European Arrest Warrant: EUC Report

HL Deb 19 November 2001 vol 628 cc947-94

7.50 p.m.

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 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 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.

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. 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.

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.

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. 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 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.

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 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 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 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 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 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 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.

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 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 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 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.

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.

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 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.

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.

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.] 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". 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?

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 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 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 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 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 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 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 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 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 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 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.

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 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 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 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 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.

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