Lords Sitting of 19 November 2001

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Oxford.
Lord Sheppard of Liverpool—Took the Oath.

Humber Estuary: Pilot Services
Lord Berkeleyasked Her Majesty's Government:
Whether they will set up a public inquiry into the safety implications of the proposed reorganisation of pilot services in the Humber estuary, to avoid a situation similar to that which contributed to the "Sea Empress" disaster at Milford Haven.
Lord Filkin: My Lords, I thank my noble friend for his Question. Changes to pilotage services on the Humber arise from a contractual dispute in which it would be inappropriate for Ministers to intervene. We are of course concerned that the statutory harbour authority should continue to fulfil its legal duty relating to safe navigation of vessels on the Humber. It has given assurances that safety standards will be maintained in accordance with our port marine safety code, which we developed after the "Sea Empress" grounding.
Lord Berkeley: My Lords, I declare an interest as chairman of the UK Marine Pilots Association. Is my noble friend aware that if the dispute is not settled, all existing pilots will no longer be working on the Humber at the end of January? Can he satisfy the House that safety will be protected under the new arrangements being made by the port authority, bearing in mind that the "Sea Empress" disaster at Milford Haven was caused by inexperienced pilotage? Would it not be appropriate for Ministers at least to attempt to convene a meeting between the parties to try to resolve the dispute before it becomes even more acrimonious?
Lord Filkin: My Lords, the statutory responsibility for harbour safety was clearly placed on harbour authorities by the 1987 Act. This is a contractual dispute between two parties. Humber Pilots Limited, a co-operative of pilots, served notice some nine months ago on the harbour authority that it no longer intended to continue under the current terms of the contract. The parties have not yet reached agreement. As a precautionary device, the harbour authority is in the process of training a large number of replacement pilots. The department has been in touch with the harbour authority and has inspected its safety plans and training proposals. It is watching the situation closely.
Lord Swinfen: My Lords, is the Minister aware that all marine pilots are personally liable for the advice they give to masters of vessels? Is he further aware that one of the pilots in the Humber estuary is facing
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disciplinary action for advising a master not to take his vessel out of harbour because there was insufficient water, and that the master of that vessel concurred with the advice he had been given?
Lord Filkin: My Lords, as the House knows, there has been a complex history of development of the pilotage service since the 1987 Act which has led to a significant change in the responsibility and accountability of pilots. Were there ever to be an accident in a harbour, the ultimate authority to have action taken against it would be the harbour authority. I shall look into the noble Lord's comment about the legal responsibilities of individual pilots and write to him.
Lord Elton: My Lords, the Minister has told us twice that responsibility for the safety of those approaching a harbour is placed firmly on the harbour authority by the Act. He later told us that the Government were looking closely at the situation to ensure that safety was not imperilled. Given that safety is the responsibility of the harbour authority, what is the Government's locus in this dispute?
Lord Filkin: My Lords, the noble Lord has taken my words further than I intended. The Government do not want to confuse the responsibility for safety in these issues. That is why the 1987 Act—which we have no intention of changing—placed the responsibility so clearly on the harbour authorities. However, in the light of the "Sea Empress" accident and the inquiry that took place into it, the Government have recognised that they have a role in promoting the best possible standards of marine safety. That is why the Government, with the support of the industry, published the port marine safety code. All harbour authorities are due in January to publish their clear responses to that safety code and to set out their full plans for risk assessment and for ensuring that risk in harbours is minimised.
Lord Wedderburn of Charlton: My Lords, what steps have the Government taken to encourage the parties to come to an agreement in this dispute? Have they encouraged ACAS to take an interest? What have they done in respect of this very important dispute?
Lord Filkin: My Lords, ACAS cannot get involved in the issue because it is not a trade dispute; it is a contractual dispute. The pilots are not employed by the harbour authority; they carry out labour-only contract work for Humber Pilots Limited, which is itself the contractor to the Humber authority. The Government are aware of the views of both sides in the dispute because, naturally, they seek to keep the department informed. The responsible Minister will be meeting with local MPs to discuss the situation. However, the responsibility is with the harbour authority. The Government strongly hope for, and urge both sides to reach, a satisfactory conclusion in order that good and safe shipping will continue on the Humber, as is our expectation.
Lord Mackie of Benshie: My Lords, the Minister said that the port authority is having other pilots trained. I assume that someone is training them. Who is that? It cannot be the pilots who know the river and are in dispute.
Lord Filkin: My Lords, I should not like to second-guess the harbour authority. However, as I understand it, the authority has recruited a substantial number of experienced sea-farers who have maritime certificates. They are being trained in groups on a training vessel which is operating on the Humber—so they are receiving live training on that vessel. I am not explicitly aware of who is giving the direct advice. However, I am fairly confident that it is being given by experienced sea-farers with a capacity to give such training. I shall confirm that in writing to the noble Lord.
Lord Burnham: My Lords, surely, irrespective of the advice of the pilot, in all cases responsibility lies with the captain of a vessel. That being the case, are the Government satisfied with the degrees of competence of all captains and watch-keeping officers coming into British ports?
Lord Filkin: My Lords, the IMO is meeting this week. I am sure that the standards of most captains of most flags are of a high standard. I should be surprised if the Government thought that all flags met the high standards met by the British maritime fleet. No doubt these issues will be discussed at the IMO conference.

Foot and Mouth Disease
2.40 p.m.
Lord Peyton of Yeovilasked Her Majesty's Government:
Whether they will publish a list of the outbreaks of foot and mouth disease, giving in each instance the dates and places and the actions taken by the then Ministry of Agriculture, Fisheries and Food or its successor, the Department for Environment, Food and Rural Affairs, and the number of animals slaughtered.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty): My Lords, throughout the outbreak, details of infected premises have been placed in the Library of the House, in the form of daily reports, and now weekly reports are being submitted. A full list of infected premises with the date on which foot and mouth disease was confirmed, along with the number and type of animals slaughtered, is also available on the department's website. The list has been updated daily.
Lord Peyton of Yeovil: My Lords, website or no, I cannot even claim to be disappointed with that Answer. Is the Minister aware that I understand that it would have been totally unreasonable to expect a modest and short Question of this kind to shift the
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Government from their adopted coyness into something approaching candour? Will the Minister agree, on reflection, that it would be better to let the whole thing come out rather than continue to feed the public belief that MAFF's performance throughout was pathetic?
Lord Whitty: My Lords, it may be that the noble Lord did not hear me. Put more simply, the answer to his Question is that we are already doing it. I should have thought that he would be pleased with that. Throughout the foot and mouth outbreak, we have given the information that he wants. If he wants it in aggregate form, we can produce it. But it has been in the Library throughout. Clearly, as we move, it is to be hoped, to the end of this disease, more detailed evidence will be produced by the department and by others; and the various committees of inquiry that will examine the outbreak will present their conclusions. That is the way to get candour and truth and recommendations as to how better to deal with such outbreaks of disease in the future.
Lord Livsey of Talgarth: My Lords, of the estimated 3.9 million animals slaughtered as a result of suspected foot and mouth disease, how many were of the contiguous cull type and how many of those actually tested negative? That has a big bearing on the forthcoming Animal Health Bill.
Lord Whitty: My Lords, with respect, it does not. The whole point about contiguous cull is that disease is prevented from spreading to neighbouring premises before it becomes apparent in the animals. In other words, a cull is supposed to take place as rapidly as possible; there are 21 days up to which the disease can incubate. It would therefore be extremely surprising, where a cull was carried out rapidly, if there had been a large level of positive results. Therefore, people are drawing entirely the wrong conclusions from the fact that a relatively small number of contiguous cull premises showed positive results on immediate testing. If that is the basis for the criticism of the Government's strategy, it is seriously misplaced. I shall let the noble Lord have the precise figures in relation to contiguous cull premises and initial premises.
Baroness Gibson of Market Rasen: My Lords, does my noble friend agree that one of the lessons of the foot and mouth outbreak is that we need a European-level strategy to deal with it, possibly including the use of vaccination?
Lord Whitty: Indeed, my Lords, we have needed to keep in touch with our European partners throughout this epidemic. That closeness and, if I dare say it, candour as to how the disease was developing have paid off in terms of the relaxation in the past two months of the export bans on cattle and pigs, and now on sheep. So far as concerns future strategies, the Government, together with the Dutch Government, took the initiative in establishing the conference that

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will take place next month in Brussels, which will examine all aspects of disease control, including various forms of vaccination.
Lord Monro of Langholm: My Lords, I declare an interest as one who lost his stock. As the Minister will be aware, foot and mouth is no respecter of national boundaries. The new Animal Health Bill applies to England and Wales only. Why is there no equivalent Scottish Bill? Or do the Scots think that the England and Wales Bill is unnecessary?
Lord Whitty: My Lords, the provisions in devolved responsibilities are a matter for the Scottish Executive. What became clear in England, particularly in the latter stages of the disease, was that failure to carry out the cull in contiguous premises was slowing down the way in which we could contain the disease. Therefore, a more adequate procedure would have been appropriate. That is what the Bill provides. Other lessons may well emerge from the inquiries which both the Scottish and the England and Wales authorities will have to learn. But we have already learnt that particular lesson. That is the reason behind some of the Bill's provisions.
The Countess of Mar: My Lords, in how many cases in which legal action was taken by farmers or animal owners to prevent ministry officials killing our animals was foot and mouth disease subsequently spread?
Lord Whitty: My Lords, if I may say so, that is not the appropriate question, for the reasons that I have already explained. The number of cases in which any delay in the contiguous cull led to the final testing proving positive is relatively small—I think that the figure usually quoted is eight within one of the epidemic areas. The point is that had that cull not been carried out in hundreds of other cases, the spread of the disease would have been dramatically worse. That is the point of the cull and, to a large extent, the success of the strategy.
The Duke of Montrose: My Lords, I welcome the Question asked by my noble friend Lord Peyton of Yeovil. I declare an interest as someone who has been subject to the regulations under the current foot and mouth regime. I expect that the Minister is aware of the ex-Home Office veterinary inspector who has written a report on his experiences in Cumbria. The report was referred to in another place just a week ago. Does the Minister agree that, from the evidence presented, it would have required three times the number of vets to handle the current outbreak as would have been required under the protocol that was in force in 1967? Will the Government concede that the ministry's contingency plan had not taken that into account? Without a thorough review of the protocol and its implementation, the public are left with the impression, as my noble friend suggested, that there is something to hide.
Lord Whitty: My Lords, on the noble Duke's last point, noble Lords should stop suggesting that the
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Government have something to hide in this process. The number of times that my predecessor, the noble Baroness, Lady Hayman, and I have reported to the House in all candour on the developments throughout the outbreak can leave your Lordships in no doubt that we have throughout dealt openly and honestly with the House and others who inquired.
I have seen the report to which the noble Duke referred. There are many opinions on how the disease was handled and there may well be lessons to be learnt on the number and deployment of people from the State Veterinary Service. That is a matter for the inquiry. The Government look forward to its findings.

Learning and Skills Council: Sixth-form Funding
2.52 p.m.
Baroness Walmsleyasked Her Majesty's Government:
Whether they consider the funding of sixth-form places by the Learning and Skills Council to be adequate.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland): Yes, my Lords. The total amount for the funding of school sixth forms by the Learning and Skills Council from April 2002 has already been agreed. The Learning and Skills Council will announce initial allocations in December.
Baroness Walmsley: My Lords, I thank the Minister for that Answer. Does she accept that the predictions are that sixth-form places in schools will be funded at a level £900 below the average in the past? Will she give the House an absolute assurance that no school will be penalised for having a successful, thriving and growing sixth form by having to dig into the rest of its budget to support the sixth form under the new regime?
Baroness Ashton of Upholland: My Lords, I am more than happy to give that commitment to the noble Baroness. I want to take a moment to explain the funding regime, because there has been some misunderstanding about how the formula was to be worked out, based on very preliminary information that we sent out. No sixth form will be funded below the 2000–01 rates, which we are describing as the baseline year. In addition, the Learning and Skills Council will take account of any significant cash injections to sixth forms made by LEAs in the last financial year and will make appropriate adjustments. The £2,600 that is being quoted will be the determining figure if numbers change, not the figure on which the figures are based.
Baroness Blatch: My Lords, does the guarantee extend to a growing sixth form—in other words, one that will have more pupils? Also, will the decision for

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discontinuing a sixth form lie with the organisational committee and adjudicator or the Learning and Skills Council and how will one read across to the other?
Baroness Ashton of Upholland: My Lords, I shall answer the noble Baroness's second question first, but I shall remember to answer her first question as well. The Learning and Skills Council has the power to propose the closure of a sixth form on any site only if it has been deemed inadequate following two consecutive Ofsted inspections. That will be the trigger. For growing sixth forms, the real-terms guarantee is reviewed each year and numbers are taken into account at that point in order to put the guarantee back in place. It is the purpose of the Learning and Skills Council to help thriving and growing sixth forms wherever possible.
Lord Lucas: My Lords, what do the Government expect the trend in funding per pupil in sixth forms to be? Do they expect it to rise in line with average education expenditure over the next three years, or will it drop below that?
Baroness Ashton of Upholland: My Lords, the funding available for 2002–03 is £1.356 billion. Already, the allocation for 2003–04 is set at £1.428 billion. That is a rising trend. It is our aspiration to support and help sixth forms across the country.
Baroness Sharp of Guildford: My Lords, will the Minister confirm that the rate of inflation implicit in the figures put forward by the Learning and Skills Council is 3 per cent a year? How is it proposed to fund the settlement through the Learning and Skills Council should teachers' salaries rise by more than 3 per cent a year?
Baroness Ashton of Upholland: My Lords, I can confirm that the figure is 3 per cent a year. We are looking at the new formulas for the Learning and Skills Council for the future. I am sure that this is not the answer that the noble Baroness is looking for, but we are allowing schools to vire money across. The sixth-form money does not have to be put in a separate pot. Pre-sixth-form and sixth-form money can be vired into the general school budget. We shall have to look at the salaries of school teachers in the general spending review.
Lord Pilkington of Oxenford: My Lords, has the department taken note of the provision in the Act that economic factors should not govern the allocation of money to sixth forms, particularly in rural schools? Can she guarantee that rural sixth formers will be protected in any allocation of grants?
Baroness Ashton of Upholland: My Lords, the Learning and Skills Council is required to look at elements of disadvantage, and that includes issues such as free school meals eligibility. It is unusual to have a
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formula based on free school meals eligibility rather than take-up. That makes it more representative. We are very conscious of the need to support rural communities and rural sixth forms. That will be an important factor in the LSC's work.
Baroness Carnegy of Lour: My Lords, I do not think that my noble friend Lord Pilkington was talking about disadvantage. I thought that his point was that sixth forms in rural areas are likely to be smaller.
Lord Pilkington of Oxenford: Yes.
Baroness Ashton of Upholland: My Lords, I did not mean to suggest that rural communities are disadvantaged per se, but there have been issues of disadvantage because of pupils requiring to travel and so on and the need to support and protect small sixth forms, as your Lordships made very clear during the passage of the Bill. Part of the purpose of the Learning and Skills Council is to ensure that those sixth forms thrive and work collaboratively and co-operatively with others to ensure that a broad range of A-levels are available to pupils across rural communities.

Young Carers
2.58 p.m.
Baroness Massey of Darwenasked Her Majesty's Government:
How their policies on education support the needs of young carers.
Baroness Ashton of Upholland: My Lords, we must balance the two needs of young carers—to receive a good education, and to receive support in caring for those for whom they have responsibilities. Current policies on school attendance aim to ensure that young people attend school. Additional support is available to those, including young carers, who may face barriers to learning. These include the Connexions service, learning mentors in Excellence in Cities areas and support services provided by educational welfare officers.
Baroness Massey of Darwen: My Lords, I thank my noble friend for that constructive Answer. Is she aware that the Young Carers Research Group at Loughborough University is producing guidelines and recommendations on education policy for young carers? When those recommendations are ready, would she think it useful for her department to produce guidelines that summarise the recommendations and give examples of good practice? There is tremendous inconsistency in that area.
Baroness Ashton of Upholland: My Lords, I am aware that the Young Carers Research Group at Loughborough University is conducting a study on education policy. I can confirm to the noble Baroness that we would like to produce a leaflet summarising guidance. My honourable friend the Parliamentary

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Under-Secretary of State for Health, Hazel Blears, has said that the Government are keen to produce a resource pack for young carers. We shall ensure that that happens.
Baroness Walmsley: My Lords, can the Minister assure us that a system will be put in place to ensure that young carers are given an assessment of their needs and that the services they require will be provided? Can she further assure us that as regards the continual professional development of teachers courses will be available so that teachers' awareness of the problems of young carers can be raised and they can spot problems, even if the young people do not themselves come forward to ask for help?
Baroness Ashton of Upholland: My Lords, I agree with the noble Baroness as regards the importance of that matter. We have some research available on what young carers say they would like. The first thing they would like is to have someone available who will listen to them—someone to whom they can talk and who will believe them. They also want recognition of their role as carers. It may interest noble Lords to hear the following statistic of which I was not aware until last week; namely, that the average age of a young carer is 12. We are alive to the problems they face. They often perform all domestic duties and caring tasks, including the personal care of the relative for whom they care. It is important that teachers support them. I am seeking to find ways in which we can enhance that provision.
The Earl of Listowel: My Lords, can the Minister confirm the number of young carers? Is it about 51,000? When a young carer addressed parliamentarians she expressed the deep concern and distress she felt when her teacher announced to her class that she was a young carer. I believe that in her case her mother had a mental illness. She was concerned about the confidentiality of her position being maintained. I believe that that is a widespread concern. What is being done to address that concern?
Baroness Ashton of Upholland: My Lords, there are about 51,000 young carers, many of whom receive no support from statutory or voluntary services. The Office for National Statistics provided the figure of 51,000, but I guess that there are many more we simply do not know about. The issue that the young carer raised is common. One of the anxieties we have concerns the amount of bullying that we believe young carers suffer in schools. Many of those young carers look after a relative with mental health problems. In small communities that can constitute a particular difficulty. There is a balance to be struck between maintaining confidentiality, which is so important, and ensuring that we offer young carers the right kind of support.
Baroness Pitkeathley: My Lords, does my noble friend agree that, as several noble Lords have already stated, one of the great difficulties with young carers is getting them to identify themselves in a way which is
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acceptable? They are often diligent students and responsible young people so one cannot apply those kind of criteria. What encouragement is being given to teachers to help them identify young carers and to enable the latter to say what their problems are and also to enable them to say that they do not wish to be carers at all?
Baroness Ashton of Upholland: My Lords, the noble Baroness with her many years of experience raises an important point. There are real disincentives within our society against self-identification and against parents identifying their children as young carers. The first is a fear of being taken into care. Parental illness is the third most common reason for children entering the public care system. They also fear bullying. As I said, we believe that 71 per cent of young carers are bullied in school. Some 33 per cent believe that their teachers are not aware that they may be looking after someone at home.
We have issued guidance on how to support young carers within school inclusion. We have asked the Connexions service to offer advice to young carers and to be aware of them and, in Excellence in Cities areas, for learning mentors to offer a single point of contact. But I believe that we need to do more. As a direct result of the Question of the noble Baroness, Lady Massey, I intend to set up a group within the department to consider what more can be done. I invite the noble Baronesses, Lady Massey and Lady Pitkeathley, or any other noble Lord who is interested, to join those discussions.
Lord Carlile of Berriew: My Lords, in order to identify those many young carers who shoulder the terrible burden of looking after parents with mental illness, will the Minister ensure that her department looks carefully once again at the systems for and extent of information sharing between education, social services and health so that the educational and other needs of those young carers are properly met?
Baroness Ashton of Upholland: My Lords, I believe that that is an area where we need to think in, dare I say, a joined-up manner. As noble Lords know, I am an advocate of joined-up thinking between education, health and social care. For the pupils we are discussing it is particularly important that we do that.
Lord Northbourne: My Lords, does the noble Baroness have any figure for the amount of money which the taxpayer saves through young carers caring for people who would otherwise have to be looked after by social services or the National Health Service?
Baroness Ashton of Upholland: My Lords, it w ill not surprise the noble Lord to hear that I do not, although I can imagine that it is a huge amount of money. However, I do not wish to consider only the economic aspect. The role these young carers play is fantastic. As

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my noble friend has said, they are in the main diligent students and they shoulder a burden that we can do more to support them with.
Baroness Blatch: My Lords, given that there is no support in law for young people to carry out paid work, would the noble Baroness say that there ought to be an obligation on social services to intervene to make sure that those young people are not put in the position where they are having to do almost a professional job unpaid and unrecognised?
Baroness Ashton of Upholland: My Lords, the noble Baroness makes an important point which fits with the point made by the noble Baroness, Lady Pitkeathley; namely, that sometimes these young people do not want to be carers. I shall consider that suggestion and come back to the noble Baroness.

Business of the House: Anti-terrorism, Crime and Security Bill
3.6 p.m.
Lord Carter: My Lords, it may be for the convenience of the House if I take this earliest opportunity to make a brief statement regarding the timetable for the emergency Anti-terrorism, Crime and Security Bill. The timetable has been agreed in the usual channels.
It is expected that the Bill will arrive in this House late on Monday 26th November; that is, a week today. The Second Reading will be on Tuesday 27th November. There will then be four days in Committee: Wednesday 28th and Thursday 29th November and Monday 3rd and Tuesday 4th December. There will be two days on Report on Thursday 6th and Monday 10th December. The Third Reading will be on Tuesday 11th December. I am extremely grateful to the usual channels for agreeing to reduce the intervals between the various stages of the Bill.
There are a number of associated questions which need to be addressed, for example, your Lordships will want to know when the Speakers' List will be open for Second Reading and what the deadlines will be for tabling amendments. I discussed those matters with the usual channels and with the House authorities and we have placed a comprehensive document outlining all the dates and arrangements in the Printed Paper Office.
Lord Cope of Berkeley: My Lords, I confirm, as the noble Lord the Captain of the Gentlemen-at-Arms says, that we have agreed to the accelerated programme for the Bill that he set out. I thank him for announcing it. However, I wish to add a few sentences about the nature of that agreement.
My right honourable friend Iain Duncan Smith rightly expressed to the Prime Minister and publicly the Opposition's support for necessary emergency measures in the face of the new threats from terrorism.
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We have always been resolute against terrorism and, of course, we remain so. But this Bill is not a coalition document. We were not consulted on its content before it was published. It embodies Labour Ministers' ideas and their judgment of what is required urgently under an accelerated timetable. Neither the Opposition nor your Lordships' House generally is under an obligation to accept unthinkingly either those ideas or those judgments of urgency. Indeed, I believe that we have an obligation to scrutinise them.
Ministers from eight different government departments are proposing permanent changes to laws, including some that we have recently passed after much discussion, for example, the Terrorism Act 2000, the Regulation of Investigatory Powers Act 2000 and so on. Some clauses are to be subject to monitoring by statutory instrument for renewal at intervals, some are not. For the first time, I believe, some clauses are limited to international terrorism as distinct from UK terrorism. Given the continuing domestic threat to the United Kingdom and the world-wide terrorist links of some UK terrorists, that is in itself an extraordinary proposal.
The point to be made about the agreement on the timetable is that it does not so much limit the actual length of your Lordships' debates—eight days is probably only two or three days short of what the Bill would have taken in the normal course—but it drastically cuts the normal intervals between stages and between the days of the Committee stage. Therefore, it reduces the time for reflection, for consultation with bodies and individuals outside Parliament, and for thought not only by Members of your Lordships' House but also by others outside and, indeed, by the Government on what is said in Parliament.
We have agreed the foreshortened timetable. However, neither we nor your Lordships' House should neglect our duty to consider the Government's proposals and their claims to urgency in each case.
Lord Roper: My Lords, we on these Benches are grateful to the Chief Whip for the suggestions that he accepted with regard to the timetabling. However, we share a number of the reservations expressed by the Opposition Chief Whip. This is a very full Bill. It includes some measures which do not immediately seem to be directly relevant to the issues of antiterrorism with which we totally agree. We shall want to scrutinise those particularly carefully in deciding whether they should be included in a Bill which is being considered in such an accelerated way. However, subject to that, we have accepted, and will support when they come before the House, the changes which will enable us to consider the Bill in an abbreviated form.
Lord Peyton of Yeovil: My Lords, as we are not accustomed to timetable Motions in your Lordships' House, I want to ask whether this matter will be debatable. As there is very little precedent for it, I hope that it will at least be subject to a debate.
Lord Carter: My Lords, every Bill that we discuss in this House is subject to an agreed timetable. The noble

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Lord is entirely correct that we have no such thing as a timetable Motion. However, the usual channels spend their time agreeing timetables for every Bill with which we deal, and this Bill is no different in that respect. The timetable has been agreed. Certainly the intervals have been reduced but there are plenty of precedents for that.
I certainly accept what the noble Lords, Lord Peyton and Lord Cope, said. There is no chance that this House will accept unthinkingly anything that is put before it. We have allowed eight days for the Bill. I do not believe that this is the time or place to discuss its merits or what should or should not be included in it. Clearly that will become apparent as the Bill proceeds. However, since becoming Chief Whip, I have worked with the noble Lords, Lord Strathclyde, Lord Henley. Lord Cope, the late Lord Harris of Greenwich and now the noble Lord, Lord Roper, and we have always managed to complete Bills according to the agreed timetable. I hope that this extremely important Bill will not be the first on which we breach an agreement reached via the usual channels.
Lord Marlesford: My Lords, while I support my own Front Bench and yield to no one in my determination to fight terrorism, perhaps I may raise a procedural point. It may transpire that this House believes that some clauses in the Bill do not need to be enacted before Christmas and that some clauses require further thought and possible amendment. In that case, will the Government be open to the possibility of splitting the Bill so that clauses which, in the view of this House, genuinely need to be enacted before Christmas are so enacted while other clauses could be brought forward after Christmas for further and more detailed consideration? I say that in the context of the very abbreviated consideration which the Bill appears to be receiving in another place.
Lord Carter: My Lords, it would certainly not be right for me to comment on that. I am not familiar with all the details of the Bill. I am sure that the noble Lord and others will wish to place those arguments before the House as we proceed through the Bill. It would not be right for me to give such an undertaking today.
Lord Cope of Berkeley: My Lords, it is the Government's contention at present that all the propositions in the Bill need to be put into law by Christmas. It will, of course, be for your Lordships to consider whether they agree with that contention in the case of each individual proposal. We hope to be able to persuade the Government that some of the proposals are not urgent and that they should be left out of this Bill. Perhaps, if it is desired, they could be included in a further Bill to follow in the new year.
Lord Elton: My Lords, I raise a point for clarification only. I heard the Captain of the Gentlemen-at-Arms say that the intervals between stages had been reduced. Am I right in thinking that there will be no interval between Second Reading and Committee stage, no interval between Report stage
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and Third Reading, and that the interval between Committee and Report stages has been contracted to a single day?
Lord Carter: My Lords, that is entirely correct. I was able to meet that suggestion put forward by the two Opposition parties. They wish to go into Committee stage immediately after the Second Reading. Therefore, the noble Lord is quite correct. The Second Reading will take place next Tuesday. We shall then have four days of Committee. A break of one day will be followed by two days of Report. The Third Reading will follow that. The Government regard this as emergency legislation on an extremely important subject. That is the agreement that has been reached.

Human Rights Act 1998 (Designated Derogation) Order 2001
3.15 p.m.
The Minister of State, Home Office (Lord Rooker)The Minister of State, Home Office (Lord Rooker) rose to move, That the order (S.I. 2001/3644) laid before the House on 12th November be approved.
The noble Lord said: My Lords, I beg to move that the order standing in my name on the Order Paper be approved. There will be a temptation—it affects me as it does anyone else—to go much wider than the order. I believe that the exchange that has just taken place indicates the pressure for that to happen. In introducing the order, I shall stick as closely as possible to its narrow confines. However, if the occasion arises and matters are raised, naturally I shall be prepared to be as open as I can be about consequential questions or issues.
Before coming to my main point, perhaps I may follow on from what has just been said. Later today we shall debate issues arising from the European arrest warrant. That will be subject to legislation early in the new year in terms of the amendment to extradition legislation. As I have already forecast, later in the spring there will be an immigration and asylum Bill.
However, as my noble friend the Chief Whip has just said, the Government seek Royal Assent to the Anti-terrorism, Crime and Security Bill before Christmas. However, we in no way seek to stifle debate. With the amount of time available for debate, I do not believe that that criticism can be laid at this House. Obviously, if the Government propose a measure, it is for the House to respond to it. That is the way in which the system will work during our debates. We shall make the best of trying to convince noble Lords that what we propose is moderate, proportionate and precautionary.
The order that we are about to debate is significant. It concerns a derogation that the United Kingdom proposes to make from Article 5 of the European Convention on Human Rights. That article affects the right to liberty and security. It is not a step to be taken lightly, and I want to make clear at the outset that the Government have given very careful consideration to the matter before embarking down this road.
I shall cover three issues: first, the technicalities of the order; secondly, the domestic powers that we propose to take which require the order to be made; and, thirdly, the conditions that must be satisfied for a member state to derogate from an article of the European convention. I shall set out why we believe that those conditions have been met.
The order was made on 11th November. It was laid before Parliament on 12th November and came into force on 13th November. The power to make such an order comes from Section 14 of the Human Rights Act 1998. Section 1(1) of the 1998 Act sets out the articles of the convention which constitute the convention rights for the purposes of that Act. Section 1(2) provides that those articles are to have effect subject to any designated derogation. Section 14(1) of the Act provides that a designated derogation includes any derogation by the UK from an article of the convention which is designated in an order made by the Secretary of State. The order that we are debating is such an order.
The consequence of making the order is that the meaning of convention rights as they have effect in our domestic law will be amended in the manner that is set out in the order. The order has attached to it a schedule about the proposed derogation that the United Kingdom intends to make from Article 5(1) of the convention. It is considered that a derogation from that article is required to the extent that some of the measures in Part 4 of the Anti-terrorism, Crime and Security Bill are inconsistent with Article 5(1) of the convention.
I turn to the domestic powers that we are taking. The Bill is currently in another place—its Second Reading is due to start shortly, so we are debating the Bill and its consequences before the other place has started considering it. Clauses 21 to 23 provide for the detention, subject to judicial oversight, of certain individuals in circumstances that are likely to conflict with Article 5(1), as interpreted by the European Court of Human Rights in the case of Chahal. It extends existing detention provisions in the Immigration Act 1971 to cover a circumstance where the following three conditions are met. First, the Secretary of State certifies an individual as being a "suspected international terrorist"; that is, the Secretary of State believes that the person's presence in the UK is a risk to national security and suspects that the person is an international terrorist. Secondly, action has been taken with a view to removing that person—that is, the suspected international terrorist—from the UK. Thirdly, removal is temporarily or indefinitely prevented by a point of law relating to an international agreement or by a practical consideration.
Although it is possible to detain people consistently with Article 5 of the European Convention on Human Rights where the Government are seeking to remove someone on national security grounds, that detention would cease to be permissible if the duration of such proceedings became excessive. In the cases of some of the individuals who might be detained under those powers, it is possible that delays in removal would
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exceed a period that is acceptable in convention terms. Hence the need for the order, which modifies our domestic obligations under the Human Rights Act to match the modifications that the UK will make to its international obligations under the ECHR when the proposed derogation is formally notified to the Council of Europe.
I turn to the derogation itself. Noble Lords will be aware that there are restrictions on the scope for derogating from an article of the convention. For some articles—such as Article 3, which provides that no one shall be subject to torture or to inhuman or degrading treatment or punishment—there is no scope whatever to derogate. For other articles—such as Article 5— derogations may be made where there is a public emergency threatening the life of the nation, provided that the measures that are taken are strictly required by that emergency.
We have taken the view that the UK is currently facing a public emergency within the meaning of the convention. The first test is whether such a public emergency exists in the UK. There have been a number of public threats made by bin Laden and his supporters against western interests since 11th September. While we do not comment on intelligence, we do not believe that the overall level of threat to the UK has increased beyond the heightened levels following the events of 11th September. We believe that attacks against United States interests remain bin Laden's priority. We will of course keep all such issues under review.
The attacks in the United States represent a further escalation in the scale and scope of the international terrorist threat to western interests. The British role in the US-led coalition against international terrorism raises the overall risk of attack and it would be wrong to conclude that that threat has been diminished by recent events in Afghanistan. In addition, there is evidence to show that international terrorist organisations have links with the UK and therefore constitute a threat to the UK. We need to appreciate, as I have said before, that on 11th September the international terrorists rewrote the rule book, and these adjustments to our own rules are a consequence of that.
In its report last week, the Joint Committee on Human Rights expressed some concerns about the lack of specifics as regards the threats that we face. As the committee acknowledged, the specific information on which those judgments have to be based are necessarily not ones that can be shared. However, the public will readily be able to see, following the terrible events in the United States, that the devastation that international terrorists can wreak is large indeed. Our active support of the response of the United States means that we must be fully on our guard.
Those risks, however, do not mean that a "state of emergency" has been declared in this country. That is contrary to some of the shorthand used by illinformed—or probably lazy—journalists. We are not talking about a situation under the emergency powers Act in which sweeping executive powers are being taken to address some general emergency. However,

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we do consider that the above threats mean that there is a public emergency within the meaning of Article 15 of the ECHR.
One question that we have to answer—everyone is asking it—is: are the detention powers that we propose a necessary and proportionate response to this emergency? We believe that they are. They are necessary because we need to do something to protect the public against individuals who contribute to the terrorist threat. If it is not possible to present sufficient admissible evidence to bring a successful criminal charge and if legal or practical considerations prevent removal from the UK, another option needs to be found. The extended but clearly circumscribed detention powers fill that gap. I repeat: our prime preference would be to prosecute; failing that, our second preference would be to remove the people from the United Kingdom—we are talking about non-UK citizens. We can adopt neither approach in these cases. We are therefore left with two alternatives: to do nothing and leave the people free or detain them.
We therefore believe that these measures are proportionate to that risk. The powers will be targeted on a small group of individuals. I cannot give a figure—a handful is involved but I cannot say whether it is a large or a small handful. A small group of individuals is involved. Those individuals constitute a major threat to national security; that is, as suspected international terrorists. With all due respect to the Joint Committee on Human Rights, whose work always greatly aids discussions in this House and in the other place, I do not share its conclusion that there is a lack of safeguards in the Bill. There are in fact a number of important safeguards relating to the use of those powers.
First, a detainee will be able to end his detention at his choice if he wishes to go to a third country. That is why I refuse to engage in a debate about whether internment is involved; it does not involve internment in the emotive historical sense in which that word has been used in this country. I refer to the internment of UK citizens who are locked up—banged up—and who certainly have no right to walk out. In this case, these people will be able to end their detention if they find a country that will take them.
Secondly, the powers exercised by the Secretary of State will be subject to full judicial scrutiny. I read reports in the media at the weekend which stated that no judge will ever see the evidence that David Blunkett will have used to make a decision or to issue a certificate. That is simply not true. The Special Immigration Appeals Commission—the relevant legislation went through this House and the other place at the back end of 1997—is well suited to considering these matters, having both judicial and security expertise. The commission consists in total of eight people: four judges and four others who have expertise in security matters. At any one time, there will be a minimum of two judges sitting and one person from the group that I call the lay people. They are in effect conducting a judicial review on the Home Secretary when he signs a certificate. The decisions of the commission will be capable of appeal to the Court
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of Appeal and to the House of Lords on a point of law. So to argue, as some commentators have, that there is no judicial process, no oversight of what the Home Secretary is doing in respect of such people is, frankly, not the case.
Furthermore, the oversight on the detention powers will be ongoing. There will be an immediate right of appeal against the issuing of a certificate, with six-monthly reviews thereafter, and the additional safeguard of a review earlier than that where a change of circumstances is raised that warrants that. If there is a change between the six-monthly reviews, the detainee, through his or her legal adviser, will be able to make an application to have the matter looked at as a result of a change of circumstances. I cannot conceive of such a request being refused by the commission.
Lord Corbett of Castle Vale: My Lords, can the Minister clarify the point that, none the less, it remains entirely possible that a person could be detained indefinitely without ever knowing the allegations against him or her?
3.30 p.m.
Lord Rooker: My Lords, I shall address that. I am going through the process in a chronological manner. I have just referred to the detainees' legal adviser. The detainees can have whatever legal advice they choose, from wherever. Of course, there will be an appointed legal adviser to take the issue before the Special Immigration Appeals Commission, and that person will come from the Attorney-General's list. He or she will have that access, but will not be allowed to discuss it with the detainee. That is a necessary consequence of not being able to mount a prosecution. If we could mount a prosecution we could deploy the evidence in court. As we are not prepared to use intercept evidence, we are tied and so we have to build in this process to try to safeguard the issue.
My noble friend is correct. Last week, when the Home Secretary appeared before the Joint Committee, he was asked whether someone could be locked up for life. Technically, after five years the matter will have to be reviewed with all the other built-in provisions because the derogation is for five years only. But as the Bill is drafted, the answer, in a simplistic narrow way, would be yes. If one asks the question, "Can you conceive of someone being detained for life in that way?", the answer is probably no.
I cannot conceive of the circumstances because in this position—no doubt the matter will be debated at some length when we consider the Bill—I cannot give examples of what might fulfil those criteria.
Lord Lester of Herne Hill: My Lords, the Minister has helpfully told the House that SIAC, the Special Immigration Appeals Commission, would effectively be conducting a judicial review of the decision of the Home Secretary. Therefore, am I correct in assuming that SIAC will be able to review the decision of the Home Secretary that someone cannot be sent to another country for reasons related to Article 3 or for other practical reasons? Will that also be reviewed by

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SIAC? In reading the Bill, I am unclear whether the "ouster" clause, as it is called, will oust that or not. If SIAC is to substitute for normal judicial review, that is an important point.
Lord Rooker: My Lords, that is an incredibly important question which I cannot answer. I suspect the answer may be no, because it involves the interpretation of what happens under Article 3. There is really no way out of Article 3. If the Home Secretary takes the view that we cannot deport someone to a country in relation to which he has evidence that that person will face execution, torture or inhuman and degrading treatment, Article 3 is absolute. I do not believe that anyone could second-guess that and say to the Home Secretary, "By the way, we believe that things are okay in country X or Y and you can get this person out".
I do not believe that SIAC would have that capability. I shall take advice on that, but on my reading and understanding of the discussions that we have had, I suspect that that would not be SIAC's role. I have only just started to catch up with the debates in this House and the other place on the setting up of SIAC. At the moment it has had only three cases. There is not much experience in relation to this matter. I believe that the answer would be no.
The oversight on the detention powers will be ongoing. Furthermore, the continuance of these powers will be subject to renewal by Parliament: initially, our proposal is after 15 months, and annually from then on. However, the order that we are debating today will expire after five years unless Parliament agrees to it being extended.
In my opening remarks I said that this is a serious measure that addresses a serious situation. We believe that there is a clear need for the order and we genuinely believe it to be a moderate adjustment to our rule book, following the international terrorists rewriting their own set of rules on 11th September. I commend the order to the House.
Move, That the order (S.I. 2001/3644) laid before the House on 12th November be approved.—(Lord Rooker.)
Lord McNally Lord McNally rose to move, as an amendment to the above Motion, to leave out all the words after "That" and insert "this House declines to approve the order (S.I. 2001/3644) laid before the House on 12th November until the Anti-terrorism, Crime and Security Bill has received the Royal Assent".
The noble Lord said: My Lords, I am somewhat fortified in moving an amendment that has at its heart civil liberties and human rights to have back in his place my colleague, my noble friend Lord Avebury, for the first time since his recent illness and accident.
The introduction by the Minister lasted for nearly 20 minutes and there were several occasions when he was unsure of the full implications and told us to await the full debate in Committee, so I believe that this order puts the cart before the Horse. The order is not about
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the new powers that the Home Secretary seeks in the Anti-terrorism, Crime and Security Bill, although the Minister went into a great amount of detail about them. This order assumes that those powers will be granted. My amendment concerns that presumption.
The Minister said that the powers that the Government seek are not to be taken lightly. Yet, as he said in opening, this debate on giving derogation powers is taking place in advance of a debate on Second Reading in another place. I have said in the House before that one of my favourite scenes in movies is in "A Man for all Seasons", when Richard Rich urges Thomas Moore expediency in relation to the law. Moore responds by saying, "Where do we shelter when the wind of tyranny blows?"
I do not accuse Ministers of planning tyranny—I have known many of them for too long to suspect that—but I accuse them of expediency and seeking expedient solutions, one of which is bringing forward this order today. Yesterday, in the Observer, Andrew Rawnsley put the matter well. He said:
"Urgent in their decision making and chaffing against any restraint, the emasculation of Parliament and the judiciary seems to them to make ripe common sense. Holding themselves to be good men and women, they simply cannot conceive that they could ever wield their accumulating powers in any way that is not benign".
It is such a frame of mind that causes the present Home Secretary to talk about "airy-fairy civil liberties" and his predecessor to sneer at his critics as "Hampstead Liberals". It is such a mood of impatience and intolerance which produces today's order.
Last Thursday I specifically asked the Minister whether he saw the Human Rights Act as a piece of fair-weather legislation or whether the Government still shared the view of my party that it was an iron pole around which our human rights and civil liberties are constructed. I was impressed by the robust nature of his reply supporting the Act and our 50-year-old commitment to the convention. Yet, four days later, here we are with a derogation order for powers that are contained in a Bill that has not yet been before this House.
Today is not the day for a detailed examination of the powers that the Home Secretary seeks. They will be properly discussed, as the Chief Whip has just reminded us, at Second Reading and at the Committee stage of a Bill that does not reach us until next week. Nevertheless, as the Minister went into some detail, I ask the House, particularly the Labour Benches, to consider some opinions which may be airy-fairy, but to which Labour used to pay quite a lot of attention. The Observer stated:
"Mr Blunkett has failed to offer any convincing explanation of why these specific powers are needed less than a year after an already severe new Terrorism Act was introduced".
The Independent stated:
"Think again Mr Blunkett before eroding our most fundamental rights".
It went on to say that the Home Secretary's plan,
"is a dangerous step. Parliament must force him to think again before we sleepwalk down this American road to a police state".

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In a magisterial letter to The Times the noble and learned Lord, Lord Donaldson of Lymington, said:
"I cannot accept that the right of an individual to apply to the courts by judicial review for a writ of habeas corpus can be described as 'airy-fairy' liberty".
In case the Minister thinks that my range of reading is too narrow, let me also quote Mr Bruce Anderson—who would sue if anyone called him a "Hampstead Liberal". He said:
"Blunkett is introducing a range of restrictions that even Margaret Thatcher might have blanched at".
Maybe Labour Back-Benchers will find even more worrying Mr Anderson's conclusions. He said:
"The time for naivety is over. On these measures Mr Blunkett deserves full and unswerving support".
Maybe he does. But he should first argue those measures before Parliament. If he gains approval of them, that will be the time to consider the order.
Today Parliament has an opportunity to remind the Government of our respective responsibilities. Over 130 years ago Mr Gladstone, when addressing Parliament, said:
"Your business is not to govern the country, but it is, if you think fit, to call to account those who do govern it".
He spoke those words to the House of Commons. In normal times the country would look to that House for such a calling to account. But, as the noble Lord, Lord Hattersley, told us in yesterday's Sunday Times—it is usually in the Sunday Times because the noble Lord does not come here—all that is required of Government Back-Benchers in the Commons is,
"a willingness to nod like a toy dog in a car's rear window".
So it is left to this House, with all its imperfections, to carry out that duty.
We are strengthened in that determination by the view of both Houses in the Second Report of the Joint Committee on Human Rights. Most noble Lords will have read the report in detail, and in particular paragraph 78. I describe that as the "killer conclusion", although it is one which has already been rejected by the Minister. It states that,
"we are not persuaded that the circumstances of the present emergency or the exigencies of the current situation meet the tests".
It continues with strong words. They are not for the Government but for Parliament and this House. It states:
"It is now for Parliament to draw its own conclusions, and for Members of both Houses to satisfy themselves that there are adequate safeguards to protect the rights of the individual citizen against abuse of these powers".
That is for the debate on the Bill. That debate will decide whether the Government shall have the powers for which they seek premature derogation. There is a clear and present duty, to a clear and present danger, for this House to resist the claim tonight for this instrument.
We yield to no one in our determination to defeat terrorism. We match that with an equal determination to protect our civil liberties. The Government must argue their case for new powers and then seek derogation. Refusal by the House to approve the order
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tonight will be a timely reminder, especially at a time of emergency, that power flows from the people to Parliament to the Government and not the other way around. I beg to move.
Moved, as an amendment to the Motion, to leave out all the words after "That" and insert "this House declines to approve the order (S.I. 2001/3644) laid before the House on 12th November until the Anti-terrorism, Crime and Security Bill has received the Royal Assent".—(Lord McNally.)
3.45 p.m.
Lord Dixon-Smith: My Lords, it would be tempting today to indulge ourselves with an anticipatory Second Reading debate. I hope that we shall avoid that. I have already thrown away three pages of notes which I regret that I shall be obliged to inflict upon noble Lords at a later date.
Of course the Bill has much in it which is open to criticism. It has content that is unrelated to emergency and inappropriate in detail. But we are agreed that legislation is needed to deal with the new situation that has arisen in this country post 11th September. Therefore, in principle the Bill is welcome, but there is much to criticise as regards its detail. If we accept that principle we can accept the order.
The noble Lord, Lord McNally, made much of outside criticism of what the Government seek to do in the Bill. He called it "the cart before the horse" and he quoted Moore, the emasculation of Parliament, the Observer, the Independent, the noble and learned Lord, Lord Donaldson, Mr Anderson and so on.
All those matters are valid, only if Parliament fails in its duty in the first place properly to consider the Bill. Whatever may happen in the other place, I do not accept the proposition that this House will avoid its duty. There will be plenty of opportunity on subsequent occasions properly to consider the detail of the Bill and to deal with it. I shall be very disappointed indeed if the Bill leaves the House in the form in which it arrives. That may give rise to an interesting situation subsequently, but that is another matter.
The Second Report of the Joint Committee on Human Rights, properly draws attention to many of the difficulties that exist with the Bill. I expect that we shall have many forceful debates before we get to the Motion, that the Bill do now pass. I shall refer only to one point. It illustrates the problem which arises within that report. Paragraph 23 states that,
"clause 23 of the Bill does not in itself make it clear that the purpose of detaining the suspect is solely to find a safe country to which to remove him or her. A suspect might be very willing to go to a country which supports, or at any rate does not oppose, terrorism".
It goes on:
"We asked the Secretary of State in oral evidence whether, for example, he would be prepared to let someone go to Iraq. Syria or Libya. We were reassured when he responded—
'If a country is prepared to take someone, then we would release them under these particular powers, because we arc talking about immigration powers".
I am obliged to say that I am not so reassured. Would we seriously release a man whom the Home Secretary has certified as a known terrorist to a country which is

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known to sponsor terrorism? I find that proposition extremely difficult to swallow. I would not want to take out an insurance policy on the life of that individual, or indeed on his comfort, because Article 3 of the European Convention on Human Rights prevents the export of someone to a country where either the death penalty or torture is prevalent. All three countries mentioned offer the possibility of death or torture as a fairly normal state of affairs. So while a terrorist may volunteer to go, that would strictly contravene Article 3 of the ECHR, which appears to me to be wrong.
That illustrates some of the difficulties that we shall face when we consider the Bill. For today, however, we do not think it right that we should delay the Bill by holding back the order. The order will apply to the Bill as passed, not the Bill as drafted. For those reasons, we do not support the noble Lord's amendment. The Government may have their order. We will not vote for it; but we will not vote against it.
Lord Lester of Herne Hill: My Lords, I was one of six noble Lords who were members of the Joint Committee on Human Rights, on which it was a great privilege to serve. Our report has already been referred to. It was unanimously agreed by Peers from all three parties and the Cross Benches, as well as by six Members from the other place. We produced our report in record time on Friday, the measures having been published only on Monday afternoon. I pay tribute to the legal adviser, Professor Feldman, and the Clerk to the committee, who made that possible.
I shall speak briefly to one or two issues as a member of that committee. First, I welcome the fact that we have this debate at all. We have it because under the Human Rights Act 1998, what was always a matter of prerogative is now a matter for parliamentary approval. The Government are to be congratulated on having included in the Act a provision that makes clear that the approval of both Houses is needed before they take the serious step of derogating from one of the fundamental rights guaranteed by the convention.
The second kind thing that I should to like to say is that the Home Secretary and his colleagues should be commended for their broad interpretation of the right to liberty under Article 5 of the convention, which, as the Minister explained, in the Government's view gives rise to the need for a derogation. The Government could have taken a narrow view of the right to liberty and said that no derogation was needed, but they did not.
Another matter on which I congratulate the Home Secretary and his colleagues is that they resisted calls from the Conservative Front Bench in the other place to denounce the convention and enter what I would have considered an illegal reservation to Article 3 to allow the United Kingdom to extradite or deport a suspected terrorist to a country where he would face torture, inhuman treatment or the death penalty. I am glad that the Government did not go down that road. That is all positive.
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It is also positive—I disagree on this point with the noble Lord, Lord Dixon-Smith—that the Home Secretary has made clear that a suspected terrorist could go to a country that would take him but would immediately set him free, even if that were a country such as Iraq, which harbours terrorists. There is a good reason for that. I think that the noble Lord said that such a person would have been found by the Home Secretary to be a terrorist. That is not right. It is not the Home Secretary's function to find someone to be a terrorist; only a court of law can do that. In such a case, the Home Secretary will have reasonably suspected that someone is a terrorist, but will have to release him immediately, because otherwise there would be indefinite internment. As the Minister has made clear—although the Bill does not make crystal clear— the Government have no intention of interning indefinitely.
The Minister has already explained to the House that in order to pass muster under Article 15 of the convention, the Government must, first, satisfy the European Court of Human Rights—because it is the ultimate guardian of the treaty—that there is a sufficient state of emergency to justify the derogation and, secondly, meet the strict test that the measures in the Bill are strictly required by the exigencies of the situation.
On the first question, the Select Committee considered that the case had not been proved, and asked both Houses to satisfy themselves on the basis of what the Home Secretary could tell them that there is a sufficient state of public emergency. There are now two opinions: one given on behalf of Liberty by my colleague, David Pannick QC, and another, given on behalf of Justice, by my colleagues David Anderson QC and Jemima Stratford. I declare interests in supporting both of those non-governmental organisations. Those two opinions explore the question in detail, and I shall simply place them in the Library for those who find them interesting. Mr Pannick adopts a robust view; he thinks that there is not a sufficient public emergency. Mr David Anderson gives the Government greater benefit of the doubt on that question.
I suggested to the Select Committee that the real question is not so much whether there is a public emergency, on which the European Court would give the Government a wide margin of discretion, even though, as far as I know, we are the only European country seeking to derogate in such a way—one might have thought that our allies such as Germany, France and Spain would have equal need if there were a sufficient emergency, but that is by the by. The real question is not whether there is a public emergency—an elastic concept—but whether the measures in the Bill are strictly required to meet the exigencies of the situation. On that the committee was clear.
The Home Secretary gave the committee the benefit of an hour's question and answer session last Wednesday evening. We were concerned about several aspects. I cannot go into all of them, because there is not time, but in brief, we were most concerned about the loose definition of "links with terrorism". As paragraph 37 of our report states, that risks

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"arbitrariness". We were also concerned about the technical question of whether the Home Secretary could issue new certificates against suspected terrorists indefinitely, even when the Special Immigration Appeals Commission had struck one down. Mr Blunkett was good enough to say that he would reread the wording and reconsider.
We were also concerned about the limited powers of SIAC. I support SIAC, as I did during the passage of the Bill that set it up, as a fair compromise. If we are to take the strong step of ousting normal judicial review, it is important to ensure that the independent judge and his colleagues on SIAC have full powers of review. In his opinion, Mr David Anderson points out an important ambiguity that I raised with the Minister previously, which I hope he will consider. It is vital that SIAC is able to assess the reasonableness of the Home Secretary's decision whether someone can or cannot in practice be sent to a safe country.
Another important question, which has already been raised, is whether it is good enough to give SIAC power to review a detention only every six months. I think that that should be possible every month, in view of the curtailment of liberty involved, but six months is certainly too long.
In the introduction to our report, at paragraph 5, we made a point with which I am sure that all Members of the House agree, but which is worth emphasising. Our report states:
"the provisions of the Human Rights Act 1998, for which we were appointed as the parliamentary guardians, represent core values of a democratic society such as individual autonomy, the rule of law, and the right to dissent, and these must not lightly be compromised or cast away. It is precisely those values which terrorists seek to repudiate and undermine."
In the penultimate paragraph, No. 78, to which my noble friend Lord McNally has drawn attention, we challenge Parliament to draw its own conclusions and to satisfy itself that there are adequate safeguards to protect the rights of individual citizens against abuse of power.
Whether today the cart is before the horse or the horse before the cart, I suggest that one matter is certain: if the Motion is passed and if the Bill does not contain adequate safeguards against abuse of the kind to which the Select Committee and others have drawn attention, the United Kingdom will ultimately face ignominy before the European Court of Human Rights. That is why when we come to debate the Bill it is our special responsibility to build in those safeguards.
4 p.m.
Lord Mishcon: My Lords, before the noble Lord sits down, he knows that his speeches are well accepted in this House. However, I thought that he should be given the opportunity to explain one of his comments. He spoke of two eminent lawyers, well known to both of us, who gave an opinion on what is a public emergency. Perhaps I may suggest to him that lawyers are not completely qualified to deal with a question of
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fact which would usually be determined by a Minister of the Crown with full knowledge of matters which he could not divulge in public.
Lord Lester of Herne Hill: My Lords, the noble Lord, Lord Mishcon, is right. What is a public emergency is pre-eminently a political question and is pre-eminently for Ministers and the elected representatives of the people. However, the European Court of Human Rights must look at that as a legal question. The legal tests have been set out in a number of cases and the Northern Ireland state case was one of the best known. Those distinguished lawyers have examined that legal test and the opinion on the basis of the evidence that exists. That is a correct approach because if the United Kingdom Government were taken before the European Court of Human Rights, the first question would be: is there a sufficient threat to the life of the nation to justify limiting the right to liberty?
I have already stated that as regards that question I would anticipate the Government being given a wide margin of discretion, as do both distinguished lawyers in their opinion.
Lord Campbell of Alloway: My Lords, I support the principle of the Bill, the object of the Bill, in particular in Part 4. I agree with the approach of my noble friend Lord Dixon-Smith but I fundamentally question the method of implementation of the object. I do so for some of the reasons given to your Lordships which I have no intention of repeating.
I also support the amendment of the noble Lord, Lord McNally. The invitation to approve the statutory instrument on a Motion today is not well conceived. It proposes a derogation from the convention to enable Part 4 of the Bill to be enacted on the assumption that your Lordships accept Part 4 without amendment. It is premature as pre-empting debate in your Lordships' House. The assumption that there would be no amendment is one which may not be made.
There is no doubt that Part 4 is in breach of Article 5. That article largely adopts our indigenous concepts of natural justice as administered by our judiciary. Part 4 is in breach of all those concepts. Enactment of Part 4 fills me with total horror because it would exclude the jurisdiction of our judiciary; it would breach the separation of powers. That is the fundamental source of our constitution, which it is the duty of this House, as the sole guardian, to defend.
As appears from pages 7 and 8 of the report of the Joint Committee on Human Rights, of which I am a member—I am a rather insignificant member and have no pretence of speaking other than as to my own thoughts, so there is no interest to declare—the right honourable gentleman the Home Secretary, when questioned on the matters to which I have referred, in particular on natural justice and the constitution, was unable to give any satisfactory answer.
There can be no doubt that during the passage of the Bill through your Lordships' House amendments will be tabled such as to require that grounds are to be

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given for the reasonable belief or suspicion of the Secretary of State before a person is certified as an international terrorist and that person should have an opportunity to answer. Such should obtain on appeal from the decision.
There is no doubt that in due course Clauses 29 and 30, which exclude the jurisdiction of our courts, will be the subject matter of a Motion that they do not stand part. That is the order of debate on Part 4—the details are unimportant today—which would be pre-empted.
Points of concern have been mentioned by the noble Lord, Lord Lester of Herne Hill, and I shall not repeat them. However, I want to raise one point of which no particular mention, if any, has been made. It is that the derogation is sought under Article 15 of the convention. But there is no assurance that when the derogation is brought before the European Court of Human Rights in proceedings in which inevitably Part 4 if it were enacted would be impugned, the court would accept the proposed derogation. If not, what then would be the position of Her Majesty's Government? Why would it probably not accept the derogation? It would not appear to be—I use words from Article 15 but shall not bore your Lordships with the whole text—strictly required by a public emergency threatening the life of our nation. The court might well, and in all probability would, conclude that in any event it was not a proportionate response to the threat of global terrorism. It is taken for granted that urgent measures—not those proposed in Part 4, but measures to achieve the object of Part 4—must be taken to identify, deport or detain international terrorists.
It is of vast importance that the role of the judiciary should not be usurped for the sake of administrative convenience, to afford what would be a misuse of executive power. It would set the wrong precedent for a government with a landslide majority in another place to seek to introduce such a measure in Parliament.
Before I knew about the amendment, I found the same words—word for word—at the end of my notes. That is why I support the amendment.
Lord Davies of Coity: My Lords, in rising to support the order that has been presented by my noble friend, I advise your Lordships that I shall not speak at length but wish to address the specific area of concern—urgency and emergency.
The noble Lord, Lord McNally, referred to the film, "A Man for all Seasons", when he moved his amendment. My conclusions have been reached not because of a blockbuster film or its content, but on the basis of two events. The first is what happened on 11th September and, perhaps more important, what has happened since in terms of the amount of intelligence and information that we have received regarding Osama bin Laden and his terrorist world-wide network, Al'Qaeda.
Those factors make the order urgent, to protect the people of this nation, as other countries want to protect their people. We have international as well as
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national responsibilities. The Government would not be introducing the order were it not seen as essential to address the urgency of the situation. It is an emergency measure which I fully support and I am extremely disappointed that the Official Opposition cannot do so by going through the Lobby with us.
4.15 p.m.
Lord Thomas of Gresford: My Lords, the derogation is being sought not so much because there is a public emergency threatening the life of the nation. After all, detention without trial was introduced in Northern Ireland and then abandoned. It was not reintroduced following atrocities such as the Brighton bomb, the bombing in Canary Wharf or anything else of that nature. The suggestion must be that the derogation is being sought because it gets over a technical difficulty arising out of Article 3, which prevents the Secretary of State from removing an asylum seeker against whom no charges can be proved and who may face prosecution or persecution in another country. The decision, as we heard from the Minister this afternoon, will not be challengeable in the courts.
Are measures such as the abolition of habeas corpus and judicial review strictly required by the exigencies of the current situation? Let us consider the way in which the Government propose to proceed. Information will be provided to the Secretary of State by the security services. His decision will not be unaffected by that information; it will be based on that information. But, his decision to issue a certificate will be considered, at least partly, in secret. The evidence on which he has acted cannot be revealed to the person concerned and, most importantly, the decision of the commission who may review the certificate will be given without reasons.
It has not been found necessary in the United States or in the 40 states of the Council of Europe that may have been affected by the current situation to introduce detention without trial. It is true that the United States propose a severe system of military tribunals to deal with the terrorist threat, but at least there will be a trial and the formulation of a charge.
An 18th century statement of principle by Blackstone reads:
"To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism. as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government".
It is more dangerous to proceed along the lines of detention without trial than in any other way. It is not as if there was no alternative. Under the Terrorism Act it is possible to arrest, charge and to try a person for the
"commission, preparation or instigation of terrorism".
I wonder who of those who are subjected to detention without trial cannot be caught by a charge under those provisions.
Lord Acton: My Lords, I wonder whether the noble Lord can comment on the figures that I have read

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repeatedly in newspapers—I know no more than that—that more than 1,000 people have been detained in the United States in circumstances that commentators have said are not altogether constitutional.
Lord Thomas of Gresford: My Lords, I have not read those reports. I understand that although a number of people have been detained, as the noble Lord says, they will subsequently face a charge. That is the important point. A person is detained, evidence is gathered and he is then charged. What is proposed here is that a person can be detained for up to six months. The certificate is then renewable without charge.
The first safeguard to which the Minister referred was that of the independent advocate who will act for the person who has been detained. I fail to see how an independent advocate can challenge evidence and act properly in the interests of the person who has been detained when, by definition, he cannot obtain instructions from that person on the evidence that is put before the commission. He will not be entitled to ask the person who is being detained, "What do you have to say about this? How can I challenge what is being said against you?". The independent advocate is a very weak safeguard.
The other safeguard that was suggested was the role of the Special Immigration Appeals Commission, which was considered recently in the Rehman case by the Judicial Committee of this House. Suffice to say that the effectiveness of the commission as a review of the decisions of the Secretary of State was diminished by their Lordships to some degree. It was the opinion of the noble Lord, Lord Hoffman, that
"if the appellate body prefers a different view [from the Secretary of State] it should not ordinarily interfere with a case in which it considers that the view of the Home Secretary is one which could reasonably be entertained. Such restraint may not be necessary in relation to every issue which the Commission has to decide".
Therefore, the function of SIAC is not to review ab initio the original decision-maker; namely, the Secretary of State. The Judicial Committee of the House of Lords has decided that the role of the commission is extremely limited.
I support my noble friend Lord McNally in calling upon your Lordships to determine whether derogation will be necessary after the provisions of this Bill, which clearly are very contentious, have been fully discussed and decided upon in this House.
Lord Mayhew of Twysden: My Lords, "Amidst the clash of arms the laws are not silent".
This reversal of Cicero's famous aphorism was proclaimed about 60 years ago by a Law Lord, whom I believe was Lord Atkin, in the famous case of Liversidge v. Anderson. Although he was in a minority of one, those words in his judgment continue to be cited with admiration by everyone who studies the rule of law in our country.
In a democracy most right-thinking people, as we are allowed to say, believe that even amidst the clash of arms, whether in time of war or public emergency
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that threatens the life of the nation, the laws should nevertheless continue to govern the actions of the executive. It does not follow from that, surely, that in these dire circumstances the laws should remain unchanged. It is the duty of every government and parliament to provide sufficiently for the defence of the United Kingdom. The very writs which summon us to this place command us to consider these vital matters. In the light of that, one needs to consider whether or not the Government are justified in the course which they seek today. We are told by the Government that by reason of international terrorism a public emergency exists which threatens the life of the nation, in the language of the European convention which is now part of our domestic law. In the light of the events of 11th September and what we have learnt subsequently, I do not believe that we should have any difficulty in accepting that.
If that is true, the United Kingdom is empowered by the convention to take measures which derogate from its obligations under the convention, but only to the extent—this is important—strictly required by the exigencies of the situation, provided that in so doing it does not breach any of its other international obligations. I am not aware of any of those. It is quite clear that nothing may be done by the United Kingdom Government under that power unless the measures concerned—we are talking about the present Bill—are strictly necessitated by the danger that the Government have identified. We must examine how the case is put by the Government. I do not believe that it can be put more precisely. With the greatest respect to my noble friend Lord Campbell of Alloway, I do not believe that the Government's case pre-empts any debate that can reasonably be anticipated.
The Government say that there are people in this country whose presence is believed by the Secretary of State to present a threat to the security of the UK and whom he suspects to be international terrorists. He says that he cannot deport them to the country from which they come because the conditions which prevail there would make such deportation illegal. Either we must allow them to be at large in this country, with all the dangers that that represents, or Parliament must take some measure to protect this country unless and until, or for such time as, the persons suspected agree voluntarily to go elsewhere where they can be accepted. That is how the Government put the case, and they will justify the Bill that is now being debated in another place.
I believe that in today's circumstances we should accept the Secretary of State's assurance. I am very well aware of the dangers of this kind of legislation. Equally, I along with all noble Lords am very well aware of the dangers which face the civilised world from the kind of terrorism that we saw in action last September. We should accept that there are at large in our country people who fall within that narrow and extremely dangerous category. I believe that in times like these, on matters of national safety of such importance, a democratically elected government are

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entitled to be, and should be, trusted, subject to safeguards of review, by the Parliament that sustains them.
We were told by the noble and learned Lord, Lord McNally, that the Government had resorted to expedience and that the proposals were flawed in that regard. I would rather have expedient legislation than inexpedient legislation. I have always taken issue with the pejorative sense in which people employ that word today. One recalls that in the Book of Common Prayer one prays on behalf of certain beneficiaries for such benefits as may be most expedient for them. I do not regard that as too serious an objection.
I also make the point—I am rather surprised that so far it has not been taken—that by derogating from the whole of Article 5.1(f) the Government have gone wider than their purported very narrow purposes justify. But I suspect that technically it would have been very difficult to derogate from Article 5.1(f) alone. In any event, the Government will have to answer before the Court of Human Rights for any measures that they bring forward after derogation and in pursuance of it, as they would have to do before our own courts. I believe that our courts would, and certainly should, strike out any measure that went wider than the Bill that is before another place at the moment.
Lord Lester of Herne Hill: My Lords, I am grateful to the noble and learned Lord. Is he aware that that is a very difficult question? It is not clear to a number of us whether the British courts would have any power of review given that Article 15 of the convention has not been incorporated and the way in which the ouster clause is phrased. It appears that the only tribunal that can do so is the court at Strasbourg.
Lord Mayhew of Twysden: My Lords, no question has ever proved too difficult for the noble Lord to argue, as I remember from my time as Attorney-General. In any event, this must come before the Court of Human Rights; the convention itself demands that it be reported. Therefore, it will only be a matter of time before the legitimacy or otherwise of such further measure is tested. I believe that the Government are entitled to the order that they seek and are entitled to it now. As I understand the matter, in any event it was necessary to make this order pro tem on 11th November because the Bill was to be debated two days later in the other place. How could it be said, short of an order, that it complied with the convention obligations of the Government?
That said, I give warning—if that does not sound too pompous—that the Government will face considerable trouble when the Bill comes forward by reason of Clause 29, which has been dwelt upon so effectively today. I believe that to attempt to exclude from the review of the judiciary actions that are at the centre of the whole process is thoroughly misguided, misconceived and rather disgraceful. It is likely to prove futile in any event, because I do not believe that it will wash with Parliament, and it certainly will not
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wash with the judiciary. I happen to believe that judicial review is a far more effective safeguard of human rights than even the convention.
4.30 p.m.
Lord Corbett of Castle Vale: My Lords, we all have a duty in Parliament to do what we can collectively to safeguard the safety and security of the citizen. But we also have a parallel duty to safeguard the human rights of the citizen as well and that is what gives me concern about this order today.
What in fact the Government are saying to your Lordships' House is "Trust us, trust our judgment. We will do our best although there are narrow and specific circumstances where we, the Government of the United Kingdom, want to stand above the law". It is my strong view that this is not a good enough basis on which to base human rights.
I wish quickly to remind your Lordships' House that we do not come empty headed to this debate. Unhappily, we have long experience of anti-terrorist legislation in this Parliament. Perhaps I should make clear to your Lordships that I come here with attitude about terrorist legislation. I was in the other place when literally overnight the first Prevention of Terrorism Act was steamrollered through that place with all the dire consequences that had for many citizens wrongly, brutally, gaoled for lengthy periods, only later to have those convictions quashed by the Court of Appeal.
I remind your Lordships that just 10 years ago, at the time of the Gulf War, 50 Palestinians living in the United Kingdom were detained because of their alleged links to terrorism. Thirty-five Iraqis were picked up and described as "soldiers" together with another 141 Iraqis and other Arabs. In fact, the 35 Iraqis were engineering and physics students. They had been described as soldiers because someone had learnt—it was never hidden—that their scholarships had been provided by the Iraqi military. Making two plus two add up to five, that led people to surmise that they must be soldiers of Saddam.
In fact, at the end of that war all were later released without charge and many repaid the trust which Saddam Hussein had put in them by claiming asylum in the United Kingdom. As regards the Palestinians, one of those detained was a Mr. Abbas Cheblak, a rare and treasured creature in the tangled politics of the Middle East, because he was an advocate of Arab-Israeli rapprochement. The person who led the campaign for his release was none other than the editor of the Jewish Quarterly.
I mention these points because we should not assume that either the security services or the police get these matters right all the time. Whether this was simple human error or over-zealousness at the time of the Gulf War by the security services, we shall never know. It may even have been some kind of PR campaign to stoke up support for the war. In any event—I remind your Lordships of this point—all of those detained were subsequently released. No action

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to deport was taken against any of them. Indeed, some of them were awarded compensation for that detention.
Last year, under the wide powers of the Terrorism Act, just 16 non-Irish people were detained alongside the 23 involved in the Afghan plane hijack. That does not suggest to me the need for extra powers if those presently in existence are so little used and apparently needed. There are powers in Section 56 of the Terrorism Act to bring criminal proceedings against those alleged to be directing terrorist activities or incitement to commit terrorist acts abroad from within the United Kingdom.
I ask the Minister this question. Why are these powers not felt to be sufficient to deal with foreign nationals here suspected of terrorism post 11th September? It will come as no surprise to the Minister, because of our experience in another place, that I find totally abhorrent the prospect of what could be—the Minister was kind enough to acknowledge it—indefinite detention without charge or trial. I say to your Lordships something which is known already from previous experience. There is a real and almost certain risk that if the order is passed and the Bill is carried in its present form, some of those detained will seek to use that detention to further their claimed cause.
The order smacks of all the worst aspects of the former Soviet Union and other repressive states. A person detained will not know the charge against him or her and those legally representing him or her will not know the reasons. When the Minister says that every six months there can be an appeal to review whether there has been any change in the circumstances, I say to the noble Lord that it is impossible for a detained person in this manner to argue that there has been a change in the circumstances if he or she does not know the circumstances which have led to the detention in the first place. That is Kafka at its worst.
I wish to make clear it to my noble friend the Minister that I acknowledge the very real problem of trying to deal, on the one hand, with those foreign nationals living here who cannot be removed or extradited because of Article 3 of the European Convention on Human Rights and, on the other, those who cannot be prosecuted because of a lack of evidence. But if there is a lack of sufficient evidence to charge, how can that slighter evidence in that comparative sense be used for the much more serious purpose of indefinite detention? It simply does not follow in logic.
It is not good enough to take the risk that big mistakes are going to be made, as they are bound to be, to find cute and cunning ways around the need to respect the laws of this nation where those we suspect of criminal offences are to be charged, tried and, if the evidence is sufficient, convicted. It is my belief that the powers of the Terrorism Act 2000, fairly fresh on the statute book, are wide enough. Those contained in the order are awesome. We are saying to people living here against whom no charge has been formally made and
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there has been no case in any court, "You are going to be lifted off the streets, out of your homes and detained in prison for as long as it takes for us to decide that you are no longer a threat to the security of this country".
Should the order and the parallel Bill go through, I hope at least that the Minister will be able to say again not simply that these powers will be used sparingly but that they will be used only as a very, very last resort and that as an alternative ever proper consideration will be given to prosecution under the Terrorism Act.
Earl Russell: My Lords, the last time I praised a speech by the noble and learned Lord, Lord Mayhew of Twysden, he began his reply, "I listened with growing eagerness for the 'however clause'". I shall not keep him in suspense. So this time, if he will forgive me, I shall begin with the "however".
The noble and learned Lord made one small point on which I believe him to be in error. He said, "provided what the Government do is not in conflict with any other of our international obligations", which he believed not to be the case. Perhaps I may draw his attention to a clause in the 1951 UN Convention on Refugees, on which the Government have relied. I refer to Article 33(2):
"The benefit of the present provision may not, however, be claimed by a refugee for whom there are reasonable grounds for regarding as a danger to the security of the country in which he is".
It is precisely the phrase "reasonable grounds- which does not appear in Clause 21 of the Bill, where one might have thought to find it. At the least, that risks putting us in breach of our obligations under the UN convention of 1951, which I regard as significant.
I admire the noble Lord, Lord Davies of Coity. He is a man of courage. He is the only noble Lord to have spoken full-heartedly in defence of the order now before the House.
Lord Acton: My Lords, so did the noble and learned Lord, Lord Mayhew.
Earl Russell: My Lords, full-heartedly? I hope that the noble Lord, Lord Acton, can recall his concluding words about judicial review. That is what I would have said before turning to the "however clause" had I had occasion to put it there.
The noble Lord, Lord Davies of Coity, thought it sufficient to cite 11th September and Al'Qaeda. I hope he understands that those of us who wholeheartedly support the Motion tabled in the name of my noble friend Lord McNally, of whom I am one, are not one whit less hostile to terrorism than those who support the government order. I have read the reports in The Times of the Al'Qaeda attempts to construct a Nagasaki-style bomb, as well as the reports of their use of ricin pellets, seven seeds of which could kill a child. I am under no illusion about what we are dealing with, but to my mind that creates an obligation to testify not only to the strength of our feelings, but to put forward measures that are going to be effective.
Thus the question the House must consider is this: are these measures the most effective means of dealing with the situation? It would be a very grave

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mistake—and it is one which the Home Secretary has at least come uncomfortably close to making—to assume that protecting us against terrorism and preserving our civil liberties are in some way antithetical. They are not. Our civil liberties are one of the weapons we can use in the battle against terrorism. I believe them to be an extremely important element in our weaponry.
Lord Davies of Coity: My Lords, I thank the noble Earl for giving way. Would he concede that, in the arena of terrorism, covert activity is paramount? As a result, sometimes it is necessary to detain suspects on the basis of intelligence and sourced information which could not be presented to the court for fear of causing damage to our national security.
Earl Russell: My Lords, I concede without question the first half of the noble Lord's remarks, but because good intelligence is paramount, ensuring the sympathy of potentially neutral opinion is vital. If an innocent person is arrested, it is likely that the next time a terrorist proposition is put in front of him, he will no longer be innocent.
I do not know whether the noble Lord was in the Chamber for the debate held on 16th October. He would have heard my noble friend Lord Alderdice, who knows something about this subject. My noble friend stressed the importance of detaching the extremist terrorist from the potentially sympathetic, semi-neutral opinion in which, to utilise Mao Tse Tung's phrase, "he swims like a fish in water". Every time we over-react, we make that process a great deal harder. Every time we invoke a sense of injustice in those we arrest, we create another potential terrorist. Every time we offend those capable of passing on valuable intelligence, we receive less intelligence as a result. That is the mistake made by Al'Qaeda when the twin towers were attacked. Look at how much more intelligence we have received since 11th September. It was also the mistake made by the IRA when they began bombing the Tube. That campaign could have brought us to our knees within a few weeks, but the IRA gave it up. I learnt a great deal out of that experience.
I am not in politics simply to testify to my feelings. It can be taken for granted throughout Parliament that all stand against terrorism. I do not think that we need to prove it. However, the Home Secretary is in real danger of sounding like the proverbial left-winger who goes about testifying to his feelings in the most eloquent manner, with the result that he does not produce effective measures. I want the measures taken to counteract terrorism to be effective. That is why I am not prepared to vote in support of them until I know in what form the Bill leaves this House. I shall vote for the amendment tabled by my noble friend Lord McNally.
Lord Acton: My Lords, before the noble Earl sits down, could he clarify a point for me? In fairness to the noble and learned Lord, Lord Mayhew, I understood
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his speech to be totally in favour of the order and wholly against Clause 29 of the Bill. Am I wrong in that?
Earl Russell: My Lords, I do not think that it is possible for a speech to reflect both of those views at the same time, but if the noble and learned Lord wishes to clarify his position, he is in his place and he may do so.
Lord Mayhew of Twysden: My Lords, I hesitate to interrupt or intervene in this interesting and rather flattering discussion. In my view, I concluded that the Government were entitled to their order for reasons which I shall not repeat, having inflicted them once on noble Lords. However, I venture to warn the Government of severe trouble in the future in regard to their attempt to exclude judicial review over the whole of the process on which they seek to pin public confidence for the measure.
Earl Attlee: My Lords, I am grateful to the Minister for his explanation of the order. As regards the Bill, it will require detailed examination. Long nights lie ahead, but I am sure that noble Lords will complete their deliberations on the Bill on schedule.
I suspect that if no order had been put before the House first, the noble Lords on the Liberal Democrat Benches would protest: "No Bill without first considering the order". I do not deny the degree of urgency required here, but I am not absolutely convinced on that point. However, I am convinced about the need for and desirability of the order because of one sentence contained in the schedule:
"It will be open to a detainee"—
who would be a foreigner and not a citizen of the United Kingdom—
"to end his detention at any time by agreeing to leave the United Kingdom".
If the order is put to a Division, I shall support the Government.
Lord Richard: My Lords, I rise briefly to say that I regard this as a somewhat unhappy piece of legislation. It is not one that I can approach with a great deal of enthusiasm; indeed, it goes against most of my political and other instincts. However, we all know very well that from time to time governments have to take steps that they do not particularly like. Noses have to be held, if I may so put it. Over the years more noses have been held than that of the noble Lord, Lord McNally, who is experienced in the internal workings of government.
If the order must be passed, then the Government are under a duty to try to justify it. They need also to justify the passage of the Bill. I have two questions to put to my noble friend on the Front Bench, to which I hope he will be able to respond. First, why do we need to pass the order before the Bill? I do not support the Liberal Democrat Party on this matter, but the thought has occurred to me with a great degree of force, as it has to the noble Lord, Lord McNally. One

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would have thought to see the two pieces of legislation the other way around; namely, that we would find out what powers were sought by the Bill and that, once those powers had been adequately expressed and the legislation passed, then we would have the order derogating the Human Rights Act. Perhaps there is a reason, which I hope that my noble friend will make clear.
Secondly, what practical difference to the powers of the Home Secretary will the passing of the order make before the passage of the Bill? Does it give him additional powers that he otherwise would not have? Does it enable him to do anything that he thinks he should do which he cannot do now? If that is the situation, the Government will have gone a fairly long way towards justifying the introduction of the order.
I shall not discuss the legislation because the time to discuss it will be when it is introduced. Therefore the temptation to make Second Reading speeches on the passage of the order should be resisted.
Perhaps I may make one final comment to my noble friend who is to reply. I have been called lots of things in my political life, but I have never been called a "fairy" before. There are all kinds of reasons, perhaps, why I have not, but I sincerely hope that that kind of language will be eschewed in future.
Lord Windlesham: My Lords, one of the least conspicuous of the harms done by those responsible for the carnage at the World Trade Centre and in Washington on 11th September was to the international legal order itself. Here in Europe, the European Convention on Human Rights was created in the aftermath of the Second World War more than half a century ago. If we think about the fundamentals, the situation now is totally different. International terrorism is demonstrably on a scale which we must acknowledge presents a recognisable threat to large numbers of people in different parts of the world.
The protections contained in Article 5 of the European convention allowed for the deportation or removal of a person who is believed to be threatening the life or security of the nation. But if a person cannot be removed or extradited for a variety of reasons, and cannot be tried in the domestic courts, how to meet the threat to the security of the nation—which may be very real—poses a dilemma to which there is no answer within orthodox and established legal traditions.
I came to the House today with an open mind, with no prepared speech, and anxious to hear what noble Lords on the Liberal Democrat Benches had to say in support of their amendment. I have spoken from time to time in debates on the same side as some of the noble Lords who sit on those Benches. But I do not support their argument today. The correct approach for the House as a whole was put with commendable brevity and clarity at the start of the debate by my noble friend Lord Dixon-Smith. I support the order rather than the amendment today.
I shall listen with great interest during the course of the subsequent debates, when I am sure there will be opportunities to obtain elucidation and, if necessary,
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some changes. But to go down the path recommended so eloquently by the spokesmen for the Liberal Democrats in the situation that we, and the nation, currently find ourselves, would be misguided.
Baroness Carnegy of Lour: My Lords, the noble Lord, Lord Richard, asked the Government why they wanted the order approved before the passage of the Bill and not afterwards. I assumed that this House was here to make an honest man of the Home Secretary. On the front of the Bill he has, as he is obliged to do under the Human Rights Act, certified that the Bill is, in his view, compatible with the European Convention on Human Rights. As an amateur in these matters, it seems to me that, unless the order is passed, the Bill is not at the moment compatible with the convention on human rights.
When the Bill was introduced in the other place—when it received its First Reading and when it began its Second Reading—it was not compatible with that convention. It only will be compatible if we agree to the order today. I may be wrong, but that seems evident to me. I am surprised that no other noble Lord has made the point.
I would rather discuss an order knowing that the possibilities the Government were putting forward were within the law, than discuss it knowing that they were outwith the law until the end of the Bill. So the Government are right to do this.
I am sorry that there have been so many Second Reading speeches because we shall either hear them all over again, or we shall forget what has been said by the time we come to Second Reading. That is a pity. It seems to me that this is a simple point.
Lord Mishcon: My Lords, perhaps I may make a brief speech. I hope your Lordships agree that if ever there was proof required that human memories are short, there could not have been better examples than some of the speeches which have been made in good faith today. If we had had this discussion on 12th September, I doubt whether any of us would have started wondering, "Is there an emergency? Perhaps we need legal opinion. Are the Government safe to assume that there is a public emergency of the gravest order?" Who would have made that suggestion on 12th September?
But we are not America; we are Great Britain. We are one of the countries threatened by terrorism. We are winning the fight on the battlefield. When you are engaged on the battlefield and you are winning, is that not the time when your opponent may take the most reckless action, because he knows it is all over and he wants to make it as painful as possible?
The responsibility of government is sometimes heavy, but the responsibility on an official opposition—I say this with every respect—is also very heavy in times of emergency. I feel that this is not a time for abstention but a time for standing up and saying, "The order is right in the circumstances". When the Bill comes before the House, those of us who

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are fighters for liberty will look at every line and decide how we will vote for amendments, if amendments there are to be. I assume that there may well be many.
Is not the question today very simple: are we prepared to give the Government the reasonable powers they will receive under the Bill if the vote of the House is in favour of reasonable powers, as I assume it will be? If we are prepared to face up to the fact that we are confronted by an emergency—and by a mad enemy—is this not the time to vote accordingly?
Baroness Strange: My Lords, Clause 42 of the Magna Carta states that all men shall be free to come and go except in time of war. We are all at war with terrorism.
5 p.m.
Lord Rooker: My Lords, perhaps I may comment first on the amendment. In doing so, I want to make it clear that I have no complaint, and the Home Secretary and the Government have no complaint, about any of the questions raised in this debate or subsequently. Given the time constraints on a Bill with 125 clauses, we understand that we shall rightly be subject to scrutiny.
Perhaps I may deal with the point as to why the order is being brought before the House today. The noble Baroness, Lady Carnegy, raised a not unimportant question about the signature on the Bill. It is presently that of the Home Secretary, as the Bill begins its passage in another place; and in due course it will be mine as it passes through this House. It is true that, without the order being promoted, we should not be able to sign the Bill to the effect that it is compatible with the European Convention on Human Rights. We do not knowingly want to introduce Bills which are incompatible with the convention if we can take action beforehand to make them compatible.
Lord Goodhart: My Lords, I am grateful to the Minister for giving way. The order having been laid, it would still have been possible to have approved it within the 40-day period provided. Would it not, therefore, have been possible to lay the order and to postpone bringing it before the House?
Lord Rooker: Yes, my Lords, it would have been. In a moment I shall come to the reasons why we chose not to do it in that way. The noble Lord makes a fair point. It is the first time that such an order has been made under the 1998 Act. That adds weight to the occasion in terms of the important step that we are taking. We do not belittle any of the questions in relation to the scheduling of the debate and the making of the order. Indeed, I have asked myself such questions. I am still getting to grips with procedures in your Lordships' House compared with those in another place.
Section 14(6) of the Human Rights Act clearly envisages that a designation order may be made in anticipation of the making by the UK of a proposed derogation. Once it has been proposed by the
902
Government that a derogation from the ECHR should be made—and that amendments will accordingly be made to the Human Rights Act to reflect that derogation—it seems eminently desirable that Parliament should be given an opportunity to discuss the matter as soon as is reasonably possible.
By making the order last week, we were able both to make a statement of compatibility in respect of the Anti-terrorism, Crime and Security Bill, and to bring the matter to the attention of the House as soon as we could. That is one of the reasons why the order was made and laid before Parliament last week.
The question arises also of when the order should be debated. The legislation clearly requires that this must happen within 40 days of the order being made; otherwise, it lapses. While the exact timing was a matter for the usual authorities, the Government took the view that the debates should take place sooner rather than later.
Once the order was made, Members of this House and of another place would rightly expect the Government to explain what we were doing and why we were doing it. That explanation can be given most effectively in the debates that we are having today in both Houses. Had the debates been delayed for over a month, we should have been criticised for being dilatory in our response. We could easily have taken a relaxed view, but we did not think that that was the right approach.
I should stress that in debating the order we are not taking the will of Parliament for granted. It may appear that way on the surface; but that is not the reality. We believe that the provisions in the Bill relating to detention are, for reasons discussed today, necessary and proportionate—and precautionary in some respects—and we hope that they will be enacted in a form very close to the way in which they are set out in the Bill. The derogation that we propose to make from Article 5 of the ECHR is worded with the provisions of the Bill in mind, and it seems right to debate it in that context.
In the event that the provisions in the Bill end up in a slightly different form, we can also check whether the wording of the derogation notification also needs to be revised. But let us cross that bridge when we come to it. So there is that facility—obviously, were the Bill to be emasculated in either House, it would be a different Bill. But if the Bill is enacted in broadly its present form, we hope that the derogation notification to the European Court can be revised to take account of that without the need to return the matter to this House.
A couple of specific questions were raised. The noble Lord, Lord Dixon-Smith, made a point about where people might be sent back to. With respect, it is not a question of sending people back to a particular place. If they choose to leave the United Kingdom, they will be let out of detention. Presumably they will be escorted to the plane or another means of transport and they will leave our shores. So it is not a question of us having to contemplate sending people back to a place where they will suffer harm and torture.

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That brings me to the question raised by the noble Lord, Lord Lester. I hope that I can give him an answer that is more accurate than the one that I gave; it is certainly not the one that I gave originally. It appears on advice given to me that SIAC would review whether a person could be removed following a deportation order made by the Home Secretary—there would obviously need to be such an order if someone was to be removed forcibly: for example, as to whether Article 3 would prevent such removal. The powers of SIAC derive from provisions in the Special Immigration Appeals Commission Act 1997. If SIAC agreed that a person could be removed, that would be fine; removal would proceed and the detention powers would not be needed.
Our priorities are, first, to prosecute if we can; secondly, if we cannot prosecute, to remove the person by means of a deportation order. If that is satisfactory and we have agreement on it, and there is no problem with Article 3, that will be the end of the matter. There will be no question of detention. But if matters are the other way round, SIAC can examine the position in respect of whether a person can be removed. We shall no doubt debate the point at greater length in Committee.
Lord Lester of Herne Hill: My Lords, I am grateful to the Minister for giving way. I have in mind the various comments made about judicial review. Am I to understand that, in effect, the Special Immigration Appeals Commission will have full powers of judicial review on the merits of a case, subject to the special procedure that is provided for? Am Ito understand that it will have the kind of powers that the High Court would have by way of judicial review—obviously with procedural adjustments?
Lord Rooker: My Lords, as a non-lawyer—I am an engineer by profession—my understanding is that the operation of the Special Immigration Appeals Commission is effectively a judicial review on the Home Secretary's decision, first, to sign the certification and, secondly, to order the detention because he does not believe that removal is possible. That being the case—and it is behind closed doors—the commission could review each stage of the Home Secretary's decision and how he has arrived at the point where he believes detention is the only alternative. To that extent, the commission ought to have access to all the information that the Home Secretary has, including his thinking as to why he cannot remove the person, because country A or country B is not compatible with our obligations or Article 3. To that extent, the commission would have the broad-ranging authority to examine the decision. take the point made by my noble friend Lord Corbett that the decision would necessarily be made behind closed doors.
Earl Russell: My Lords, I am grateful to the Minister for giving way. I am sorry to intervene again. But is his reply to my noble friend Lord Lester compatible with Clause 33(3) of the Bill:
"Where this Section applies the Commission must begin its substantive deliberations on the asylum appeal by considering the statements in the Secretary of State's certificate"?
904
Does not that block a consideration of the full merits of the claim to asylum; and does it not restrict the power of review of the reasonableness of the Home Secretary's decision?
Lord Rooker: My Lords, with respect, that is another issue. It is one that we shall debate and, I would argue, not one relating to the order. There may be foreign nationals resident in this country who have already gone through the process and secured refugee status; they may have been classified as refugees under the terms of the 1951 convention. If we follow this process through, it could be argued that they would not be making a claim for refugee status, because that would already have been done. Clause 33 therefore takes account of this. That is best left, however, because we are getting into the details of the Bill. I may be wandering down a road where I would mislead the House, and I do not intend to do that.
I reiterate the point about the timing and why we did not want to leave it. If the order ceased to be valid, if it was not approved within 40 days, by resolution of each House, it would lapse. I have benefited from this debate, however. Without the order, we would not have had it. My officials, those responsible for designing this Bill and other Ministers, even in the other place, will have benefited from this debate today. To that extent it has been a useful operation, in terms of parliamentary accountability for the Government, to have it now rather than have it at the end of our processes.
The Home Secretary will bring forward amendments to Clauses 21, 25 and 26, which I believe will fully meet the point about the reasonableness test. We accept that all Ministers operate at all times in a reasonable fashion. If they did not, my learned friends would have something to say about it. If putting it on the face of the Bill brings a greater degree of contentment, then we are happy to do that. We shall bring forward amendments, though I do not know whether they will be brought forward in this House or in the other place.
We envisage that the validity of the derogation could be raised before SIAC and, from there, the Court of Appeal and the House of Lords. It could be challenged all the way through the judicial process. That is why we are more than comfortable in respect of Clause 29 and the point made by the noble and learned Lord, Lord Mayhew, in terms of the absence of judicial review. This whole process is a very narrow judicial review of the Home Secretary seeking to deal with an issue in the only way that he thinks is possible. Having failed in the sense of a prosecution—that not being possible for the reasons I have explained—he cannot remove someone and therefore is left with no alternative but to detain.
Lord McNally: My Lords, we have just seen the Minister swimming valiantly for shore, clutching the lifebelt thrown to him by the Conservative opposition. What we did not hear was any real answer—other than it had given him and his officials some useful clues about the debate to come—to what I would call the

905
Richardson-Carnegy question which, a little like the Rooker-Wise amendment, is a kind of "killer" question. Why does an order that could last 40 days to 21st December have to be brought right to the front of the process when the Minister himself has conceded that if there are substantial changes he will have to bring another order to this House? We have not had an explanation.
I shall not delay the House for much longer. A number of points have been made. The noble and learned Lord, Lord Mayhew, even called me noble and learned. I am not sure whether to take that as a tribute or to consult with the lawyers behind me about possible slander. The serious point I make is in answer to the noble Lord, Lord Mishcon. It was on his own Benches that we saw the polarisation of the debate: between the noble Lord, Lord Davies, arguing force majeure and the noble Lord, Lord Corbett, defending civil liberties. Perhaps I may say to the noble Lord, Lord Mishcon, that it is not that we have short memories; we have long memories. The memory we have is that, from Fox to Aneurin Bevan, oppositions have taken their opposition seriously. Even at times of crisis and even at times of war they have defended civil liberties and human rights. We believe that the Government are wrong to bring the order forward at the beginning of this process, before we have the full opinion of the House and the full dimension of the derogation that they want. For that reason, I ask to test the opinion of the House.
5.15 p.m.
On Question, Whether the said amendment shall be agreed to?
Their Lordships divided: Contents, 69; Not-Contents, 148.

Division No. 1

CONTENTS

Addington, L.

Lester of Herne Hill, L.

Avebury, L.

Linklater of Butterstone, B.

Barker, B.

Liverpool, E.

Bowness, L.

Livsey of Talgarth, L.

Bradshaw, L.

Ludford, B.

Brookeborough, V.

Mackie of Benshie, L.

Bruce of Donington, L.

Maclennan of Rogart, L.

Carlile of Berriew, L.

McNally,L.

Clement-Jones, L.

Maddock, B.

Craig of Radley, L.

Mar, C.

Dahrendorf, L.

Mar and Kellie, E.

Dholakia, L.[Teller]

Methuen, L.

Elis-Thomas, L.

Moynihan, L.

Ezra, L.

Newby, L.

Falkland, V.

Northover, B.

Fearn, L.

O'Neill of Bengarve, B.

Geraint, L.

Oakeshott of Seagrove Bay, L.

Goodhart, L.

Oxford, Bp.

Greaves, L.

Perry of Walton, L.

Hamwee, B.

Phillips of Sudbury, L.

Harris of Richmond, B.

Razzall, L.

Holme of Cheltenham, L.

Redesdale, L.

Hooson, L.

Rennard, L.

Hylton, L.

Rodgers of Quarry Bank, L.

Jacobs, L.

Roll of Ipsden, L.

906

Roper, L. [Teller]

Swinfen, L.

Russell, E.

Thomas of Gresford, L.

Scott of Needham Market, B.

Thomas of Walliswood, B.

Sharman, L.

Thomson of Monifieth, L.

Sharp of Guildford, B.

Wallace of Saltaire, L.

Walmsley, B.

Sharples, B.

Warnock, B.

Shutt of Greetland, L.

Watson of Richmond, L.

Smith of Clifton, L.

Williams of Crosby, B.

Steel of Aikwood, L.

Wilson of Tillyorn, L.

NOT-CONTENTS

Acton, L.

Grenfell, L.

Ahmed, L.

Grocott, L.

Alton of Liverpool, L.

Hannay of Chiswick, L.

Amos, B.

Hardy of Wath, L.

Ampthill, L.

Harrison, L.

Andrews, B.

Haskel, L.

Ashley of Stoke, L.

Hayman, B.

Ashton of Upholland, B.

Hogg of Cumbernauld, L.

Attlee,E.

Hollis of Heigham, B.

Bach, L.

Howellss of St. Davids, B.

Barnett, L.

Howie of Troon, L.

Bassam of Brighton, L.

Hoyle,L.

Berkeley, L.

Hughes of Woodside, L.

Bernstein of Craigweil, L.

Hunt of Kings Heath, L.

Billingham, B.

Irvine of Lairg, L. (Lord

Blackstone, B.

Chancellor)

Bledisloe, V.

Janner of Braunstone, L.

Borrie, L.

Jay of Paddington, B.

Bragg, L.

Jenkins of Putney, L.

Brennan, L.

Jones, L.

Brightman, L.

King of West Bromwich, L.

Brooke of Alverthorpe, L.

Layard, L.

Brookman, L.

Lea of Crondall, L.

Brooks of Tremorfa, L.

Levy, L.

Burlison, L.

Lipsey, L.

Campbell-Savours, L.

Lockwood, B.

Carnegy of Lour, B.

Lofthouse of Pontefract, L.

Carter, L. [Teller]

Macdonald of Tradeston, L.

Chalfont,L.

McIntosh of Haringey, L.

Chandos, V.

[Teller]

Clark of Windermere, L.

McIntosh of Hudnall, B.

Clarke of Hampstead, L.

MacKenzie of Culkein, L.

Cohen of Pimlico, B.

Mackenzie of Framwellgate, L.

Corbett of Castle Vale, L.

Marlesford, L.

Cox, B.

Mason of Barnsley, L.

Crawley, B.

Massey of Darwen, B.

Currie of Marylebone, L.

Mayhew of Twysden, L.

David, B.

Merlyn-Rees, L.

Davies of Coity, L.

Milner of Leeds, L.

Davies of Oldham, L.

Mishcon, L.

Dean of Thornton-le-Fylde, B.

Mitchell, L.

Denham,L.

Morgan, L.

Dixon, L.

Morgan of Huyton, B.

Donoughue, L.

Morris of Aberavon, L.

Dormand of Easington, L.

Morris of Manchester, L.

Dubs, L.

Mowbray and Stourton, L.

Eatwell, L.

Parekh, L.

Elder, L.

Patel of Blackburn, L.

Evans of Parkside, L.

Pendry, L.

Evans of Temple Guiting, L.

Pitkeathley, B.

Falconer of Thoroton, L.

Plant of Highfield, L.

Falkender, B.

Prys-Davies, L.

Farrington of Ribbleton, B.

Radice, L.

Faulkner of Worcester, L.

Rendell of Babergh, B.

Filkin, L.

Richard, L.

Fyfe of Fairfield, L.

Rix, L.

Gale, B.

Rooker, L.

Gibson of Market Rasen, B.

Sainsbury of Turville, L.

Gladwin of Clee, L.

St John of Fawsley, L.

Golding, B.

Saltoun of Abernethy, Ly.

Grabiner, L.

Sawyer, L.

Graham of Edmonton, L.

Scotland of Asthal, B.

Gregson, L.

Serota, B.

907

Sheldon, L.

Turner of Camden, B.

Sheppard of Liverpool, L.

Uddin, B.

Simon, V.

Walker of Doncaster, L.

Smith of Leigh, L,

Warner, L.

Strabolgi, L.

Warwick of Undercliffe, B.

Strange, B.

Weatherill, L.

Wedderburn of Charlton, L.

Symons of Vernham Dean, B.

Whitty, L.

Taylor of Blackburn, L.

Wilberforce, L.

Temple-Morris, L.

Wilkins, B.

Thornton, B.

Williams of Elvel, L.

Tomlinson, L.

Williams of Mostyn, L. (Lord

Tumberg, L.

Privy Seal)

Resolved in the negative, and amendment disagreed to accordingly.
On Question, Motion agreed to.

Commonhold and Leasehold Reform Bill [H.L.]
5.27 p.m.
The Lord Privy Seal (Lord Williams of Mostyn): My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the Commonhold and Leasehold Reform Bill, have consented to place their prerogatives and interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Bill read a third time.
Clause 3 [Consent]:
The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal)The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal) moved Amendment No. 1:
Page 2, line 23, leave out "an" and insert "the freehold"
The noble Baroness said: My Lords, it may be convenient if I speak also to Amendments Nos. 2 and 3.
While developing the policy underlying the Bill, one of the important matters that we considered was the extent of the interest that a leaseholder should have in a property before their consent to conversion should be required. It was decided that a lease granted for 21 or more years was substantial enough. That period was not chosen at random—as your Lordships will be aware, it is at present the period that renders a lease subject to registration at Land Registry. Of course, the period still to run might well be less than 21 years at the time of the application to convert. Indeed, the leaseholder might have bought only the last 10 years of a 21-year lease. It seemed a reasonable limit to us. We expressed that limit simply enough by saying in Clause 3(1)(a) that consent should be required from registered proprietors
"of an estate in the whole or part of the land".
That has the virtue of catching freeholders and leaseholders of registered leases without having to go into what would have been unnecessary definition. However, as many of your Lordships will know,
908
Chapter 1 of Part 2 of the Land Registration Bill provides that leases should be registered if they are for seven or more years.
The first amendment in this group amends Clause 3(1)(a) which now refers exclusively to freeholders. The second amendment introduces a new paragraph which refers specifically to proprietors of leases purchased for a period of 21 or more years, thus leaving our policy as we had at first intended. Finally, the third amendment in the group inserts a new Clause 10 to clarify two points which were the subject of helpful comment from members of the commonhold working group. Clause 10 makes provision for dealing with liability for extinguished leases.
New Clause 10(2) puts it beyond doubt that, where there is more than one leaseholder who is required to consent under Clause 3 and does so, it is only the consenting leaseholder most proximate to the extinguished leaseholder to whom the extinguished leaseholder can look as being liable for any loss.
The way Clause 10 is drafted at present leaves some doubt as to who would be responsible for compensating a leaseholder whose lease was extinguished if there were no superior leaseholder but a consenting freeholder. The new Clause 10 makes it clear, in Clause 10(4), that the holder of the extinguished lease would look to the freeholder as the person liable for loss. I beg to move.
Lord Goodhart: My Lords, we have no objection to these amendments, but I take the opportunity briefly to raise a concern which has been communicated to me by a member of the Bar who was, I believe, a member of the leasehold working party; namely, that under the Bill the rights of some people can be extinguished as a result of consents that are given by others and then compensation is payable. But the problem is that the Bill gives no security to ensure that compensation will in fact be paid as the person who is due to pay it may be insolvent; for instance, where the person who is supposed to pay the compensation is a company in receivership and the receiver is the person who gives the consent. In that case the receiver gives the consent as agent for the company and the benefits from the conversion accrue to the debenture holder who appointed the receiver, but the liability for payment of the compensation is an unsecured liability of the company in receivership. That could, among other things, give rise to problems under the Human Rights Act because the Act is presumably not satisfied by a paper right to compensation but requires an effective right.
I am not suggesting that there is anything that can be done now, but I hope that the Minister will ask her officials to look into the matter before it goes to the other place as the rule surely ought to be that if rights are to be extinguished, before they are extinguished compensation should either actually be paid or should be secured.
Baroness Scotland of Asthal: My Lords, I am certainly happy to do that. Any consenting leaseholder

909
might, of course, consent without the funds to compensate. The position of the extinguished leaseholder will be that of an unsecured creditor in each case. However, it ought not to be the case that a professional such as a liquidator or receiver should exercise the right to consent when there is a chance that he will be unable to fulfil his obligations to pay. However, we believe that this issue will need looking at. I am happy to consider it further and, if appropriate, for it to be dealt with in another place.
On Question, amendment agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 2:
Page 2. line 23, at end insert—

"( ) is the registered proprietor of a leasehold estate in the whole or part of the land granted for a term of more than 21 years,"

The noble Baroness said: My Lords, I have already spoken to Amendment No. 2. I beg to move.
On Question, amendment agreed to.
Clause 10 [Extinguished lease: liability]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 3:
Leave out Clause 10 and insert the following new Clause—
"EXTINGUISHED LEASE: LIABILITY
(1) This section applies where—

(a) a lease is extinguished by virtue of section 7(3)(d) or 9(3)(f). and

(b) the consent of the holder of that lease was not among the consents required by section 3 in respect of the application under section 2 for the land to become commonhold land.

(2) If the holder of a lease superior to the extinguished lease gave consent under section 3, he shall be liable for loss suffered by the holder of the extinguished lease.
(3) If the holders of a number of leases would be liable under subsection (2), liability shall attach only to the person whose lease was most proximate to the extinguished lease.
(4) If no person is liable under subsection (2). the person who gave consent under section 3 as the holder of the freehold estate out of which the extinguished lease was granted shall be liable for loss suffered by the holder of the extinguished lease."
On Question, amendment agreed to.
Clause 36 [Enforcement and compensation]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 4:
Page 17, line 20, leave out "in regulations or in a commonhold community statement"
The noble Baroness said: My Lords, in speaking to Amendment No. 4, I shall speak also to Amendment No. 5. These amendments to Clause 36 are minor in nature and are simply intended to ensure consistency of terms across the Bill.
The first removes the reference to compensation made by virtue of this section,
"in regulations or in a commonhold community statement"
in Clause 36(3) as it is redundant to specify where the provision will be contained because the entirety of the clause concerns the content of regulations on enforcement of commonhold duties and compensation.
The second modifies subsection (3)(a) of Clause 36 so as to permit rather than require the inclusion of a provision conferring jurisdiction on a court in provisions which determine the amount of compensation to be paid. I beg to move.
On Question, amendment agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 5:
Page 17. line 22. leave out "including" and insert "which may include"
On Question, amendment agreed to.
Clause 37 [Commonhold assessment]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 6:
Page 17, line 31, after "required" insert "to be raised from unit-holders"
The noble Baroness said: My Lords, in speaking to Amendment No. 6, I shall speak also to Amendments Nos. 7 and 8. Amendments Nos. 6 and 7 amend Clause 37 which concerns the commonhold assessment. At present Clause 37 requires the directors to make an annual estimate of the entirety of the income required to meet the expenses of the commonhold association. This is then split between the units according to the unit percentages specified in the commonhold community statement.
However, there is arguably a missing step in the calculation. The amendments will add the stipulation that the directors must make an annual estimate of the amount which is actually to be raised from payments made by the unit-holders. We believe that this is necessary because there may be cases in which a commonhold association is able to meet some of its annual expense from other sources (for example, where a commonhold association has an income stream from rented commonhold units) so that the initial estimate is only part of the story, and it is a percentage of the amount to be raised from unit-holders that has to be allocated to each unit.
Without this amendment there will arguably be no leeway to take into consideration any other sources of income which could be used to meet the initial overall estimate because subsection (2) of Clause 37 provides that the percentages of the estimate made under subsection 37(1)(a) and (b) and allocated among the units must amount in aggregate to 100 per cent of the estimate. The amendment removes any room for argument.
I turn now to Amendment No. 8. Noble Lords should know that this minor drafting amendment was inspired by an amendment the noble Lord, Lord Kingsland, tabled in Committee but did not move. The

911
amendment removes the reference to Clause 38(2)(c) from subsection 38(3) and replaces it with reference to 38(2)(b). This will clarify that the link is between the requirement for the directors to specify the percentage of the reserve levy to be allocated to each unit and subsection 38(3) which makes further provision concerning these percentages. I beg to move.
On Question, amendment agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 7:
Page 17, line 34, after "required" insert "to be raised from unit-holders"
On Question, amendment agreed to.
Clause 38 [Reserve fund]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 8:
Page 18, line 23, leave out "(2)(c)" and insert "(2)(b)"
On Question, amendment agreed to.
Clause 54 [Termination by court]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 9:
Page 26, line 9, leave out from "liquidator" to end of line 10 and insert "following the making of a winding-up order by the court in respect of a commonhold association".
The noble Baroness said: My Lords, it will be for the convenience of the House if, while speaking to Amendment No. 9, I speak also to Amendment No. 10.
This is another amendment whose only purpose is to make clearer the Government's intentions. Clause 54 deals with the termination of a commonhold association by the court in circumstances in which either the association has been registered in error, in which case the court would be exercising powers under Clause 6(6)(c), or where the court finds that the commonhold community statement and/or the memorandum and articles of association do not comply with the relevant provisions of Part 1 of the Act or associated regulations, in which case it would be acting under Clause 39(3)(d).
In these circumstances, Clause 54(2) gives the court the same powers as it has when making a winding-up order. For the sake of clarity, Amendment No. 9 expresses the powers of the liquidator in these circumstances in the same terms, with the advantage that the powers and duties are set out in Clauses 49 to 53.
Amendment No. 10 simply makes it clear that the powers given to the court in Clause 54(4) are exercisable only in relation to the relevant circumstances set out in Clauses 6 and 39. I beg to move.
On Question, amendment agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 10:
Page 26, line 11, after "court" insert "by virtue of section 6(6)(c) or 39(3)(d)".
On Question, amendment agreed to.
Clause 70 [Premises to which Chapter applies]:
Lord Kingsland Lord Kingsland moved Amendment No. 11:
Page 33, line 51, at end insert—
"( ) But this Chapter does not apply to any part of a building which is not occupied, nor intended to be occupied, for residential use.".
The noble Lord said: My Lords, we believe that the Government have misjudged the adverse impact that the increase from 10 to 25 per cent non-residential use will have on the future of mixed-use developments, which are a crucial component of the Government's approach to land development for the foreseeable future. We have heard no satisfactory argument from the Government to the contrary. Allowing residential leaseholders to enfranchise where the non-domestic component of the block is so high will act as a deterrent to mixed use. Equally, it gives the RTE company a commercial management responsibility which it is wholly unsuited to perform, exposing the commercial tenants to inexperienced management. I beg to move.
The Minister of State, Department for Local Government Transport and the Regions (Lord Falconer of Thoroton): My Lords, Amendments Nos. 11 and 32 relate, once again, to the application of the right to manage to mixed-use properties. Amendment No. 11 seeks to apply the right only to the residential part of such properties. As we understand it, Amendment No. 32 deletes our 25 per cent mixed-use threshold as a consequential amendment. The noble Lord is nodding helpfully.
The noble Lord and the House will be fully aware why we have taken the approach set out in the Bill and also why we do not consider that his Amendment No. 11 will work. I refer to what I said in Committee, as set out in Hansard of 16th October (cols. 538 to 540) and on Report, as set out in Hansard of 13th November (cols. 483 to 485). Perfectly sensibly, the noble Lord has not elaborated fully on his arguments. I do not intend to do so because they are set out in the columns to which I have referred.
However, the noble Lord has made one point. He has brought forward his amendment explicitly, he says, because he is concerned that the application of the right to manage to mixed-use premises will inhibit mixed-use development. He also expressed similar concerns about our changes to the rules for mixed-use enfranchisement. As I said in Committee, we do not agree that there is a problem here. I hope that the noble Lord will have received and read my letter of today's date which explains our reasons for holding that view.
As that letter explains, we are well aware of the concerns expressed on this issue by some parts of the property industry. It is possible that the people who raised the matter with the noble Lord, Lord Kingsland, are the same people who lobbied the department on this subject. We have taken those concerns seriously and have looked into them closely. Having done so, our firm belief is that they are unfounded.
As has been explained many times, the right to manage is intended to allow leaseholders to gain management control of properties in which they hold a majority stake in the property but where the landlord

913
holds a monopoly over the management. Therefore, where the developer has set up proper communal management arrangements from the outset, there should, in our view, be no particular need for the right to manage to be exercised.
We are aware that enlightened developers already take this approach. Leaseholders are often given the right—with that right written into the leases—to manage their block, or the residential parts if it is a mixed block, through a resident management company. I acknowledge that Amendment No. 11 put forward by the noble Lord, Lord Kingsland, is intended to provide for the right to manage to be granted on something along those lines. I have already referred to our views on why imposing a top-down approach will not work.
However, it is much easier for the developer of a block to put in place at the outset appropriate arrangements tailored to the precise circumstances of the building, ensuring a sensible relationship between the management responsibilities for the residential part and for the block as a whole. If that is done properly, the leaseholders will already be able to manage their own homes and there will be no real incentive for the leaseholders to exercise the right to manage.
Developers are also able to take a similar approach where they wish to protect themselves against the prospect of enfranchisement. Furthermore, the Bill will provide the opportunity for commonhold development. That important point is commonly missed by those who have raised concerns about mixed-use development. Commonhold will necessarily involve both outright ownership of individual units and a share in the common management from the outset. The rights to manage and to enfranchise will not be needed and, therefore, will not apply. Consequently, a developer of a commonhold will have full certainty from the outset about what will happen to his investment and will not face the prospect of losing the management or ownership of the commercial units.
I should add that the operation of commonhold or comparable systems in other countries does not seem to have inhibited mixed-use developments in those countries. Furthermore, we know that some developers with experience in such countries have expressed an interest in commonhold development once it becomes possible in England and Wales.
In the light of those considerations, we believe that the concerns expressed in relation to the mixed-use issue are misplaced. Developers who make sensible use of the options which will be open to them have nothing to fear from our changes and, therefore, have no rational reason not to continue to bring forward mixed development.
Of course, we acknowledge that there is a need to help developers to understand fully the options which will be open to them. We are already seeking to do so, and I invite the noble Lord to draw what I have said today to the attention of those who have made
914
representations to him on the mixed-use issue. If they have any questions or wish to discuss the options in more detail, they are welcome to contact either my officials or those at the Lord Chancellor's Department.
I can assure the noble Lord that the position reached by the Bill is the result of careful consideration of the issues—in particular, of the issue which he isolated today as the reason for his amendment. We believe that our approach is the right way forward. On that basis, I invite the noble Lord to withdraw his amendment.
Lord Kingsland: My Lords, I thank the noble and learned Lord very much for his very full reply. It is not the first occasion on which I have raised this issue but, mercifully for your Lordships' House, it will be the last.
I hope that the noble and learned Lord does not consider that there is anything improper in an outside interest approaching a Member of the Opposition Front Bench and suggesting that a particular course of action might be in the national interest. There have been a wide range of interests that have suggested that the Government's approach to increasing the nonresidential test will be counter-productive.
The noble and learned Lord said that my amendment would not work. However, as I believe he acknowledged generously later on in his remarks, the real reason for opposing the amendment is because the noble and learned Lord does not accept the principle that lies behind it; namely, that the clause set out in the Bill as it stands will have a damaging effect on mixed-use development in the future. That is something with which the noble and learned Lord does not agree. Therefore, a real confrontation of principle arises here. This is my last opportunity; I should like to test the opinion of the House.
5.49 p.m.
On Question, Whether the said amendment (No. 11) shall be agreed to?
Their Lordships divided: Contents, 86; Not-Contents, 170.

Division No. 2

CONTENTS

Anelay of St Johns, B.

Colwyn, L.

Attlee, E.

Cope of Berkeley, L. [Teller]

Blatch, B.

Cox, B.

Boardman, L.

Craig of Radley, L.

Bowness, L.

Crickhowell, L.

Brooke of Sutton Mandeville, L.

Cumberlege, B.

Brougham and Vaux, L.

Dean of Harptree, L.

Burnham, L.

Dixon-Smith, L.

Buscombe, B.

Eccles of Moulton, B.

Caithness, E.

Eden of Winton, L.

Campbell of Alloway, L.

Elton, L.

Carnegy of Lour, B.

Fookes, B.

Cavendish of Furness, L.

Fowler, L.

Chadlington, L.

Fraser of Carmyllie, L.

Clark of Kempston, L.

Geddes,L.

Coe, L.

Gilmour of Craigmillar, L.

915

Goschen, V.

Mowbray and Stourton, L.

Gray of Contin, L.

Moynihan, L.

Hanham, B.

Noakes, B.

Hanningfield, L.

Northesk, E.

Hayhoe, L.

O'Cathain, B.

Henley, L.

Oppenheim-Barnes, B.

Higgins,L.

Park of Monmouth, B.

Hodgson of Astley Abbotts, L.

Parkinson, L.

Hooper, B.

Pearson of Rannoch, L.

Howe, E.

Peel, E.

Howell of Guildford, L.

Perry of Southwark, B.

Hunt of Wirral, L.

Pilkington of Oxenford, L.

Hurd of Westwell, L.

Platt of Writtle, B.

Jenkin of Roding, L.

Plumb, L.

Jopling, L.

Rees, L.

Kingsland, L.

Renton, L.

Knight of Collingtree, B.

Roberts of Conwy, L.

Lamont of Lerwick, L.

Rotherwick, L.

Liverpool, E.

Saltoun of Abernethy, Ly.

Lyell, L.

Seccombe, B. [Teller]

McColl of Dulwich, L.

Sharpies, B.

Marlesford, L.

Shaw of Northstead, L.

Mayhew of Twysden, L.

Skelmersdale, L.

Miller of Hendon, B.

Stewartby, L.

Monro of Langholm, L.

Trefgarne, L.

Monson, L.

Trumpington, B.

Montrose, D.

Windlesham, L.

NOT-CONTENTS

Acton, L.

Elder, L.

Addington, L.

Evans of Parkside, L.

Ahmed, L.

Evaas of Temple Guiting, L.

Amos, B.

Falconer of Thoroton, L.

Andrews, B.

Falkland, V.

Ashley of Stoke, L.

Farrington of Ribbleton, B.

Ashton of Upholland, B.

Faulkner of Worcester, L.

Bach, L.

Filkin, L.

Barker, B.

Fyfe of Fairfield, L.

Barnett, L.

Gale, B.

Bassam of Brighton, L.

Geraint, L.

Berkeley, L.

Gibson of Market Rasen, B.

Bernstein of Craigweil, L.

Gladwin of Clee, L.

Billingham, B.

Golding, B.

Blackstone, B.

Goodhart, L.

Borrie, L.

Gould of Potternewton, B.

Bradshaw, L.

Grabiner, L.

Bragg, L.

Graham of Edmonton, L.

Brennan, L.

Greaves, L.

Brightman, L.

Grenfell, L.

Brooke of Alverthorpe, L.

Grocott, L.

Brookman, L.

Hamwee, B.

Brooks of Tremorfa, L.

Hardy of Wath, L.

Burlison, L.

Harris of Haringey, L.

Campbell-Savours, L.

Harris of Richmond, B.

Carter, L.[Teller]

Harrison, L.

Chandos,V.

Haskel, L.

Clark of Windermere, L.

Hayman, B.

Clarke of Hampstead, L.

Hilton of Eggardon, B.

Clement- Jones, L.

Hogg of Cumbernauld, L.

Cohen of Pimlico, B.

Hollis of Heigham, B.

Corbett of Castle Vale, L.

Hooson, L.

Crawley, B.

Howarth of Breckland, B.

Currie of Marylebone, L.

Howells of St. Davids, B.

Dahrendorf, L.

Howie of Troon, L.

David, B.

Hoyle, L.

Davies of Coity, L.

Hughes of Woodside, L.

Davies of Oldham, L.

Hunt of Kings Heath, L.

Dean of Thornton-le-Fylde, B.

Irvine of Lairg, L. (Lord

Desai, L.

Chancellor)

Dholakia, L.

Jacobs, L.

Dixon, L.

Janner of Braunstone, L.

Donoughue, L.

Jay of Paddington, B.

Dormand of Easington, L.

Jones, L.

Dubs, L.

King of West Bromwich, L.

Eatwell, L.

Layard, L.

916

Lea of Crondall, L.

Rendell of Babergh, B.

Lester of Herne Hill, L.

Rennard, L.

Levy, L.

Richard, L.

Linklater of Butterstone, B.

Rodgers of Quarry Bank, L.

Lipsey, L.

Rooker, L.

Livsey of Talgarth, L.

Roper, L.

Lockwood, B.

Russell, E.

Lofthouse of Pontefract, L.

Sainsbury of Turville, L.

Macdonald of Tradeston, L.

Sawyer, L.

McIntosh of Haringey, L.

Scotland of Asthal, B.

[Teller]

Sharp of Guildford, B.

McIntosh of Hudnall, B.

Sheldon, L.

MacKenzie of Culkein, L.

Sheppard of Liverpool, L.

Mackenzie of Framwellgate, L.

Shutt of Greetland, L.

Mackie of Benshie, L.

Simon, V.

Maclennan of Rogart, L.

Smith of Clifton, L.

McNally, L.

Smith of Leigh, L.

Maddock, B.

Strange, B.

Mar and Kellie, E.

Symons of Vernham Dean, B.

Masham of Ilton, B.

Taylor of Blackburn, L.

Mason of Barnsley, L.

Temple-Morris, L.

Thomas of Gresford, L.

Massey of Darwen, B.

Thomas of Walliswood, B

Merlyn-Rees, L.

Thomson of Monifieth, L.

Methuen, L.

Thornton, B.

Milner of Leeds, L.

Tomlinson, L.

Mitchell, L.

Tope, L.

Morgan, L.

Turnberg, L.

Morris of Aberavon, L.

Turner of Camden, B.

Northover, B.

Uddin, B.

Oakeshott of Seagrove Bay, L.

Walker of Doncaster, L.

Parekh, L.

Walmsley, B.

Patel of Blackburn, L.

Warner, L.

Pendry, L.

Warwick of Undercliffe, B

Phillips of Sudbury, L.

Watson of Richmond, L

Pitkeathley, B.

Weatherill, L.

Plant of Highfield, L.

Whitaker, B.

Prys-Davies, L.

Whitty, L.

Radios, L.

Williams of Elvel, L.

Ramsay of Cartvale, B.

Williams of Mostyn, L. (Lord

Rea, L.

Privy Seal)

Resolved in the negative, and amendment disagreed to accordingly.
5.59 p.m.
Clause 78 [Contents of claim notice]:
Lord Kingsland Lord Kingsland moved Amendment No. 12:
Page 38, line 37, at end insert—
"( ) It must include an offer of cover to provide for the RTM company directors' and officers' liability insurance, fidelity guarantee and professional indemnity insurance."
The noble Lord said: The amendment would require the RTM company to obtain the three forms of insurance that are specified. Directors' and officers' liability insurance would protect those leaseholders who are involved in the management of the company; fidelity guarantee would protect leaseholders' funds that are held by third parties in service charge or reserve accounts; and professional indemnity insurance would protect companies against failure in the day-to-day management of a block.
The main beneficiaries of the amendment would be the leaseholders, because it would be their interests that were insured. Contrary to what I suspect the Government will say, the amendment is not intended

917
to put obstacles in the way of the right to manage; it merely involves what one would expect from competent managing agents. I beg to move.
Lord Bassam of Brighton: My Lords, Amendment No. 12 seeks to require the RTM company to include an offer for liability insurance in its claim notice. It is my recollection that the noble Lord, Lord Kingsland, tabled a similar amendment both in Committee and at Report stage, but did not move it on either occasion. Having reflected on the matter, we came to the conclusion that the noble Lord had been so persuaded by the powerful arguments advanced by the Government when the Bill was in Grand Committee in the previous Parliament, so we are somewhat surprised that the noble Lord has returned to the issue again.
On the previous occasion, the noble Lord, Lord Hodgson of Astley Abbotts, and my noble friend Lord Williams of Elvel made a number of very sensible comments indicating the inadvisability of putting such a requirement on the face of the Bill. As we are entirely in agreement with them, I hope that they will not mind if I reiterate them here.
First, this amendment effectively makes the provision of liability insurance a qualifying requirement for the right to manage through the back door. Therefore, it undercuts the simple philosophy behind the right to manage; namely, that leaseholders should have the right to a say in the management of their own block by virtue of their investment in the property.
The noble Lord, Lord Kingsland, has suggested on a number of occasions that there is a need to build all manner of safeguards into the legislation to protect the interests of the landlord. As we have said before, we fully accept that the landlord will continue to have a legitimate interest in the block under the right to manage. The Bill has been drafted on that premise. That is why the landlord has both the right to be a member of the RTM company, and the rights granted to him to address management failures.
We cannot, however, accept that the landlord's minority interests entitle him to a disproportionate protection such as this one. The landlord already has a disproportionate control over the management of the block. The right to manage addresses that by giving leaseholders the right to manage their own homes. A requirement to prove to the landlord—we note in passing, not the leaseholders with their majority stake—that the company has been given an offer of liability insurance is inappropriate in that context.
Secondly, this requirement is largely worthless, as it says nothing about the level of insurance to be offered. The RTM company could therefore come forward with a laughable and negligible insurance offer and still comply with this requirement. I hope that the noble Lord, Lord Kingsland, will not press us to include a redundant provision in this important Bill.
Finally, and perhaps most importantly, we would expect RTM companies to take out such insurance as a matter of course. We certainly intend to encourage
918
them to do so in guidance, but we do not intend to require them to do so. No other property owner is required by law to take out liability insurance just because they want to manage and maintain their home. In our view, a requirement which would do that just for RTM companies is therefore unfair, unfounded and unjustified. I hope that the noble Lord will be prepared to withdraw his amendment.
Lord Kingsland: My Lords, I thank the noble Lord for his answer which was disappointingly predictable. If the noble Lord finds the amendment inadequate, why does he not propose an alternative. It is not intended to protect the landlord; it is intended to protect the leaseholders in their function as managers of the property. Despite the fact that I regard the amendment as being of great importance and although the previous vote was lost by a fairly narrow margin, on this occasion I shall not press the amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Goodhart Lord Goodhart moved Amendment No. 13:
After Clause 123, insert the following new clause—
"ABOLITION OF MARRIAGE VALUE
In Schedule 6 to the 1993 Act, omit—

(a) paragraph 2(1)(b);

(b) paragraph 4;

(c) paragraph 5A(2)(b);

(d) paragraph 5C;

(e) paragraphs 9 and 9A;

(f) paragraph 10(1)(b);

(g) paragraph 12;

(h) paragraphs 15 and 16; and

(i) paragraphs 19 and 20."

The noble Lord said: My Lords, I speak not only to Amendment No. 13, but to all the other amendments in this group, except Amendment No. 20. This amendment raises the issue of marriage value. I believe that this is the fifteenth time that I have moved the amendment. At least, it seems like the fifteenth time to me and I dare say to other Members of your Lordships' House who have sat through the whole of the proceedings on this Bill and its predecessor. In my view, the Government have not played fair by sending in an entirely fresh team to conduct their business on the replay. I apologise to the noble Lord, Lord McIntosh of Haringey, who has had the ordeal of sitting through the first round and the replay.
Amendments Nos. 13, 14 and 15 deal with marriage value and the case of collective enfranchisement; Amendments Nos. 17, 18 and 19 deal with marriage value in the case of the grant of an extended lease of a flat; and Amendments Nos. 22, 24 and 25 deal with marriage value in the case of the enfranchisement of a leasehold house above the value limit for enfranchisement under the Leasehold Reform Act 1967, where marriage value was not payable.
What is marriage value? The simplest case is the last, that of enfranchisement of a leasehold house by the lessee. Enfranchisement in that case means the sale of

919
the freehold reversion to the lessee. Frequently, the lessee will be willing to pay more for the house, for a freehold reversion, than an outside purchaser. There are a number of reasons for that. One is that as leases become shorter, they become harder to sell because of the difficulty, and in some cases impossibility, of obtaining a mortgage. Therefore, acquiring a freehold or an extended lease creates a saleable asset in the hands of the lessee whereas the previous asset was not saleable. Of course, for the resident lessee there is the inconvenience of having to move out of the property. As I said on an earlier occasion, moving house is said to be the most nerve-racking event in most people's lives apart from bereavement or the loss of a job.
The result is that the lessee is technically known as a special purchaser. The freeholder may have a reversion that he or she could sell to an investor for, let us say, £20,000. By buying the reversion, the lessee will increase the value of his or her interest in the property by £25,000. That extra £5,000 is the marriage value. In ordinary market conditions it is true that the lessee and the freeholder will probably agree a price somewhere between the two, say £22,500, and the Government propose to divide the marriage value strictly on the basis of half to the lessee and half to the freeholder. However, we believe that the lessee should not be treated as a special purchaser and should not have to pay any share of the marriage value at all.
The leasehold system itself weakens the bargaining position of the lessee; for example, by making short leases unsaleable. It is said by the Government that the sale should be on a "willing buyer/willing seller" basis, but marriage value arises because the seller is assumed to be willing, but the buyer is not only willing but eager to purchase. We believe that that creates something that is not a level playing field. We believe that the freeholder should properly and reasonably be entitled to the same price for the reversion that he or she would receive if he or she sold it on the market to a third party.
We do not believe that that would be, as sometimes is suggested, a breach of the Human Rights Act. In the case of the Duke of Westminster, the European Court of Human Rights accepted as valid the method of valuation under the Leasehold Reform Act 1967 that was far more damaging to freeholders than anything that we suggest.
Lord Monson: My Lords, I thank the noble Lord, Lord Goodhart, for giving way. Was that a unanimous decision of the European court, or was it—as I believe—a rather narrow majority decision?
Lord Goodhart: My Lords, I think that it was a majority decision. But a decision is a decision. This position is miles away from the Duke of Westminster's case. That was a strong case. I was surprised that the European court decided it in the way that it did. This is a completely different situation. The Government in their election manifesto in 1997 proposed that they would provide for enfranchisement and would abolish marriage value.
920
The abolition of marriage value would be of significant benefit to tens of thousands of people. They, on any footing, would have to find a substantial sum to purchase the freehold or an extended lease. By abolishing marriage value, which is only a relatively small proportion of the total purchase price, it would be easier for lessees to purchase the freehold or an extended lease. I beg to move.
Lord Williams of Elvel: My Lords, I speak to Amendment No. 20, which is grouped with the amendments of the noble Lord, Lord Goodhart. It concerns the tapering of marriage values. I was impressed by the noble Lord's argument. However, I cannot entirely follow it. I suggest an intermediate process whereby if between 50 and 80 years there is an increase in the marriage value then that should be properly calculated. It should not be simply left. as my noble friend said on Report, "to the market" or whatever, to establish. For that reason, I half support the noble Lord, Lord Goodhart, but, nevertheless, air Amendment No. 20.
The Earl of Caithness: My Lords, your Lordships have heard before that I thoroughly oppose what the noble Lord, Lord Goodhart, suggests. His course would be totally detrimental. This is a well-established accepted principle and methodology of valuation and property transactions. I shall not bore the House by repeating all the arguments that I have used before, except to say that I remain of the opinion that I oppose the amendment.
Lord Jacobs: My Lords, like the noble Earl. I have spoken once before on the subject of marriage value. Whatever argument one deploys on the subject, the fact is that if a landlord sells his reversionary interest to a third party, he does not receive any share of marriage value. He gets instead exactly what his reversionary interest is worth. The Government have not disagreed with that proposition but claim that this is a compulsory purchase transaction. Therefore, the landlord shall receive extra compensation in the form of a share of marriage value.
The Government's views have changed since the 1967 Act. The Government still recognise that the leasehold system is
"totally unsuited to the society of the 20th century, let alone the 21st century".
Those words were used in a November 1998 consultation paper.
Today no country has a leasehold system except Britain. So why should the Government not want to help the remaining 2 million leasehold tenants by excluding marriage value? For a change, let us look at the matter from the point of view of the landlord. The leasehold system is designed to give the landlord a second, sometimes a third and even a fourth bite of the cherry. It is a system whereby a tenant can effectively buy his own home. Then he or his successors can buy it again and sometimes again and again.

921
The great sympathy that the Government express not to do anything to disadvantage the landlord is to imply that we are dealing with two equal sides of an equation. The reason for all this legislation to phase down, if not to terminate, the leasehold system, is that hopefully the Government recognise—certainly the previous government did—that the leasehold system is onerous and that the weaker party' namely, the tenant, needs some help to get out of the system. Clearly the abolition of marriage value is the help that is needed. It was good enough for the 1967 Act, which the Labour Government brought in, so why cannot it be applied to higher value flats and houses?
It is true that leaseholders will gain from enfranchisement or lease extension. As the Government have indicated before, in the former case they can grant themselves a 999-year lease. But we are talking about people's homes. Why should they not have virtual outright ownership? I fear that the weakness of the Government's argument is the belief that landlords and tenants are two sides of the same coin, when the truth is that the landlord's interest increases in value, excluding inflation, on a daily basis, while the tenant's value—I remind your Lordships that this is his home—decreases in value on a daily basis.
Lastly, I deal with an argument that was used in early stages of the Bill; namely, that if a landlord is in serious breach of the lease the tenant may acquire the freehold without marriage value. That is certainly a fair proposition. But the Government argue that we cannot allow other tenants to buy their freeholds without marriage value as it would reduce the penalty on the bad landlords. If I may say so, two wrongs do not make a right. This is a very weak argument. If one wants to have a penalty on bad landlords they could receive a reduced proportion of the tenant's acquisition price. But to argue that you have to keep the penalty for landlords without fault to create this distinction is, in my opinion, absurd.
I urge the Government to think again about the issue. I urge all of your Lordships to support the amendment.
6.15 p.m.
The Earl of Caithness: My Lords, before the noble Lord sits down, I did not follow him at all in what he said. How can the tenant's interest decrease when the value of leases have been going up for many years? That is an increase and not a decrease.
Lord Jacobs: My Lords, I believe that I said that excluding inflation. Inflation disguises the true situation. I shall be referring to that with regard to another amendment. If there was no inflation, the tenant would be very clear that its value goes down every year—every day indeed.
Baroness Gardner of Parkes: My Lords, I find this amendment, the amendment tabled by the noble Lord, Lord Williams of Elvel, and the statements made by
922
the Minister on the previous occasion all slightly conflicting. I was quite impressed by the remarks of the noble and learned Lord, Lord Falconer, that tapering would automatically happen and therefore the marriage value would not apply. I find the text of Amendment No. 20, tabled by the noble Lord, Lord Williams of Elvel, rather too definitive in setting matters out. Therefore, I do not strongly support his amendment this time, whereas last time I strongly supported its principle.
Is the marriage value simply that there is an element of compulsion that the landlord is being forced to sell? Is a marriage value given to compensate him because, as was explained a moment ago, if he puts his property on the market to sell the reversion he will not get any marriage value? Is the marriage value simply because he is being obliged to sell?
I commented at the previous stage of the Bill in relation to another amendment that charities act like any other landlord. I have had an irate letter from someone involved in the charities issue. It says that that was impugning the character of charities. That was not the case at all. As a chairman of a charity myself, I know that we are under an obligation to the Charity Commission to get maximum return for whatever we handle, whether it be property or anything else. So I think that he certainly misunderstood my view on charities.
Getting back to the point about the charities, it means that any charity wanting to sell a property, if there is a marriage value in the Act, cannot possibly exercise any discretion to reduce the price or agree to a reduction in price. It has the same official duty as a trustee. Whereas a private landlord could have a discretion, it means that an executor, a trustee or a charitable trustee would not. Therefore marriage value will be quite significant in cases where there is no right to relinquish part of it.
When the Minister replies, will he tell me whether it is the element of compulsion that means that people are entitled to marriage value? It may be accepted practice, as my noble friend Lord Caithness has said, but that does not make it desirable. I should like an explanation of why the Government believe that provision to be necessary.
Lord Jacobs: My Lords, may I crave the indulgence of the House? I wanted to speak to Amendment No. 20—
Lord McIntosh of Haringey: My Lords, it is Third Reading and noble Lords can speak only once.
(Lord Falconer of Thoroton): My Lords, it may be the 15th time that the noble Lord, Lord Goodhart, has addressed the issue of marriage value, but every time I have heard him do so, it sounded as fresh as on the previous occasion.
I know that the issue of marriage value is of great concern to the noble Lord, and to other noble Lords. He has explained his position at some length during

923
earlier debates on the Bill. I fear that we will have to agree to disagree on the issue. It remains our view that the Bill strikes the correct balance between the competing interests of landlords and leaseholders. We are not willing to make any further concessions.
To answer the specific point made by the noble Baroness, Lady Gardner of Parkes, we cannot support an alternative valuation method that would result in a compulsory and substantial transfer of resources from one private individual to another. It is both the element of compulsion and the fact that substantial assets are involved that lead us to adopt our position. As I said last week, we must recognise that marriage value exists when the freeholder sells to the leaseholders. We propose to divide that gain equally between the parties. That means that leaseholders obtain added value, in the form of the ability to grant themselves new leases, which exceeds the price that they paid for it.
My noble friend Lord Williams of Elvel raised the question of tapering. We discussed that at some length last week. I know that my noble friend has strong views on the matter, but, as I said last week, the fact remains that the current valuation basis provides its own taper. The price payable for enfranchisement increases progressively as leases shorten.
Lord Williams of Elvel: My Lords, I thank my noble and learned friend for giving way. The noble Lord, Lord Jacobs, wanted to speak to Amendment No. 20. I shall therefore move that amendment in its place, so that the noble Lord can do so.
Lord Falconer of Thoroton: My Lords. I thank my noble friend for that sign of what is to come.
The price payable for enfranchisement increases progressively as leases shorten. We have taken the view that marriage value is likely to be de minimis where leases have more than 80 years to run and, to avoid arguments over insignificant sums, we are providing that no marriage value will be payable in such circumstances. As leases drop below 80 years, marriage value will progressively increase but will be split equally between the parties. We do not accept that there is a case for a further arbitrary apportionment of the marriage value which would effectively reduce the price payable by leaseholders.
The noble Lord, Lord Jacobs, raised the Leasehold Reform Act 1967. The 1967 Act reflected the different political and economic circumstances of the day and allowed enfranchisement on a basis that was extremely favourable to leaseholders. We no longer consider that equitable but do not seek to withdraw the right to enfranchise on that basis from those who currently enjoy it.
The noble Lords, Lord Jacobs and Lord Goodhart, referred to the promise made by my party when in opposition. We did not promise to abolish marriage value in An End to Feudalism. We sought views on two options: abolition and sharing marriage value equally between the parties. We have decided on the latter.
924
I turn to the final point raised, which was that the landlord will have received the equivalent price for the sale of a freehold when he first granted the lease. That may or may not be the case, but he would have granted the lease on the assumption that he would be entitled to either the freehold reversion at the end of the lease or a fair price for the sale of his interest—including marriage value. by contrast, the current leaseholder may have purchased the lease when the unexpired term was relatively short, at a price that reflected that. Abolition of marriage value would result in a substantial windfall gain at the expense of the landlord, which is difficult to justify. I invite the noble Lord to withdraw his amendment.
Lord Goodhart: My Lords, we are approaching the close of our debate on marriage value. My noble friends and I feel strongly on the matter. We have not had an opportunity to divide the House on it before, because we did not reach it on Report of the previous Bill, and reached it only late in the evening on Report of this Bill. I should like to test the opinion of the House.
6.25 p.m.
On Question, Whether the said amendment (No. 13) shall be agreed to?
Their Lordships divided: Contents, 45 Not-Contents, 182.

Division No. 3

CONTENTS

Addington, L.

McNally, L.

Barker, B.

Maddock, B.

Bradshaw, L.

Mar and Kellie, E.

Carlile of Berriew, L.

Methuen, L.

Clement-Jones, L.

Monro of Langholm, L.

Dholakia, L.

Newby, L.

Falkland, V.

Northover, B.

Fearn, L.

Oakeshott of Seagrove Bay, L.

Geraint, L.

Phillips of Sudbury, L.

Goodhart, L.[Teller]

Razzall, L.

Greaves, L.

Redesdale, L.

Hamwee, B.[Teller]

Rennard, L.

Harris of Richmond, B.

Rodgers of Quarry Bank. L

Roper, L.

Hooson, L.

Russell, E.

Howarth of Breckland, B.

Sharp of Guildford, B.

Jacobs, L.

Shutt of Greetland, L.

Lester of Herne Hill, L.

Smith of Clifton, L.

Linklater of Butterstone, B.

Thomas of Walliswood, B

Livsey of Talgarth, L.

Tope, L.

Ludford, B.

Walmsley, B.

Mackie of Benshie, L.

Watson of Richmond, L.

Maclennan of Rogart, L.

Williams of Crosby, B.

NOT-CONTENTS

Acton, L.

Barnett, L.

Ahmed, L.

Bassam of Brighton, L.

Alton of Liverpool, L.

Berkeley, L.

Amos, B.

Bernstein of Craigweil, L.

Andrews, B.

Billingham, B.

Anelay of St Johns, B.

Blackstone, B.

Ashton of Upholland, B.

Blatch, B.

Astor of Hever, L.

Boardman, L.

Attlee, E.

Borrie, L.

Bach, L.

Bowness, L.

925

Brabazon of Tara, L.

Hunt of Wirral, L.

Bragg, L.

Irvine of Lairg, L. (Lord

Brennan, L.

Chancellor)

Brightman, L.

Janner of Braunstone, L.

Brooke of Alverthorpe, L.

Jay of Paddington, B.

Brooke of Sutton Mandeville, L.

Jones, L.

Brookman, L.

Jopling, L.

Brougham and Vaux, L.

Kennedy of The Shaws, B.

Burlison, L.

King of West Bromwich, L.

Burnham, L.

Kingsland, L.

Caithness, E.

Knight of Collingtree, B.

Campbell of Alloway, L.

Lamont of Lerwick, L.

Campbell of Croy, L.

Layard, L.

Campbell-Savours, L.

Lea of Crondall, L.

Carnegy of Lour, B.

Levy, L.

Carter, L.[Teller]

Lipsey, L.

Chadlington, L.

Liverpool, E.

Chandos, V.

Lockwood, B.

Clark of Kempston, L.

Lofthouse of Pontefract, L.

Clark of Windermere, L.

Luke, L.

Clarke of Hampstead, L.

Lyell, L.

Coe, L.

McColl of Dulwich, L.

Colwyn, L.

Mcintosh of Haringey, L.

Cope of Berkeley, L.

[Teller]

Corbett of Castle Vale, L.

MacKenzie of Culkein, L.

Crawley, B.

Mackenzie of Framwellgate, L.

David, B.

Masham of Ilton, B.

Davies of Coity, L.

Massey of Darwen, B.

Davies of Oldham, L.

Mayhew of Twysden, L.

Dean of Harptree, L.

Merlyn-Rees, L.

Dean of Thornton-le-Fylde, B.

Milner of Leeds, L.

Desai, L.

Mitchell, L.

Dixon, L.

Monson, L.

Dixon-Smith, L.

Montrose, D.

Dormand of Easington, L.

Morgan, L.

Dubs, L.

Morris of Aberavon, L.

Eccles of Moulton, B.

Mowbray and Stourton, L.

Eden of Winton, L.

Moynihan, L.

Elder, L.

Noakes, B.

Evans of Parkside, L.

Northesk, E.

Evans of Temple Guiting, L.

Oppenheim-Barnes, B.

Falconer of Thoroton, L.

Palmer, L.

Farrington of Ribbleton, B.

Parekh, L.

Faulkner of Worcester, L.

Park of Monmouth, B.

Filkin, L.

Parkinson, L.

Fookes, B.

Patel of Blackburn, L.

Fraser of Carmyllie, L.

Pearson of Rannoch, L.

Fyfe of Fairfield, L.

Peel, E.

Gale, B.

Pendry, L.

Geddes, L.

Pilkington of Oxenford, L.

Gibson of Market Rasen, B.

Pitkeathley, B.

Gladwin of Clee, L.

Plant of Highfield, L.

Golding, B.

Radice, L.

Gould of Potteraewton, B.

Ramsay of Cartvale, B.

Grabiner, L.

Randall of St. Budeaux, L.

Grenfell, L.

Rea, L.

Grocott, L.

Rendell of Babergh, B.

Hanham, B.

Renton, L.

Hanningfield, L.

Renwick of Clifton, L.

Hardy of Wath, L.

Richard, L.

Harris of Haringey, L.

Rooker, L.

Harrison, L.

Rotherwick, L.

Haskel, L.

Sainsbury of Turville, L.

Hayman, B.

Sawyer, L.

Henley, L.

Scotland of Asthal, B.

Hilton of Eggardon, B.

Seccombe, B.

Hodgson of Astley Abbotts, L.

Shaw of Northstead, L.

Hogg of Cumbernauld, L.

Sheldon, L.

Hooper, B.

Sheppard of Liverpool, L.

Howe, E.

Simon, V.

Howell of Guildford, L.

Skelmersdale, L.

Howells of St. Davids, B.

Smith of Leigh, L.

Howie of Troon, L.

Stone of Blackheath, L.

Hoyle, L.

Symons of Vernham Dean, B.

Hughes of Woodside, L.

Taylor of Blackburn, L.

Hunt of Kings Heath, L.

Temple-Morris, L.

926

Thornton, B.

Weatherill, L.

Tomlinson, L.

Whitaker, B.

Turner of Camden, B.

Whitty, L.

Wilcox, B.

Uddin, B.

Williams of Mostyn, L.(Lord

Walker of Doncaster, L.

Privy Seal)

Warwick of Undercliffe, B.

Windlesham, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.36 p.m.
Clause 124 [Freeholder's share of marriage value]:
[Amendment No. 14 not moved.]
Clause 125 [Disregard of marriage value in case of very long leases]:
[Amendment No. 15 not moved.]
Lord Kingsland Lord Kingsland moved Amendment No. 16:
After Clause 125, insert the following new clause—
"THE CROWN
This Chapter binds the Crown."
The noble Lord said: My Lords, I apologise to the House for raising the issue for the first time at the Bill's second Third Reading stage. I notified the Government that I intended to do so and most kindly and generously they said that they would respond in a manner which did not criticise me for the way in which I have drawn their attention to the matter. The issue arises over Crown exemption from the Leasehold Reform Act 1967, the Leasehold Reform, Housing and Urban Development Act 1993 and the Commonhold and Leasehold Reform Bill.
The Crown is not bound by the legislation but has given a voluntary undertaking to enfranchise properties held on long residential leases unless one of two conditions apply: first, where a property stands on inalienable land, which is defined in the Windsor Estate Act 1961; and, secondly, where property or land has a long historic or particular association with the Crown; for example, the garrison at St Mary's on the Isles of Scilly.
It has been suggested that these exemptions conflict with the Human Rights Act on the ground that they violate the right to property under Protocol 1, Article 1, of the European Convention on Human Rights, and the prohibition of discrimination, articulated in Article 14. To that extent, therefore, the Bill fails to comply with the Government's undertaking. I shall be most interested to hear the Government's reaction to those suggestions. I beg to move.
Baroness Hamwee: My Lords, before the Minister replies, can the noble Lord, Lord Kingsland, explain whether the provision applies only to this leasehold enfranchisement legislation or to all such legislation? I should have been able to work that out but I have been unable to do so. Although I have a degree of sympathy with the notion, perhaps this is not the moment at which to suggest that an undertaking from the Crown is questioned as implicitly as is the case in the amendment. If the provision applies only to this

927
legislation, it would be inappropriate to introduce it for only a part of the leasehold enfranchisement regime.
Lord Kingsland: My Lords, on a point of clarification, perhaps I may say that it is not the undertaking from the Crown that is criticised; it is the discriminating way in which the undertaking has effect. In the case of some Crown properties, the Crown will honour that undertaking, but in the case of other Crown properties, because of their special status, the Crown will not enfranchise.
Lord Falconer of Thoroton: My Lords, these amendments, as the noble Lord, Lord Kingsland, has said, seek to apply the rights of collective enfranchisement and lease renewal for flats, and the rights of enfranchisement and lease extension for houses to properties held by the Crown.
To pick up the point made by the noble Baroness, Lady Hamwee, these amendments apply our amendments without applying the legislation that they amend. However, I understand from what the noble Lord, Lord Kingsland, said, that they are merely a means of probing how the undertaking given by the Crown operates. I am grateful to the noble Lord for giving us the opportunity to deal with these points.
As the noble Lord, Lord Kingsland, will know, the enfranchisement and lease extension provisions of the Leasehold Reform Act 1967 and the Leasehold Reform, Housing and Urban Development Act 1993 are not directly binding on the Crown. That does not, however, mean that Crown leaseholders do not hold the relevant rights. As the noble Lord knows, the Crown has undertaken to Parliament to comply with the legislation voluntarily. That means that in practice, and subject to certain specified conditions, any leaseholder who would be entitled to enfranchise or extend a lease under either the 1967 or the 1993 Act, if the legislation were directly binding on the Crown, will instead be able to do so under the undertaking. That is all set down in the Crown's undertaking, which was formally announced to Parliament by the then housing Minister, Sir George Young, on 2nd November 1992 at col. 19 of Hansard.
We have been in discussion with the Crown about the undertaking. We wish to ensure that the undertaking continues to give Crown leaseholders the same rights as they would have if the legislation applied directly. As such, we have asked the Crown to confirm that the undertaking will apply to the provisions of the 1967 and 1993 Acts, as amended by the important changes in Chapters 2, 3 and 4 of this Bill. I am happy to say that the Crown has given us that confirmation.
The noble Lord referred to concerns that the present arrangements for Crown enfranchisement are not compliant with human rights legislation and with the ECHR. I know that general accusations have been made to that effect by Crown leaseholders who are dissatisfied with the way in which the undertaking applies to them. However, I am not aware that any specific grounds have yet been put forward to suggest
928
why the existing arrangements might not be compliant. The noble Lord will be aware that it is difficult to mount a detailed defence when the precise allegation is not known.
We are satisfied that the existing arrangements do not give rise to any problems of ECHR compliance. The question of whether or not the relevant Acts directly bind the Crown is something of a red herring. As I have explained, Crown leaseholders have the same rights as other leaseholders. They are simply delivered by a different means. That may be slightly unorthodox but it gets us to exactly the same place.
It is of course true that the Crown undertaking is subject to a number of exceptions. However, that is no different from the approach set down in the legislation. For example, there are exemptions for designated rural areas and charitable housing trusts. Again, the approach is entirely consistent on both sides. I should add that we are content that the exemptions set down in the undertaking are justified. If we were to apply the legislation directly, that would be done on the same basis as is already set down in the undertaking. The outcome would therefore be no different from that achieved under the present arrangements.
It is correct that Clause 106 makes the right to manage binding on the Crown and that Clause 163 does the same for numerous other statutory provisions. That, again, is simply a question of delivery. It ensures that those rights, including a number of existing ones that formerly did not apply are open to Crown leaseholders, as well as other leaseholders. As I said, the undertaking already delivers enfranchisement and new lease rights to Crown leaseholders. As that is already the case, we see no particular need to make statutory provisions to the same effect.
I can appreciate that those who fall outside the undertaking would be unhappy about that. I should say that there are more than two exemptions from the undertaking. The noble Lord referred to two, but he will accept that there are others. It would be inappropriate for me to go into individual cases. However, as I have said, we are satisfied that all aspects of the undertaking are appropriate. If we were to apply those rights directly to the Crown, we would do so in the same terms as already apply under the undertaking. As such, Crown leaseholders are in the same position under the present arrangements as they would be if we were to apply the Act directly because we would do so subject to the same exceptions.
As I said, it is simply a question of delivery. As far as I am aware, the Crown fully undertakes its undertaking. In those circumstances, I respectfully ask the noble Lord to withdraw his amendment.
Lord Kingsland: My Lords, I am grateful to the noble and learned Lord for giving such a full reply to my question. It was certainly not my intention to attack the undertaking. I entirely understand why the Crown is taking that approach, which is perfectly satisfactory and consistent with the convention.

929
My criticism is rather about the discriminatory way in which the undertaking is applied. The noble and learned Lord rightly said that there are other areas in the Bill that make exceptions to rights to enfranchise, but those areas are explicit and are stipulated in the Bill. The definition of what does and does not fall within the terms of the Windsor Estate Act and the concept of historical inalienability are much less clear. That is why the human rights point has been raised.
It would not be appropriate to put the matter to a vote. I thank the noble and learned Lord for his response and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 17 not moved.]
Clause 132 [Landlord's share of marriage value]:
[Amendment No. 18 not moved.]
Clause 133 [Disregard of marriage value in case of very long leases]:
[Amendment No. 19 not moved.]
6.45 p.m.
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 20:
After Clause 133, insert the following new clause—
"TAPERING OF MARRIAGE VALUES
For leases where there is an unexpired term of more than 50 but less than 80 years, for each year in reverse chronological order following the eightieth, the amount of marriage value shall be increased by one-thirtieth pro rata, until the fiftieth year at which point the marriage value shall revert to full value."
The noble Lord said: My Lords, I am moving the amendment simply because I do not think that we had a very serious debate on the previous grouping. I should like to hear what the noble Lord, Lord Jacobs, has to say as I think that he has been shut out on this matter.
Lord Jacobs: My Lords, I appreciate the comments of the noble Lord, Lord Williams of Elvel, but it is not fair to say that I was shut out. I did not know the rules and I did not observe them. That is a true admission. However, I have been given a second bite at the cherry.
I strongly support the amendment. Since the Government decided to exclude marriage value for leases with the remaining term of 80 years and upwards, the situation is clearly anomalous if some tenants have, say, only 79 years left. In those circumstances, the tenant will be obliged to pay 50 per cent of the marriage value rather than nothing.
On Second Reading, I proposed a complete taper from 80 years down to 10 years. However, on reconsideration of the matter, I think that the amendment moved by the noble Lord, Lord Williams of Elvel, would be fairer because it only takes it from 79 years down to 50 years, which I believe would be sufficient.
It may be a little surprising that the Government did not propose any taper, but then that is because their position on this matter has not been fully understood.
930
They regard marriage value at 80 years and upwards as being de minimis and their proposal to abolish marriage value at that level is to save unnecessary administration and wasteful negotiating costs. I agree with that approach.
If, for example, one looks at the value of leases in Newport and Cardiff, the marriage value on 80-year leases is close to zero, and those years just below 80 will also have negligible marriage value. Therefore, a taper is not required. The problem arises in Greater London where marriage value can amount to tens of thousands of pounds, even at 80 years, so the penalty for being a year or two short on the lease becomes significant without a taper.
The Government can reasonably argue that they had no intention of reducing the cost of either enfranchisement or lease extension by this measure—or any other measure for that matter. They could claim that if marriage value after all has real value at 80 years, they had now better remove the clause abolishing marriage value over 80 years. I believe that that has a certain logic.
On the other hand, if the Government allow the clause to remain, in all equity there must be some kind of taper below 80 years. I urge the Government to think again. I believe that the amendment moved by the noble Lord, Lord Williams of Elvel, is very modest and just, and I strongly support it.
Lord Falconer of Thoroton: My Lords, the noble Lord, Lord Jacobs, puts his case clearly and with great vigour. We have started marriage value only at 80 years because we believe that above that level it is negligible. That means that normally when it kicks in at 80 years the amount of marriage value will be very small. It will become larger as the years go by, but because it is very small when it starts at 80 years a taper is built into the whole process anyway. That is why it seems unnecessary to introduce an artificial second taper as proposed by my noble friend Lord Williams of Elvel. There is already a taper because the marriage value will go up as the years go by, starting from a very small beginning at 80 years.
We are not attracted by the amendment tabled by my noble friend Lord Williams of Elvel because we believe that the circumstances themselves provide the taper. I invite my noble friend to withdraw his amendment.
Lord Williams of Elvel: My Lords, I am grateful to the noble Lord, Lord Jacobs, and the Minister. My noble and learned friend appears to believe in the market according to Marshallian economics. I am not sure that I believe in it. Nevertheless, I invite my noble and learned friend to study Marshall and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 21 to 22 not moved.]
Clause 136 [Reduction of qualifying period as tenant etc]:
The Earl of Caithness The Earl of Caithness moved Amendment No. 23:
Page 66, line 11, at the end, insert—
"(1C) This Part of this Act shall not have effect to confer any right on the tenant of a house where—

(a) the house is for the time being let as two or more flats or units; and

(b) the tenancy is superior to those held by the other tenants,

unless, at the relevant time, the tenant has been occupying the house, or any part of it, as his only or main residence (whether or not he has been using it for other purposes)—

(i) for the last two years; or

(ii) for periods amounting to two years in the last 10 years."

The noble Earl said: My Lords, in moving Amendment No. 23 I should like to speak also to Amendment No. 26. We return to the same matter that we debated at Report stage, during which time I received support from all sides of the House on the point that I then sought to raise. To recap, by changing the residency rules the Government have given incredible new rights to head lessees who will be able to expropriate the properties of existing landlords and benefit from any marriage value in future transactions, should they happen. A good number of these head lessees are deliberately set up as overseas tax havens. They are perhaps people whom one would not want to see as landlords in many of our cities, but obviously these are the friends of new Labour.
It would be quite wrong for them to be given these privileges at the expense of existing landlords—the Church, the charities and the pension funds—who will lose a considerable amount of money. We calculate that in the major estates of London the Government's draconian proposals could take effect in over 500 properties. There are millions of pounds at stake. Therefore, by tabling these amendments I seek to help the Government shed the new image that they will gain for themselves. I beg to move.
Baroness Gardner of Parkes: My Lords, I have received a letter from the Leasehold Reform Professional Committee, which fully understands, as do I, the point raised by my noble friend. One does not want to see a commercial head lessee enfranchising over people with flats in a house who would otherwise be able themselves to enfranchise. Nevertheless, it is concerned about the amendments because it believes that the undertaking given by the Government at the previous stage of the Bill provided better news. It would prefer that these amendments are not accepted today.
Lord Jacobs: My Lords, I support the noble Baroness, Lady Gardner of Parkes. It has been suggested to me that we should invite the Government to look carefully at the amendment because it appears to go further than the general support expressed at Report stage. We all recognise that there is a problem with head leases and that perhaps the wrong people
932
will enfranchise. It is my understanding that this amendment takes the matter much further. I invite the Government to look at it carefully.
Lord McIntosh of Haringey: My Lords, if the noble Earl, Lord Caithness, seeks to help the Government he is going about it in a strange way. To contrast these wicked head lessees who are friends of new Labour with landlords who are widows, orphans and the starving millions appears to be a little extreme. However, the noble Earl has a point. We said that in relation to his amendment at Report stage. He suggested ways in which we might address the concerns which he put forward last week.
We agree with the noble Earl that head lessees should not be able to make windfall gains by enfranchising in these circumstances. We now accept that the Bill could be interpreted in a way that allows that. We are presently considering changes to put the matter beyond doubt and shall introduce an amendment in another place to achieve that. We shall certainly consider the approaches suggested by the noble Earl, although we also bear in mind the comments of the noble Baroness, Lady Gardner. and the noble Lord, Lord Jacobs. I shall inform the noble Earl of our proposals in due course.
The Earl of Caithness: My Lords, I am extremely grateful for the noble Lord's response. I am particularly encouraged by his observation that not only do I have a point but there is a flaw in the Bill which needs to be rectified. Thank goodness we have had the time to highlight this matter. It has also given the Government time to table at this stage at least one third of the amendments to clarify earlier parts of the Bill.
We are still concerned that without a residency test there will be a new speculative element in the market which has not existed so far. That will arise on short leases and leasehold houses and it will affect prices where there are two competitors pursuing a property, one of whom is a speculator and the other is a potential owner occupier.
Having said that and registered the point yet again, I am extremely grateful for what the Government intend to do. I look forward to seeing the amendment to be tabled in another place. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 141 [Exclusion of shared ownership leases]:
[Amendment No. 24 not moved.]
Clause 142 [Tenant's share of marriage value]:
[Amendment No. 25 not moved.]
[Amendments Nos. 26 and 27 not moved.]
Lord Jacobs Lord Jacobs moved Amendment No. 28:
Before Clause 147. insert the following new clause—
"MINIMUM TERM FOR LEASES AT A PREMIUM
(1) No lease of a flat or house may be granted at a premium unless the term of this lease is not less than 300 years.

933
(2) In this section "flat" has the same meaning as in Chapter 1 of this Part and "home" has the same meaning as in Part 1 of the Leasehold Reform Act 1967 (c. 88)."
The noble Lord said: My Lords, this amendment has been debated before only briefly and yet it could have significant implications for the leasehold system in this country. We all recognise that this Bill breaks important new ground; first, with the right to manage and, secondly, with commonhold. However, we now understand that there is virtually no prospect of the existing 2 million leaseholders achieving commonhold. What is not fully understood is that from the tenants' point of view if they are able to obtain enfranchisement and secure a 999-year lease then as much as 90 per cent of the benefits of commonhold could be achieved under such leases.
However, I fear that the Government have overlooked the fact that landlords—I refer particularly to those in Greater London—are intent on maintaining the leasehold system as far into the future as can be imagined. If a Greater London landlord has already existed for 150 years there appears to be no problem in continuing for another 150 years, and perhaps longer. I do not decry that possibility, but it goes some way to explain why leases are still being granted for terms of 125 years, 99 years, 75 years and
believe it or not—20 years.
The principle is always the same. The tenant will pay the virtual freehold value for leases in London of 75 years and upwards. But from that moment onwards for every year the lease diminishes the landlord's reversionary interest increases and the tenant's interest decreases. That is disguised somewhat by the fact that with property inflation the tenant's interest does not appear to diminish so much while of course the landlord's interest increases enormously.
The principle that the landlords wish to establish is that of a second bite of the cherry. That is to enable the tenant or his successors who believe they purchased their own home to purchase again in 75 or 99 years and then at a greater market value. That is a "nice little earner", as they say. This amendment is designed to extinguish the landlord's interest and enthusiasm for achieving successive bites of the cherry. Perhaps the amendment would be better if it were for 999 years, but I still believe that 300 years is sufficient. I am sure that the Government recognise that the landlord is not being deprived of any element of value when he grants a lease for 300 years.
What, therefore, can be the objection to this amendment? Primarily, it is a limitation of consumer choice. With the exception of 20-year leases to which I shall come, the consumer pays virtually the freehold price in Greater London for leases of 75 years and upwards. The price range is between 90 per cent and 98 per cent of the freehold value. Consumer choice would mean that tenants would prefer to have a 999-year lease or certainly under this amendment, a 300-year lease. By this amendment we are not restricting the tenant's choice, but the landlord's choice because it is the landlord who has an interest in granting the shortest possible lease commensurate with obtaining the maximum value.
In the case of 20-year leases it is a different kettle of fish, for here landlords successfully sought to avoid the 1993 Act by declining to offer leases greater than 20 years before the Act came into being when 21 years was the expected cut-off point. These properties can no longer be enfranchised and I am sure that your Lordships will accept that landlords did not offer the consumer a choice of 20 years or of, say, 75 years, and insisted it was 20 years or nothing even though such tenants had reasonable expectation of being granted a normal length lease on renewal.
It is intended by this amendment that the landlord cannot grant a lease of 20 years for a capital sum. It would have to be a 300-year lease. However, it should be recognised that in Greater London one does pay a lesser sum for a 20-year lease, believe it or not, up to 60 per cent of the notional freehold value. So after 11 years, for example, a tenant who wants to sell his remaining lease of nine years would go to an estate agent who would tell him immediately that it is not saleable unless he can acquire a new 20-year lease. But by that time his nine-year lease is only worth about 30 per cent of the notional freehold value.
Just to make it absolutely clear, perhaps I may give your Lordships an example. If a flat has a notional freehold value of £300,000, these Greater London landlords would sell a 20-year lease for up to £180,000. At the end of 11 years the tenant would have to pay another £90,000 to buy a new 20-year lease, assuming that there is no inflation. If there is inflation of just three per cent per annum the tenant would have to pay £124,000 to convert his nine-year lease to a 20-year lease. So in the end the tenant will have paid out £300,000 over a period of just 11 years, which was the value of the virtual freehold property in the first place.
Therefore, are we to say that, in the interests of consumer choice, we should allow 20-year leases to be granted for a capital sum? I believe that we would be doing the tenants an immeasurable favour if we were to say that all leases for a capital sum should be for a minimum period of 300 years. Landlords would rapidly lose interest in the possibility of further bites of the cherry and the leasehold system would wither away, which after all, is surely what the Government want.
I challenge the Government to survey leasehold tenants once again and find out whether they would prefer to retain leases of 20, 75, 99 and 125 years or whether they would prefer to acquire at full market value a 300-year lease. Could the Government also survey the landlords? We could then agree whether consumer choice is wanted by the tenants or by the landlords.
I have dealt with the question of consumer choice. The remaining objections raised by the Government at Report stage are not significant and could be responded to fully in another place. However, a statement by the Minister, the noble Lord, McIntosh of Haringey, cannot be passed over. On 13th November, at col. 549 of the Official Report, he said,
"Of course, we will monitor the development of commonhold after the Bill is enacted. We expect it to become the preferred form of tenure and that leasehold will gradually wither on the vine".

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He should have added that the Bill will do nothing for the 2 million leaseholders who will remain shackled in the present system. This amendment, therefore, is designed to rectify the situation. I urge your Lordships to support it. I beg to move.
7 p.m.
Lord Monson: My Lords, I believe that the amendment would prevent a willing buyer from acquiring a short lease from a willing seller. Why? There are plenty of reasons why a willing buyer might be willing. He might be a middle-aged person, single, divorced or widowed and with no children. Rather than pay rent for a period of 20-odd years he might prefer to shell out a capital sum. Why should not that be possible?
Lord McIntosh of Haringey: My Lords, I hope that the noble Lord, Lord Jacobs, had a happier evening on his birthday last week than we are having this evening.
In his absence, and as he knows, we discussed this issue at some length, but I believe that I should set out the Government's case again as he has so helpfully set out his own. The amendment reflects the view that we should remove the attractiveness of the leasehold system to landlords and developers in order to promote the use of commonhold. We are confident, as the noble Lord, Lord Jacobs, recognised in the quotation he read from the speech I made last week, that commonhold will be attractive to developers and will be widely adopted. Many current developments already offer 999-year leases and a share in a leaseholders' management company. However, until commonhold has been tried and tested we consider that it would be premature to restrict the use of leasehold.
Any restriction on the granting of leases would limit the choice of the purchaser, as the noble Lord, Lord Monson, said, because it is a transaction between a willing seller and a willing buyer. It is very difficult to see how we should intervene unless there is some distortion of the market which I do not find here.
If a person wishes to save on rent or to fix housing costs over a period by paying a capital sum for a short lease, we believe that he should be permitted to do so. The amendment, as drafted—I know that this is an extreme case—would prevent the granting of a six months' tenancy for a single payment.
Furthermore, there may be circumstances where a developer or landlord has only a leasehold interest and cannot grant leases beyond the term of his own interest. A very long minimum period such as 300 years or 999 years would mean that the landlord could rent out units only on periodic tenancies and could prevent redevelopment from taking place. We know that some local authorities have properties on land which they hold on a leasehold basis. If a lease of that sort runs out after 150 years, should we be saying that because they cannot offer a lease of 300 years they should be prevented from selling those leases to tenants under the right-to-buy scheme? I very much doubt if tenants in such a situation would support a
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move of that kind. As I have said before and his been quoted back at me, we will be monitoring the development of commonhold after the Bill comes into force. We expect that it will be the preferred form of tenure and that leasehold will gradually wither on the vine. But we would be prepared to consider possible restrictions on its use in the longer term if there was a clear need to do so and if the benefit to be gained outweighed the disadvantages. I cannot say that t hat is the case now.
I know that the noble Lord, Lord Jacobs, has also argued the case in particular about 20-year leases. The market for these leases is very specialised involving a limited number of high value properties in a limited area. It is not typical of the market generally. People who may pay very substantial sums of money for a short lease should be aware of the nature of the interest that they are buying. Many purchasers are businesses which view these leases as a medium-term business asset.
It has been suggested that landlords who offer such leases are exploiting a local monopoly. However, there is no such thing as a local monopoly in housing; no one has to live in a particular high-value area. People who can afford to pay £500,000 for a 20-year lease on a flat in Eaton Square should be able to find somewhere else to live if they wish to ensure longer-term security for their money.
If I may say so, I do not consider this to be a particularly liberal amendment.
Lord Jacobs: My Lords, I thank the Minister for that response. I did not deal with minor issues such as six-month leases because I thought that they could be dealt with elsewhere. Perhaps I may respond to two points. First, the 20-year leases came into existence only when certain Greater London landlords knew that new legislation was due to be enacted. They gauged the cut-off point and then offered 20-year leases with no option to tenants who expected significantly longer leases. To say that that represented choice for the consumer is, I believe, mistaken.
Secondly, as regards those holding leases which do not extend for longer than 150 years, that fact is that if under the current legislation the landlord has only a limited period left to run on the lease, under the new legislation he will still be obliged to go back to the freeholder to negotiate an extension. That is not an insuperable objection. I wish to mention a point which I do not believe has been fully taken on board—although perhaps I did not expect that it would be—and if it is wrong I should like to be proved wrong. The Government should conduct surveys among landlords and tenants to find out exactly what all the parties want. I have said that tenants want very long leases, as long as 999 years, and that they would be prepared to pay for those long leases. The Government claim that what tenants really want is many different lengths of lease: 20 years, 75 years, 125 years and so forth I do not think that that is correct. If the Government were able to take up my challenge, they would be better able to deal with me on another occasion.

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Once again, I thank the Minister and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 166 [Appeals]:
Baroness Gardner of Parkes Baroness Gardner of Parkes moved Amendment No. 29:
Page 86, line 16, at end insert—
"( ) In any proceedings in the Lands Tribunal on appeal from a leasehold valuation tribunal, the fees payable and costs awarded shall not exceed such fees and costs as may be specified for a leasehold valuation tribunal under paragraphs 9 and 10 of Schedule 12 to this Act."
The noble Baroness said: My Lords, this amendment would add a further subsection to Clause 166 on page 86 as the Bill is presently drafted. However, to deal with the matter in detail, one must turn to pages 125 and 126. Schedule 12 covers the relevant points.
I am keen to introduce this protection. The noble and learned Lord knows that I have introduced the matter on several previous occasions. I am concerned that excessive costs and fees are used to put pressure on people. They are told that if they take their case to the leasehold valuation tribunal, win or lose, the case will progress to the Lands Tribunal. If the people concerned thought that they were able to afford the leasehold valuation tribunal, they certainly will not be able to afford anything after that. That serves as a serious deterrent.
I am pleased to see the noble Lord, Lord Richard, in his place. I believe that he took up the issue when the legislation was earlier debated in the Moses Room. The lack of a ceiling on fees and costs is used as a form of moral blackmail. It is unfair and frightening for those who find themselves in this position. It is impossible to quantify the numbers who have been prevented from pursuing their case to the Lands Tribunal.
At the previous stage, the noble Lord, Lord Goodhart, mentioned examples where people had won their cases but then found themselves in a most unfortunate position. If the Government wish to demonstrate that they are keen for people to enfranchise their property, as well as to deal with the various problems that may arise under the leasehold valuation tribunal, then it is important that such a sword hanging over people's heads in the form of unlimited costs and fees when the case goes to the Lands Tribunal should be removed.
I have read carefully the differences between fees and costs and I appreciate the details. I was also interested to learn that the procedures as set out in the schedule already allow for a reduction or waiver of fees if someone is in a difficult position financially. However, there is a difference between helping those in desperate financial straits and helping a person who has been careful with their money and who does not wish to enter into such a procedure with no idea of what the costs and fees will be. Provisions have been put into the schedule which would allow the Government to set the limits. Fees are covered in
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paragraph 9(3). The £500 set out under heading (a) refers to the limit of £500 for which we argued and won in 1993. Heading (b) states that,
"such other amounts as may be specified in procedure regulations".
Costs are similarly covered in paragraph 10(3)(a) and (b). It is possible for the limits to be changed.
I understand that the legal system cannot be run so that all the expenses are borne centrally. People must be willing to bear a proportion of their own expenses in life. However, it would be unfortunate if people were unable to enfranchise their property simply because they could not arrange for matters to be dealt with by the tribunal. I beg to move.
Lord Goodhart: My Lords, I rise to express my support for the amendment moved by the noble Baroness, Lady Gardner of Parkes. I did so on Report and I am happy to do again, although I recognise some force in the argument put forward by the Government; namely, that this is a matter to be dealt with as part of any new legislation on tribunals. In principle, however, I believe that the noble Baroness is absolutely right.
7.15 p.m.
Lord Falconer of Thoroton: My Lords, as the noble Baroness has clearly explained, the effect of this amendment would be to limit the fees payable to the Lands Tribunal and to limit its ability to award costs. As on the previous occasion, I appreciate that the risk of a substantial costs award can deter leaseholders from resisting appeals to the Lands Tribunal or even making use of the leasehold valuation tribunals in the first place, and that unscrupulous landlords have exploited this on a number of occasions.
As the noble Baroness will know, we have introduced a requirement in Clause 166 that, in all cases, appeals can be made to the Lands Tribunal against a decision reached by the LVT only with the permission either of the LVT concerned or the Lands Tribunal. That is intended to prevent frivolous or intimidatory appeals by landlords. However, I am sure that the noble Baroness would respond by saying, quite fairly, that that would not deal completely with the situation that she has identified.
As I explained last week, Sir Andrew Leggatt recently concluded a wide-ranging review of the tribunal system as a whole. The Government are still consulting on the outcome of that review. It will provide an opportunity to consider all aspects of Lands Tribunal procedures, including its costs regime. I suggested on Report that the noble Baroness might agree that this issue would be better dealt with in that context when her arguments, which have considerable force, can be put.
However, I appreciate the strength of feeling in support of making early changes through the provisions of the Bill before the House rather than awaiting the conclusions of the broader work in the Leggatt review. In that light, we are prepared to take the matter away and consider carefully whether we

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should put forward an appropriate amendment in another place. In the light of that reassurance, I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Gardner of Parkes: My Lords, I am most grateful to the Minister for that reply. Perhaps I may press him further on it. The significance of including limits on costs and fees in this Bill would make a difference to how the Government's attitude as regards the wish of many people to have more rights over their property is perceived. To await the report of Sir Andrew Leggatt and then to deal with it as a complete matter would be a different issue. I should like to think that the Minister will press, I presume, the Lord Chancellor's Department, to bring forward an amendment in the Commons which would assist people in a positive manner, rather than waiting for further legislation.
Other ways could be found to deal with this problem, such as reaching firm decisions on how the costs and fees would be calculated. Provisions in the Bill before us allow for the fees to be fixed. I wish to see the creation of a known fee. I do not intend that the procedure should cost absolutely nothing; people should be obliged to pay a known fee, even if the amount were to vary as time went by. I press the Minister to respond on that point.
Lord Falconer of Thoroton: My Lords, it is clear from what I have said that I am not in a position to give any assurance as to what may happen. However, I am prepared to say that we will take the matter away, consider it very carefully, discuss it, and address the issue of whether we should bring forward an appropriate amendment in another place—which, as the noble Baroness knows, is a movement from our position at Report stage. I hope that with those assurances she will feel able to withdraw her amendment.
Baroness Gardner of Parkes: My Lords, I thank the Minister for that reply. If the noble and learned Lord feels that I can help in any way in the drafting of the amendment, I hope that he will discuss it with me. I find him an honourable person and I know that he would not say that if he did not mean to do it. He will certainly have me on his back if it does not happen. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 30:
Before Clause 168, insert the following new clause—
"REGULATION OF MANAGING AGENTS
(1) After such consultation as he considers appropriate, the Secretary of State may by regulations provide for a scheme to regulate managers of property under this Part.
(2) A scheme under subsection (1) may take the form of

(a) a professional regulatory body,

(b) a licensing regime, or

(c) such other arrangements as the Secretary of State deems appropriate.

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(3) Regulations under subsection (1) may include procedures for extending eligibility for membership of any scheme to other managers of property."
The noble Lord said: My Lords, the amendment relates to one of the unresolved issues in the Bill; that is, the regulation of managing agents. The matter was debated both in Committee and on Report but we have come to a stalemate. On Report, my noble and learned friend said that my amendment went down a channel he did not wish to follow. I have therefore redrafted the amendment to allow the Secretary of State. after consultation, to do more or less whatever he wants.
Your Lordships recognise that we have to get something into the legislation which will allow the regulation of managing agents. It is not enough to say that that may come in future legislation and so on; it has to come now. My noble and learned friend said on Report that we can introduce legislation from time to time, but my argument is that the amendment is necessary for this Bill at this time in order to get the legislation on to the statute book. That would save any government—it is not a party political matter—from having to produce new primary legislation for the regulation of managing agents.
I cannot see what is wrong with my amendment. Noble Lords will have read the text of the amendment—I do not need to go through it— which, in effect, states that, after consultation, the Secretary of State may do this, that and thus, whatever he wishes. It is time for the House to say that we need to get this last unresolved issue on to the statute book when the Bill leaves the House. I beg to move.
The Principal Deputy Chairman of Committees (Lord Brabazon of Tara): My Lords, there has been a printing error in the Marshalled List. I shall therefore call the amendment as follows. Before Clause 168, insert the following new clause as printed on the Marshalled List, together with the words,
"(4) A statutory instrument containing regulations under subsection (1) shall not be made unless a draft of it has been laid before and approved by a resolution of each House of Parliament".
Baroness Maddock: My Lords, I strongly support the noble Lord, Lord Williams of Elvel, in this matter, on which I have spoken on a previous occasion. The amendment is totally in line with the professional approach that the Government and many others in the housing world are striving to take towards managing properties across all sectors of housing. It is very important.
As the noble Lord pointed out, this is an unresolved issue. If the Government want the Bill to work and people to have better conditions and better management, this is a vital part of it. I hope that the Government will respond to the noble Lord in the way in which they responded to the previous amendment and make sure that something is done about this issue when the Bill arrives in another place.
The Earl of Caithness: My Lords, I, too, support the amendment. I hope that the noble Lord. Lord Williams of Elvel, will take it all the way.

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However, I do not think the amendment goes far enough. The Minister and I have discussed this matter. I believe that all agents should be regulated, whether they be managing agents, letting agents or estate agents who are buying and selling property. In this century, we should certainly have much greater regulation. As has so often been pointed out, one is dealing with people's homes, which is probably the major investment of their lifetime. As a surveyor, I am sad to admit that there are far too many cowboy surveyors. In the property transaction industry, one needs absolutely no qualifications to set up as a managing agent, letting agent or residential agent. That is totally improper in this day and age.
The problem could be solved if the Government were to implement Section 21 or 22—from memory, I believe that it is Section 21—of the Estate Agents Act 1979. If the provisions of that Act were implemented, it could solve the problem raised by the noble Lord, Lord Williams, and ease my concerns.
Baroness Gardner of Parkes: My Lords, I support the amendment. I am particularly pleased with subsection (3). I am very much in favour of the proper regulation of estate agents. As I have said before, in Australia everyone has to be qualified for whatever they do in estate management or sales. Subsection (3) states:
"Regulations under subsection (1) may include procedures for extending eligibility for membership of any scheme to other managers of property".
That will enable people who have been making their living through managing property—or accountants, or solicitors or someone who is qualified in a different way—to be approved and registered.
Lord Kingsland: My Lords, whether or not the text of the amendment of the noble Lord, Lord Williams, will achieve his objective, we strongly support the objective. I hope that in his reply the noble and learned Lord will give your Lordships' House a clear indication of the Government's intention to act in response to that objective at some early time in the future.
Lord Falconer of Thoroton: My Lords, my noble friend Lord Williams of Elvel wishes to ensure that managing agents of leasehold property meet certain standards. As I have said before, we support this objective. I see, too, that the noble Lord has taken on board our earlier comments with regard to not prejudging the best way to go about this. He has made a real attempt to leave the way open for any kind of scheme that we might devise. He has, in effect, trusted the Government with very broad and sweeping powers. I wonder whether he would be quite so trusting if the Government were an administration of a different stripe.
Lord Williams of Elvel: My Lords, with the greatest respect to my noble and learned friend—I hesitate to intervene—this is not a party political matter.
Lord Falconer of Thoroton: My Lords, I appreciate that my noble friend is not making it a party political matter.
Moving smartly away from party politics, there are some difficulties in my noble friend's proposition. There would be no point in setting up a regulatory scheme that lacked sufficient powers for enforcement. For example, under a licensing scheme we would need an effective way to stop rogues from operating without a licence. Otherwise, they could simply carry on as they have always done with complete disregard to the law.
If we did decide to go down the regulatory route, we might want powers to allow leaseholders to withhold service charges under certain circumstances; we would certainly need a power to impose fines; and we might even want to explore the possibility of harsher penalties for the real hard cases. That is not something that we could leave to secondary legislation; it would have to be provided for on the face of the Bill.
We would also need to consider certain practical issues. For example, we should need a power on the face of the Bill to fund any new body and to prescribe its constitution. Moreover, my noble friend will recall that we are still considering whether any scheme should be confined to agents, given that problems may be caused by the landlord instead, or indeed by any other person responsible for the management.
On the face of it, the amendment appears to allow us the flexibility to decide on that point at a later stage, as we should wish. However, it would not enable us to make arrangements for the replacement of, for example, a landlord. Therefore, if a landlord were banned from managing leasehold properties, there would be a sort of interregnum when no one would have the responsibility—or the power—to manage the property at all. That would hardly be satisfactory and we ought to make provision on the face of the Bill to resolve any such difficulty. This is further complicated by the fact that we can think of two different ways in which we could deal with that problem. It may be that when we consult on this issue consultees will come forward with a third, better option.
Doubtless, there would be other matters that we should need to address on the face of the Bill which have not even occurred to us yet. Creating a power to implement a scheme of unknown scope, nature and detail is an astonishingly ambitious goal. Again, I thank my noble friend for his trust in us. However, we truly do not think that we could make adequate provision on the face of this Bill to cover all eventualities, or indeed even to come close to doing so.
We believe that the right course is to proceed with consultation, as we promised we would, on how to deal with this issue. If the consultation leads to the conclusion that we should legislate, then we should bring forward legislation in the first available legislative vehicle that would allow us to do so. We should use our best endeavours to seek to achieve that as soon as the legislative timetable allowed. Obviously, I am not in a position to say when that would be. We should hope that it would be in the next Session, but

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plainly that would depend on a whole range of unpredictable issues on which I am not in a position to comment.
In the light of those remarks, I hope that my noble friend will agree to withdraw his amendment.
7.30 p.m.
The Earl of Caithness: My Lords, before the noble and learned Lord sits down, will he confirm that his consultation will be about the regulation of all agents? Or will it be limited, sadly, to managing agents?
Lord Falconer of Thoroton: My Lords, it would be limited to managing agents.
Lord Williams of Elvel: My Lords, I am grateful to my noble and learned friend for his response. I cannot say that it comes as either a great surprise or a great pleasure. I believe—and I hope that this matter will be taken up in another place—that there should be a provision on the face of the Bill to allow the Government to introduce, by regulation, a proper system of regulating managing agents. I very much hope that my noble and learned friend's department will reconsider the matter. I hope that when the Bill comes before another place the Government will produce a coherent and sensible provision to meet the concerns that have been expressed in this House. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 2 [Land which may not be commonhold land]:
Lord Kingsland Lord Kingsland moved Amendment No. 31:
Page 89, line 5, leave out paragraph 1.
The noble Lord said: My Lords, in the course of the Report stage of the Bill, the noble Lord, Lord McIntosh of Haringey, undertook—generously, but perhaps rather rashly—to come back to the House at Third Reading to let your Lordships know the timetable for the Law Commission's work on land obligations. In fact, I have received a reply not from the noble Lord, but from the noble Baroness, Lady Scotland, in the course of which she states:
"The Commission's work on land obligations is to some extent contingent on the outcome of Part 1 of the Commonhold and Leasehold Reform Bill. With that and other priorities in mind, they do not expect to go out to consultation before 2003".
I recall that the noble and learned Lord, Lord Wilberforce, expressed his extremely creative views on positive obligations in relation to freehold land as long ago as 1965–36 years ago. I suppose that the distance between now and 2003 is somewhat shorter than that. However, the noble Baroness has told us only that the Law Commission will be going out to consultation at that time. What matters to this House is when we shall see a Bill that will at last put into the law of the land all the work that the noble and learned Lord did so long ago. That is why we have tabled this amendment on flying commonholds.
The Bill as it stands forbids flying commonhold. The amendment seeks to remove that prohibition, so that if someone is possessed of the jurisprudential or engineering ingenuity to resolve the problems, that person is not prevented from using this new tenure. It is a permissive amendment—a new approach to the problem—and I hope that the noble Baroness will find herself in a sufficiently generous mood to concede this very contentious point. I beg to move.
Baroness Scotland of Asthal: My Lords, as the noble Lord rightly said, my noble friend Lord McIntosh of Haringey said that he would come back to this issue, and I have pleasure in doing so now.
The scheme of land obligation will, if accepted, replace positive and restrictive covenants and the disadvantages attaching to the present position. As the noble Lord knows, in its Eighth Programme of Law Reform, a copy of which is in the Library, the Law Commission stated that it is working on a project that will consider both easements and analogous private law rights, particularly profits à prendre, together with a further consideration of land obligations. We know that that will be an extensive and detailed investigation, and one that is long overdue.
The Law Commission makes the point that the work on the land obligations—as the noble Lord, Lord Kingsland, rightly says—is to some extent contingent on the outcome of Part 1 of this Bill. With that and other priorities in mind, it does not expect to go out to consultation before 2003. But your Lordships will have noted that the Law Commission has been dealing expeditiously with these issues and we want more than anything to have this matter dealt with in a comprehensive and holistic way.
I ask the noble Lord to take courage—we waited for some 75 years for the Land Registration Act, but it is now with us. The Law Commission has been energetic in that regard. Therefore, I hope that in the circumstances the noble Lord will feel able to withdraw his amendment.
Your Lordships should know that, throughout our debates on the Bill, those of us who have borne the heat of the day—not all of us have worked on the Bill through its previous stage and this one—have now debated nearly 1,000 amendments, if we include the proceedings prior to the general election. Much as we have enjoyed our often lively debates, I am sure that all noble Lords will be as relieved as my noble and learned friend Lord Falconer and I that we have at last reached the final amendment at this stage of the Bill's progress. It would be an appropriate and "fitting sweet" birthday present for my noble and learned friend, whose birthday it is today, if we could close our deliberations on a harmonious note.
Your Lordships will know that we still have problems with positive covenants and we continue to say that a piecemeal approach is neither safe nor

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satisfactory. I hope that the noble Lord, Lord Kingsland, will feel able to give my noble and learned friend Lord Falconer a fit and proper birthday present.
Lord Kingsland: My Lords, the noble Baroness will not be surprised to hear that I am disappointed with her reply. I can see no harm in a permissive amendment that would permit the lawyers to test the courts on these issues. The common law has proved a very creative instrument in this country over the centuries. Why should it not do so in respect of this matter? Who knows? The judges may relieve the legislature of the heavy burden of yet another Commonhold and Leasehold Reform Act, with another seven or eight occasions upon which the issue of flying commonholds was debated. However, I will respect the fact that it is the birthday of the noble and learned Lord today, and therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 6 [Premises excluded from right to manage]:
[Amendment No. 32 not moved.]
An amendment (privilege) made.
Baroness Scotland of Asthal: My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(Baroness Scotland of Asthal.)
Lord Brightman: My Lords, perhaps I may take this opportunity to applaud the draftsman for including in this Bill an index of defined expressions. This is a most helpful device which saves the reader much time.
Your Lordships will find in Clause 68 an index of all the expressions which are specially defined in Part 1 of the Bill. Column 1 lists all the defined expressions in Part 1. Column 2 lists the sections in which the definitions are to be found. In addition to saving the reader much time in tracing a definition section, an index also avoids the risk that the reader may overlook the fact that a word in common use has a special meaning. There is a similar index in Clause 111 which covers Chapter 1, Part 2 of the Bill.
Let me briefly illustrate the value of such an index. Clause 91, for example, relates to information which has to be given to an intending managing company. There is a requirement in Clause 91 relating to information recorded in a document. The question at once arises, does the word "document" have its dictionary meaning or a special meaning, including perhaps a tape-recording or a floppy disk? If it has a special meaning, where is that meaning to be found? Both questions are answered immediately by the index in Clause 111. Column 1 of Clause 111 includes the word "document", so that the reader knows immediately that the word has a special meaning. Column 2 tells the reader where that special meaning is to be found.
This helpful device was, I am told, first tried out in the Social Security Act 1975 and the Reservoirs Act 1975. It has occasionally been repeated. I would like to
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see the inclusion of an index of defined expressions the rule, rather than the exception, in the case of all long and complicated Bills. The example set by this admirable draftsman should, in my respectful opinion, be followed in the future.
7.45 p.m.
Lord Kingsland: My Lords, the noble and learned Lord, Lord Brightman, has congratulated the Government on Clauses 68 and 111, but I am sure that your Lordships would wish to congratulate the noble and learned Lord, Lord Brightman, on the contribution he has made in making Clauses 68 and 111 possible.
For the past five years the noble and learned Lord, Lord Brightman, has been a persistent critic of the Government's normal refusal to provide such definition sections. It is a great tribute to his persistence that the Government now, in this difficult and complex Bill, have produced the answer that he wanted. The noble and learned Lord, Lord Brightman, is one of the greatest legal draftsmen of modern times, and the fact that he has paid the Government the compliment he has is indeed a very great compliment.
I would like to congratulate the Government on getting their Bill. It is the second time that they have got their Bill, because they got it just before the general election. Your Lordships very nearly lost it for the second time, had it not been for the unscrambling of an arrangement which we all thought would take place a week before the general election.
I would urge the Government to produce, at the earliest possible moment, a consolidation of leasehold legislation. It is now desperately needed. Although consolidating legislation is politically unglamorous, from the point of view of the citizen it would be of huge benefit. May I therefore ask the noble and learned Lord and his team to urge those who decide legislative timetables to give this matter their most serious consideration?
I hope that the Government will also monitor closely the progress of the commonhold legislation. The noble Lord, Lord Goodhart, and his colleagues on the Liberal Front Bench and my colleagues on my Front Bench are sad that the Government were not able to find a way of enabling blocks of flats to be converted to commonhold by less than the unanimous decision of the leaseholders. I hope that the Government will be right about the attractions of commonhold, but I suspect that more will have to be done if this imaginative and worthwhile new form of land tenure is to become the habit rather than the exception.
In conclusion, I should like to thank those many members of the Chancery Bar, not necessarily of my political persuasion, who have lent their time and skills to assist the Opposition in its loyal work.
Lord Goodhart: My Lords, I would like to echo the noble Lord, Lord Kingsland, in a number of respects, the first of which is the very well-deserved tribute

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which he paid to the noble and learned Lord, Lord Brightman, for the work that he has done on this and other matters.
Secondly, I should like to add to the noble Lord's appeal for consolidation legislation. The legislation dealing with enfranchisement, extended leases and so on, is in an absolutely hideous mess at the moment. It is virtually impossible for anybody to find their way through it, and I believe that it is important to try to get this in a comprehensible form. That clearly requires consolidation legislation.
I would also like to join the noble Lord, Lord Kingsland, in his tribute to the members of the Chancery Bar, who have been very helpful in many respects and have achieved a number of amendments to this Bill, and indeed also to the Law Society for its comments on the Bill.
Finally, I would like to say that most of us—I am sure the noble Lord, Lord Kingsland, and my noble friends Lady Hamwee, Lady Maddock, Lord Jacobs and I—will be more than glad to see the back of this Bill. We have spent an enormous amount of time on it: a great deal more than any of us expected when we started on our deliberations. Although it is not fundamentally controversial, it has thrown up a perhaps surprisingly large number of issues of no little importance. As it is, the Bill is not perfect, in our view, but I believe that it will move English property law forward in the right direction.
I wish it well in the other place and, apart from what I expect will be a brief revisit when we come to the consideration of the Commons amendments, I think that we are all glad to see the back of this Bill.
The Earl of Caithness: My Lords, just in case anyone believes that this is just a lawyers' Bill, we have been helped by a wide range of practitioners outside the House.
Baroness Scotland of Asthal: My Lords, I thank all those who have participated so energetically—I emphasise that word—in the perfection of the Bill. It has been a united effort. We are very conscious of the great compliment paid to us by the noble and learned Lord, Lord Brightman. We are sensible of it and we hope that this will be emulated, to his satisfaction, by many others who follow us. I do not exclude anyone. Everyone in the House today has toiled hard to make the Bill the perfect instrument that it should be.
On Question, Bill passed. and sent to the Commons.

European Arrest Warrant: EUC Report
7.50 p.m.
Lord Scott of Foscote Lord Scott of Foscote rose to move, That this House takes note of the Report of the European Union Committee, Counter-Terrorism: The European Arrest Warrant (6th Report, HL Paper 34).
The noble and learned Lord said: My Lords, I am grateful to the authorities—I am not certain who they are, but I hope that your Lordships will forgive me for
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not identifying them—for making time available this evening at short notice to debate some important matters of concern arising out of two draft framework decisions that have recently emanated from Brussels. One is the draft framework decision on the European arrest warrant and the other is the draft framework decision on combating terrorism.
I shall start with a little background. The two framework decisions, with several others, form part of the intended legislative response of the European Union member states to the horrors of 11th September and to the growing realisation of the problems of terrorism that member states, as well as the United States of America and other western countries, face.
In putting forward the draft proposals, the European Council has set a timetable—a so-called road plan—for dealing with these and the other measures to which I have referred. The tightness of that timetable is no doubt a reflection of the urgency with which a response to the events of 11th September is viewed. The timetable requires a final decision to be taken on these two measures on 6th or 7th December. Bearing in mind that the original proposals were received for scrutiny only at the end of October, your Lordships will understand the difficulty that the timetable has placed on those whose responsibility it is to try to scrutinise them and see whether changes should be recommended.
The Select Committee has obtained some written evidence from Fair Trials Abroad and Statewatch and on 7th November, at very short notice, Mr Bob Ainsworth, the Home Office Minister, appeared before the committee to answer questions and give us some valuable information, elucidating the Government's intentions with regard to the measures. We are very grateful to him for coming at such short notice, but plainly problems remain.
In the meantime, since 7th November, the target for scrutiny has been a moving one. That is not surprising, given the shortness of time in which the matters can be considered. A number of amendments have already been made to the original proposals, which have removed some of the objections that had been identified to some of the articles in the draft. No doubt there should and will be further amendments, but time is short. The purpose of this debate is to give your Lordships an opportunity to express the concerns that remain on some of the provisions.
I draw your Lordships' attention to those parts of the current proposals that seem to me to be of concern and to warrant some comment. Despite the title, the combating terrorism measure presents fewer problems of principle and worry than does the European arrest warrant proposal. The proposed measure on combating terrorism identifies a number of offences under national law—it does not purport to create any new offences—that are committed with a terrorist aim, as defined. They are then to become terrorist offences and will attract higher penalties than they would attract if committed without that terrorist aim.
The terrorist aim is fairly broadly defined. Your Lordships will find it in the draft, so I need not take up time by reading it. Like most readers of the original

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proposal, my particular concern was that it should not impinge on the rights of association and of peaceful demonstration that we all believe that those who live in a democratic country under the rule of law are entitled to expect.
In its original form, there was considerable room for concern that the impingement was beyond what was reasonable, but my view is that the document in its present form has satisfactorily met those worries. In its present form, I do not think that it will allow interference with rights of peaceful demonstration or of association in support of causes, no matter how unpopular those causes may be. Once demonstrations or associations begin to have a terrorist aim, as defined, they rightly move into a different bracket and will attract the proposed higher penalties.
I find the European arrest warrant proposal much more worrying. Its purpose is to replace the current extradition procedures between member states with a much speedier summary procedure. Most people with experience of extradition procedures would agree that, at present, they are unacceptably drawn-out and that there is considerable room for simplification and improvement. That is particularly so for extradition between the United Kingdom and other member states in whose judicial systems and procedures, broadly speaking, we in this country have confidence.
However, we have to remember that everyone in this country, including those regarded as fugitives from justice in other states, are entitled to the protection of our laws while they are in this country and entitled to be protected by reference to the standards that we believe are appropriate. In principle, we should not send people to be tried abroad unless we can be satisfied that they will receive a fair trial and unless there is a proper case for them to answer in the foreign country that seeks to try them.
Our present extradition procedures have three important built-in safeguards. One is the so-called double criminality rule. We do not extradite people to face trial on charges that we do not recognise as offences. We would not extradite someone to face charges of homosexuality that would not be criminal in this country or to face blasphemy charges. Many examples can be found.
Secondly, there is a requirement that before a person is to be extradited, it must be shown that there is a proper case for him to answer. That is colloquially called the sufficiency test—there must be a sufficient case. We would not extradite if, by our standards, there was no proper case to be answered.
Thirdly, extradition under current procedures is, in the last resort, subject to a political decision to be taken by the responsible Minister—the Home Secretary—as to whether the individual should be sent to the country that has requested him for trial. That, too, constitutes a safeguard. I do not believe that the Minister would give his consent to the extradition of someone to a country which did not guarantee by our standards that that person would receive a fair trial.
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The proposed European arrest warrant makes substantial inroads into each of those three safeguards. I invite your Lordships in considering the proposals to take account of the following points. First, although the European arrest warrant is being dealt with as one among several counter-terrorist measures resulting from the awful events of 11th September, it is only marginally concerned with terrorism. The arrest warrant procedure will apply to every crime which commands a sentence of 12 months' imprisonment or more. It will apply to every person who, having been convicted, has absconded but who has been sentenced to four months' imprisonment or more. We are speaking of relatively trivial offences. Of course, a sentence of 12 months indicates a certain seriousness, but we are not speaking of terrorist offences; we are speaking of offences across the whole spectrum of the criminal law that attract these, relatively speaking, not very condign sentences on conviction.
That being so, and given that the concept of a European arrest warrant has been around for some time—I believe a consultation on the subject took place in March this year or at around that time—it is difficult for me to understand why it has been thought necessary to deal with this particular matter with the strict timetable that is being applied to all the genuinely counter-terrorist measures that are emanating from Europe. This is a matter where in my view considered opinion and considered judgment should be brought to bear. It will be highly regrettable if we bring into effect legislation which is insufficiently considered and is subject to all the defects that insufficiently considered legislation brings with it.
It is perfectly true that the framework decision, if it becomes final in this form on 6th or 7th December, will not as such be of direct effect in this country. There will still need to be primary legislation. But the Government will be under an obligation to member state partners to bring into effect legislation which corresponds to the decision which they will, on that hypothesis, have agreed. The scope for manoeuvre will not be broad. I urge the Government to take great care that the final decision is not hastily reached, that proper in-depth consideration to some of the concerns that have been expressed is given and that the bandwagon that is carrying along the bulk of the counter-terrorist measures does not, willy nilly, and to the detriment of the public in all member states, carry with it this measure before it is ready.
So much for the timing of the extradition arrest warrant measure. As to dual criminality, Article 2 of the measure lists a whole raft of offences where the double criminality safeguard will no longer apply. These are broadly—I emphasise the word "broadly"—offences which are common to all member states. However, some of the descriptions of the offences in the list in Article 2 are extremely broad and it is not possible to be sure how the offences in particular member states are framed. For example, one of the listed items comprises "racism and xenophobia". I ask myself what offence is that. One can immediately think of football hooligans waving Union Jacks or chanting slogans at some football match in some foreign capital.

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But what offence in this country would fall within the category of racism and xenophobia and what kind of offences might foreign countries have which would fall within that kind of description? We simply do not know.
Counterfeiting the euro is also listed. It is notable that the dual criminality safeguard is not removed from the offence of counterfeiting sterling, but it is in the case of counterfeiting the euro. What is "swindling" supposed to cover? A swindler is a term of abuse. What is the offence? What kind of offence may foreign countries have which could fall under the generic description of swindling which we would then have to recognise without applying a dual criminality safeguard? I suggest that a little more precision may be needed in the compilation of the list of measures which will lose the double criminality safeguard.
The European arrest warrant procedure will, of course, start with the arrest of the subject who is named in the arrest warrant. There will then be a hearing before a person described in the measure as the "executing judicial authority". The executing judicial authority will. of course, have to be satisfied that the right person has been arrested. There will be a hearing at which the individual arrested can deny that he is the person named in the warrant. There may be an issue as to his age as no one will be required to extradite someone who by their domestic standards is not of the age of criminal responsibility. The terms of the article in question that is supposed to achieve that—Article 3.3—leave a great deal to be desired. If your Lordships read it you will see that it more naturally includes geriatrics rather than children. It refers to people who are no longer of the age of criminal responsibility, which does not sound to me as if it is apt to cover children, but it is certainly intended to cover them.
As regards the executing judicial authority, in a letter of 6th November to Mr Jimmy Hood MP, the chairman of the scrutiny committee in the other place, the Minister stated that the executing judicial authority for the United Kingdom would be the Bow Street magistrate. I hope that the reference to the United Kingdom was a mistake and that the letter meant to refer to England and Wales. There surely is no reason why someone arrested in Scotland should not be dealt with by an executing judicial authority in Edinburgh, or why someone arrested in County Down should not be dealt with by an executing judicial authority in Belfast. At the moment, however, the only statement as to who is to be the executing judicial authority that I have seen is the letter from the Minister that I mentioned which identifies the Bow Street magistrate as the authority for the United Kingdom. I suggest that that matter requires some attention.
The information that must accompany the arrest warrant includes a description of the circumstances of the offence. That, of course, is only fair to the person arrested. However, there will no longer be any sufficiency test. It will be no function of the magistrate of the judicial authority before whom the arrested person will appear to consider whether those circumstances by our standards warrant a trial.
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That brings me to another point of concern. It was made clear by the Minister when he appeared before us to give evidence that it was not proposed that the arrest warrant should be available to carry someone off to the member state in question for the purposes of interrogation. It is intended to produce someone for trial. However, the investigative process in a number of European countries is carried out under the aegis of a judicial officer, the investigating magistrate, the juge d'instruction. That is not a procedure we have in this country. It is not at all clear at what stage in his investigation the investigating magistrate will he able to issue an arrest warrant to bring before him from this country or any other member state an individual where he is not yet satisfied there should be a trial but requires more information from the individual in question.
I refer to Article 1 of the proposed measure. The extradition will have to be confined to the suspect. It will not apply to someone who is simply a material witness. However, it is difficult to see how it will not allow a warrant to be issued to require production in the foreign country of the suspect for the purposes of getting further information for the trial rather than for the trial itself. That is a consequence of the removal of the sufficiency test. Perhaps that is intended. But if it is, that must be faced up to. There will be an element of interrogative purpose behind the new proposal.
The timetable that must be followed where the arrest warrant has been issued is very tight. After the arrest in this country of the individual concerned, there is a period of only 30 days before a final decision must be taken. The measure provides for there to be simply one single appeal. Therefore, the arrest takes place, and the individual, if he is in England or Wales, is brought before the Bow Street magistrate. There is then an opportunity for one appeal. Whether it is to the Divisional or the High Court does not matter; there is one appeal only.
Therefore, what of the emerging issues of law that may arise or that may need to go to a higher court—that is, to the Appeal Court or even to this House? There is no provision for that. The individual must be extradited. If the final decision is that he should not have been extradited then I suppose that we must rely on the country concerned to send him back. Where there is a serious issue of law as to the scope or the applicability of the arrest warrant procedure that has arisen, there is no flexibility to allow postponement of the removal of the individual.
I believe that the bail provision also requires attention. When individuals in this country are arrested, there is a presumption in favour of bail. I respectfully suggest that a similar presumption should be made where individuals are arrested pursuant to a European arrest warrant. Of course, if there is a proper case for keeping the individual in custody, he will be kept in custody. But, in my view, the language of Article 12, which deals with this matter, is not apt to make it clear that the same presumptions will apply in relation to arrests under the European arrest warrant as apply in relation to ordinary domestic arrests.

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The expression "specialty" has a particular meaning in extradition law. It means that once a person who is being extradited for one offence has been detained by the foreign country, he cannot then be tried on a whole raft of different offences for which he would not have been extradited. That is dealt with in the proposed measure simply by saying that, where a person has been removed to the requested country under the European arrest warrant, he cannot be tried for an offence that is not one of the listed offences without the agreement of the competent authority. I take it, although it is not clear, that the competent authority in this country will be the Home Office.
A political decision will then be made as to whether it is right to allow the individual to be tried on another offence. There will not be an opportunity for the matter to be tested judicially; it will simply be an executive, political decision. I suggest that that is also a matter of concern. I do not know whether that is the intended result but it certainly appears to me to be the result of the measure as drafted at present.
Overriding all those points are the European Convention on Human Rights concerns. I should like it to be the case that if an individual could bring before the magistrate firm evidence justifying the belief that he would not receive a fair trial in the extraditing, or requesting, country, that would be a reason not to allow the warrant to be executed by his removal.
Of course, every country that is a member of the European Union is a signatory to the ECHR. But the fact that a country is a signatory to the ECHR is a guarantee only that later a complaint may be made about treatment to the court at Strasbourg. It may be some years after the event before that is dealt with. In my respectful opinion, it is a necessary safeguard for individuals who are the object of European arrest warrants to be able—by all means let the onus be on them—to satisfy the magistrate that, for whatever reason, if they are taken abroad they will not have a fair trial. If they can satisfy the magistrate of that, I do not believe that they should be extradited and I do not believe that it would be consistent with our standards of jurisprudence that they should be.
Those are my concerns in relation to the measure. In my view, the two greatest are that which relates to extradition for the purpose of interrogation and that which relates to the ECHR. I beg to move.
Moved, That this House takes note of the Report of the European Union Committee, Counter-Terrorism: The European Arrest Warrant (6th Report, HL Paper 34).—(Lord Scott of Foscote.)
8.14 p.m.
Lord Mayhew of Twysden: My Lords, having already backed the Government tonight in their application for an immediate derogation from Article 5 of the ECHR, I do not find myself as yet in the grip of a new habit. I agree with everything that the noble and learned Lord, Lord Scott of Foscote, has just said.
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I believe that, as a new member of Sub-Committee E of the European Union Committee, I should be appropriately brief.
Perhaps I may take up and endorse, in particular, two points made by the noble and learned Lord. They relate, first, to dual criminality and, secondly, to the ECHR point—that is, the need for confidence that a warrant that is sought to be backed in this country will not, if executed, lead to treatment in the requesting country that would be in breach of that convention.
With regard to the question of dual criminality, perhaps I may refer to what the noble and learned Lord said about juge d'instruction in certain continental jurisdictions. He rightly said that juge d'instruction is connected with the prosecution and may very well either demand extradition or continue detention under extradition for the purpose of interrogation. I have had some experience of how that can protract matters before a suspect is brought to trial, if, indeed, he ever is.
Noble Lords will remember the case of the "Eksund" ship that was arrested by the French off the coast of western France and found to have on board arms intended for the IRA. I believe that I am right in saying that, following the detention of the suspects on that ship, four years passed without a trial occurring. That was perfectly all right by the ECHR. For was it not a judicial authority that was in charge and supervising the arrangements? Therefore, for reasons given by the noble and learned Lord, I believe that we are entitled to seek to look behind the form and examine the likely substance.
I also have some experience of an agreement between two countries. Our own country and the Republic of Ireland agreed to back each other's warrants. It worked very well while it lasted, and it lasted for a long time. The reason that it worked well was because each country had confidence in the judicial and justice arrangements of the other. Therefore, there were no qualms as to what would happen in that context if a warrant were executed in this country and people were sent to Dublin or vice versa.
It worked very well but, unfortunately, Dublin resiled from it unilaterally after Ireland had ratified the European Convention on the Suppression of Terrorism. At the time, I believed that that decision derived from political considerations rather than from any objective lack of confidence in our arrangements here. However, whatever the reason, it meant that a great deal of trouble was involved in trying to make the new system work, and some pretty ghastly results were experienced to start with.
Under the proposed framework decision, which we are discussing, we are offered another backing of warrants agreement. The difference is that our confidence in the arrangements of each and every foreseeable requesting country is a good deal less than fervent. In the course of our hearing, which the Minister was good enough to attend, on the occasion referred to by the noble and learned Lord, Lord Scott, the Minister gave at least me—and, I suspect, most, if

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not all, of us—the impression that he believed that ratification of the ECHR, which membership entailed and which would have to occur if membership was to be granted, would by itself ensure that all justice arrangements in the requesting country would be reassuringly compatible with the convention. I think that that is essentially the Government's position, having read the Minister's response to the letter from my noble friend Lord Brabazon of Tara, who was chairman of the committee. If so, surely no member state could take offence if it were proposed that there should be written expressly into the decision a provision that made it perfectly clear that a requested state would be able to withhold execution if there were sensible grounds for doubt about whether there would be a proper delivery of ECHR standards in the requesting country if the warrant were executed. I cannot see that there would be grounds there for taking offence.
However, the Minister said, "You do not really need to worry about the matter"—I paraphrase in the interests of time but I hope that I do so fairly—"because written into the preamble are relevant provisions". However, a paragraph in a preamble to a decision of this character is generally less certain in its effect than is an express provision clearly written into the main body of the instrument. I do not find paragraph 11 of the preamble to the draft decision, which is set out in the Minister's letter of reply, to be an exception to that rule. It is designed on the face of it to restrict the possibility to refuse the execution of the European arrest warrant. It says that that is to ensure the effectiveness of the procedure. That is made subject only to the condition that the execution of the warrant does not lead to a violation of fundamental rights. That leaves the matter entirely in the air when it could perfectly easily and without the prospect of causing offence have been made absolutely clear if a provision had been written clearly into the instrument.
However, the Government rely on the preamble to sustain their comfortable response to the criticisms that we thought it right to put at the hearing. They have been put more forcibly and eloquently by the noble and learned Lord, Lord Scott, than I could do. I am afraid that the response, intended to comfort as it was, fails sufficiently to comfort me.
8.22 p.m.
Lord Lester of Herne Hill: My Lords, I, too, had the privilege of serving on the committee, which was chaired by the noble and learned Lord, Lord Scott of Foscote. I believe that this is his first report as the new chairman. It was a pleasure to serve under him, as it was to serve under his predecessor, the noble and learned Lord, Lord Hope of Craighead.
The noble and learned Lord, Lord Scott, summarised the committee's central concerns, and I shall not repeat them. The noble and learned Lord, Lord Mayhew, made a speech with which I entirely agree. Again, I shall not repeat anything that he said. I want to say a few words about the objectives of the Euro-warrant draft directive, the counter-terrorism proposal and human rights.
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I make it clear that I strongly support the objectives of both of the measures. That is implicit, if not explicit, in what was said by our chairman, the noble and learned Lord, Lord Scott, in his introduction. It is very good news that there will be Europe-wide moves within the EU to counter terrorism effectively and to make it much easier for fugitives to be extradited from one member state to another to face a fair trial. It is also clear, as has already been said, that existing extradition procedures are antiquated and need to be streamlined.
I do not regard the three traditional safeguards, which were referred to by the noble and learned Lord, Lord Scott—the double criminality safeguard, the sufficiency test and the political decisions of the Home Secretary—as being necessary safeguards within the context of the EU. However, it is essential that there should be safeguards for the effective protection of the fundamental rights of everyone within what is called in the jargon "the European judicial space" so that they have equal protection throughout every member state of the EU. That is particularly important in the context of the enlargement of the EU because new states with totalitarian political backgrounds and traditions that did not involve an independent judiciary or legal profession are likely to be admitted to the EU sooner rather than later—and there will be more or less effective monitoring of standards before they are admitted. If such measures are introduced, we have to bear in mind that they will apply not only to the existing member states of the EU but, as membership increases, to candidate states.
What protections are given within the Euro-warrant draft framework directive for basic human rights and freedoms? There is, as the noble and learned Lord, Lord Mayhew, said, paragraph 11 of the preamble. However, that is a very soft and unsatisfactory safeguard. There is also Article 24, but that contains, as it were, a nuclear deterrent—it is so radical that it is most unlikely ever to be exercised in practice. It allows a member state to decide to suspend the application of the framework decision with regard to another member state in the event of a serious and persistent breach or violation of fundamental human rights, as is provided for in Article 6 of the Treaty on European Union. It is hard to imagine circumstances in which one state will ever exercise that option unless something very extreme indeed has happened. Noble Lords may note that the provisions apply only in respect of a serious and persistent breach. In other words, one unfair trial does not matter and several unfair trials do not matter; there has to be a serious and persistent breach of such gravity that the state exercises the option under Article 24.
Otherwise, the only safeguards lie in the specificity with which particular articles of the framework decision have been drafted. The noble Lord, Lord Brabazon of Tara, expressed our concerns about that in detail to the Home Office. A reply was given by the Parliamentary Under-Secretary of State, Mr Bob Ainsworth, in a letter dated 16th November 2001 To be more precise, his reply is contained in two letters—one undated and the other dated, and they differ The

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dated letter was signed on behalf of the Under-Secretary of State, and we are meant to treat it as the final letter; the undated letter is an earlier version. I mention that because in the earlier version we were promised "primary legislation" to implement the directive. I should be grateful if the Minister could make it clear that we will get primary legislation, not subordinate legislation, in relation to the implementation of the directives.
Lord Rooker: My Lords, for the avoidance of doubt, yes, there will be primary legislation—an extradition Bill will be brought before Parliament early next year. It will contain this measure once it is finally agreed. It will be done in no other way than through primary legislation.
Lord Lester of Herne Hill: My Lords, I am grateful for that assurance. The counter terrorism Bill gives power to do that by subordinate legislation which is why I mentioned it. If that power is not to be exercised, that is reassuring.
Lord Kingsland: My Lords, I am most grateful to the noble Lord for giving way. In the light of the narrow scope that national parliaments will have to alter the decision, does the noble Lord consider that, in the circumstances, primary legislation is a great advantage? I fully support primary legislation, but given the extremely constrained circumstances in which our Parliament will operate following the decision, does he agree that the protection of primary legislation is more of a chimera than a reality?
Lord Lester of Herne Hill: My Lords, I agree with the noble Lord, Lord Kingsland, that in so far as influence on the framework decision is concerned, primary legislation is irrelevant. On the other hand, it is always reassuring that we have full scrutiny in this House and in the other place of legislation that deals with fundamental rights, freedoms and duties.
The more I read Mr Ainsworth's reply, the more puzzled I am about what all this means. As it has not been analysed in previous speeches, perhaps I can make clear some of my concerns. The issues were clearly formulated by the noble Lord, Lord Brabazon, and in the letter of reply the Minister correctly says:
"The Committee was of the view that the Framework Decision needed strengthening to make explicit reference to a right for the executing judicial authority to refuse extradition on ECHR grounds".
Pausing there, I am satisfied, although I would like the Minister to agree or to disagree with what I am about to say. In regard to this country, the Human Rights Act will apply to this area, as to any other, and therefore domestic UK courts will have the duty to secure compliance with the ECHR in the way that they exercise their powers. I am not concerned with the position of UK courts; I am very concerned with
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the position of the courts of the other member states of the European Union. Not to put too fine a point on the matter, and being as tactful and as diplomatic as I can, the independence of the court systems from the executives in some existing member states and some future member states of the European Union is not wholly free from doubt.
In reply to that concern we are told, first, that there is paragraph 11 of the preamble and, secondly, that the Government are satisfied that decisions made under the framework decision will be ECHR compliant. That may be true of compliance in this country, but I do not understand how they can be satisfied that they will be ECHR compliant in other member states. Within the framework decision we legislate for all member states.
A little later the letter says:
"Protection for the individual is contained in the domestic incorporation of the ECHR into the requesting state's criminal justice system".
That is true, but what happens if domestic incorporation into other member states' systems is an illusion because, in reality, the ECHR is not taken sufficiently seriously by their courts? There is then a curious passage, which I do not understand at all, dealing with speciality, the rule that one cannot extradite for crime A and prosecute and try someone for a wholly different crime. I simply do not understand these two sentences, and I would be grateful for clarification. The Minister says in the letter:
"The UK has … indicated that, within the structures of this agreement, we would not intend, generally, to apply the dual criminality test to requests made to us, even where it is required of us".
I do not know whether that is an oxymoron or tortology or both, but it is certainly an odd, contradictory statement. If it is required of us, surely we have to apply the double criminality test. The letter continues:
"We therefore"—
the word "therefore" makes no sense—
"do not expect speciality to be applied for the prosecution of fugitives within the EU".
It must be my own stupidity, but I find those two sentences completely opaque.
As regards bail, which has already been dealt with in previous speeches, we are given no satisfaction as to whether Article 5 of the ECHR, presumption in favour of bail, is or is not to apply to the framework decision. In so far as reliance is placed upon the European Court of Human Rights as the ultimate guardian of human rights, and for that matter the Court of Justice in Luxembourg, I simply draw to the attention of the House the important report by the evaluation group to the Committee of Ministers of the European Court of Human Rights of 27th September of this year, where

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the President of the court, Judge Luzius Wildhaber, and others made it quite clear that the system in Strasbourg is "seriously overloaded", that,
"the Court's ability to respond is in danger"—
I am using their words—and that,
"Urgent action is now required",
if the whole system is to be preserved from decay. They make a number of recommendations which I hope the Government of the United Kingdom will be prominent in supporting.
It is clear from the evaluation group's report that we cannot rely upon the Strasbourg court, with the long delays in its procedures, with its huge over-burden of caseload, with the lack of resources and so on. We cannot rely upon that court to come to the rescue of the framework decision. We have to rely upon national courts and upon the safeguards that are written in. The one safeguard, above all, that needs to be written in is a safeguard that every decision taken by prosecutors or judges in the requesting state or the sending state, must be compliant with the ECHR. Without that kind of safeguard I fear that this will, understandably, remove existing safeguards, but not put anything in their place that will give the necessary assurance and protection to the citizens of Europe.
Lord Monson: My Lords, before the noble Lord sits down perhaps I may put a question to him as I believe him to be an expert in such matters. Suppose an individual in Pennsylvania commits a minor crime with a maximum sentence of 12 months imprisonment—not a federal crime but a crime according to the laws of the state of Pennsylvania—but before he is brought to trial he absconds to, say, Wyoming. Is it not the case that he can be extradited from Wyoming to Pennsylvania only with the greatest difficult, if at all?
Lord Lester of Herne Hill: My Lords, I believe the answer is that it depends upon whether it is a state offence or a federal offence. I do not want to cause shortening of life to eurosceptic noble Lords with what I am about to say, but effectively the framework decision recognises that there are some kinds of offence that are federal so it is easy to transfer someone across member states, and there are other offences that are not federal, but state offences, for which it would be much more difficult to do so if the states of the European Union so consider.
8.38 p.m.
Viscount Bledisloe: My Lords, I am sure that the last words of the noble Lord, Lord Lester, will have raised the blood pressure of the noble Lord, Lord Pearson of Rannoch. I start by expressing my thanks to the noble and learned Lord, Lord Scott of Foscote, for bringing this matter before the House and for explaining it with his customary clarity.
Primarily, I want to concentrate on the way in which these measures, in particular the measure on the arrest warrant, are being pushed through with a haste which, in my view, is wholly unnecessary and seriously
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dangerous. I start from a premise—I anticipate that it will be agreed by every Member of this House—that legislation that is rushed through in haste, upon a knee-jerk reaction to a particular event, is likely to be unsatisfactory and to produce unforeseen and unwanted consequences. The recent classic example of that is perhaps the Dangerous Dogs Act. But there are many more. Occasionally, of course, there can be genuinely inevitable circumstances which necessitate rapid legislation. But one needs to look very closely to see whether in each case there is a real need for such haste.
Secondly, if one has to legislate in haste it is normally desirable that such legislation should be temporary, allowing for calmer and more thoughtful consideration before it becomes embedded in the statute book. The arrest warrant measure dismally fails to pass either of those tests.
In the wake of the events of 11th September, the Council has proposed a raft of measures which it asserts are necessary or desirable to deal with terrorism and which it insists should be decided in early December of this year. Some of those—the terrorism measure is one—truly relate to terrorism. But others, and particularly the proposal on the arrest warrant and on surrender procedures, do not in any way relate to the events of that date. Indeed, the Minister candidly admitted to the committee that he could not give a single example of how this measure would have been of any particular use between 11th September and today.
Further, as the noble and learned Lord, Lord Scott, has said, this arrest measure is not one to deal with terrorism. It applies to all criminal offences for which a sentence of one year's imprisonment can be imposed. It is not for an offence which will in fact get a sentence of one year, but for which the maximum penalty is one year. That includes driving offences, shoplifting and all kinds of matters that are a long way from being terrorism or anything like it.
These proposals on what really one might call "automatic extradition without safeguards" have been around for a considerable period. The Minister, in his letter and in his evidence, suggested that the fact that they have been around for some time is a point in favour of now dealing with them rapidly. The reason why they have been around for a long time and have not been enacted is because there are very valid objections to them which have not yet been satisfied, and not just because they have been sitting indefinitely in someone's in-tray.
Therefore, I, and I suspect others, inevitably feel that this arrest measure has been hitched to the bandwagon of 11th September in order to smuggle it through in the wrappings of anti-terrorism when normal and more deliberate consideration would have allowed time and scope for proper consideration of the major alterations that it will make to our entire system of extradition. Like others, I accept that there is a good case for some alteration to and simplification of the extradition system. It is a slow, cumbersome and over-elaborate system. But the fact that it need,, some

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overhaul and some change does not justify the rapid passage of this completely new regime which requires proper thought and amendment.
It is not an exaggeration, as the noble and learned Lord pointed out, to say that the measure provides a completely new regime under which warrants from any country in the enlarged Community are executed almost automatically and where the role of a British court and a British Minister is almost entirely removed. It will apply to any country which has signed up to the Community unless it has behaved so badly, as the noble Lord, Lord Lester, said, that it has virtually been expelled from the system. It will not enable someone to say, "Well, granted the system in that country is very good for most things, but it is totally unfair to me as a gypsy or a homosexual and I won't get a fair trial". There are a number of other serious defects to which the noble and learned Lord referred.
The Minister expressed hope that some of these concerns may be allayed by further changes. But those hopes are not achievements. The unnecessary haste involved here is not just a question of inconvenience or a requirement on the scrutiny committee and so on to work harder and more quickly; it genuinely virtually nullifies the whole process of scrutiny and the opportunity of the relevant organisations to make useful representations and to warn of the dangers.
Perhaps I can illustrate the point. The subcommittee questioning the Minister had been given an English text of the proposal upon which it had framed its thoughts. Shortly before it met it received an untranslated French text which made major changes. The noble and learned Lord was either modest or honest enough—I know not which—to say that he was not able to make much use of that. Certainly, I was able to make none. But that was not the end of the matter because in the course of our questioning it turned out that that the French text with which we had been supplied was even, by then, out-of-date. The Home Office had yet a further French text which had been deposited that very day and which none of the committee had seen.
It was hardly surprising that in those circumstances the noble Baroness, Lady Thomas of Walliswood, commented:
"We are at a slight disadvantage".
That must come near to being one of the understatements of the year.
This travesty of the legislative process does not originate from Her Majesty's Government. The timetable is the work of the Commission or of the presidency or suchlike. I feel strongly that the Government have gone along with the timetable far too readily. I urge the House to express the same sentiment. I hope that even now the Minister will be able to tell us that the Government will insist on having enough time for proper deliberation of this important and controversial matter.
8.48 p.m.
Lord Lamont of Lerwick: I, too, am grateful to the noble and learned Lord, Lord Scott, and the Select Committee for enabling this debate to take place. I feel considerable diffidence as a non-lawyer entering into an argument with so many distinguished lawyers who are much more experienced in these matters than I, but I feel that the issues raised in the proposed European arrest warrant are extremely important. They affect the rights of individuals. At the very least, they are a significant change in the legal procedures that would apply before extradition. That is why I speak, and for no other reason.
The seriousness of the situation potentially was illustrated in a remark in a recent newspaper article written by the director of Liberty. He said:
"What … [this warrant] could mean in practice is that a British Police Officer will arrive at your door with, for instance, an Italian Police Officer in tow to arrest you. They will take you via an impotent British Court to Italy where you will be dumped in a prison to await trial, perhaps for something somebody thinks you did when on holiday".
That is possibly a slight exaggeration, although I have a close friend who, on an Italian beach, spotted a young boy trying to pinch his wallet. He gave hot pursuit to the child and found himself arrested by an Italian policeman for threatening a child. It took several years and a lot of money before he managed to get himself out of that situation. Of course, it will be pointed out that such situations may arise under any legal system, and I accept that. However, that makes one pause before removing the requirement of prima facie evidence or consideration of the likelihood of a fair trial before extradition.
Because the issue is so serious, I entirely agree with what the noble Viscount, Lord Bledisloe, said about its timing and handling. The impression has been given, although the Government may not have intended it, that the provision is linked to 11th September. I accept that the issue of the European arrest warrant has been under consideration for a long time. But it seems that what is proposed goes beyond the conclusions of the 1999 Tampere European Council. It was there specified that the European arrest warrant would apply only to the most serious offences.
What is proposed in the framework document does not apply only to the most serious offences. If it was about only the most serious offences, would it apply to illicit trafficking in plants? If it was about only the most serious offences, would it apply to notions of xenophobia, which is not even a crime in British law? If it was about only the most serious offences, why, under Article 1, could someone be extradited who has been sentenced to only four months in prison? Extraditing people sentenced to four months in prison—does that really cover only the most serious offences?
If we are to have no examination of prima facie evidence and no argument about whether a fair trial will occur in another country, the measure implies

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considerable trust in other countries' legal systems. When he appeared before the Select Committee, Mr Bob Ainsworth said that it is necessary to
"have a very considerable degree of confidence in the judicial structures of countries with whom we arc going to enter into these arrangements."
I must say that I could not feel such confidence about all the applicant countries to the European Union. There are some applicant countries in which a judge can currently be bought—and inexpensively.
The Government's reply is that all that will be covered because the countries will sign up to the European Convention on Human Rights. They may do so; I am sure that they will, but that will not guarantee that their legal systems are free of corruption. A country may well appear to have more harmonious relations with its ethnic minorities, freedom of the press and a parliamentary system, but that does not guarantee that its judicial system is one to which we should impart all our trust.
There are also the existing members of the European Union. Mr Ainsworth told the Select Committee that he was
"Not aware of existing members of the EU where there are concerns about the validity of their judicial systems."
I wonder whether he should consult Mr John Mortimer QC—a pillar of the Labour establishment—who, commenting on attempts to harmonise legal provision in Europe, wrote an article in the Daily Mail last year. He said:
"There is a real danger that our precious rights and liberties may be lost in a vague and haphazard attempt to impose a single system of law on Europe … Would you care to be arrested on the say-so of a Greek or Spanish judge and be packed off, with no case having been made against you, to face a trial under a foreign system in another country?"
He continued:
"You can be kept for a long time in a Spanish or Italian prison in the hope that the suspense may force a confession, or that some sort of evidence might turn up."
Perhaps Mr Ainsworth might also like to consult the more than 300,000 people who demonstrated a few years ago in the streets of Brussels against their judicial system, because they strongly suspected that Mr Doutroux, who had escaped from prison after being been sentenced on a paedophile charge, was enjoying protection from among the elite in the judicial and political system. The Belgian Government was forced to try to introduce measures to ensure that, in future, judges would not be political appointees. Of course, it would take years for that situation to be wholly rectified.
Or perhaps Mr Ainsworth might like to read the words of Mr Strauss-Kahn, the former Finance Minister of France, who has recently been found not guilty of forgery. He had this to say about the French legal system:
"In our system, you are presumed innocent until declared guilty. The reality is you are seen as guilty from the moment the judicial system is interested in you."
Many in France are deeply critical of the system of juges d'instruction to which my noble and learned friend Lord Mayhew of Twysden referred.
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I make those points not because I seek to argue for one minute that there should not be extradition. I do not seek to argue that there should not be improvement and speeding up of the system. I am saying that it is wrong that one should not be able to examine the prima facie evidence in a case before extradition or to raise the issue of whether a fair trial is likely.
One of the major concerns highlighted by the noble and learned Lord, Lord Scott of Foscote, is the principle of double jeopardy. That is an important principle, because it means that the law of another country cannot be applied extraterritorially in the UK. It cannot be right for someone to face trial for something that our Parliament has not made criminal. The latest draft of the framework decision is an improvement in that Article 2 now includes a positive, rather than a negative list. But that still leaves grave cause for concern.
It is argued that because all the categories of offence are, broadly speaking, offences in all the signatory countries, there need not be verification of double jeopardy. It is therefore claimed that double jeopardy is not really being abolished. Surely, that depends on the detail. Different offences may be defined in different ways in different countries.
For example, in a charge of fraud, which is an offence listed under Article 2, intention to defraud has to be shown in Britain, but not in other countries. The offences of racism and xenophobia have already been referred to. As far as I know, there is no such offence as xenophobia in British law. Of course, there are laws against racial incitement and we know that the Home Secretary has proposed a new law against religious hatred. As I read it, Article 2 permits that a British citizen could be extradited for an alleged offence of xenophobia committed in this country. I may be wrong about that, but that is an extremely important point on which I hope that the Minister will comment.
Could people be extradited for offences listed in Article 2 if they were committed in this country? That appears to be the case—not just for xenophobia but other offences listed in Article 2. I hope that we will not find the editor of the Sun, the admirable Mr Yelland, extradited for xenophobia after a few provocative articles and editorials arguing against European integration. To my mind, xenophobia is a much overused phrase—especially in the European Union.
It is easy to envisage several complicated situations. In some EU countries, it is an offence to sell Nazi insignia. French courts have been trying to extend their jurisdiction even to the United States to cover people trying to sell such insignia there. I wonder whether the director would allow an Internet provider to be extradited if a site were offering details of insignia.
The speciality rule was referred to by the noble and learned Lord, Lord Scott, and that is extremely important. And it is extremely important if it is true, as the Government have claimed, that one cannot be extradited only for interrogation purposes. They claim that that is the case, although as the noble and learned

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Lord said, Article 1 suggests otherwise. But if you cannot be extradited for interrogation purposes, it would be even more important that the speciality rule should still apply. Article 22 indicates that a person who has been surrendered may be prosecuted for an offence other than that for which the European arrest warrant was issued.
It is true that the article then goes on to qualify that reference by reference to Articles 2.3 and 2.4 and the question of whether the offence was committed in this country. If that were so, it would be necessary to have the consent of this Government for a prosecution. However, it appears from Article 22 that a person might be extradited for one offence and then charged with another.
Perhaps I may ask the Minister to comment on one important point which I shall attempt not to labour. It is the question of sovereign immunity, state immunity and international crimes against humanity. Broadly, they are the kind of crimes raised in the case of General Pinochet. Your Lordships will be pleased to know that I have no intention of going into that case, but it is directly relevant to the issue of the European arrest warrant. We must know whether such cases involving former heads of state arriving in this country will be subject to a streamlined procedure, which would not have been the case prior to the creation of the European arrest warrant.
I know that some members of the Government thought that the case of General Pinochet illustrated a need to accelerate extradition procedures. I drew the opposite conclusion but we need to know the direction in which the Government are going. I could find no reference in the documents to crimes against humanity, torture, genocide and so forth. They are possibly covered by the references in Article 2.2 to murder and grievous bodily harm, but it is important to know. If the answer is that the Government have moved in the direction of speeding up extradition for such cases, I am bound to say that I believe they are making a profound mistake.
I do not believe that the world can live with a system in which any middle-ranking judge in any country can decide to prosecute a former head of state for an offence wherever it was committed. Judge Garzon has tried his hand at Mr Berlusconi, the Argentinians and the Peruvians. He tries to extend his reach all over the world. There is an argument for an international criminal court—it is not one I share—but there is no doubt that it is a recipe for chaos to give junior judges such powers. I believe that one day former Presidents Bush, Carter and Clinton and possibly even our present Prime Minister will come to rue it if that is the direction in which we are moving.
I have the greatest reservation not just because of the last point—and I should be grateful if the Minister would address it—but because the measure removes important safeguards for the individual.
9.4 p.m.
Baroness Ludford: My Lords, I shall concentrate on the European arrest warrant rather than on the definition of "terrorism". However, I share the fears expressed about the suppression of legitimate protest. The European Parliament is doing its bit to try to improve the definition.
When the first European Union summit on justice and home affairs took place in Tampere two years ago, the heads of government expounded on what an area of freedom, security and justice, as proclaimed in the Amsterdam Treaty, would consist of. Many of us in the European Parliament then expressed concern that the member states would cherry-pick the security agenda and not equally emphasise the freedom and justice aspects. I believe that our citizens could appreciate the need to cut the bureaucracy and delays in classical extradition procedures. I recall a case a year or so ago of a British student murdered by being thrown off a train in France. The way in which the problems of extradition were batted between France and Portugal illustrated some of the problems.
Our citizens could appreciate that need to speed up the process but would not appreciate cutting corners as regards the protection of fundamental citizens rights. There is in principle a strong justification for a European arrest warrant to stop the delays—what the EU Justice and Home Affairs Minister, Antonio Vitorino, has called "the tyranny of technocracy"—but we need to have parallel measures to protect legal rights.
The elimination of the role of executive authorities for most aspects of the surrender procedure and the streamlining of those procedures would be a step forward in stopping criminals being able to play off one jurisdiction against another and escape scott-free. If governments and parliaments do not pool sovereignty in this area, I fear that the terrorists and criminals will be sovereign.
The problem with the proposal of a European arrest warrant is that the ministries of the interior are running the show, not ministries of justice. The development of such an internal market for policing and prosecution must respect two fundamental parameters if it is to be acceptable. It must ensure basic civil rights and it must be agreed democratically. I would feel more reassured if there were recognition by our own Government of a twin-track approach that mutual recognition must be accompanied by a programme of ensuring common minimum judicial standards and safeguards. But the answer of the Parliamentary Under-Secretary of State at the Home Office, Mr Ainsworth, to a suggestion by my noble friend Lord Lester of Herne Hill in the course of his inquiry was less than encouraging.
My noble friend Lord Lester suggested that proper standards of protection for basic rights and freedoms should be written into the decision itself so that they could be monitored by the European Court of Justice and national courts. In response, the Minister made it clear that he saw the mutual recognition of prosecution efforts and efforts to have similar judicial

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and defence standards throughout the EU as alternative proposals rather than as complementary and parallel moves. He completely misunderstood the point that my noble friend was making. Indeed, he reproached my noble friend for wanting to maintain the status quo of lengthy bureaucratic delays in extradition. I venture to guess that that was not my noble friend's purpose.
There needs to be a simultaneous programme of legal rights simultaneously with European warrants and other cross-border criminal co-operation measures to ensure that the rights guaranteed under the European Convention on Human Rights are respected in practice. I am very much indebted to the organisation, Fair Trials Abroad, which is an admirable organisation run on modest resources, I regret to say, but which does excellent work. It highlighted some of the issues in evidence to the committee. The organisation carried out some research into legal aid and the availability of competent legal advice and the representation on criminal matters for non-Greek citizens arrested in Greece. It shows that such availability for people with little or no financial means was uncertain. The main cause was that public funds for payment for lawyers were non-existent or derisory. There is evidence that the same is true in Italy, Portugal and Spain. Fair Trials Abroad said that competent lawyers would expect reasonable payments by the states involved. On the question of real access to justice through translation and interpretation facilities, a survey on provision was carried out on the criminal justice system of five EU member states. The findings show an unacceptable gap between existing legislation and practice. There was a lack of recognition by justice systems of the fundamental right to understand and to be understood and an absence of recognised training programmes or clear professional standards of competence. Above all, there was a lack of adequate remuneration. Those are practical problems and although the proposal mentions access to legal aid and interpretation, if there is no substance given to it by real effort and common agreement among member states, those rights will be regarded only in their breach.
Furthermore, as has been mentioned, there needs to be a presumption of bail, which is absent in the proposal. Fair Trials Abroad makes an interesting suggestion for a body that is similar to Eurojust, which facilitates interstate prosecution. One could have a body called Eurorights to facilitate interstate protection of citizens and monitor the workings of criminal jurisdictions in the European legal area. That is an interesting suggestion.
Reference was made to a monitoring system set up by the Council of Europe in 1998 to examine the national justice systems of all EU member states. A shortlist of problems included political interference in the administration of justice, corruption, shortage of resources, delays and a prosecution that was too close to the judiciary. One is in a slightly difficult position in mentioning all those problems. It is not to sound superior or to think that everything is wonderful at
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home and it is not to sound chauvinistic. But there is variation in legal and judicial standards throughout the EU.
The situation when enlargement takes place to include eastern and central Europe will be even more worrying. One need look only at the report produced last week by the European Commission on progress on enlargement. Some of the problems reported include low prison standards and corruption in the justice system. There is much support throughout the EU for harmonisation in external border controls, so I fail to see why we cannot aim for an approximation of defence rights on a similar principle.
Another step that could be taken to entrench fundamental rights in this context would be to incorporate the EU Charter of Fundamental Rights into EU law, which would mean European Court of Justice competence.
I referred earlier to the problem of the rights of people who are arrested abroad and I mentioned Greece. I wish to raise the case of a dozen British and a couple of Dutch plane-spotters who have been arrested and imprisoned in Greece on charges of espionage. Some of these people are my constituents as I am a Member of the European Parliament. I understand that there is to be a magistrates' hearing tomorrow. I appeal to the Greek authorities to grant bail to those defendants. It appears that, although they have been naïve, they have not been spying; they just have a passion for their hobby of plane-spotting. There are disturbing reports of very poor prison conditions. I have heard their Greek lawyer on the radio and have no reason to doubt his competence or that of the magistrate, but it makes the concept of a European arrest warrant more difficult to sell if EU citizens in another member state appear to be treated unfairly.
EU justice and home affairs measures are agreed under the Third Pillar according to the EU treaty, which essentially means intergovernmental cooperation. The European Parliament is merely consulted. We have the impression that usually we are ignored, but we work assiduously to deliver our opinions in order to substantiate our claim to joint legislative authority—co-decision with the council—as soon as possible, but that is not yet the case. Therefore, there is a democratic deficit in Brussels. But why do the Government propose to make it worse with the democratic deficit in Westminster? The proposed enabling power to implement by statutory instrument EU agreements in the field of justice and home affairs means that these measures would escape democratic accountability anywhere.
The example of other precedents is misleading. Areas such as the environment or the internal market are examined and scrutinised properly in the European Parliament in Brussels because there is co-decision. The justification put forward for secondary legislation to implement Third Pillar measures in a timescale which meets the current requirements will not wash. Once in force this emergency provision may well become permanent and be used to enact other measures agreed under the Third Pillar. Even for anti-terrorist measures it is inappropriate.

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I conclude that if we are to have a system of European arrest warrants there must be a system of guarantees of due process to parallel the Euro-warrant scheme so that individual rights are protected. I concur with many of the observations raised earlier in this debate.
9.16 p.m.
Baroness Park of Monmouth: My Lords, I speak as a member of the Select Committee who had the privilege to attend Sub-Committee E when the Minister gave evidence on these issues. I have two causes for concern. One is the general concern, which I believe is shared by most if not all members of the committee, that the events of 11th September are being used by the European Union to push through further powers in haste and without due scrutiny. The doubts expressed by those who understand the legal issues much better than I do suggest that the urgent wish of Ministers to show solidarity could end in bad decisions.
For example, we are asked to accept extradition to another country whose criteria for terrorism might include such things as putting up a poster saying "Free the Kurds" and whose normal procedures for interrogation before trial could include torture, or at the least undue pressure, and the removal of a statutory right to habeas corpus. A number of countries whose standards of legal procedure are very different from own await entry to the EU as part of enlargement.
The Foreign Affairs Committee in another place, discussing the Commission's own report of November 2000 under the Copenhagen criteria, said that this acknowledged progress in the candidate countries in adopting the acquis but questioned their capacity to implement and enforce it. I do not believe that when it comes to it the EU will refuse entry on those grounds, so we may in future have some very difficult decisions and situations to face.
The European arrest warrant covers not only terrorism. It does not seem right that there should be hasty and in effect irrevocable decision-making on such a vital and broad issue just because we are apparently driven by the single issue of terrorism. Moreover, I have a strong suspicion that another and wholly indefensible reason for the tight timetable, with its virtual failure to allow scrutiny, is the determination of the Belgian presidency to be seen to have done something significant. Incidentally, with its reported refusal to allow the FBI access to suspected terrorists held in Brussels it cannot be said that the Belgian Government have demonstrated commitment to the spirit of the projected legislation to combat terror. We appear to be in a situation in which it is too late to argue and we shall have no choice but to implement the framework decision by primary legislation, despite the fact that it will have the effect of abolishing many traditional grounds for refusing extradition.
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My chief concern, however, is the council framework decision for combating terrorism which is associated with the decision on the European arrest warrant and is subject to the same urgent timetable. The small print contains some vital and disturbing measures and initiatives to be followed as part of the action plan decided on 21st September by the Council of Ministers. These are listed in a so-called "Road Map". They include decisions that every EU intelligence and security agency shall be required to pass on to Europol all relevant information they hold on terrorists. The council also approved the creation of a Europol intelligence unit to be staffed forthwith by intelligence officers. It is that very intelligence which is one of our most valuable contributions as a country both to military operations and the fight against terrorism.
What are we to make of such entries in the Road Map, under "progress already made", as a first meeting chaired by the head of national security held on 11th and 12th October when instructions were given by the president of the Council by a letter dated 10th October to the heads of all intelligence services to provide him with concrete proposals in the very near future for co-operation and exchanges of information between all intelligence services, regular meetings of heads of intelligence services, strengthening cooperation between police services including Europol and intelligence services and the setting up of a team of anti-terrorist specialists within Europol? The body responsible is to be the member states and the Europol management board. Who are they?
The president has, according to the Road Map, sent a letter to his colleagues "insisting" on the presence of liaison officers from the intelligence services. By 15th October most of the member states, according to the Road Map, would have sent specialists to Europol. The team was to be operational by November of this year and it must report to the Council in March 2002 on progress made and problems encountered. There is to be peer assessment of national arrangements for combating terrorism and an unspecified number of working parties.
Finally, a delegation made up of representatives of the Ministry of the Interior—I take that to be the Belgian Ministry of the Interior at the moment—including the Department for State Security and the Ministry of Justice, and the police services of the present and incoming presidencies, the Commission, the Council secretariat, and Eurojust, all to travel to Washington on 18th October to discuss arrangements for working parties in terrorism troikas every six months and for the Europol team of counter-terrorism specialists (sic) to work with American counterparts and so on and so on.
Have we gone mad? Who is going to do all this and to what good end? Has the Intelligence Committee been consulted both on the issue of the effective protection of any intelligence that we might be mad enough to hand over and the effect all this feverish activity will have on our very effective intelligence

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relationship with the United States and indeed on many other useful and effective bi-lateral relations we have with other intelligence services?
These decisions will have the most serious consequences. We already have carefully monitored arrangements with NATO to protect intelligence fed in there. Europol, on the other hand, is known to be a very leaky sieve, even in dealing with its present work on organised crime. There has been at least one case of a Europol official selling information culled from its computer. I shall not mention the nationality of the person concerned, but it is quite well known.
As long ago as 1994, when a Select Committee of this House reported on Europol, it said how vital accountability would be for a body about to be given,
"formidable powers to acquire and manipulate secret and highly sensitive information".
It was talking then about information on organised crime and was concerned about the protection of sources. It was assured by the then Home Secretary that any future agreement would require ratification by Parliament. At that time terrorism was expressly excluded from Europol's mandate, but it now appears in the Nice Treaty in the new Article 31. Europol has thus extended its reach from organised crime to terrorism. As there is no effective oversight, control over, or scrutiny of Europol—its members are appointed by an EU committee and not by the nation states and report only to that committee—I ask what power of scrutiny or control we shall have? Will decisions be taken by QMV?
Intelligence is not just information, it is an aspect of defence and as such should have the protection of the veto. Will it do so? Above all, there is no threat to the security of delicate information so serious as a proliferation of amateur, uncontrolled and unprofessional bodies with access to intelligence. There is little point in trying to safeguard intelligence passed to NATO and the ESDP if it is to flow out of the back door.
The Minister who was before the committee, Mr. Ainsworth, was kind enough to say, when I asked him about the Road Map for intelligence, that although it lay outside the remit of our discussions on the arrest warrant on that day, he would write to me. However, I felt obliged to raise the matter on the Floor of the House tonight because of the urgency of the timetable of events. Therefore, I hope that he will not think me discourteous to do so. The issue will come up again when we deal with Part 8 of the Anti-Terrorism, Crime and Security Bill. It would be helpful to know what the position is by then. I shall add only that the intelligence services may have better things to do than to send people with real work to do to attend the European equivalent of a tupperware party and not just one but dozens of working parties, troikas and, no doubt, focus groups. I recognise that I have a certain déformation professionelle in approaching these matters. Perhaps a more apt metaphor might be that we are likely to see a great many busy chickens sitting on a great many addled eggs.
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It is right that the EU should take terrorism seriously; I welcome that. However, I do not think that this is either an effective or useful way of doing it.
9.25 p.m.
Baroness Stern: My Lords, I, too, speak as a member of the European Union Committee who was privileged to attend the meeting of Sub-committee E where the Minister gave evidence. I wish to highlight a number of matters of concern, in particular as regards the framework decision on combating terrorism. I am grateful to the noble Baroness, Lady Ludford, for reminding the House that the European Parliament is also working on the decision.
Many noble Lords have raised anxieties about the speed with which such major changes are being introduced. I echo those concerns, as do a number of international human rights organisations. The head office of Human Rights Watch is on the 34th floor of the Empire State Building in New York and therefore could not be accused of being out of touch with the need to combat terrorist attacks. It has stated that,
"in the rush to agree these proposals, critical public debate and input from civil society are being sacrificed".
As I understand the framework document, it contains proposals for new law with new offences. new maximum penalties and new definitions of both aggravating and mitigating circumstances. The framework raises a large number of questions, yet it is to be agreed by 6th December.
Much is heard about the "democratic deficit" within the European Union. By "democratic deficit", presumably we mean that many decisions are taken at European level that the people of Europe have not heard about, their representatives have not been consulted on, interested groups have not been able to comment on, and which then affect the lives of all of us. Does the Minister consider that the democratic deficit will be reduced by the process we are going through here?
Certainly, it is reasonable to assume that the citizens of Europe expect to be protected from terrorism. They want their governments to take the right measures to do so. How can they make a judgment on the proposals? How can they evaluate the claims being made for them? In what discussions can they participate as regards the possible courses of action, the alternatives and the evidence that support the course of action we are discussing today rather than other possible paths that might be taken?
I shall move on to make a point about the definition of terrorist offences in the Council framework decision. I refer to the latest text from the Council of the European Union, the 26th October version. It sets out what will be defined as "terrorist offences". The latest version is clearly an attempt to tighten up the definition and to answer criticisms on its catch-all character. I am somewhat reassured by the comments of the noble and learned Lord, Lord Scott of Foscote. But for further reassurance I should like more clarification.

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The framework decision still defines as terrorism acts,
"seriously affecting the political, economic or social structures of a country or of an organisation governed by public international law".
It defines as a terrorist anyone threatening to commit any of the acts listed or participating in a terrorist group or supporting it. The proposal also makes promoting, supporting or participating in a terrorist group a criminal offence with a penalty of up to eight years' imprisonment.
On the basis of that. I should like to put the following scenario to the Minister in the hope that he can resolve some of the problems I have had in understanding the document. Imagine a rather lonely 18 year-old in his first year at university who meets up with a group called, purely for the sake of argument, the "Anti-globalisation Coalition for the Destruction of Multinational Exploiters", or some such title. The members of the group persuade him that he should join them and go out to fight multinational companies and the policies of, perhaps, the World Trade Organisation that encourages them because, the group claims, they exploit workers in the third world. So the group decides to organise a sit-in of the local office of such a multinational company, which involves breaking in.
This young man is convinced by their arguments; he is glad to have some friends. So he joins and goes around the town putting up posters about their sit-in. Is it possible that once these proposals are law, anyone in this country or any EU country could define those activities as a terrorist offence? If this young man were charged with such an offence, is he likely to be punished with a prison sentence of eight years? Noble Lords may find this rather far-fetched, but there are states—even EU candidate states, perhaps—where putting up a poster in certain circumstances is a terrorist offence, and the penalty can be a substantial prison sentence.
A look at the Justice and Home Affairs website of the European Union, which is called "Terrorism—the EU on the move", confirms such suspicions. It states that,
"the European Commission has put forward proposals aimed at eliminating legal loopholes in the EU that may help radicals suspected of violence escape justice".
Statewatch is an organisation which watches the European Union. It suggests in its evidence to the committee's inquiry:
"The Commission proposal is either very badly drafted or there is a deliberate attempt to broaden the concept of terrorism to cover protests such as those in Gothenburg and Genoa".
In the other place, Chris Mullin MP, chair of the Home Affairs Select Committee, asked the Home Secretary whether he would ensure that whatever definition of terrorism was finally agreed, it was,
"robust, watertight and confined to dealing with terrorists and not with the other people who might, from time to time, get up the noses of the established order".—[Official Report, Commons, 15/10/01; col. 928.]
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When I arrived at the House today, I received a reply from the Minister, Mr Bob Ainsworth, to the noble Lord, Lord Brabazon of Tara, about the committee's report. In regard to the definition of terrorism, the Minister states:
"the basic position as far as the UK is concerned is that, as with the definition contained within the Terrorism Act 2000, the definition should sweep up certain types of activity when committed with a particular motivation in mind".
I should be grateful if the Minister could tell the House what that means.
There are wider implications. Up until now the European Union has been a force for great good in the world, working for the abolition of the death penalty, supporting the United Nations human rights machinery and supporting the activities of many organisations working for democracy and human rights throughout the world. By taking such precipitate and questionable action, the European Union puts in question its sincerity and credibility in promoting human rights observance in other parts of the world.
On 13th October, the president of the Parliamentary Assembly of the Council of Europe, Lord Russell-Johnston, said:
"If, in facing terror, we give up on freedom and humanity, the terrorists have won".
Can the Minister assure us that this proposal will not diminish the basic and hard-won freedoms of European Union citizens?
9.35 p.m.
Lord Fraser of Carmyllie: My Lords, undoubtedly, since 11th September there has been a very real mood of revulsion against terrorism across Europe. In so far as the Government seek to seize the moment and secure across Europe a greater determination in the combating of terrorism, no right-thinking person could do anything other than support that most worthy of objectives. As the noble and learned Lord, Lord Scott, indicated, although there may be issues around the exact definition of terrorism, the basic intention of the framework document demands the support of a great number of people.
I was grateful to receive a letter signed by the Minister, dated 13th November, relating to the Antiterrorism. Crime and Security Bill. He concludes with the words:
"I hope you find this useful".
I did, until I came into the Chamber for this debate, and in particular until the point when the noble Lord intervened during the remarks of the noble Lord, Lord Lester, to indicate that a separate extradition Bill would be brought before the House.
Looking at the document that has helpfully been provided, I am puzzled when I relate it to Clause 110 in Part 13 of the Bill dealing with the implementation of the third pillar. The explanation of the clause includes the statement:
"Reinforcing police and criminal and judicial co-operation with our EU partners is a key part of our response to international terrorism".

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I cannot believe that anyone would have any real objection to that. It goes on:
"EU leaders at their recent summit after the US attacks agreed a number of ambitious measures on police and judicial cooperation to help tight global terrorism".
That is a worthy enough ambition.
"These included urgent progress on plans for joint investigative teams, on measures to simplify the seizing of assets of terrorists across Europe and on measures to speed up extradition arrangements between member states".
The document goes on to indicate, as I understand it, that the speeding up of extradition arrangements is to be brought into being by resorting to secondary legislation. I should be grateful if the Minister would explain what was intended by that provision if we are to find in the implementation of the third pillar under Clause 110 that there will be no provisions at all relating to extradition. If there is a distinction to be drawn between extradition matters that relate to crimes of terrorism and those that relate to other crimes, some of us would have considerably fewer anxieties than we presently have. As the noble and learned Lord, Lord Scott, correctly pointed out, the proposed draft directive takes us well beyond anything to do with terrorism. It takes us into all manner of crimes.
The noble Viscount, Lord Bledisloe, indicated that some of those crimes might be pretty minor. Under the law of Scotland, the crime of breach of the peace technically attracts a sentence of life imprisonment. Breach of the peace is the charge that the Procurator-fiscal in Glasgow uses when he has an unpleasant young man urinating up closes and using loud and abusive language to people who are otherwise peaceful.
I am not suggesting that the authorities in Scotland would be so dumb as to utilise extradition back warrants to secure the return of people who have committed offences of that limited character, unpleasant as they may be. But we must not get ourselves into the frame of thinking that when we deal with these proposals we are dealing only with what are necessarily the most serious crimes in the calendar. The crimes are extremely wide-ranging, and that needs to be clearly understood.
I have less difficulty with those provisions relating to extradition which might relate to terrorist offences. But I am strongly opposed to a broadening of the provision, in a way that appears to me to be surreptitious, under the cloak of the present concern and revulsion in relation to terrorism, so as to unpick what has been an extremely complicated system of extradition across Europe. I have considerable sympathy for what I understand to be the Government's description of our existing arrangements as outdated, cumbersome and slow. If my confidence were such as to believe that, by the introduction of these changes, we would sweep away all those difficulties and I felt that there was a real, careful and proper protection of the rights of individuals, again, what right-thinking person would wish to object to these changes?
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The position is far from that, however. It has been extremely difficult, as a number of those who have sat on the Select Committee have identified, to follow exactly what has been the Government's thinking. The first text we had was in French. I am sure that there are other members of the Select Committee whose French is perfect, but I have to confess that I had some considerable difficulty in understanding fairly significant passages within that directive. It is only today that I have managed to lay my hands on what I understand to be the up-to-date version of the draft in English.
What is more misleading than anything else is that I have also today, for the first time, managed to lay my hands on what were the responses to the Government's document on their proposals for extradition reform. These were set out in what I understood to be a review document, described as The Law on Extradition: A Review, published in March 2001. What perplexes me is that, in the letter from the noble Lord's ministerial colleague in the Home Office, he says, tinder paragraph 9 of his letter of 15 November:
"Proposals closely resemble agreed UK policies set out in The Low on Extradition".
It seems to me, from what is only a relatively cursory examination of those responses to the document, that no unanimity or agreement is achieved following on that review. Indeed, if we take even the designated district judges at Bow Street Magistrates' Court. what they seem to see as a greater priority than any change within Europe is the desperate need to modernise the treaty with the United States of America.
There are a number of other very telling criticisms made in the responses that were received. The one that caught my eye most vividly was the case of Gale v. Governor of HMP Holloway. Mrs Gale's extradition was requested by Portugal for money laundering offences. If a warrant for her arrest were to be sought under the proposed draft, money laundering could be included in that list. However, as is narrated in their submission:
"It was agreed by all parties that she could not be convicted in Portugal because her husband had been acquitted of the predicate drug trafficking offences. However in Portugal once an arrest warrant has been issued by a public prosecutor there is no power to stop the proceedings going to trial".
When this came before Lord Justice Laws—who, as many noble Lords will appreciate, is an exceptionally distinguished judge—he said in his judgment that,
"it seems to me plain beyond any possibility of doubt that it would be unjust and oppressive to return the claimant, having regard to all the facts I have stated springing from the acquittal of her husband. … As I have said more than once, she cannot now be convicted of these offences".
With the greatest respect to Lord Justice Laws. he is unnecessarily restrained in his judicial language. It would be plain daft to return someone under an extradition arrangement, or under a warrant, to a court in circumstances when one knew that she could not be brought to trial.
As I understand the draft proposal, there are grounds for either mandatory or discretionary non-execution. However, I cannot see that it provides for

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the particular set of circumstances that I have just outlined. If I am wrong about that—and this is what I want to identify and try to understand—what is the improvement on what exists at the moment?
Let me get away from Bow Street magistrates, who may have many such applications to deal with and who may be very expert. Let me take the luckless sheriff at Edinburgh, who would deal with these matters in Scotland. Is he to know that under the procedural rules of Portugal, a signatory to the European Convention on Human Rights, once an arrest warrant has been issued by a public prosecutor there is no power to stop the proceedings going to trial, because her husband had, in this case, been tried and acquitted? He cannot possibly be expected to know the detail of procedural law across the European Union even at the moment—and even less so once the Union is extended.
In such circumstances, provision will inevitably have to be made for some judicial examination of what is to be done—whether the arrest warrant is to be allowed. Once that is in place, all the unnecessary delays and bureaucratic complications that we are seeking to set aside will come back into place by another route. That is why we need to have a more protracted debate to understand exactly what improvements the Government believe will be brought about by the changes.
On the matter of representations to the Government, I can only conclude by looking to their own summary. On page 97, it says:
"From the responses received, there was strong support for retaining the dual criminality requirement".
I understand that the removal of that requirement is central to the changes that the Government are discussing in Europe at the moment. We need to understand that against the background of a significant number of representations, not coming from the "heidbangers" on the judicial or legal scene, but from such bodies as the Law Society, Justice, Liberty, the sheriff of Edinburgh and many others. There are real objections to the removal of dual criminality. We ought to understand exactly why the Government have set that aside, notwithstanding the objections made.
We are grateful to the Government for agreeing to have this debate this evening. I had understood that urgency was part and parcel of our deliberations and that we had gone at the issue so quickly because it was going to be in the anti-terrorism Bill. If the Minister is now telling us that there will be an opportunity for an extradition Bill at a later stage, I earnestly request that we take our time over it to ensure that we do not allow sets of circumstances to emerge that will be more complicated or will do nothing to improve the current position. I look forward to the Minister's response.
9.47 p.m.
Lord Pearson of Rannoch: My Lords, the noble Viscount, Lord Bledisloe, was good enough to suggest that my blood pressure and that of other Euro-sceptic Peers might have been somewhat raised by the answer
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given by the noble Lord, Lord Lester of Herne Hill, to the question put to him by the noble Lord, Lord Monson. I hope that noble Lords will be relieved to hear that, on the contrary, I was not at all surprised to hear the noble Lord, Lord Lester, confirm what I had feared—that these two directives are the first attempts by the European Union to establish a federal EU criminal system.
What is, of course, typical of the EU—but so typical as not to raise one's blood pressure—is that these advances in its power were, in effect, stolen under the cover of the darkness of the events of 11th September. The EU always seeks to advance its powers. The ratchet in its progress to total domination of Europe has never gone into reverse—indeed, the treaties prohibit that. However, it is deeply depressing that the Government have fallen for such a ploy on this occasion.
I shall repeat a question that I put to the Minister last Thursday, 15th November, at col. 680 of the Official Report, because I did not get a satisfactory reply. Have we really come to such a pretty pass, thanks to our subservience to the so-called courts in Strasbourg and Luxembourg, that Her Majesty's Government could not extradite Mr Osama bin Laden to stand trial in the United States of America—in the courts of our greatest ally—because he might face the death penalty, whereas British subjects now face the prospect of being arrested on the say-so of a Belgian magistrate to stand trial in Brussels without habeas corpus or trial by jury? Have we really gone so mad? I should like the Minister to say yes or no to that if he can.
I have three quick questions slightly more targeted on the framework directives. First, I am serious in pressing the noble Lord on the meaning of "xenophobia" in Article 2 of the arrest warrant directive. What exactly is the crime here? I fear that we really must have an answer on that, if only because some of us Euro-sceptics are already accused of xenophobia, sometimes even by Members of your Lordships' House, just because we believe that the Treaties of Rome and pretty well everything that pours forth from Brussels are hopelessly misguided and fundamentally dangerous for the democracies of Europe. One problem here may be that the Government in their wisdom gave jurisdiction over racism and xenophobia to the European Union under the Amsterdam Treaty, so their room for manoeuvre may be limited. But at least the Government should say what they think that crime is. Can the Minister give a clear, irrevocable assurance—I hope that he is listening as this is an important question—that I will not eventually be sent to the Gulag for eight years without the option just for believing and saying that the sooner the United Kingdom gets out of the European Union the better?
The second question on which I wish to press the Minister is whether these directives would have made any difference at all to the events of 11th September. As I read it, when the Minister went before your Lordships' Select Committee on 7th November he could not think of how that might be. However, I

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imagine that the Government have had time to think about that. Therefore, will they be so good as to give us an answer now?
Finally, and most importantly, can the Minister tell the House what is the Government's room for manoeuvre on these directives? Leaving aside whether or not they want to, can the Government block them, or are we caught in some way by some ghastly form of majority voting sewn into the treaties? I should be most grateful for an answer to that. Can we block this legislation or must we agree it and must we in the end put it into our domestic legislation in pretty well pure form?
9.52 p.m.
Lord Goodhart: My Lords, I start by declaring an interest in this matter in that I am a vice-chairman of the council of Justice and I also have a relationship, though a somewhat looser one, with Fair Trials Abroad.
Until the general election I served on Sub-Committee E of the European Union Select Committee and I am very pleased to see that the report continues to follow the high standards followed under the noble and learned Lord, Lord Hope of Craighead, who was the chairman of the sub-committee during most of my period on it.
The draft framework statements have had a universally bad reception from everyone who has spoken this evening. That applies not only to the usual suspects such as the noble Lord, Lord Lamont, but also to those who are known in your Lordships' House for their support for the European ideal such as my noble friend Lady Ludford. Therefore, clearly something is badly wrong.
I start with the framework decision on terrorism which was mentioned by two speakers, the noble Baronesses, Lady Park and Lady Stern. That was important as it emphasised that it is not only the European arrest warrant that has to be looked at but also the framework decision on terrorism. I was particularly struck by the comments of the noble Baroness, Lady Park, who knows a great deal more about intelligence than most of us and her concern about the possible impact of the decision on intelligence gathering, if it is implemented in its present form. I think that it is justifiable for Europol to have its own intelligence capacity though it would plainly be highly desirable that there should be some degree of democratic accountability for Europol if that were to happen.
But certainly, if indeed it is true that there is an obligation on national intelligence services, including our own, to pool their intelligence with Europol with the increased risk of leaks that that involves, that is obviously a matter which any government of the United Kingdom would wish to consider very seriously. I certainly hope that the present one will, and I await with interest what the Minister has to say about it.
I turn to the subject of the European arrest warrant. This is a matter which has taken up the bulk of the debate this evening. I can see considerable advantages
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in a properly drawn European arrest warrant. I believe that, among other things, it would certainly speed up the procedure.
One of the safeguards to which the noble and learned Lord, Lord Scott of Foscote, referred was the present requirement for a political decision by a responsible Minister. If we were satisfied that the trial in the country to which the accused could be extradited met fully the standards required by the European Convention on Human Rights, I should certainly consider that it was no longer necessary or desirable to include a political decision before the extradition could take place.
I believe that there are many disadvantages in involving a political decision in this field. The issue that perhaps tempted me most strongly to support the existing European arrest warrant was the suggestion that it could be used to extradite the editor of the Sun to France or Germany next time that newspaper, on the eve of a big football match, published another article about "Frogs" and "Huns".
However, more seriously, I believe that, first, we must not be too complacent about our own system. We must recognise, for example—
Lord Lamont of Lerwick: My Lords, perhaps I may interrupt the noble Lord. When he says "more seriously", does he agree that whether or not someone can be extradited for something that they have written in this country is quite a serious issue?
Lord Goodhart: My Lords, I believe that that is in the world of fantasy. I do not consider it to be a serious possibility. However, we must not be complacent about our own system, and we must recognise that other countries may well have reservations about some aspects of our system. One has only to look, for example, at the frequent cases during the late 1980s and 1990s in which decisions relating in particular to terrorist offences were overturned by the Court of Appeal after people had spent many years in prison.
I believe that we must also look at the reverse position; for example, for many years extradition from Spain was not possible. The result was that parts of Spain became known as the "Costa del Crime" because of the large numbers of English criminals who had taken up permanent residence there. It is, of course, now possible, although still quite difficult, to arrange extradition from Spain. However, there is a long-standing and, I believe, wholly unjustifiable principle by which some countries—notably Germany—refuse to extradite their own citizens. I f the European arrest warrant gets round that particular restriction, I believe that there will be a great deal t o be said for it.
However, having raised those issues, it is claimed that a great deal is wrong with the European arrest warrant. A number of points obviously require study. One is the question of dual criminality. I believe that it is absolutely right that where an issue is no longer regarded as an offence in this country—that obviously includes various forms of homosexual behaviour

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which were, in the past, criminal here and are still criminal in other countries in the European Union—we should not deport or extradite people.
There is the question of the modification of the speciality rule, the question of the right to bail pending return and the question of trials in absentia. Above all, there is the question of possible extradition to countries in which the judicial process does not observe the principles that are required under the ECHR even if nominally the country in which those courts are situated has signed up to the convention.
There are plainly issues—in particular in connection with human rights—that need to be resolved before a framework decision for the European arrest warrant is ready for adoption. That is why we think that it would be deeply regrettable if the Government signed up to it on 6th or 7th December. We also believe that that ties in with certain aspects of the Anti-Terrorism, Crime and Security Bill. We shall have to look at the matter in more detail but we are deeply concerned about the fact that Clauses 109 and 110 of the Bill will give the Government the right to bring third pillar framework decisions into law in this country by statutory instrument.
We are of course glad that if the Government are going to introduce the European arrest warrant, they will do so through primary legislation. It is clear that they could have done so, had they so wished, through secondary legislation after the Bill's enactment. If that were so, fundamental issues that are raised by the European arrest warrant would have received limited scrutiny by the European Union Committee—there might have been a debate on the statutory instrument, but that would be limited to 90 minutes in the other place. We agree that if there is primary legislation, the Government will be constrained by the terms of the agreement to which they have signed up.
Today is not the occasion on which to debate whether Clauses 109 and 110 should remain in the Bill. However, the European arrest warrant in its present form is plainly not ready to be approved by the Government or included in a framework decision. Serious matters have been raised this evening and the Government should consider them seriously before they accept that the European arrest warrant is in a suitable form for incorporation into the laws of this country.
10.3p.m.
Lord Kingsland: My Lords, first, I congratulate the noble and learned Lord, Lord Scott of Foscote, on giving us an opportunity to debate this matter. I respectfully share his judgment about the terrorism dimension of the warrant; and his view about the relatively minor role that that will play compared with other provisions.
First, I want to discuss the legislative process. I was very struck, when looking at the minutes of evidence of Sub-Committee E, by the evidence given by Mrs Pallett, which appears in paragraph 71. Speaking honestly and accurately, she described the legislative
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process leading up to the decision. She said that up to 14 days will already have been spent—or will be spent—by senior officials. That will be followed by meetings with ambassadors in COREPER. There will then be a meeting with the Council of Ministers of Justice and Home Affairs and the matter will be wrapped up at the European Council, early in December.
I mean no disrespect whatever to Mrs Pallett when I say that what she has described is the most egregious form of intergovernmentalism. In this process there is no mention of any parliament, either the European Parliament or any national parliament. Some of my noble friends on the Benches behind me do not share my views of the merits of the role that the European Parliament plays. However, I shall at least ask your Lordships to accept that had the constitutional principle of co-decision applied to this process, we would not only be looking at a document that has been thoroughly discussed in public, but also at one that has a great deal more democratic legitimacy than it will have as a result of the process that Mrs Pallett described.
Moreover, not only is the European Parliament excluded, but so are all the national parliaments. Were it not for the foresight of the noble and learned Lord, Lord Scott, and his committee, noble Lords would have had no opportunity whatever of any input into the decision that is about to be made. Indeed, technically we are not scrutinising any document at all.
Do your Lordships have any power? I suggest that your Lordships have one. The decision of the European Council will have to be taken unanimously. Our representatives at the council have the power to say no. The reaction of the Minister to your Lordships tonight, and more generally the reaction of his colleagues to what your Lordships say between now and December, is crucial to your Lordships. We depend on the Minister to deliver for us what we believe this decision needs if it is to represent the best traditions, not only of the European Convention on Human Rights, but also of the rights for which citizens of this country have fought so hard for so many centuries.
My second observation on this decision concerns the role of the European Court of Justice. Up to now in the United Kingdom, the European Court of Justice has played no role in criminal affairs because we have never been part of the Schengen arrangement. This document will change all that. This is not the first time that the European Court of Justice will be able to overrule domestic courts; but it will be the first time that it will be able to do that in criminal affairs which intimately affect the rights of the individual citizen.
Although Article 34 of the Treaty of European Union prevents the doctrine of direct effect in third pillar matters, it is still possible to make, once the jurisdiction of the European Court of Justice is established, preliminary rulings; and it may be that the doctrine of indirect effect under the great case of Marleasing will also apply. But if the last word about

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our rights under this warrant depends upon the European Court of Justice, what opportunity are we given under this decision to get there?
As far as I can see, there is no process of appeal; and, under the provisions for contesting a request made by a requesting state, there is no route by which an individual citizen, who appears in front of the Bow Street magistrates, can get to the European Court of Justice, the ultimate arbiter of what the decision says. Why? We are being lectured by the European Commission about how important it is that each member country respects the constituent parts of the European Convention on Human Rights, but it is a fact that the European Community and its institutions have refused to sign up to the European Convention on Human Rights. It has never signed the European Convention on Human Rights.
So we have the extraordinary sight of a European Community, which is not prepared to accept the disciplines of a European Convention on Human Rights for its own institutions, telling us, the member states, to accept the convention in our own affairs.
Lord Lester of Herne Hill: My Lords, I am grateful to the noble Lord for giving way. Does he accept that it is not quite fair to put the matter that way? The position is that the European Commission has advocated changing the treaty so as to enable the institutions of the European Community to adhere to the European Convention on Human Rights. But that has never been accepted by the Council of Ministers, and indeed by successive British Governments. So it is not exactly the fault of Brussels that this has not happened.
Lord Kingsland: My Lords, or—if I may add to the intervention of the noble Lord, Lord Lester—indeed, the Court of Justice of the European Community, many of whose members have been extremely sceptical about the Community's adherence to the European Convention on Human Rights.
I am not making an anti-European Convention on Human Rights point; I am simply suggesting to the Minister that here we have an element of jurisdictional confusion which must be resolved before the decision is agreed by the European Council. It is not at all clear—as Humpty Dumpty said—who is master here. Is master the European Court of Justice or is master the European Court of Human Rights acting under the convention? That surely is crucial in a document which deals with individual rights.
I turn to my final observation. That is on the doctrine of mutual recognition. It was well put in the discussions in Sub-Committee E that there were three alternatives for the Community with respect to the extradition rule. Either the status quo; or a single European judicial area with a single set of courts and a single hierarchy; or the solution in-between, which is the solution of mutual recognition.
I make no complaint about that. The decision to adopt the system of mutual recognition was the right one. But if your Lordships glance at the way in which
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the principle of mutual recognition has operated in the European Community throughout its history, your Lordships will see that the directives, or, on some rare occasions, the decisions, which have introduced mutual recognition of each member state's legal system in a particular context, have always contained a set of minimum standards. I am most familiar with the environmental directives. There the set of minimum standards are invariably the standards of the state that has the highest environmental standards.
We must not let the European Council get away with the illusion that the principle of mutual recognition means that one has to accept the standard of each individual member state. It is the duty of the European Community to write into the decision or directive a set of principles in which it believes. I cannot believe, looking at the state of the decision before your Lordships, that the principles that are contained therein would be regarded by any person reasonably knowledgeable about human rights and human standards as satisfactory in relation to the historic traditions of any member state in the Community, let alone the United Kingdom.
Many noble Lords have spoken most eloquently about the particular issues which concern your Lordships—bail, specialty, dual-criminality, the lack of time for appeals and the uncertainty about what one can appeal on. All those matters need to cease to be opaque and become crystal clear and represent the standards that reflect the standards in the European Convention of Human Rights. Why is that so difficult? Why are the Government having so much difficulty about that? I must confess that I am bewildered.
The Government can say no. In 1997, the Government introduced a Bill to incorporate the European Convention on Human Rights into our legal system. It is now part of the law of the land. It has reinforced the freedoms already acquired so painfully over many years in our country. I cannot believe that, having made so much effort to ensure that our standards are so high, the Government are prepared, in the context of the arrest warrant, to throw them all away. That is rank hypocrisy.
10.15 p.m.
Lord Rooker: My Lords, the noble Lord. Lord Kingsland, finished on an extravagant note, if I may say so.
I shall do my best to do justice to the debate—I probably have an hour's material here to do so. I will not use it. I have made notes about issues raised by noble Lords, so I have a cross-check and shall write to them specifically about anything that I do not cover and copy it to all noble Lords who have spoken.
In effect, I shall race through the preamble and then deal with as many points that have been raised as possible, and I hope that I can give specific answers to some of them. I cannot offer Bob Ainsworth—that is up to the Select Committee—but Bob was clearly a star. I had thought that his letter was quite good, but I have re-read it 10 times during the course of the debate and can well understand why noble Lords have

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questioned it. Nevertheless, we will do our best now and in future to offer as much information as possible on the many legitimate questions that noble Lords have raised.
I pay particular thanks to the noble and learned Lord, Lord Scott of Foscote, for introducing the debate. He gave a clear overview of the central issues. At one point, I wanted to rise to respond to him, because I could have spent longer setting out the Government's position on many of the issues that he raised. I do not have positive answers on all of those issues, but in due course I shall be able to be more specific on some of them. We welcome that opportunity.
I must make absolutely clear that the proposals were in preparation well before the events of 11th September, so they are not part of the reaction to that day. However, the events of that day have obviously given impetus to the Commission's work.
The Government are fully committed to the prompt delivery of the Tampere agenda. Common sanctions for serious crimes and mutual recognition of judicial decisions are two key elements of that agenda. At the special Justice and Home Affairs Council on 20th September, and at the European Council the following day, it was agreed that the framework decisions should be ready for adoption by the Council on 6th to 7th December. I realise that that time scale is tight, but the events of 11th September have speeded up the process.
The purpose of the framework decision on combating terrorism is to create a legal framework of terrorist offences and penalties across the EU. Of course, the United Kingdom already has comprehensive counter-terrorism legislation in the form of the Terrorism Act 2000, with which your Lordships will be familiar. But not all countries within the Union are in a similar position. Only six member states have specific counter-terrorism laws. In recognition of that, action at EU level is clearly desirable.
Perhaps I may briefly cover some of the matters covered by the terrorism framework decision. It creates a list of terrorist offences that are already provided for in UK law. The question of how those offences should be defined as terrorist acts is still a matter for negotiation but, as with UK law, the essential ingredients are a specific type of action coupled with a particular type of motivation. Those are clearly set out in the articles.
A key issue in the document is the penalties that terrorist offences should attract. The UK position is that penalties should meet the treaty commitment to adopt minimum rules for penalties in the field of terrorism. We therefore favour a meaningful approach—not one based simply on the lowest common denominator but one that shows the would-be terrorist that the EU is serious in the fight against terrorism. However, we are sensitive to the concerns of some member states about applying that approach in the document. No one dissents from the view that
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terrorism is a particularly serious type of crime and we should not give anyone inclined to terrorism the idea that we are a safe haven in the European Union.
Otherwise the document covers areas such as the protection of the victims of terrorist crime, in recognition that victims of certain types of terrorist offences—for example, extortion—are vulnerable. Therefore, in order to protect those victims, member states are asked to ensure that the investigation or prosecution of the terrorist-related offence is not entirely reliant on the evidence or accusation made by the victim of the offence. That is an important document and it is regrettable that we need it. However, we are committed to it and will continue to work towards its successful conclusion.
The framework decision on the European arrest and surrender warrant is also essential. That has constituted the main part of today's debate. It is part of the commitment to obtain mutual recognition of judicial decisions as the cornerstone of future EU co-operation. It is timely that the proposal is ready for discussion and adoption now. The rapid surrender of those accused of terrorist crime and other associated serious crime to finance terrorism will be essential to ensure rapid and effective prosecution and thus greater security within the EU.
The Government are fully committed to the elimination of dual criminality with mutual recognition. It is a protection which no longer has any place in the dealings between mature democratic members states of the EU. We must not work on the basis that every new proposal will be subject to gross abuse. I am not saying that there has not been abuse at various levels within the EU, but it is not a presumption on which we examine new legislation and actions which we must organise. We are all signatories to the ECHR. It is explicitly recognised in the EU and it underpins our dealings. We are late in including it into our domestic law. There is a presumption that we are the best and the only ones who play by the cricket rules. However, as one speaker pointed out, there are concerns elsewhere in Europe about some of our procedures, so there is a two-way flow of genuine debate.
The principle of the European arrest warrant is to eliminate the barriers to swift extradition. There have been some changes in approach from the Commission's original proposal, which the Government strongly favoured as it reflects our broad approach to mutual recognition. However, we accept that that causes problems for some of our EU partners. The list approach, which seems likely to secure general agreement, goes a long way towards our final objective of full mutual recognition. It provides a long list of offences where dual criminality will not apply and provides optional dual criminality in respect of other offences. Therefore, it should be straightforward for practitioners and it addresses directly the more serious crimes which terrorists are likely to commit.
We are also encouraged that EU partners share our commitment to rapid decision taking on request for surrender, although we are concerned that deadlines should not result in the release of a fugitive wanted for serious crimes.

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I shall now try to answer as succinctly as possible some of the specific issues which were raised. The noble and learned Lord, Lord Scott, and others spoke of the purpose for which a person has been extradited. I understand the apparent contradiction, but it is clear from all my manuscript and briefing papers that Article 1 of the framework indicates that the European arrest warrant is issued for the purpose of conducting a criminal prosecution. There is therefore no provision for pre-prosecution surrender. I cannot spell out our intention any clearer, but that is our intention. There is no opportunity. There may be other routes, but not via the European arrest warrant. I hope that noble Lords will be reassured on that point.
The framework decision leads to national governments providing for the detail in line with national practices. I appreciate the fair point that the letter from Bob Ainsworth was available only on Friday and today to most noble Lords. It is a fairly lengthy document and I wish that we could have provided it sooner in the light of some of the issues raised. Indeed, we shall follow up some of the issues that have been raised regarding the letter.
The noble and learned Lord, Lord Mayhew, and the noble Lord, Lord Lester, raised the matter of competence. We are working from the presumption that competence is well placed and that not every request has the potential for abuse. We have many years experience in working with our European partners on these matters. I can give some figures, which may not be generally known. In the 10 years up to 1990, the Home Office made 227 surrenders world-wide—an average of 23 a year. In the 10 years to 2000, there were 354 surrenders world-wide—an average of 35 a year. We have experience of extradition requests over the years. Since the prima facie evidential requirement was abolished, requests have been made both carefully and sparingly.
The noble Lord, Lord Lester, referred to dual criminality and the confusion on the wording in Bob Ainsworth's letter. The letter made it clear that dual criminality was not required for offences on the common list. For all other offences above the 12-month threshold, dual criminality would be optional. The dual criminality test would not be applied for those offences for incoming requests, even if when the request was made the other member state applied the dual criminality test to our request.
We consider that dual criminality should be abolished completely between EU member states. That is a clear enunciation of the policy, but we could accept the need for some restrictions where extra-national jurisdiction is concerned. Obviously, there is an issue of difference in some respects, but that is our clear position.
Lord Goodhart: My Lords, will the Minister say whether that principle would extend even to a case where, for instance, a foreign country sought the extradition of a national for undergoing an abortion, which is not an offence in this country?
Lord Rooker: My Lords, I shall have to add that to the letter that I shall write. It is a fair question, but I am not in a position to give the noble Lord a straightforward answer.
Bob Ainsworth undertook to write to the noble Baroness, Lady Park, and I understand that he will do so before the end of this week.
The noble Lord, Lord Lamont, asked about heads of state. I understand the background, although I am not as familiar with it as he is. I cannot give an answer today on the position of heads of state, which is covered by the law on sovereign immunity and is not in the framework decision. I understand why the noble Lord raised that point. International conventions on genocide are moving towards extraterritorial consideration. There will be tribunals for Rwanda and the Former Republic of Yugoslavia, showing a development towards greater international jurisdiction for those crimes rather than retaining national tests of dual criminality.
The noble Lord, Lord Lamont, also asked about racism and xenophobia, which are examples on the list. I understand that most of the crimes on the list are straightforward; we recognise these types of crimes. Questions of interpretation are agreed or defined at EU level and are then placed in the national framework of national law. I do not have an answer on the xenophobia issue, especially on the argument of someone writing something in this country, which one noble Lord described as fanciful. The question deserves an answer, and I shall seek to put it in writing.
Lord Lester of Herne Hill: My Lords, I am grateful to the Minister. He may come to my question in his reply, in which case I am being premature, but before he passes on from the concerns that were raised earlier, will he deal with two important matters? The first relates to the Bob Ainsworth letter. I said that there seemed to be a contradiction on double criminality and the speciality rule. Is it the Government's position that someone could be extradited without double criminality for crime A and then prosecuted in the requesting state for a wholly different crime?
Secondly, is it the Government's position that the state that is being requested can refuse to give effect to the request if there is cogent evidence that an unfair trial will take place in the requesting state?
Lord Rooker: My Lords, the answer to the second question is yes—I certainly hope that it is—because we should not send people to courts where we are not satisfied they will receive a fair trial. As to the first question, I believe that the noble Lord, Lord Lamont, quoted Article 22.1. However, he did not go on to quote Article 22.2 which provides that people who are surrendered pursuant to a European arrest warrant in the issuing state may be prosecuted, sentenced or detained for an offence other than that for which the warrant was issued. However, if the offence is one of those referred to in Article 2.3—major terrorist offences—any such prosecution, sentence or detention is subject to the agreement of the competent authority

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in the executing state. Therefore, there is an attempt to reach agreement, even if the original charge and arrest have been extended to something else.
Lord Lamont of Lerwick: My Lords, with great respect to the Minister, if he consults Hansard he will see that I did quote the second part. I do not remotely complain about that. Perhaps I may return to the question of Article 2 offences. I am grateful to the Minister for agreeing to write to me about the question of xenophobia which was dismissed so airily by the noble Lord, Lord Goodhart. As a general principle, he must be able to answer the question whether the offences listed in Article 2 are extraditable if committed in this country.
Lord Rooker: My Lords, I cannot do so because if those offences are committed in the UK most of them are prosecutable here. We are talking about extortion, murder, money-laundering and everything else. Those offences committed here would be subject to our jurisdiction. I shall take advice and write if we can think of examples where an offence committed in this country is extraditable to another country. That appears to be a contradiction in terms. The argument about xenophobia is the only one that comes to mind. On the other hand, I do not want to think on my feet. Most of the offences on the list, if committed in this country, should be prosecutable here. Nevertheless, I shall seek to provide as detailed an answer as I can.
Lord Pearson of Rannoch: My Lords, does the Minister agree that, although it is good of him to put what he can in writing in response to my noble friend Lord Lamont and other noble Lords on the question of what "xenophobia" means, it is very important to have a clear definition before we come to primary legislation? The alternative is to leave the definition to the Luxembourg court in due course, which I believe all noble Lords would find unacceptable.
Lord Rooker: My Lords, I would find it difficult to come to the House with the legislation next year if I did not have answers to the questions raised tonight, all of which are legitimate. We must have answers. Noble Lords may not like the answers, or disagree with them, but the points deserve a response. I shall not put myself in that uncomfortable position.
I promised my noble friend the Whip that I would sit down promptly in 16 or 17 minutes, to which he replied, "Thank you very much". I shall try to stick to that.
Lord Cope of Berkeley: My Lords, the Minister is doing extremely well in attempting to answer our questions. I do not believe that he should be borne on too heavily by his colleague the Lord in Waiting. I believe that the House would wish that he does his best to respond, albeit succinctly.
Lord Rooker: My Lords, I shall try to keep up the pace.
Lord Goodhart: My Lords, I believe that it would be helpful if the Minister kept going for at least another seven or eight minutes.
Lord Rooker: My Lords, I made that mistake the other week but no one told me about it. I must complete the debate.
The noble Viscount, Lord Bledisloe, raised very important issues. The European arrest warrant is not a terrorism measure. We agree. We are not proposing it necessarily as part of the anti-terrorism package. In some ways it is a good thing that most of it is divorced from the emergency Bill in any event because it relates to other offences.
However, it has to he realised that terrorists and their supporters are involved in other crimes to finance their terrorist activities. The European arrest warrant is about co-operating more effectively in bringing the criminals, including terrorists, to justice more rapidly.
As regards the lack of fairness, is it right that by escaping across a border someone should have greater protection than if they had not tried to evade justice? I know that we are not completely in a federal state, but we are trying to work together with our partners. One state will be played off against another by organised international criminals unless we take these steps. That is the basis of our approach.
It will be for the requesting country to determine whether its national offence comes within the description contained in the list, which is to be converted from the framework into national legislation. Only the requesting country can decide that. I hope that the noble and learned Lord, Lord Fraser of Carmyllie, did not think that I misled him. I was half correct. I have given these answers before. The extradition legislation is nothing new. It was planned. There are three Bills following the emergency. They were not originally in the gracious Speech and I appreciate that. There is the current legislation in the other place, the extradition Bill, and in the spring there will be the asylum and immigration legislation, which all flow from having to rewrite the rule book following 11th September.
The Government plan to use the secondary legislation route to implement EU conventions on extradition from 1995 and 1996 where it has been agreed as part of the terrorism road map. They should be ratified by the end of this year. As everyone knows, we intend a comprehensive overhaul of extradition—hence the consultative paper last year. In looking at the European arrest warrant, it seems sensible to us for it to be part of the Bill so that we have a coherent package for extradition to put before both Houses of Parliament. I hope that we shall have that agreed by the end of this year with the legislation being introduced, I believe, in January.
The point of the Bill at a later stage does not override the EU commitment to adopt the measure in December, but it is essential that we have an agreed

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EU text as the basis for developing our national legislation. We have to reach agreement at EU level before we can plan and prepare the detail. We are going to convert what was agreed at EU level into our national legislation.
The noble Lord, Lord Pearson, referred to the question he asked me last week. The answer is still the same. The death penalty is not a bar to extradition to the United States; otherwise we would never have extradited people for major offences. I believe we have also done that since 11th September. The proviso is that we get an assurance that, whatever the outcome of the trial, the person concerned will not be executed. That is the central issue. The United States has been more than content to comply with that requirement. I suspect that it has been required by every EU member state and every signatory to the EU convention over the years. The death penalty is not widely available in the United States now. Several states still have it.
Baroness Ludford: My Lords, I apologise to the noble Lord and I thank him for giving way. I also apologise to the House. As regards a fair trial, I am anxious to clarify a point with the noble Lord before he sits down. In reply to my noble friend Lord Lester, the Minister said that he hoped there was a power to refuse to extradite if there was a belief that a person would not get a fair trial. However, I have searched in vain the text of the decision. Can the Minister confirm, first, where in the decision is the power to refuse to extradite on the ground that there would not be a fair trial?
Secondly, in his response to my noble friend Lord Lester, the Minister appeared to suggest that the UK Government would never apply intentionally the dual criminality provision. Would that extend to the offences listed under Article 2.4—abortion, euthanasia, morality, sexuality, freedom of expression and association—so that we would not apply the dual criminality test; namely, by taking advantage of the article? Have I understood that correctly?
Lord Rooker: My Lords, I must tell the noble Baroness that, on her final point, I shall respond in writing. I am not going to answer that off the top of my head. My own interpretation of this is that it is too sensitive and too important for me to respond immediately.
On the noble Baroness's first point, I think I am right to say that this relies on ECHR case-law. I am told that the case of Soering—I would swear that all noble Lords in the Chamber are familiar with the case, but I learnt about it only at the weekend when reading through the Box—states that a decision to surrender a fugitive by Bow Street Magistrates Court may involve the magistrate taking a decision which breaches the ECHR. This is on the basis that a decision to extradite an individual to where he would receive ECHR non-compliant treatment is regarded in certain circumstances as a breach of the ECHR itself. We therefore cannot exclude the possibility that the magistrate might refuse a request for surrender on
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ECHR grounds to avoid such a breach. It is implied in case-law that circumstances could arise where the judicial authority at Bow Street could say no. The magistrates themselves would not extradite because they would not feel that the action was ECHR-compliant
Lord Scott of Foscote: My Lords, I simply wished to point out to the Minister that I believe he is referring to the situation as it is at present under extradition law. I understand that that will no longer be the position if the new measure is reflected in a new Act. However, I accept that that is the position at present.
Lord Rooker: My Lords, I am reading only part of the briefing material and I am conscious that I have gone way over my time. I shall have to come back to the noble and learned Lord on the matter.
Given that we have signed the ECHR, and knowing that good evidence is in place, I cannot see how we could allow it, knowing that for various reasons a fair trial would not take place. I have to say that. It must be the case. In a sense it is like Article 3. We would not knowingly send someone back to another country in breach of Article 3. It is sacrosanct and there is no way around it. If we know that someone will not he given a fair trial in another member state, from our point of view that would be a serious state of affairs for the judicial process of another EU state. I do not say that it is inconceivable that that could happen; there must be circumstances where it could come about.
Lord Mayhew of Twysden: My Lords, I am so grateful to the noble Lord. All his decent instincts are coming out. He has said engagingly that he certainly hopes that some means are available by which we shall be able to avoid sending someone back in such circumstances.
In order genuinely to try to help the noble Lord, perhaps I may revert to the point that I tried to make some time ago; namely, that it would be far safer, far easier and far surer if there was written into the body of the decision—when it reaches its final form —an express prohibition that it shall be open to any person whose extradition is sought, to raise the issue and make the complaint that he will not be given a fair trial or will not receive any other fundamental right. How else shall we be certain that he will be given that protection?
Lord Rooker: My Lords, yes. The noble and learned Lord, Lord Mayhew, has caught me bang to rights. Over the past four years as a Minister, it has been a problem when confronted with dodgy circumstances, to think only: "Head down, read brief". I do not do that.
It is clear, as a result of our serious debate, that fundamental issues have been raised as regards what is to be done with people who are charged and required for prosecution abroad. Those questions deserve an answer. I am not drafting the Bill which will come before this House, but I believe the suggestion of the

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noble and learned Lord, Lord Mayhew, is eminently sensible. I cannot think of an argument against such a suggestion. With that, I shall now sit down.
Viscount Bledisloe: My Lords, before the noble sits down, he has candidly and charmingly said that there were a large number of points he could not answer; that he might have to think about them and write. There are now 17 days until this matter apparently has to be decided. Is not this total state of uncertainty yet a further reason why the decision must be postponed?
Lord Rooker: My Lords, I do not accept that. Although there are only 17 days, the UK Government will interpret the EU-wide agreement to our own national circumstances and bring a Bill to this House. That is when the real debate will take place.
Lord Kingsland: My Lords, I am grateful to the Minister for giving way. That is where the European Court of Justice comes in. The Minister said that we can interpret this legislation in the way that we want. However, as I understand it, the European Court of Justice will have overarching responsibility for the interpretation of the decision. It may well come up with a decision which we do not like. That is one of the reasons why I mentioned that issue in my speech. I am not suggesting that the Minister should answer me now; but I hope he will bear that matter in mind over the next 17 days.
Lord Scott of Foscote: My Lords, perhaps I may conclude the debate by thanking all noble Lords who have spoken. Their contributions have underlined the concerns that many people feel in regard to the European arrest warrant provisions. A number of new concerns have also been raised. I thank the Minister for the spirit in which he has responded to them.
Speaking for myself, there are two particular concerns I wish the Minister to take away with him. The first—which, I confess, I had not previously been struck by but which I believe to be a valid point—was raised by the noble Lord, Lord Lamont, in regard to jurisdiction. The double criminality requirement under present arrangements—that an offence be criminal here as well as in the requesting country if extradition is to be ordered—applies also to jurisdiction. We would not extradite if the requesting country is claiming a jurisdiction which we in this country do not claim for ourselves.
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All countries these days claim a certain amount of extra-territorial jurisdiction—we do and everyone else does—but an exorbitant claim to jurisdiction which no one else claims would not ordinarily be recognised here. I fear that under the measure as it stands, that would not be the case. An arrest warrant for a criminal offence which fell within one of the listed descriptions—even if we regarded it as a claim to exorbitant jurisdiction—would, if the legislation followed the lines of the proposed measure, have to be executed. An example was laughingly given of someone trying to prosecute the editor of the Sun. If that was in relation to an offence committed here, it would be a claim to exorbitant jurisdiction which we plainly should not permit.
The Government are going back to the Council of Europe in order finally to agree the terms of this measure. It has been rightly said—I cannot remember by whom—that the Government do not have to agree. This issue cannot be decided by qualified majority voting; it requires unanimity. There are a number of points that the Government can and, I believe it is the feeling of the House, should insist upon. For example, as the noble and learned Lord, Lord Mayhew, said, it would be easy to write into the measure a provision that a ground for refusing extradition would be that evidence had been produced that a fair trial would not be had in the requesting country.
The position at the moment under this measure—if the legislation follows this line—is that the magistrate would not allow that evidence to be given because it would be irrelevant. There has got to be a possibility of that evidence becoming relevant, and that requires an appropriate provision in the measure itself.
I am sure that the Government will take these important points to the next meeting of the Council at which the terms of these measures must be finalised. The Government will, of course, be accountable to Parliament and to the country for the agreement they reach on that occasion. These are very serious matters. I am sure that the Government will take them into account and insist on the measure being in a form that will correspond with our notions of human rights requirements and of requirements of fairness to individuals who are arrested under these warrants. I commend the Motion to the House.
On Question, Motion agreed to.
House adjourned at nine minutes before eleven o'clock