§ 8.33 p.m.
§ The Minister of State, Home Office (Lord Rooker) rose to move, That the draft regulations laid before the House on 17th December be approved [14th Report from the Joint Committee].
The noble Lord said
My Lords, I hope that it is convenient for your Lordships if I keep my remarks as brief and tightly focused as possible. These are modest regulations made under Sections 111 and 112 of the Anti-terrorism, Crime and Security Act 2001 which received Royal Assent last week. For the avoidance of doubt, I repeat that the regulations do not give effect to the European arrest warrant. That is an entirely different subject which has attracted much attention and will be dealt with in another Bill—primary legislation—to be introduced early in the new year.
The regulations give effect to two conventions: the 1995 convention, signed on 10th March 1995, and the 1996 convention, signed on 27th September 1996. It is fairly obvious that neither the government who were in office in 1995–96 nor the one in office in 1997–2001 thought the conventions sufficiently important to merit introduction in major primary legislation. That is an important point. Although the conventions are important, they are modest; that is why they have been hanging around for a while. No legislative vehicle was available to implement them and they do not in themselves merit the parliamentary time necessary for implementation. I shall not go into the details for that.
The conventions also contain nothing new. Indeed, they were the impetus for the major review of extradition law that began in 1997. That review led in turn to the consultation paper The Law on Extradition: a Review which was published earlier this year and made nine specific recommendations. The consultation period ended only in October. The responses to that consultation have been placed in the Library and will help form the basis of next year's extradition Bill. The parliamentary scrutiny process was conducted while the treaties were being negotiated. Therefore, in that respect, it is all water under the bridge.
335 I shall briefly describe the conventions. The 1995 convention provides a streamlined procedure for cases in which the fugitive and the requested state consent to extradition. That is basically what the 1995 convention is about.
The 1996 convention made various amendments to the provisions of the then treaty. Its main provisions are to reduce the extradition crime threshold from 12 months in both the requested and the requesting state to 12 months in the requesting state and six months in the requested state. It also provides for abolition of the political offence exception. The regulations deal exclusively with European Union extradition, and I think that noble Lords will agree that political offences do not play a role in the EU's 15 member states.
The 1996 convention also provides that a person who has been extradited may be proceeded against for an offence committed before surrender, other than that upon which the request for extradition was based, without obtaining the consent of the requesting member state when the offence is not punishable by imprisonment or any other form of detention or when the person will not be detained in connection with his trial, sentence or appeal. The provisions relate, in other words, to quite trivial matters.
The 1996 convention also provides for relaxation of the authentication requirements, which is particularly important for the United Kingdom as it is widely recognised that our authentication requirements are among the most onerous in Europe. The 1996 convention also makes other minor changes.
We are seeking now to implement the regulations under the 2001 Act because, although the majority of countries have ratified the treaties, a few, including the United Kingdom, have not. In late September 2001, after the events of 11th September, it was agreed at the Justice and Home Affairs Council, and a commitment was given, that all member states would ratify the treaties by 1st January 2002. That is why the legislation was introduced as it was and why we are seeking, subject to your Lordships' approval, to ratify the two treaties. I beg to move.
Moved, That the draft regulations laid before the House on 17th December be approved [14th Report from the Joint Committee].—(Lord Rooker.)
§ Lord Goodhart
My Lords, we do not intend to oppose the Motion. Having agreed to the amendment to the Anti-terrorism, Crime and Security Act 2001 specifically to allow the conventions to be incorporated into United Kingdom law by secondary legislation, it would be illogical now to oppose the regulations. Indeed, we broadly welcome them.
I think that the 1995 convention is relatively unimportant as it simply gives powers that are dependent on the consent of the subject of the extradition proceedings. The 1996 convention, 336 however, is quite important. It is a matter for some regret that neither the current Government nor their predecessors thought it fit not to find time to ratify that convention until now.
If the European Union means anything, it means a mutual respect for each other's institutions. I believe that that respect is broadly justified. All 15 of the member states are now well-established democracies; all have independent legal systems. Some legal systems are better than others but we should be unwise to conclude that ours is necessarily or obviously the best.
We welcome many provisions of the 1996 convention; for example, Article 3 which makes it easier to obtain extradition for the crime of conspiracy. Of course, that is a form of crime which has always been recognised by United Kingdom law but not by all mainland systems. We welcome Articles 5 and 6 involving removal of the ban on extradition for so-called political offences and the extension of extradition to fiscal offences. Those are both exceptions which are anachronistic in the European Union context and should not apply between countries which are working democracies.
Article 7 deals with the extradition of nationals. Of course, we have never prohibited the extradition of United Kingdom nationals but some countries do. Austria, Germany and Greece have unconditional bans on the extradition of their own nationals and Finland and Sweden allow it subject only to highly restricted conditions. I believe that those restrictions have no place in the European Union and I hope that the Government will put pressure on those countries to have those restrictions removed.
A number of other governments will extradite their own nationals only on condition that the accused will be returned, if convicted, to serve a sentence in their home country. That is something to which I see no objection and, indeed, probably should be a general principle.
I just pause for a moment to note that in Article 8, there is a typing mistake in the cross-heading which refers not to the "lapse" of time but to the "laspe" of time. We hope that that matter will be corrected before the document is actually published.
We welcome the modification of the so-called specialty rule in Articles 10 and 11 to make it easier to prosecute people for offences which were additional to those for which they are extradited and we welcome the simplification of the authentication procedure in Article 15. Undoubtedly, the United Kingdom has caused serious problems to extradition applications by other states by its excessively bureaucratic requirements for authentication.
We are happy to endorse this order but our main comment is that we very much regret having to wait so long to see these sensible provisions incorporated into United Kingdom law so that we could ratify the two conventions.
§ Lord Kingsland
My Lords, hitherto such measures would have required primary legislation since they do not fall within Sections 2(1) or 2(2) of the European 337 Communities Act 1972. However, as your Lordships are well aware, an exception has now been made for them in the Anti-terrorism, Crime and Security Act 2001. As the Minister well recalls, the legislative list of exceptions, of which this is one, was finally accepted with, I think I should say, deep misgivings by both the official Opposition and the Liberal Democrats.
In our view, there are no legitimate parallels to be drawn between implementing Part I and Part VI of the treaty. Part I measures, implemented by Sections 2(1) and 2(2) of the 1972 Act, have three characteristics which make the use of statutory instruments acceptable, if not desirable.
First, it is clear that, for such matters, EC law takes precedence over national law; and the European Court of Justice has a wide range of powers to ensure that national implementing measures conform strictly with the requirements of directives and decisions.
Secondly, all Part I measures are the subject of thorough public scrutiny and amendment by the European Parliament and usually require co-decision. Thirdly, the measures concern economic and commercial regulation and rarely touch on issues pertaining to the liberty of the subject.
None of those factors applies to matters falling within Part VI of the treaty. First, the extent to which Community law takes precedence over national law is unclear. Moreover, that lack of clarity is enhanced in Britain's case because, unlike many other states, we have not acceded to the jurisdiction of the European Court as a direct means of furnishing a source of conflict resolution.
Secondly, the measures are subject to no public scrutiny whatever. They are initially discussed at meetings of senior civil servants; outstanding differences are then considered at meetings of COREPER; and any remaining conflicts are resolved by Ministers at the Justice and Home Affairs Council. Finally, extradition touches on the liberty of the subject in the most obvious and intimate way.
Happily, the Government have recognised those differences by limiting the derogation in the Antiterrorism, Crime and Security Act to a period of six months. But, important though it is to preserve primary legislation as the means of implementation in that area, there is a limit to the extent to which it can compensate for any deficiencies in the Community measure itself. The only guarantee that individual rights are respected as we would wish them to be is to ensure that they are fully reflected in the Community instrument.
How do national legislatures generally, and our own Parliament in particular, achieve that objective? Our Parliament has no direct role in the European Community legislative process as a Parliament. We cannot amend draft directives or draft decisions ourselves. However, Ministers representing the Crown can influence the shape of those measures by tough negotiation and, ultimately if necessary, by refusing to agree; in other words, by using the veto.
338 I think your Lordships would accept that the saga of the European arrest warrant has been a harsh lesson for many of us to learn. Parliament needs to find a way to ensure that the negotiating mandate of Ministers is fully debated before discussions begin in earnest in the Community on third pillar matters. In that way, Ministers will have a clear view of what is acceptable to the national legislature and what is not.
Parliament also needs to devise a procedure whereby Ministers engaged in third pillar negotiations report back regularly. This is now the new battleground for your Lordships' House and I shall he most interested to hear any reflections on the matter that the Minister might have this evening.
§ Lord Rooker
My Lords, I should say to the noble Lord, Lord Kingsland, that I have none whatever this evening.
I am grateful to noble Lords. I congratulate the noble Lord, Lord Goodhart, and his team on spotting the error on page 23. I freely admit that I did not spot it myself but this is a draft instrument and that can be corrected.
A fair point is made about the 1996 convention. Only four countries have not already ratified it; namely, Italy, France, the Republic of Ireland and ourselves. All the other countries of the European Union have undertaken their Community responsibilities and it has passed through their respective parliaments by whichever processes they use.
I shall not be tempted by the noble Lord, Lord Kingsland, to go down the road of the European arrest warrant because I said specifically that it is not the subject of this provision. However, over the months and weeks ahead, we shall be preparing for that legislation. That will be in the form of primary legislation. I believe that we reached a settlement at the end of last week which everyone thinks is a good way forward overall. I am grateful for the response that we have had this evening to these regulations, which I commend to the House.
On Question, Motion agreed to.