No. 83 asks the Minister questions on human rights issues. We welcome the inclusion of a specific clause in the Bill which places on the judge an obligation to assess whether the person's extradition,
"would be compatible with the Convention rights within the meaning of the Human Rights Act 1998".
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Our problem is with the drafting of subsection (1) of this clause. We find that it is rather ambiguous and might provide an unfortunate loophole. The judge has to decide whether "the person's extradition" complies with the ECHR. The noble Baroness, Lady Scotland, referred to that issue in our earlier debates on retrial. The difficulty is how that provision can be interpreted in detail. Does it refer to the preliminary stages of the extradition hearing in the United Kingdom? Does it cover the actual process of handing over the person? Does it extend to the eventual prosecution in the category 1 territory?
We are considering the stages of extradition. When we talk about extradition, are we simply talking about the part of the process that happens here, or are we considering it as a whole process? At the moment, as Justice pointed out to us in its helpful briefing, "extradition" could be interpreted as being limited to the actual return.
The proposed amendment would clarify the Government's intention to apply convention standards to the proceedings as well as the actual return, so that Article 5.4 of the ECHR procedural rights in particular would be applied in the hearing, proceedings and eventual return. I beg to move.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin): I thank the noble Baroness, Lady Anelay, for the clarity with which she posed and explained the amendment. I hope that I can be relatively reassuring, as well as relatively brief, in my response.
Clause 21 provides that extradition cannot take place if it would be likely to lead to a breach of the person's ECHR rights. ECHR jurisprudence has clearly established that our obligations in this area extend to the treatment of the person once he has been extradited—which was, I think, the centrality of the noble Baroness's question. The key case in this regard is that of Soering. In its judgement in that case, European Court of Human Rights said:
"It would hardly be compatible with the underlying values of the convention, were a contracting party knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, inhuman or degrading treatment or punishment, however heinous the crime allegedly committed. Extradition in such circumstances would be plainly contrary to the spirit and intent of Article 3".
The Court went on to say in respect of Article 3 of the convention:
"The decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country".
The Court went on similarly to explain, and I think it relevant, that Article 6 issues under the charter could arise in extradition proceedings where there was a significant risk of the denial of a right to a fair trial in the requesting state. We may come on to that issue in a later amendment. So not only do our own procedures

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have to be ECHR compliant, but we could not extradite—or a district judge could not extradite, which is the focus of the clause—where there was a significant risk that the procedures in the requesting state would result in a breach of the fugitive's ECHR rights.
So I think that the reference to the "hearing" is otiose. Unless the noble Baroness, Lady Anelay, particularly desires it, I shall not return to the previous discussion which we enjoyed on surrender and extradition. I would simply emphasise that we have included in the Bill—in the clearest possible terms, we had hoped; but perhaps this debate has increased its clarity—exactly what we want to do to give the district judge a very full power and discretion to consider whether extradition of the person requested would infringe the ECHR rights of that person. I hope that my comments and the authorities I have quoted will put that beyond peradventure.
Baroness Anelay of St Johns: I am grateful to the Minister for his very helpful response. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 84 and 85 had been withdrawn from the Marshalled List.]
Baroness Turner of Camdenmoved Amendment No. 86:
Page 10, line 35, at end insert—
"(3A) If the judge decides that the presumption of innocence is not likely to be applied at his trial or retrial or review amounting to a retrial after extradition, or has not been applied in any such proceedings against the person, he shall order the person's discharge."
The noble Baroness said: In the absence of my noble friend Lord Wedderburn of Charlton—I am afraid that the Committee is going to have to put up with me—may I again welcome my noble friend Lady Scotland?
We had originally tabled three amendments to this particular clause, the human rights clause. However, we decided that we would not move the first two amendments because we thought that our final amendment, which relates to the presumption of innocence, was the most important of the three. We are asking that a person should be discharged, if the judge decides that the presumption of innocence is not likely to be applied at his trial, re-trial or review or has not been applied in any such proceedings. That is a vital part of UK law. That has been attested to by none other than my right honourable friend the Home Secretary. In a debate in the other place, he said, in reply to Mr Letwin:
"I am very sorry to intervene at this stage of the right hon. Gentleman's speech, but we must be accurate about the European arrest warrant. The proposals in that element of the Bill would ensure that no country could try someone in absentia on the ground that they are presumed guilty. Under the European convention on human rights, which the right hon. Gentleman has often attacked, there must be a presumption of innocence. The Bill will make it clear that no country will have the right to extradite
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under the European arrest warrant, without agreeing to the presumption of innocence".—[Official Report, Commons, 20/11/02; col. 649.]
The requirement does not appear in that form in the Bill. I hope that the Government will agree that it is so important that it ought to.
I may be advised by my noble friend that the reference in Clause 21 to the Human Rights Act 1998 is supposed to cover everything and that it would be otiose to make the amendment. I do not think so. The requirement is so important that there is a strong case for putting it into the Bill in the form that we suggested. That would be in line with what the Home Secretary suggested. I beg to move.
5.30 p.m.
Lord Clinton-Davis: What my noble friend has alluded to is enormously important. I am not sure that a case has been made for including the provision in the Bill, but, on the other hand, I hope that my noble friend will be able to say that the presumption of innocence, as has rightly been said, is of maximum importance. For that reason, the issue is worthy of debate.
I think that, although the issue is important, it is already covered by the European Convention on Human Rights. I would like my noble friend to emphasise that that construction is right. The points that my noble friend Lady Turner of Camden made are of enormous importance.
Lord Lamont of Lerwick: I support the noble Baroness's amendment. I would particularly like the Minister to comment on the issue of the juged'instruction—the investigating magistrate. It is one of the things that concern several of us.
On that point, I draw the Minister's attention to the remarks of Mr Strauss-Kahn, a former Finance Minister in France under Mr Jospin, which I have quoted before. He said that, in France, once the judiciary was interested in someone, he was presumed guilty until proved innocent. I am concerned at the coercion that sometimes seems to be exercised by investigating magistrates—sometimes involving preemptive custody—in putting enormous pressure on people to make a bargain with the prosecuting authorities.
Lord Stoddart of Swindon: I add my voice in support of the amendment. The noble Lord, Lord Lamont of Lerwick, gave the example of what happens in France, but we must be careful that the whole idea that someone is innocent until proved guilty does not slide past us in the Sexual Offences Bill that is before Parliament. In our treatment of rape, we are slipping away from the presumption of innocence until proved guilty.
In our own country, under several pieces of legislation, people must now prove themselves innocent. If they do not, they are guilty. It is an important amendment. A different situation is beginning to apply in this country, and I am certain that it already applies in other countries of the

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European Union covered by Part 1. All of us know—the noble Lord, Lord Lamont of Lerwick, just confirmed it—that standards in some other countries, particularly France and Italy, are not such as, hitherto, we would have accepted in this country.
The tenet that one is innocent until proved guilty is essential to the protection of the individual against the state and against wrongful prosecution. Habeas corpus is also essential, and it, too, is slipping away. It does not exist in some Part I countries. We should be grateful that the amendment has been moved. I shall listen with interest to the noble Baroness's reply.
Baroness Scotland of Asthal: I hope that I can quieten all the beating hearts on the matter. The issue is covered. I thank my noble friend for raising the issue. She has given us an opportunity to debate an essential part of the protection that we need.
It may be helpful if I remind the Committee that all EU member states and accession states and others besides are party to the ECHR and must operate accordingly. The judicial systems have all been found to comply with the ECHR right to fair trial, including the presumption of innocence. Therefore, any argument that the EU jurisdictions do not operate the presumption of innocence is without foundation.
It may be helpful if I remind the Committee of what Article 6.2 of the convention says. It states:
"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law".
If we included an express provision giving effect to Article 6.2, it would, as I said earlier in Committee, cast doubt on whether Clause 21 brought in other essential safeguards, such as those in Article 6.3. I shall remind the Committee of what is in Article 6.3. The Government believe that it is of equal importance. It says:
"Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail. of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court".

All of those provisions are bound up in Clause 21 and are, I respectfully suggest, succinctly expressed.
Lord Lamont of Lerwick: I am grateful to the Minister for reading that out. Is she saying that those conditions are observed in every state?
Baroness Scotland of Asthal: They are observed in every state that complies with the ECHR. The noble Lord, Lord Lamont of Lerwick, raised the issue of the procedure in France, which has caused him concern. No one can be convicted or punished in an
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investigating magistrate system unless he has been properly convicted in a court of law. Until the court has determined that he is guilty, he is innocent. That is exactly what the presumption of innocence is all about. The important thing about the countries with which we are in comity through the ECHR is that they all agree that they will adhere to those principles. Although we may construct our systems differently, those elements must be reflected. That is our assurance.
If the noble Lord, Lord Stoddart of Swindon, was right about the presumption of innocence and it was lost—if there were no presumption of innocence and the system did not work—the courts here would make a declaration of incompatibility under the Human Rights Act 1998. So far, as I said, all the systems of all EU member states and accession states are compliant. By inserting Clause 21, we encapsulate the essential fundamental principles to which we all adhere and which we all want to have assured for individuals who come before our courts.
Baroness Turner of Camden: I thank noble Lords who contributed to our short debate. It is important to have the issues spelt out, as my noble friend acknowledged. I am grateful to her for spelling out what is in Article 6.2 of the ECHR. It is useful to have it spelt out and readily available in Hansard.
I shall study what my noble friend said. It is important.
Lord Lamont of Lerwick: Before the noble Baroness withdraws her amendment, will she allow some of us to ask another question? When the noble Baroness concludes, I can ask a question.
Baroness Turner of Camden: Will the noble Lord, Lord Lamont of Lerwick, ask his question before I withdraw the amendment? That is probably the best way round.
Lord Lamont of Lerwick: Everything that the Minister said seemed to follow logically. Of course, there are all those provisions in the European Convention on Human Rights. I think it is the case that the Strasbourg court has judged that, for example, the practice of having investigating magistrates is consistent, as it chooses to define it, with the presumption of innocence.
For me, that does not satisfy. As a body passing the laws of this country, we must ask ourselves whether, in reality and in common sense, such practices are consistent with it. It may be an arrogant argument, but it is our duty to ask ourselves whether such practices comply with those concepts, when we make changes in the law.
Even if a country were judged to be compliant with the ECHR, we would not be justified in removing all the safeguards built into the existing extradition procedure. A country may be generally compliant, but there may be exceptions. If an exception arises in a particular case, the ECHR is of no use to the individual. It will take him years to get to Strasbourg.

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For the convention to bite, every judge in every court throughout the European Union must be fully conversant with it and, in his daily professional life, make sure that the cases in which he is involved conform to it. With great respect, I must say that there is quite a lot of evidence that that is not the case.
At Second Reading, several noble Lords quoted from the evidence of Fair Trials Abroad about legal aid. The noble Lord, Lord Goodhart, spoke about legal aid in southern Europe. We know that legal aid in Greece and Spain is thoroughly inadequate, whatever the convention says. We know that, whatever is said about translation facilities, Fair Trials Abroad said that France—I think that this is right, although I speak from memory—said that it provided all the translation facilities. Fair Trials Abroad said that it had never come across a case in which it had been involved in which France had met the standards that it said had been laid down. It also referred to several cases in Portugal.
Lord Hodgson of Astley Abbotts: The Fair Trials Abroad report on Teresa Daniels said that her conviction was on her diary entries in English which had been mistranslated into Spanish. It was as bad as that—a translation the wrong way convicted her eventually.
5.45 p.m.
Lord Lamont of Lerwick: Of course there may be one bad case in one country, but Fair Trials Abroad argued that there was a pattern of such cases. It is just not enough to argue, in order to persuade us to assent to these legislative changes, that all these countries have signed the European Convention on Human Rights. The question is whether these matters are, in reality, being observed as we would judge they ought to be observed, quite apart from how other countries choose to define them.
Lord Stoddart of Swindon: Before the Minister replies, could I ask a simple question? Would the insertion of this amendment do any harm to the Bill?
Baroness Scotland of Asthal: I think I have tried to explain that one of the important things that we have to ensure is that each applicant—each person who becomes subject to such an order—must have an opportunity to take advantage of all the provisions in relation to the ECHR, not only some of them. That is why I thought it might be helpful if we looked at the provisions of Article 6.2 and then those of Article 6.3, but we could have gone through the whole of the ECHR, picking out various parts on which we would say others were entitled to rely.
On the point of the noble Lord, Lord Lamont, each jurisdiction is equally jealous of the benefits of its own system. If you talk to Italians, French, Spaniards—
Lord Lamont of Lerwick: Not Italians.
Baroness Scotland of Asthal: Well, I have had the benefit of being involved in the Convention on the
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Future of Europe for 15 months and I can assure the Committee that each jurisdiction believes that their excellent systems far outdo any other system known to man. This is particularly a feature of lawyers from the various jurisdictions, who are firmly ensconced in their own tradition. I do not hesitate to say that I have a huge fondness for the common law and think it is extraordinarily attractive and should be promoted. But that is an attraction which I daresay others may not feel if they come from a different tradition.
So one has to look at the system overall to see whether the system in each of our countries complies with ECHR provisions. I am sure that other jurisdictions could point to miscarriages of justice and improper procedures which have, regrettably, happened on occasion in our jurisdiction and make very similar comments to those which have been made by the noble Lord in relation to our French and other European colleagues.
The important thing is that we all operate a system which is fair, which complies with the ECHR, and that there is parity of treatment. If the judge finding the matter before him is not satisfied that there is compliance with the whole of the ECHR, it will of course be open to that judge to so find. In this jurisdiction, we have some very robust and skilled lawyers who argue these cases very fully on a daily basis.
We also know that there are grounds upon which one can appeal if the district judge's decision is not found to be sound. So we believe that there are sufficient safeguards within the system to make us assured that this will work, and work well.
I remind noble Lords that we have for some time had difficulty in relation to extradition—in getting some of our colleagues to extradite those who committed offences from their countries to this country and vice versa. Those proceedings have been very lengthy. It will inure to our advantage to have a system whereby we can oblige other countries to comply in a way which we think proper in relation to extradition. The provisions are sufficiently robust to make us feel content.
Baroness Turner of Camden: Again, I thank Members of the Committee who participated in the debate—in particular the noble Lord, Lord Lamont, who spoke on the basis of his experience of European jurisdictions, and so on. I shall of course seek to withdraw the amendment. However, I should like to consider what has been said because I think that there is a case for saying that, as the presumption of innocence is so important in British law——this is after all a British Bill—we should perhaps have it written into the Bill nevertheless, despite the arguments advanced by my noble friend about that being unnecessary. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 21 agreed to.
Lord Goodhartmoved Amendment No. 87:
After Clause 21, insert the following new clause—
"MINIMUM PROCEDURAL RIGHTS
(1) In reaching a decision under section 21(1) the judge shall have particular regard to the person's Convention rights under Article 6.3 of the European Convention on Human Rights.
(2) For the purposes of subsection (1), the judge may accept a written assurance from an appropriate authority in the category 1 territory in which the warrant was issued that the person's Convention rights under Article 6.3 will be observed.
(3) Where a written assurance has been given under subsection (2), the Secretary of State shall make arrangements to monitor the future conduct of the proceedings in the category 1 territory to which the person has been extradited.
(4) If the Secretary of State concludes as a result of monitoring under subsection (3) that the person's Convention rights under Article 6.3 have not been observed, he may draw that conclusion to the attention of a judge acting under section 21 in relation to any proceedings for the extradition of any other person to the same category 1 territory."
The noble Lord said: Amendment No. 87 is intended to be spoken to together with Amendment No. 207. Amendment No. 87 raises what I believe to be an issue of outstanding importance. Indeed, it is an issue which gives rise to what I see as the most serious objection to the European arrest warrant—the variable standard of legal process in some member states of the European Union. That is an issue which I find far more troubling than the abolition of dual criminality. I regret that a proposal that has been floating around for some time, for a framework decision on minimum standards of legal process, has not so far made significant progress.
Clause 21 provides an important—indeed a vital—safeguard for the European arrest warrant procedure. It says that the judge must decide whether the person's extradition would be compatible with that person's convention rights under the ECHR. Of course, if they are not compatible, that person must be discharged.
The most relevant convention right—although not the only one, as we have discussed in the past few minutes—is the right to a fair trial under Article 6 of the ECHR. Article 6.1 confers the right to,
"a fair and public hearing within a reasonable time by an independent and impartial tribunal".
Article 6.2, as we have just been debating, provides for the presumption of innocence. Article 6.3 provides for a number of more detailed provisions. I will not repeat it because it has already been read by the Minister.
Article 6.3 is, I believe, of particular importance because it covers the problems which are the most common grounds of criticism of the process in some of the EU states—in particular, the lack of adequate free legal assistance, under Article 6.3(c), and the lack of interpretation facilities under Article 6.3(e).
The European arrest warrant greatly limits the grounds for avoiding extradition. The main grounds on which someone who is anxious to avoid extradition would have to rely would be either the presence of one of the bars to extradition under Clause 11 or incompatibility with convention rights under Clause 21. Clause 21 is therefore likely to be used frequently as a basis for resistance to extradition. That means that
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the court hearing the extradition case will have to hear evidence about the standards of justice in the requesting territory. That evidence may be lengthy and conflicting. That will mean that the extradition hearings may well be protracted to an extent which I believe to be undesirable.
In that context, Amendment No. 87 has a number of purposes. The first is to ensure that a United Kingdom court pays proper attention to the requirements of Article 6.3—not of course in any way exclusively: but it draws those particular provisions to the court's attention, in the same way as, in the Human Rights Act 1998 itself, the need for freedom of the press was drawn to the attention of the court.
The second purpose of Amendment No. 87 is to allow the judge in a United Kingdom court, if the judge is not satisfied that the Article 6 requirements are regularly observed in the requesting state, to accept assurances that in the particular case before the court, those requirements will he satisfied. That proposal is drawn from the procedure under Clause 93, which applies to extradition to category 2 territories that still apply the death penalty. The Secretary of State can in such cases accept assurances from the requesting state that the death penalty will not be imposed.
So it seems to me that in an appropriate case the judge conducting the extradition hearing should be able to accept written assurances that the rights of the person whose extradition is being sought under Article 6.3 will be observed and that that person will be entitled to full legal aid—to appropriate legal aid—and to appropriate interpretation assistance. That will shorten proceedings in the United Kingdom by making it unnecessary to investigate whether, as a general rule, rights under Article 6.3 will be observed in the requesting territories. It will also help to ensure that the convention rights of the person facing extradition are duly observed.
It is of course important to ensure that promises by the requesting state are duly complied with. Clause 93, on assurances concerning the death penalty, does not provide for monitoring. I think that that is understandable, because either the death penalty is applied or it is not. If it is applied, there is no way of keeping that fact secret. But of course a question as to whether convention rights under Article 6.3 are complied with is open to argument and to a degree of uncertainty.
Therefore, whether in any case assurances have been complied with is something which requires monitoring. The new clause provides for monitoring. It does not specify how it is to be carried out, but it could be carried out by employing a properly qualified local lawyer, for example, to observe the case. The penalty in the case of failure to comply with the assurances is that the fact of non-compliance can be brought to the notice of a court in the United Kingdom on any subsequent request by the same territory, and it is therefore likely to mean that similar assurances will not be accepted in a later case if they have not been observed in an earlier one.

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The new clause provided by the amendment therefore improves the existing procedure under the Bill in several ways. Where an assurance is given and accepted, first, the person extradited is given a specific promise that his or her rights under Article 6.3 will be observed, and that that promise is itself likely to be observed. Secondly, the new clause will obviate the need for lengthy evidence and argument about the standards of process in the courts of a requesting state in respect of which any doubt exists. Thirdly, whereas the Bill currently provides that extradition would have to be refused because of uncertainty about standards in the requesting state, the new clause will mean that in some cases a criminal will be returned to face trial.
Amendment No. 207 applies the same procedure to the human rights defence under Clause 86 in relation to extradition to category 2 territories. The same arguments broadly apply in that case as well.
If the amendments are not accepted, I fear that we may find that the extradition process is tied up by repeated arguments as to whether standards of justice in other member states are in fact in full compliance with Article 6. I believe that that is something which we should make every effort to avoid. I beg to move.
6 p.m.
Baroness Anelay of St Johns: My name is attached to these amendments and I rise, very briefly, to lend them my full support. It would be wrong of me to go into detail; the noble Lord, Lord Goodhart, has made a formidable case. He said in his opening remarks how important were these amendments. Let the Committee be in no doubt that we agree with him that they are vital to the well-being of the Bill.
Viscount Bledisloe: Could one or other of the proponents of the amendment enlighten the Committee further as to how they see subsection (3) working? Perhaps understandably, the noble Lord, Lord Goodhart, skated rather lightly over it. Surely if the subsection were inserted in the Bill, an issuing state would be highly likely to send, almost automatically, a written assurance in this form with every warrant.
Does the noble Lord really envisage that in every such case an observer—whether local or from this country—will be sent out to watch the entirety of the trial and the proceedings before it to see whether adequate legal aid is given at the right time and whether the translator provided is competent? The amendment would involve this country in massive expenditure if every trial for which extradition is granted under Part 1 is to be observed and monitored throughout not only its proceedings but all the preliminary stages.
Lord Goodhart: Let me deal with that point now. I do not see any significant problems. The number of extraditions at present is under 50 a year. Even if that number is quadrupled because the process becomes easier, one is looking at 200 per year. In a considerable number of cases the extradition will be to countries where there are no problems with the local procedure.
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In other cases the person extradited will live in and speak the language of the country to which he or she is extradited. Therefore the question of interpretation will not arise.
The monitoring procedure will not necessarily require anyone to sit in the court and observe the proceedings for the whole time. Obviously a certain amount of visiting will be necessary, but I believe that one can safely assume that if the extradited person is suffering any problems he or she will be given the name of someone they can contact who will, on behalf of Her Majesty's Government, look into the matter and decide whether or not there are any problems.
The expense involved in what is bound to be a relatively small number of cases will be proportionate to the matters at issue. I suspect that there may well be a net saving to the state because proceedings in the extradition hearings in this country, which are extremely expensive, will be shortened.
Lord Filkin: I genuinely thank the noble Lord, Lord Goodhart, and the noble Baroness, Lady Anelay, for tabling the amendments, because they address central issues that it is right that we explore and test in Committee. At the risk of rashness, I shall seek to explain why, rather than the Bill weakening the rights of people who are requested for extradition to European Union member states or other signatories of the ECHR, in practice, it strengthens them. Let me explain why and suggest why the specific mechanisms suggested by the noble Lord, Lord Goodhart, and the noble Baroness, Lady Anelay, perhaps are not the best, because appropriate provision is already in place.
From discussion of earlier amendments, the Committee knows that we have built several important safeguards into the extradition process. I think that the Committee genuinely recognises the importance of trying to avoid the legalistic, hide-and-seek process that extradition has become—in some circumstances taking years—in ways that mean that people who ought not to be extradited are not in practice.
As we have said, the safeguards of Clauses 21 and 86, which we have inserted into Parts 1 and 2, are specifically intended to achieve that. The clauses are entirely unambiguous. They provide that extradition cannot take place if the extradition would be incompatible with the fugitive's convention rights under the Human Rights Act 1998. In other words, if extradition would breach the fugitive's ECHR rights, it must not and should not take place. Not only does that protect against the infringement of individual rights in this country, but ECHR case law has clearly established, as I said in response to an earlier amendment, that those obligations extend to the likely fate of the fugitive if he is extradited. If there is a significant risk that his ECHR rights will be breached once returned to the requesting state, the district judge must not extradite him.
I am therefore unsure why Members of the Committee feel that they need to raise a specific procedure for Article 6.3 of the European Convention on Human Rights. Article 6.3 guarantees the right to a fair trial and refers to minimum rights, to which I

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spoke earlier, in very explicit terms. In that respect, the ECHR is extremely helpful, because the judge, knowing that one test he must satisfy is that a person will not have his ECHR rights infringed, will have that document before him. The tests of which he must be satisfied before he decides whether to grant extradition could not be clearer.
So the judge is empowered to consider those issues without any need for a specific provision. More to the point, if there is the slightest suggestion that the person's ECHR rights will be breached, I am sure that the fugitive, or his lawyer—the noble Lord, Lord Goodhart, is absolutely right in this respect—will argue the case that it is unsafe for him to be extradited to country X, because he will not receive a fair trial for X, Y or Z reasons. In those circumstances, if the judge considers that argument valid, he must bar extradition.
In accordance with normal practice, the district judge will have such arguments put to him by the defence for the person who does not want to be extradited. I am advised that extradition advocacy comprises a specialist body of lawyers who understand and will be well steeped in the arguments and, as the noble Lord, Lord Goodhart, suggested, will attempt through Clause 21 to claim that it is unsafe for their client to be extradited, even if he meets the test in Clause 11.
That is good and right and must run its course. I am superficially attracted to the idea that one could save court time by avoiding the process of testing whether country X's procedures were compliant, but that is unworkable for several reasons.
First, the judge cannot decide whether country X is in general safe or compliant with the ECHR, he must make a judgment on the specific person at the specific time for the specific offence. A judgment must be made about the specifics of the case; that is, whether it is safe for that person at that time for that charge to be extradited to that country. Without going into detail, we can envisage circumstances in which a good advocate will argue that for a person charged with a particular offence in a particular country, given its history, culture and how the laws operate, that was not safe. Under the Bill, the judge has total discretion to make that judgment. That is absolutely right.
The second argument is that it might be safer if the Government themselves monitored any assurances to see whether they were compliant. Before I touch on that, there is the issue of certification. It is open to a state requesting the extradition of a person from the United Kingdom to send a certificate, if it wishes to do so, saying that it is compliant with the ECHR and giving evidence of how translations and so on are provided. We need not put anything in the Bill to make that clear. A country is at liberty to so do, if it wishes. The district judge still has the responsibility of making a judgment about whether he believes that it is true when he has heard what the defence advocate has to say, and whether it is true for the specific individual in the circumstances. The Bill gives a strong power to the district judge to make that judgment.
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I was going to touch on why I did not think that the monitoring process would be appropriate. For a start, there are all sorts of practical reasons to do with how civil servants would monitor the judgments. However, even if one had that in place, it would not be desirable that the Secretary of State should make the decision that country X was safe for a person in the circumstances. The Bill puts responsibility for that judgment on to the district judge. It is right and proper that the district judge should make the judgment, and it should not be up to the Secretary of State to say that something was kosher or that people had not behaved in the past. The judge has full scope and full discretion to decide whether it is met.
The final argument is that, if we put in a clause to that effect, the way in which it operated would open up a further opportunity for judicial review. Undoubtedly, people would go for a judicial review on the basis that the Secretary of State had not exercised his discretion appropriately. That judicial review case would have to be heard, and we would have built another delay into the process.
For the reasons that I gave, I am completely with the noble Baroness, Lady Anelay of St Johns, and the noble Lord, Lord Goodhart, on how central it is to our attempts to ensure that people who should not he extradited are not extradited. The clarity and simplicity of Clause 21, underpinned by the clarity of Article 6, give massive power to the district judge. If the noble Lord, Lord Lamont of Lerwick, is right and it turns out that a particular country might be OK in some cases but not in the specific case, it is right and proper for the district judge to say, "No. I will not extradite this person because I do not believe that country X provides translation facilities. I have listened to what the defence has said, and I am convinced that it is a matter of doubt. I will not extradite". I see nothing wrong in a district judge making such a decision, and. if such a situation occurred, it would provide an incentive to ensure that it did not persist. The power is with the district judge, and that is helpful.
I shall make a final point. A district judge may make a judgment that, on the balance of the evidence that he has heard and of what the advocates have said, it is safe, in the circumstances, to send the person back. The person who is being sought for extradition and his lawyer have a further right of appeal to the High Court. The issue can be re-heard and re-tested in the High Court. That provides a strong set of legal protections for the individual, while not allowing the kind of perpetuation of a case that we currently have, which can turn into a hide-and-seek game lasting several years.
I hope that what I said—at some length, I fear—will go some way to meeting the tests and challenges that the noble Baroness, Lady Anelay of St Johns, and the noble Lord, Lord Goodhart, rightly raised.
6.15 p.m.
Lord Mayhew of Twysden: The noble Baroness, Lady Scotland, helpfully explained to the Committee

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that Article 6.3 of the European Convention on Human Rights is very explicit. I had thought that it was less explicit and that it expressed matters more generally—I built some argument upon that premise at an earlier stage—but I am now quite satisfied that it is very explicit.
Can the Minister give an example of a feature of an individual case that is not covered by Article 6.3 but which might nevertheless lead the judge to withhold his consent to extradition on the grounds of incompatibility with the European Convention on Human Rights? As has been explained, one of the attractive features of the amendment is that it will save a great deal of time while, at the same time, preserving the essential criterion.
Lord Filkin: The noble and learned Lord, Lord Mayhew, is inviting me to find a hole in my argument and to shoot a bullet through it. Nevertheless, that is a perfectly fair challenge because these issues are serious rather than flippant.
My first reaction is that Article 6.1 deals with general issues. It states:
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".
There is a generality in that sentence which seeks to express in slightly legal terms the right to a fair trial.
The subsidiary paragraphs seek to unpack that for the avoidance of doubt. But if a defence barrister thought that something suggested that his or her client would not get a fair trial in country X, which was not covered by Article 6.2 or 6.3(a), (b), (c), (d) or (e), it would not be outwith the barrister's ability to argue that specifically.
Although I shall reflect on the issue, I believe that the article as currently drafted is effectively a catch-all, which allows other unspecified matters to be brought in as part of a defence that a person would not get a fair trial. I shall come back to the noble and learned Lord if, on reflection, I find a further hole in my argument.
Lord Goodhart: I am grateful to the Minister for that very full response. The problem at the root of the issue we are debating is that, although I speak as someone who supports the European arrest warrant in principle, I would have preferred that it was not brought into operation until a framework decision on minimum standards throughout the European Union could also be brought into operation. Unfortunately, as I suggested earlier, although the idea of a framework decision has been floated, it seems to be a good many years off. We therefore have to accept the position as we find it.
I accept that Clause 21 will provide significant protection for people who are faced with extradition to member states where the provisions of Article 6.3 are not adequately observed. I am not particularly wedded
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to the method of dealing with that problem that I have put forward, although it is the best I could think of. I am concerned that in the next few years we will face a great deal of litigation about these standards. We may well end up with extradition to some of the member states becoming extremely difficult. That is a situation with which I would be unhappy and I have sought to deal with the problem. The same applies, of course, to category 2 territories.
I shall obviously ask leave to withdraw the amendment.
Lord Filkin: I am grateful to the noble Lord for giving way. I wish to make one or two points that may assist him in his reflections. We extradite now to these countries; we have done so for many years. We have ECHR in place now; it is an issue that is before the courts now. All that Clause 21 does is to put it in the Bill in black and white terms. In many ways these tests exist already and it is open to advocates to use them now if they so wish.
All we have done in Part 1 is to put in place a system of hearings—initial, substantive, appeal—which ensures that there is an opportunity to resist improper extradition while not allowing the process to take two years in ways to which we are all opposed.
If it had been possible to get the Valhalla of a general view that every country had come up to an exactly similar standard that we all thought was perfect, we would still face specific issues. Times and circumstances can change. The defendant still needs the right to argue that, although country X may have been all right generally in the past, "For me it is not safe". Therefore one still needs the broad scope of the power given by Clause 21.
Lord Goodhart: While I fully accept what the Minister says I cannot be quite as confident as he is. The fact that this argument has not been raised on previous extraditions to countries where procedures are questionable does not mean that it will not be raised in the future. The restriction on other arguments against extradition is likely to lead to a search for new grounds on which to base arguments against extradition. I remember a few years ago the decision in the case of Chahal which prevented extradition to India of people accused of terrorist offences on the grounds that they were likely to be tortured. That was a bar under Article 3. It is equally possible that there could be successful arguments under Article 6.
Be that as it may, I shall take the matter away and consider it very carefully and decide whether or not a useful purpose will be served by bringing it back. As I said, I am not certain in my own mind. I may do, but I shall not make a commitment one way or the other. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 22 to 24 agreed to.
Lord Hodgson of Astley Abbottsmoved Amendment No. 87A:
After Clause 24, insert the following new clause—
"EXTRADITION UNDER PART 1: NATIONAL SECURITY
If at any time in the extradition hearing it appears to the judge that the conditions in section 198 may be satisfied, the judge must draw the case to the attention of the Secretary or State."
The noble Lord said: In moving Amendment No. 87A, I shall speak also to Amendment No. 207A. The amendments are not grouped but they deal with exactly the same issue. Amendment No. 87A relates to Part I and Amendment No. 207A relates to Part 2. We may save a little time later if we do not have to go over the same arguments again.
Clause 198, to which the amendments relate, sets out the circumstances in which the Secretary of State may prevent a person's extradition where it would be against the interests of national security. The amendments do not seek to probe the nature of this power but how it will be exercised.
Amendment No. 87A seeks to insert a new clause after Clause 24 into Part 1 of the Bill to require a judge hearing an extradition case to draw that case to the attention of the Secretary of State if he or she believes that the criteria relating to national security in Clause 198 is met. Amendment No. 207A would insert a similar new clause after Clause 89 in Part 2.
The purpose of these two probing amendments is to clarify precisely how the Government envisage the Secretary of State will take action under Clause 198. The Bill's provisions remove or, at the very least, greatly reduce the role given to the Secretary of State under the 1989 Act in relation to extradition claims. In respect of extradition under Part 1, the Secretary of State's role is almost completely eliminated. As I understand it, it will be limited to activities such as issuing certificates to confirm that countries are party to the International Convention against the Taking of Hostages under Clause 16, or the absence of speciality arrangements under Clause 17.
The question therefore arises whether the Secretary of State—or perhaps one should say the Home Office—will no longer have any significant role in the extradition process under Part 1, and how the kinds of cases to which Clause 198 applies will come to the attention of the Secretary of State so that he—or "it" in the case of the Home Office—can judge whether national security is affected. Will the National Criminal Intelligence Service, which is to be the designated authority—or in Scotland the Crown Office—be under a duty to keep the Secretary of State informed about such cases?
What will happen if NCIS is unaware that the person's extradition might be against the interests of national security—for example, if the person is undertaking activities on behalf of another government agency, such as the Security Service, the Secret Intelligence Service or the Armed Forces, that NCIS may know nothing about? What channels of communication do the Government envisage there
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will be so that the Secretary of State knows, first, that the person is being extradited and, secondly, that national security issues are involved?
In such cases, presumably, it would be up to the relevant intelligence or military agency to ring up the Home Secretary and say, "Sorry, Mr Blunkett, but such and such a person is working for us on a sensitive operation of major importance, so please can you use your powers to prevent extradition?". Is that how the Government intend the system to work?
As I said a moment ago, my amendments would place a duty on the judge to inform the Secretary of State if he believed that the criteria in Clause 198 were met. They seek to address the issue of how the Secretary of State will know about national security cases in the first place. No less important, they will make clear that the judges have the power or duty to bring such cases to the attention of the Secretary of State.
Without such an amendment, presumably, the judge will have to proceed with the extradition process laid down in the Bill without informing the Secretary of State. Is this allowed under the Bill or not? If not, is there any other person or body on which such a duty is to be placed? I am sure the Government will have simple answers to these simple technical questions. I look forward to the Minister's reply. I beg to move.
Baroness Scotland of Asthal: I thank the noble Lord for tabling this probing amendment. I can reassure him that the Secretary of State is content with the arrangements that have been made. It is a pleasure to explain how we believe these provisions will work.
As the noble Lord said, Clause 198 enables the Secretary of State to intervene in any extradition case and to prevent extradition from taking place where it would be contrary to the interests of national security. I know that we shall discuss the scope of Clause 198 at a later date—I look forward to those discussions—and I shall not trespass into those issues now.
In any case where national security considerations apply, it will be open to the fugitive to draw them to the attention of the Secretary of State so that he can decide whether or not his intervention is required. More than that, it is hard to imagine that national security considerations could arise unless one of the statutory intelligence and security agencies had been involved in the matter at some stage or in some particular way. The agencies are always, rightly, very concerned to protect their interests and they have very good channels of communications to Ministers. We have no doubt that they would bring the matter to the Secretary of State's attention at a very early stage indeed.
The amendments seek to impose a duty on the district judge to bring to the Secretary of State's attention any case that raises national security issues. For the reasons given, perhaps I may respectfully say that it does not seem as though such a provision would be necessary. However, there may be some more fundamental objections to the proposals. The reason why the Secretary of State has been given the power to

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prevent extradition on national security grounds—which I am sure that all Members of the Committee will recognise and accept—is that the Ministers alone have the necessary knowledge and information to take decisions relating to national security. That has certainly been the thinking behind all our other legislation in relation to national security.
I am trying to envisage how a district judge would be expected to know whether issues of national security may in that particular case be engaged, unless he was made aware of such national security issues by the fugitive himself raising the issue. The effect of the amendment would be that instead of the fugitive raising national security issues discreetly with the Secretary of State, or perhaps the agencies doing so, the fugitive would be encouraged to raise them before the district judge in open court perhaps with the public or the press in attendance. We do not think that would be to the advantage of national security. It does not seem to us desirable and, from everything that the noble Lord said, is not something that he would want. The whole purport of the amendment is to ensure that national security issues are dealt with properly, sensitively and appropriately so that we do remain secure. I understand that absolutely.
The Bill, as drafted, allows for national security issues to be brought to the attention of the Secretary of State and for the Secretary of State to prevent extradition from taking place where that would be in the interests of national security. Furthermore, all this can happen in private rather than in public, which must be the best way forward. I appreciate why the noble Lord and noble Baroness have tabled these amendments. But I hope that I can reassure noble Lords that we are quite confident that these issues can be dealt with sensitively in a way that would be to the benefit of national security and, it is to be hoped, not to the disadvantage of the individual acting on behalf of our services. I hope that with that reassurance the noble Lord feels able to withdraw his amendment.
6.30 p.m.
Lord Hodgson of Astley Abbotts: I am grateful to the noble Baroness for those answers. I accept that the Secretary of State will have the overview of the necessary information and the importance of discretion, that these matters are best not brought out in the open. Our amendments are probing—errare humanum est. We are concerned that, for a man or woman who is doing his "bit"—whatever his "bit" may be in connection with national security—he is not left in a situation where he is being extradited, because at that point he would be left hanging out to dry. From what the noble Baroness said, I take it that there would he nothing to prevent the individual raising Clause 198 in his or her defence at the time if he or her so wished. Would that be right?
Baroness Scotland of Asthal: One of the advantages of having legal representation for persons in this position is that in the ordinary way the individual would be expected to raise this sensitive issue first with
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the legal representative who is bound by confidentiality. It would be through that route that the most likely appropriate authority could be addressed in order to ensure that those matters are dealt with.
Lord Hodgson of Astley Abbotts: That is reassuring. In the past, there have been cases in which people have been taken on by the security services and then left on their own in a way that is unsatisfactory and unhelpful. I further accept that we shall not get clarity into this rather murky area of our national life in a Bill such as this. With the assurances that the Minister has given, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Goodhartmoved Amendment No. 87B:
After Clause 24, insert the following new clause—
"SITUATION PENDING DECISION

(1) This section applies if at any time during the extradition hearing, or prior to extradition, the judge is informed that the requesting judicial authority has made a request under Article 18 of the Council Framework Decision on the European arrest warrant and surrender procedures between Member States.

(2) The judge must not agree to the temporary transfer of the requested person.

(3) The judge may arrange for a hearing to be held under Article 19 of the Council Framework Decision on the European arrest warrant and surrender procedures between Member States; and such hearing should be in accordance with procedures prescribed by Order in Council."

The noble Lord said: This amendment has been tabled very recently. It is a point which has been raised within the past few days by Justice. Under Article 18 of the framework decision, a judicial authority in the executing state may agree to the temporary transfer of the requested person to the requesting state.
Article 18 states:
"1. Where the European arrest warrant has been issued for the purpose of conducting a criminal prosecution, the executing judicial authority must:

(a) either agree that the requested person should be heard according to Article 19;

(b) or agree to the temporary transfer of the requested person.

2. The conditions and the duration of the temporary transfer shall be determined by mutual agreement between the issuing and executing judicial authorities.
3.In the case of temporary transfer, the person must be able to return to the executing Member State to attend hearings concerning him or her as part of the surrender procedure".
Article 18 seems to be somewhat obscure because, as drafted, Articles 18.1(a) and (b) seem to be alternatives. Either the court agrees to a temporary transfer or it agrees that the requested person should be heard under Article 19. It is clear from Article 18.3 that the hearing on the decision whether to enforce a warrant continues in spite of the temporary transfer. It certainly looks as though sub-paragraphs (a) and (b) are not alternatives but that the hearing continues to operate even if there is a temporary transfer.
The first problem is that the Bill does not deal at all with the issue of temporary transfer. Therefore, to a considerable extent, this is a probing amendment because the purpose is to elucidate the intention of the Government about temporary transfers. It could be

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that many countries will ask for temporary transfers. Certainly, the information available from Justice suggests that Spain is already planning to seek temporary transfers on a regular basis.
At the same time, it seems that a temporary transfer—except in the very rare case where someone has, for some personal reason, agreed to it—is dangerous. It could lead to people being extradited, in effect, in circumstances where they will be investigated or interrogated. Obviously, I can understand the possible attractions of temporary transfer from the point of view of the Government because they save the cost of keeping people in detention if that is what they have to do. I certainly think that it is undesirable to transfer a person whose extradition is being sought under the European arrest warrant except in the very exceptional case where they consent to it. We believe that that is a restriction which should be on the face of the Bill. I beg to move.
Lord Hodgson of Astley Abbotts: I have added my name to Amendment No. 87B in support of the noble Lord, Lord Goodhart, and I am very happy to do so. He put his finger on the two critical issues here. First, we have no response to the requirements of Articles 18 and 19 in the European arrest warrant built into the Bill. Therefore, we have no way of knowing how this will be dealt with. In order that the noble Lord, Lord Bassam, does not accuse us of being paranoid, I must use my words very carefully.
Article 18(1), read by the noble Lord, Lord Goodhart, states:
"Where the European arrest warrant has been issued for the purpose of conducting a criminal prosecution".
We are nervous that we are back into fishing expeditions. It is not about prosecuting someone; it is for the purposes of conducting a criminal investigation. We are away for investigation and fishing, not for carrying out the prosecution of a crime, which is a matter we are trying to speed up.
There is a big issue here. It is very important that the Government make it clear, either by accepting these types of amendments or by producing their own, how the requirements of Articles 18 and 19 will be dealt with within the legislation as presently drafted.
Baroness Scotland of Asthal: I hope that I am not being too ambitious when I say that I hope I shall satisfy Members of the Committee in relation to this matter. I shall not have the temerity to suggest that in this or in any case the noble Lord, Lord Hodgson, is being paranoid. I think that I can deal with it briefly.
As has been pointed out, Article 18 of the framework decision on the European arrest warrant allows for requesting states to ask for one of two things to happen while the requested state is considering whether it should surrender the person. Clause 18(a) and (b) are alternatives, but in either case the substantive extradition procedure continues. Either the person should be temporarily surrendered or arrangements should be made to take evidence or statements in the requested state.
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The first point is that we would expect such requests to be very rare indeed. If our new procedures work swiftly and effectively, as we believe they will, there should be no cause for any such requests to be made to the United Kingdom. However, we clearly cannot rule out the possibility that a request of this kind might he made in an exceptional case which was taking a very long time to complete. If that were to happen, this amendment suggests that we should go for the evidence-taking option rather than temporary surrender.
The Government agree absolutely. However, I can probably go further; legally that is the only possible option. There is nothing in this Bill or any other law on the statute book which would allow for temporary surrender in these circumstances. No judge could make the necessary surrender order, nor would we have the power to remove the person. The Bill contains provisions on temporary extradition but I should like to make it absolutely clear that these relate only to the narrow circumstances where we receive an extradition request. They also provide that such temporary extradition can only take place after a full extradition hearing. They certainly do not allow for temporary surrender of the kind envisaged in Article 18 of the framework decision. I repeat that there is no legislation that does.
Finally, I turn briefly to hearings for the purpose of taking evidence or statements. Our existing legislation on mutual legal assistance, the Criminal Justice (International Co-operation) Act 1990 already contains detailed provisions on how this should he done. We see no need for the Order in Council suggested in the amendment. I hope that Members of the Committee are reassured and that noble Lords will feel content to withdraw the amendment.
6.45 p.m.
Lord Goodhart: I am still slightly puzzled. The noble Baroness suggested that the hearing referred to in Article 19 was one at which the person whose extradition was being claimed could be questioned for the purposes of a trial in the requesting country. I may be wrong, but that is what she appeared to say. Article 14 states:
"Where the arrested person does not consent to his or her surrender … he or she shall be entitled to be heard by the executing judicial authority".
In other words, the person whose extradition is sought is entitled to be heard to present his or her objections to extradition. Nothing suggests that the hearing referred to in Article 19 is different in any way.
Having said that, I am certainly encouraged by what the noble Baroness said. My impression is that she is correct to say that, as a framework decision is a kind of treaty, it is not self-active in this country but needs primary legislation to authorise a United Kingdom court to order the temporary return of someone whose extradition hearing had not been completed.

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I will consider what the Bill states about the circumstances in which a temporary extradition can be ordered, but unless anything in particular arises—
Lord Hodgson of Astley Abbotts: Before the noble Lord withdraws the amendment, perhaps I could raise one further point. It is a narrow, specialist point on which I shall not pretend that I am fully up to speed, but the noble Baroness referred to the Criminal Justice (International Co-operation) Act 1990 as one of the bases for her view that the amendment is superfluous. Justice points out that that is not the case because Section 4 of that Act, to which she referred, relates to gathering evidence in the UK for use overseas, which has nothing to do with the European arrest warrant; it is to do with traditional mutual legal assistance and requires the Secretary of State's assistance.
The Secretary of State must nominate a court to consider that evidence. So we are reintroducing the Secretary of State into an area—the European arrest warrant—from which we have been trying desperately to remove him or her. If that is what the noble Baroness is advised, we are undoing some of the work that we were trying to achieve—namely, removing the political element from that part of the extradition process.
Baroness Scotland of Asthal: That is not what we are suggesting. In response to the noble Lord, Lord Goodhart, Article 19 is a hearing for the purposes of the preliminary, pre-trial matters in the requesting state. That is quite different. There is nothing in the Bill or that we have been able to identify elsewhere that would allow for temporary surrender in the circumstances that the noble Lord described.
Of course I hear what the noble Lord, Lord Hodgson, says about Section 4 and the construction put on it by Justice. We do not agree with that construction. We do not think that the provisions reintroduce the Secretary of State's political arm in an inappropriate way or would undo all that which we have done to date. I shall certainly take the issue away for consideration, but that is our current view of the proper construction.
Lord Goodhart: I am grateful to the noble Baroness. I shall consider the matter and, if I am satisfied that there is no legislation which would enable such a temporary transfer, it will be unnecessary to return to it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 25 [Physical or mental condition]:
Baroness Anelay of St Johnsmoved Amendment No. 88:
Page 12, line 4, at end insert—
"( ) In discharging his duties under subsection (3), the judge is to have regard to the provisions of section 2 of the Mental Health Act 1983 (c. 20) (admission for assessment)."
The noble Baroness said: I shall speak also to Amendment No. 208. The amendments pick up a point first aired in Committee in another place. Clauses 25 and 90 confer an obligation on the judge to
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consider whether the person's extradition would be unjust or oppressive. If the judge finds that it would, he can, under subsection (3), order the person's discharge or adjourn the hearing until he feels that the person's condition has improved to such an extent that subsection (2) does not apply.
In another place, my honourable friend Nick Hawkins pointed out to the Minister that it might be pertinent, in the interests of public safety, to have another alternative: to admit the patient to hospital for assessment, rather than simply discharging him or adjourning the hearing. The then Minister said that the judge would anyway be free to detain such a person under Section 2 of the Mental Health Act 1983 if the relevant conditions that warrant the person's detention were met.
We have redrafted the amendment to draw the judge's attention to that section of the 1983 Act. That is the third option for the judge under Clause 25. As that provision is there, it should be clearly stated in the Bill.
In another place, at column 118, the Minister, Mr Ainsworth, said that he did not accept that each and every piece of legislation should call the judge's attention to every issue that he might consider, but that he would consider whether something special about the new extradition arrangements warranted the mental health powers being specifically drawn to the judge's attention.
The Bill makes significant changes; the amendment gives the Government the opportunity to put on record the results of the further consideration of Mr Ainsworth—or, since his departure, that of his colleagues. I beg to move.
Lord Clinton-Davis: Although I have no quarrel with the noble Baroness for raising the issue, will my noble friend confirm that when the judge considers whether the condition in subsection (2) is no longer satisfied, he can order that a suitable examination should be made under the provision invoked by the noble Baroness? Is it not equally true that the judge can have regard to other provisions that may become highly relevant? So there is no cause specifically to refer to that provision.
Lord Bassam of Brighton: I am grateful to the noble Baroness for having tabled the amendments, which enable us to clarify our position. As she said, the issue was raised in another place.
The amendments are important because they concern the issue of the physical or mental condition of the person facing extradition. That is a proper concern; that is why the clause has been included. This is one of those amendments where I do not think that there is any real difference between us about our objective.
It is right that we should not extradite in cases where the fugitive's mental or physical condition would make that unjust or oppressive. That is exactly what Clauses 25 and 90 achieve. Those clauses are drafted in such a

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way as to distinguish between medical or physical conditions which are permanent and those from which the fugitive is likely to recover, such as a broken leg.
Turning to the amendments, I am sure that every Member of the Committee would agree that we need some way to detain those who, because of their mental condition, need to be compulsorily detained. Where we may part company is on the question of whether the amendments are required. We contend that they are not.
As the noble Baroness explained, Amendments Nos. 88 and 208 would require the judge to have regard to the provisions of Section 2 of the Mental Heath Act 1983 when considering questions of the mental or physical condition of the fugitive. Section 2 of that Act allows for a person, on the application of two medical practitioners, to be detained for assessment for a period of up to 28 days where there are grounds to believe that he poses a risk to himself or the public at large.
The first point to make is that Clauses 25 and 90 cover both physical and mental incapacity, so there will be plenty of occasions when they may come into play where Section 2 of the Mental Health Act 1983 is not relevant. That may be because what is being considered is a physical disability or because the fugitive's mental condition is such that, though it makes extradition inappropriate, it does not warrant compulsory assessment or treatment under the Mental Health Act 1983.
A few sittings ago, I asked the Committee to suspend belief and, to argue a point, suggested that I be considered as a judge. I could ask the Committee to suspend belief and imagine that I was a social worker. I was one, briefly, in a short and somewhat inglorious career.
Lord Hodgson of Astley Abbotts: Not a paranoid one.
Lord Bassam of Brighton: Not a paranoid social worker— but I had to deal with paranoids. The truth is that sectioning someone is a serious business. I had to have a card that enabled me to do that, identifying me as the person whom I said I was. Sectioning may well be entirely inappropriate on occasions, nevertheless, someone's mental condition may be such that the judge would feel that it was not right to extradite.
My point is that the Mental Health Act 1983 deals with mental disorder of a nature and degree that require compulsory treatment. I saw plenty of people who did not require compulsory treatment but whose mental condition—because they were depressed or stressed—was such that they required treatment. In such instances, it would probably be right for the judge to consider that they should not be extradited.
A person brought before an extradition hearing will often have spent a period in prison on remand. If he needed compulsory mental health treatment, that is likely to have been identified in prison, from where he could have been transferred to hospital for treatment under the Mental Health Act 1983.
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However, our primary concern about the amendments is this. Section 2 of the Mental Health Act 1983 is used and can clearly apply in any case where it is appropriate. If the district judge takes the view that the person before him needs to be detained—perhaps on the basis of the evidence presented to him in the extradition hearing—he can take steps to alert the appropriate authorities. That power exists at present and applies in the domestic context, just as it does in that of extradition.
The danger is that if we spell out one piece of legislation of which judges are required to be mindful—such as mental health legislation—we call into question every other piece of legislation in which mental health provisions are not directly referred to. I am sure that that is not what the noble Baroness intends by the amendment, but we must take into account the law of unintended consequences.
Although the spirit in which the amendment has been moved is helpful, those unintended consequences have not been thought through. Our mental health legislation is already capable of coping with the situation in which a person's mental condition requires compulsory treatment. It is open to both sides in the proceedings to commission medical evidence.
Judges can have regard to all relevant considerations—provisions—in those circumstances. District judges in extradition cases will have few problems in ensuring that appropriate references are made if they feel that a second or third opinion is required.
Bearing in mind the drawbacks of raising that as a specific reference for the district judge and, as I said, the law of unintended consequences, I hope that the noble Baroness will feel confident in withdrawing the amendment.
7 p.m.
Baroness Anelay of St Johns: I am grateful to the Minister for his reply. One of the genuine reasons for tabling amendments in this House that have previously been debated in another place is so that the Government can be asked to fulfil their commitments. I believe that the Minister has done just that, and I give notice that I shall not consider returning to this on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 25 agreed to.
Clause 26 agreed to.
Clause 27 [Court's powers on appeal under section 26]:
Baroness Anelay of St Johnsmoved Amendment No. 89:
Page 12, line 19, after "(4)" insert "or (4A)"
The noble Baroness said: I shall also speak to Amendments Nos. 90, 214 and 215. These deal with that most fundamental protection within our own legal system—that of habeas corpus. When my

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honourable friend Nick Hawkins raised questions on this matter in Committee in another place, the Minister replied as follows:
"The common law right of habeas corpus goes back many centuries, and there is nothing in the Bill that affects it … It is always open to a fugitive to raise habeas corpus issues. At every stage, the district judge is required to consider whether remanding in custody or granting bail is appropriate, and to ensure that custody issues are properly taken into account".—[Official Report, Commons Standing Committee D, 14/1/03; col. 119.]
I feel that that is rather a disingenuous position to take, to say the least. It is a little more complicated than that. We have a specific law of habeas corpus here—it is a unique part and particular feature of our criminal justice system. Other countries do not have the same position. How is a fugitive to know his or her rights to raise habeas corpus matters—lacking, as he or she would, a detailed knowledge of British law? He or she may be unaware of how to go about raising those issues. That brings us back to the importance of something we discussed earlier—the provision of independent legal advice from the very start of extradition proceedings. However, I shall not abuse the Grand Committee by rerunning that—I am sure we shall have more to say on Report.
There is, of course, a corresponding point: our own citizens will not get the protection afforded by habeas corpus when they are returned to face prosecution in the requesting country. They will lose a key safeguard, which we believe is one of the cornerstones of our judicial system. I beg to move.
Baroness Scotland of Asthal: I was somewhat perplexed by some of the issues raised by the amendment, and I thank the noble Baroness for the clarity with which she has sought to enlighten me as to its purport.
Let me make clear from the start that there is certainly no attempt to remove habeas corpus by the measures in the Bill. The provisions seek to abolish the statutory habeas corpus, which was first introduced in 1967 and then consolidated through to the Extradition Act 1989, and replace it with a different appeal system. Habeas corpus, as we know and love it, which was given birth to by the Magna Carta, remains.
During the Bill's passage in the other place, various assertions were made that we might be abolishing habeas corpus. I want to make it absolutely clear that any such concerns are quite wrong. The common law right of habeas corpus remains; anyone who is subject to extradition can bring a common-law habeas corpus claim. Whether it will succeed is obviously an entirely different matter.
The principle of habeas corpus is that no one can be detained without proper statutory authority and due process. By virtue of Clause 4(5) and Clause 6(6), anyone arrested in Part I is treated as being held in legal custody. A person arrested under Part 2 is arrested on the basis of an arrest warrant, which similarly provides the legal basis for the person to be held in custody. Therefore, in every case the person must be brought before the district judge very shortly after arrest, and the district judge is required to take a
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view on whether the person should be remanded in custody or granted bail. If the judge decides on the former option and remands the person in custody, there is clearly a proper legal basis for that person to be detained.
I hope that Members of the Committee will accept that the procedures which the Bill puts in place comply fully with the principles of habeas corpus. And although, as I said, there would be nothing to prevent a person from bringing a habeas corpus claim, it is hard to see how it could possibly succeed, the principles having already been satisfied by the scheme created in statute. For that reason, I cannot see why we need to include a special provision requiring the High Court to consider habeas corpus factors.
Let me pray in aid the report of the Joint Committee on Human Rights. In its report on the draft Bill, the committee concluded:
"The provision for hearings before the district judge would be likely to be held to satisfy the right to take proceedings to test the lawfulness of detention [under the ECHR]".
For the avoidance of doubt, let me deal with one other issue. Section 11 of the Extradition Act 1989 provides the fugitive with a right of appeal immediately after the judge commits the case to the Secretary of State. Rather confusingly, that appeal is termed habeas corpus, though it is clearly quite different as it is concerned with the substance of the case rather than simply the lawfulness of the detention.
The Bill also provides the fugitive with an appeal to the High Court, as the amendments recognise. In the interests of clarity, it is simply described as an appeal rather than a habeas corpus hearing, but the principle is the same. The fugitive can bring his case back to the High Court and seek to have the judgment of the lower court overturned. It is worth pointing out that the Joint Committee on Human Rights gave the appeals process in the Bill a clean bill of health, saying that it offered proper avenues for fugitives to challenge their detention and to appeal against the decisions that have been taken.
All that leads back to the conclusion that I have already outlined—that the amendments would serve no real purpose and that the rights implicit in habeas corpus continue and will not be expunged.
The noble Baroness raised the issue about independent legal advice. I am sure we will return to that on many occasions.
Baroness Anelay of St Johns: I am grateful to the noble Baroness, who has put on the record a far more persuasive case than did her honourable friend in another place. I think that she has done sufficient for me not to have to return to the matter on Report.
Baroness Scotland of Asthal: The noble Baroness is, as always, so gracious.
Baroness Anelay of St Johns: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 90 not moved.]
Clause 27 agreed to.
Clauses 28 to 30 agreed to.
Clause 31 [Appeal to High Court: time limit for start of hearing]:
Baroness Anelay of St Johnsmoved. Amendment No. 91:
Page 14, line 12, leave out subsection (1) and insert—
"(1) The High Court must begin to hear an appeal under section 26 or section 28 within 28 days of notice of appeal being received."
The noble Baroness said: I should like to make clear that even if we were on the Floor of the House, this would be a simple probing amendment only. It focuses on the timing within which an appeal to the High Court must commence. Clause 31(1) states that the rules of court must prescribe the period within which the High Court must begin to hear the appeal. We have suggested in our probing amendment a limit of 28 days, beginning from the time when the notice of appeal was received.
We appreciate that timing is a delicate issue. When I was watching an extradition case a couple of weeks ago, it was brought home to me with great clarity that one of the many problems that politicians cause for the smooth running of the judicial system is that we put a plethora of time limits within a plethora of different and competing pieces of legislation and then dump them on the courts and expect them to sort it out, with all the timetabling problems that they have. The amendment has been tabled against that background, which is why it is definitely only probing.
There is a balance to be maintained. We are asking the Minister to put on the record some information about the kind of timescale that the Government expect to be operating in these circumstances. We hope that a guarantee will come easily to her lips that this will not be an open-ended matter. We do not have a fundamental problem with leaving the period to be prescribed by the rules of court, as long as we can be assured of some protection for the defendant in terms of a sensible and workable timescale. I beg to move.
Baroness Scotland of Asthal: I am most grateful for the very helpful way in which the noble Baroness has phrased her amendment and for her understanding of the burden that we all too often place on courts in such matters. I can reassure her that the Rules Committee will consider the matter, but if it is helpful, I will go through a little detail so that we have it on the record. I hope, thereby, that the noble Baroness will have the sort of reassurance that she seeks.
A central tenet of the Bill and one of the driving factors behind the Government's determination to modernise the UK's extradition is the need to streamline and simplify our extradition process. For that reason, the Bill contains a number of time limits to ensure that proceedings are undertaken efficiently and without unnecessary delay.
We make no apology for the need to do that. Our history has demonstrated that we need to bring about some change. It is clear that our existing procedures have been abused by those determined to string out
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extradition for as long as possible. Although the new system offers far less opportunity for multiple and repetitive challenges, time limits will ensure that cases proceed with due expedition.
Clause 31 is one example: it provides that the rules of court be drafted, setting out the period within which the High Court must begin to hear an appeal under Clauses 26 and 28. It is normal and appropriate for such time limits to be set out in the rules of court—Clause 200(1) provides for this—to prevent legislation from becoming bogged down in administrative detail that pertains primarily to the administrative processes of the courts.
As the noble Baroness will know, one of the beauties of the Rules Committee is that it can take a more holistic approach in relation to the system and try to craft something that will enable the smooth administration of justice to be delivered without causing unfairness to those who have to participate in the process. We see that that has value and we do not propose to depart from that methodology in this case.
I understand that Members of the Committee may be concerned that in setting particular time limits, we do not allow sufficient time for the necessary court administration—especially for an appeal hearing to he listed, and for the preparation of the respondent's case. We share that concern. There would be absolutely no point in designing an extradition system which was so streamlined that it did not serve the interests of justice. Again, I am very grateful to the noble Baroness for raising the matter just to make sure we all keep on our toes—a skill she has honed over the last year or so in particular.
I am thus pleased to be able to reassure the Committee that we are in discussion with the Department for Constitutional Affairs, the Civil Procedure Rules Committee and senior members of the judiciary to agree an appropriate time limit for the start of appeal hearings under Part 1. I can also reassure the Committee that our thinking runs very much along the lines of the timescale proposed fortuitously in the amendment. So the noble Baroness need not be in the least bit hesitant about the time she has plucked out. A period of about four weeks from hearing to appeal seems about right to strike the balance between speed and ensuring that the system functions properly.
Of course all these details will be properly considered in the discussions to which I have just referred. I can assure the Committee that those members of the judiciary with whom we are in contact are very vigilant. They will ensure that the rules of court which finally emerge are both efficient and fair and make sense to those who will operate them.
I hope that I have said enough to reassure the noble Baroness and the Committee that we are looking at these issues very seriously and that we will have a framework which will be both practical and effective, but most of all fair and just. With that, I would invite the noble Baroness to withdraw her amendment.
7.15 p.m.
Baroness Anelay of St Johns: I am very grateful to the Minister. She is absolutely right that it is vital to balance expedition with fairness. I certainly did pluck out 28 days because it seemed a fair period in comparison with other time limits. I am grateful to her for her careful response and that she has given us some advance notice of the consultation being carried out by the new Department for Constitutional Affairs, the judiciary and others. That is obviously the appropriate way forward. I certainly do not intend to return to this issue on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 31 agreed to.
Clauses 32 to 38 agreed to.
Clause 39 [Position where asylum claimed]:
Lord Goodhartmoved Amendment No. 92:
Page 20, line 5, leave out subsections (9) and (10).
The noble Lord said: This is another issue raised by Justice. Under Clause 39 extradition cannot be ordered where the person whose extradition is requested has made an asylum claim and that claim has not been finally determined. A claim is finally determined after it has been rejected and when the appeal against that rejection is dismissed or when the time for appealing has ended without an appeal being brought.
Clause 39(9) states that if the Home Secretary has rejected the claim as being clearly unfounded, the asylum claim is treated as being rejected immediately and therefore cannot be used as a bar to extradition.
Extradition does not terminate the right of appeal against the rejection of an asylum claim. Under Section 94 of the Nationality, Immigration and Asylum Act 2002, if an asylum claim is certified as unfounded, it does not prevent the appeal but allows an asylum seeker to be returned to his country of origin pending the hearing of an appeal. The Home Secretary issues the certification that the claim is unfounded when he dismisses the claim.
That particular point—the power to send someone back to his country of origin on the basis of the Home Secretary's certificate that the claim was unfounded when an appeal against the rejection of the claim is still pending—was the subject of a great deal of controversy and debate during the passage of the 2002 Act. Be that as it may, it is now the law and must be accepted as such. However, I believe that there is a distinction between the cases where extradition is sought and other cases.
In the great majority of cases that the Home Secretary certifies as unfounded nothing adverse will happen to the returned asylum seeker. Of course if extradition is sought it is known that the person on his return will face a criminal trial. It will therefore be that much more difficult for that person to make an out-of-country appeal against a rejection of the asylum claim. I recognise that no extradition can in any event be made until after the hearing has decided that the order has been made, but that is another matter.
Further, if the appeal from the rejection of the asylum claim is granted—as indeed is bound to happen occasionally—it may well be useless to allow the appeal because the person who sought asylum is locked up pending a trial or is serving a sentence and therefore will be entirely unable to return to the United Kingdom in order to claim asylum. I therefore believe that cases in which an extradition warrant has been issued require special treatment and that the extradition order should not be carried into effect while the asylum application has not been finally determined whether or not it is a case in which the Home Secretary has certified that the claim for asylum is unfounded. I beg to move.
Baroness Scotland of Asthal: I agree with the noble Lord and accept that the changes made to the immigration and asylum law by the Nationality, Immigration and Asylum Act 2002, now that they have come into force, have brought about considerable change. Because of that change, it may well be necessary for us to revisit the way in which the Bill is currently structured in order to give voice to the intent that we still have to have an integrated system, which is more proof against abuse but which still allows the kind of care and protection that we would need to have in place for those who are meritorious of our protection. Therefore, I cannot explore that too far at this stage.
It may be of importance and noteworthy for me to explain how we see extradition interacting with asylum provisions because we shall seek to continue the principles upon which the scheme is founded. So it may be helpful for me to outline how we see the two emerging. I hope that that will enable noble Lords better to understand whatever further provisions we may have to make.
The Committee knows that as our extradition law currently stands, we cannot extradite a person serving a custodial sentence in the United Kingdom. We have to wait until he has completed his sentence before we can accede to any—I hear mutterings behind me.
Lord Bassam of Brighton: You are departing from the script.
Baroness Scotland of Asthal: No. As our extradition law currently stands, we cannot extradite a person serving a custodial sentence in the UK. Perhaps the Committee will give me one minute. I seem to have had a mental aberration.
Baroness Anelay of St Johns: Those of us on this side of the Chamber who suffered throughout the whole Nationality, Immigration and Asylum Bill certainly feel for the Minister and are quite happy to give her a few moments.
Lord Bassam of Brighton: That is very gracious.
Baroness Scotland of Asthal: That is very kind.
Lord Bassam of Brighton: The argument was a convincing one.
Baroness Scotland of Asthal: It just related to the other provisions.
As I said, I am grateful to the noble Lord for tabling the amendment. It allows me the opportunity to explain the Government's approach to the provisions. I hope now that I shall be relating the correct one. The amendments relate to a very complex provision in the Bill that deal with the situation where extradition and asylum meet, as indeed did those to which I have just spoken. There are clearly some very strong and basic principles involved. I shall try to explain why these provisions, and other related ones, are drafted as they are.
It is well known that the asylum system has been subject to abuse, as I said earlier. The Home Office has made great efforts to reduce the potential for such abuse and continues to do so. We also know that the asylum system has been used as a means to delay and frustrate the extradition process. The Committee may have noticed why the previous notes and the current ones seem to have merged in my mind.
As well as a growing incidence of cases involving both issues over recent years—now approximately 15 per cent of ongoing casework—we have even had the national of an EU member state claiming asylum. Such claims are often made with the express purpose of frustrating extradition on the basis of groundless applications being made.
That is why we included in the Bill provisions specifically to deal with this difficult situation and to address spurious asylum claims and appeals. Our aim in including these provisions is that the asylum system should not be open to abuse or delay or used to frustrate extradition. However, it is also our position that a person who genuinely fears persecution should not be prevented from having the opportunity to seek refuge. We believe that, by including these specific provisions in the Bill, a balance has been struck between these imperatives.
Perhaps I may explain a little further about the provisions and how they will work. Any asylum application made after the extradition request was received would be considered in the normal way, but as a matter of priority. If the application were refused, the person would then be able to appeal, not using the existing appeal processes available to asylum applicants in other circumstances, but to the High Court—the same venue as the extradition appeal. These modified appeal procedures have been set out in the clauses. We shall reach them later under Part 5.
Clause 39 contains slightly different provisions to the corresponding clause in Part 2. In a Part 1 case, if the claim were considered to be clearly unfounded, it would be certified as such by the Secretary of State when refusing the claim. The effect of this certificate would be that the person could appeal against the asylum refusal from abroad, but only after extradition.
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However, immigration and asylum law, as I said, has developed significantly since the Extradition Bill was introduced in another place last November. The provisions of the Nationality, Immigration and Asylum Act 2002 have now come into force, which have brought with them considerable change. So we will have to, as I said right at the beginning, look at this and see what can be done. Therefore, although I am not able, as I said earlier, to give specific details at this time, I would say that it is highly likely that amendments will be introduced in due course to reflect a different approach.
Our aim remains the same—that the asylum system should not be abused to delay or frustrate extradition, while at the same time allowing an individual the opportunity to seek refuge in the face of persecution.
I hope that the noble Lord, Lord Goodhart, is reassured that the Government are committed to their obligations under the 1951 refugee convention and to the fundamental right of the individual to seek protection where it is necessary. At the same time, the Government have made it clear that we intend to deal robustly with spurious or abusive asylum claims. Therefore, in the light of those comments, I invite the noble Lord to withdraw his amendment.
7.30 p.m.
Baroness Anelay of St Johns: Before the noble Lord, Lord Goodhart, replies, I should like to thank the Minister, as I am sure the noble Lord will, for outlining the Government's further thoughts on these matters. When I first came to look at the Bill itself and the discussions in another place, I telephoned the Immigration Advisory Service because, given our debates in the past year on the Nationality, Immigration and Asylum Act, I was concerned about the implications of these provisions. I am certainly aware that there was hope outwith the House that the Government would look cautiously at some amendments to this Bill.
I appreciate that the Minister cannot give us a timetable within which amendments may be brought forward, or even tell us whether they will be brought forward. However, would it be the normal expectation that we will see important amendments such as this on Report rather than leave it to Third Reading? She will know that there was some vexed feeling in the House on the nationality Bill when substantial amendments were brought forward at a very late stage.
Baroness Scotland of Asthal: The answer is yes. The noble Baroness knows that even in those circumstances we made efforts to table the amendments as soon as was reasonably practicable. It was with very much regret that we were not able to do so more quickly. For that reason I thought it proper to foreshadow the fact that we were looking at these again. As soon as we are able to share that information in the usual way, we shall certainly ensure that those

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amendments are notified as soon as reasonably practicable to all interested Members of the Committee.
Lord Goodhart: I am most grateful to the Minister. Obviously, in the circumstances, I will have to suspend judgment until I see the amendments. At the moment I cannot say whether they will be welcome as an improvement on the present position. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 39 agreed to.
Baroness Scotland of Asthal: I think that this may be a convenient moment for the Committee to adjourn until Tuesday at 3.30 p.m.
Committee adjourned at twenty-eight minutes before eight o'clock.