Lords Sitting of 1 May 2003

Preamble
The House met at eleven of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Truro.

Railways and Transport Safety Bill
Lord McIntosh of Haringey: My Lords, I beg to move that this Bill be now read a second time.
The measures that the Bill introduces will play an important part in improving the safety of transport in this country. The Bill will set up a new branch to investigate accidents on the railways; introduce new alcohol offences in relation to marine and aviation activities; and create an independent police authority for the British Transport Police. It will also restructure the body responsible for regulating the railways. I shall deal with each of these matters, as well as touching on the other issues that the Bill covers.
Part 1 of the Bill establishes a rail accident investigation branch. That is in direct response to the recommendations made by Lord Cullen in his report on the Ladbroke Grove rail crash.
In the event of a railway accident, it is important that we find out as quickly as possible what caused the accident so that any safety measures and remedial action can be taken as soon as possible. At the moment there are, of course, bodies responsible for investigating accidents, but the Government agree with Lord Cullen that things can be improved. Currently, after a rail accident, the police are responsible for investigating any general criminal acts. At the same time, Her Majesty's Rail Inspectorate, which is part of the Health and Safety Executive, investigates the cause of the accident. Importantly, however, the HSE will also be responsible for prosecuting any breaches of health and safety legislation.
There is no body with responsibility solely for finding out what went wrong without attributing blame so that any lessons from an accident can be learnt as quickly as possible. That is what the rail accident investigation branch will do. As Clause 4 makes clear, the branch's aims will be, first, to improve the safety of the railways; and, secondly, to prevent railway accidents and railway incidents.
The rail branch will play a similar role to that played by the Air and Marine Accident Investigation Branches. The system works well there. In both cases, they have a long history—since 1922 in the case of the air branch—of getting to the bottom of what happened in an accident, and doing so far more quickly than has been the case on the railways. The proposal was met with general approval on both sides of another place and I hope that it will receive a similar response in this House.
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I should now like to turn to the other parts of the Bill which I hope can be dealt with in relatively short order. Part 2 would bring the railways into line with other regulated industries by providing that the regulatory body is headed by a board rather than by an individual. It will be called the office of rail regulation. That change was recommended by the Better Regulation Task Force. The Government agree that moving to a board is sensible best practice. It will ensure a greater range of expertise at the top of the organisation, as well as enhanced continuity in decision-making. The functions and duties are unchanged from those of the current regulator.
Part 3 will create an independent police authority for the British Transport Police. At present, the transport police are accountable to a committee appointed by the Strategic Rail Authority. That fulfils many of the functions of a police authority, but it would be better for it to be replaced by an independent police authority that is properly accountable.for its actions. The Bill makes that provision. In addition, Clause 30 will put the transport police's jurisdiction over the railways on a wholly statutory footing.
Parts 4 and 5 deal with alcohol and drug offences in relation to marine and aviation activities. In particular, these parts of the Bill will introduce blood alcohol concentration limits for mariners and aviators. When breath tests for drivers were first introduced on the roads, in 1967, it is reckoned that fatalities were reduced by about 800 a year. The Government believe that it is now time to introduce a similar approach to the marine and aviation sectors.
Part 4 implements the recommendations made by Lord Justice Clarke in his review of safety on the Thames after the "Marchioness" disaster. The Bill will make it an offence for any mariner to operate while impaired by alcohol or drugs, and bring in alcohol testing and an alcohol limit of 80 milligrammes per 100 millilitres of blood—the same as on the roads. That limit will also apply to off-duty professional mariners, if they would be called upon to evacuate passengers in the event of an emergency.
Non-professional mariners will also be subject to the limits, but with one difference. The alcohol provisions that apply to professional mariners do so no matter what kind of vessel they may be on board. However, Clause 79 would allow the Secretary of State to bring forward regulations to except certain types of vessels in the case of the recreational mariner. The Government will consult on these regulations before introducing them, as it is important to get this right. But the Government intend to apply a proportionate approach that reflects the safety risks. As things stand, we are minded to except, for example, non-professional mariners on rowing boats, sailing dinghies and narrowboats. Larger, high-powered craft, including jet-skis, which pose a greater level of danger, would be included.
Part 5 will introduce similar offences for aviation activities. Here again the Government have sought to take a proportionate approach. Aircrew and air traffic controllers will be subject to a blood alcohol limit of

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20 milligrammes, in recognition of the quicker reactions and level of concentration required by such people. Other aviation workers will be subject to an 80 milligramme limit, as on the roads.
Part 6 includes a number of miscellaneous measures, covering roads, sea and rail, including the Tube.
I wish to highlight two areas. Clause 104 enables the Health and Safety Executive to levy some of the costs of its rail-related activities on the rail industry. This levy will replace the Health and Safety Executive's current practice of charging on the basis of an hourly charging system. It will be much less bureaucratic and therefore cheaper to administer for both the Health and Safety Executive and the rail industry. The levy will also allow the industry to plan ahead as it will know up-front how much it will have to pay.
Detailed consultation will take place before any levy is introduced, but the current policy intention is that the Health and Safety Executive should seek to recover the same proportion of costs through the levy as it does from the existing charging regime—that is, about 55 per cent of the costs of Her Majesty's Railway Inspectorate's regulatory activities.
Clauses 111 and 112 amend the Greater London Authority Act 1999. Among other things, Clause Ill deals with certain parts of the GLA Act that would, as they stand, restrict the operation of some provisions of the London Underground public/private partnership contracts when they are transferred to Transport for London. In particular, it will ensure that the guarantees provided by the contracts continue to hold after transfer. It was never the intention of the GLA Act to prevent such guarantees from operating.
Clause 112 also concerns the PPP contracts. It will ensure that the PPP arbiter has the right to receive information from the regulators of regulated industries. At present, the GLA Act ensures that the arbiter can share the information that he possesses but does not give him any reciprocal rights.
The Bill is important. It will make significant changes, improving safety on the railways and at sea and in the air. I hope that its passage through the House will be relatively uncontroversial, as it was in another place. No doubt there will be points of detail which can be dealt with, but I hope that the whole House will support it. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord McIntosh of Haringey.)
11.14 a.m.
Viscount Astor: My Lords, I thank the Minister for that clear explanation of the Bill and for writing to me giving further details about it. The Bill follows the progress made by the previous Conservative government that introduced a number of transport safety Bills—the Road Traffic Act 1988, the Road Traffic Offenders Act 1988 and the Transport and Works Act 1992.
Perhaps I may begin by looking at the issue of rail safety. Travelling by rail is one of the safest means of transport. Evidence suggests that travel on the
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railways is six times safer than by car. Sadly, due to a number of serious accidents on the railways, public confidence was undermined and a number of weaknesses in safety regulations became apparent.
The Cullen report made a number of recommendations following the dreadful Ladbroke Grove train crash. Can the Minister tell the House how many of its 74 recommendations have been introduced and how many have not yet been acted on or will not be brought into force by the Bill? Are there any left to be dealt with?
As the Minister said, the Bill will establish the rail accident investigation branch. Its primary duty will be to investigate accidents and to share safety lessons so as to prevent further accidents. It will report to the Secretary of State. But it will have no prosecution function. Can the Minister explain whether the Health and Safety Executive, which is responsible for prosecutions in regard to safety issues, will also be responsible for prosecutions in regard to accidents—or will that be the responsibility of the Crown Prosecution Service or any other body?
We are concerned about the overlapping relationships between the rail accident investigation branch and the Health and Safety Executive, which will remain the rail safety regulator. The Railway Inspectorate, which comes under the Health and Safety Executive, will investigate and enforce safety. It will have prosecution powers but, as I understand it, will not have the lead responsibility for accident investigation. As proposed, that will remain with the rail accident investigation branch.
In addition, there is the Rail Safety and Standards Board, which sets safety and operating standards and practices for the industry. We will want an assurance from the Minister that these bodies will work together so as to neither unnecessarily overlap each other nor allow gaps to appear between them.
We must also not forget the British Transport Police, who act on behalf of the coroner to establish the causes of deaths on the railways and who retain responsibility for the investigation of serious offences committed on the railways.
Floating above that is the Strategic Rail Authority, which is responsible for strategic direction, and the Office of the Rail Regulator which, although it is the economic regulator for the railways, must also take account of safety. Finally, at the top of this rather large and complex tree, we have the Secretary of State, who is answerable to Parliament—although the previous incumbent found that notion particularly difficult to understand and sometimes hard to accept. The Minister will have to show how these different bodies, with their various responsibilities, will work together, and how the department and Parliament will be able to monitor progress and how the system works.
Rail travel in this country is safe. It is not as safe as we would like, but it is getting safer every year. Statistics show that one is more likely to be involved in an accident on a journey to a railway station than on

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any subsequent stage of one's journey. It is an important area and we shall probe the Government's intentions during the Committee stage.
We welcome the provisions relating to the British Transport Police. However, can the Minister explain why the opportunity presented by the Bill to formalise the extended jurisdiction temporarily granted to the British Transport Police under the Anti-terrorism, Crime and Security Act 2001 is not being taken. That Act has to be renewed annually by Parliament. It is a process which we all hope that at a point in the future will not be necessary. But, if and when that day dawns, the British Transport Police will lose this important power. Surely the Bill presents an obvious opportunity for it to be retained. In the past, the British Transport Police have had difficulties in the vicinity of railways because they have not had the powers necessary to deal with offences. This is an important issue. I am surprised that the power is not included in the Bill and I look forward to the Minister's explanation on that point.
We welcome the creation of an independent police authority for the British Transport Police and the transfer of responsibility for the force from the SRA to the new police authority. But we are concerned about possible gaps. For example, should an offence be committed on a train en route to an airport but the culprit "legs it" from the station into the airport, the British Transport Police have no powers to follow or arrest the culprit. Will the Minister tell us how the proposed measure will work as more and more airports in this country become connected to rail links? I believe that the powers of the British Transport Police should be extended so that their jurisdiction covers the vicinity of the rail network.
Having arrived at the airport from the train as it were, let me turn to the provisions concerning aviation. The Government instituted the Wheeler report which made a number of recommendations. How many of those have been implemented? Would not the Bill have been an ideal opportunity to simplify the Aviation Security Act 1982, as recommended by the Wheeler report? What progress has been made in clarifying the powers of search on exit from cargo areas at airports? If progress has been made, why are the changes required not in the Bill? Or are they in the Bill and I have simply not found them? That is perfectly possible. Will the Minister comment on that?
The Bill introduces statutory alcohol limits and the creation of an alcohol-testing regime for aircrew, air traffic controllers and aircraft maintenance engineers. I understand that that includes drug testing. Will the Minister give a clear definition of what constitutes standby duty? That is important for those working in the industry. Am I correct in understanding that the Bill does not give the police powers to breathalyse a pilot involved in an accident? The Minister said that that regime was to be extended to maritime personnel. However, it appears from Clause 92 that different limits will be imposed. Would it not be better if there was one clear and specific limit for all those involved in safety critical work? Will the Minister comment on that?
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The Minister said that non-professional mariners would be covered. Who will be responsible for breathalysing someone sailing, for example, in the Solent? Will it be the police? Do they have enough boats to do that? Or will it be the coastguard? Does the coastguard have the authority to carry out that task? If it is to be the police, will they be properly resourced? What will be the cost of that? Do the Government have any estimates? The Minister said that the Government would consult on the regulations to except certain types of vessels in the case of the recreational mariner. It appears that people on jet-skis may be subject to the measure but people in rowing boats may not. How will the measure work? We need to be given a clearer explanation of that.
Under the Merchant Shipping Act 1995 it is open to individual harbour authorities to take powers to prescribe a level of intoxication, but, as I understand it, only the Port of London Authority has taken powers to carry out breath tests. I also understand that there are doubts about whether magistrates would back up the authority in the event of action being taken and that the evidence of a positive test cannot be used directly by the authority in bringing a prosecution. Is that correct? A further anomaly is that while air traffic controllers will be subject to alcohol limits, harbour masters—they do a critical job in the Channel ports—will not. Why are they left out?
The most difficult and most popular but dangerous form of travel in this country is car travel. That is something that nearly all of us do almost every day. For many people car travel is essential and it is the most used form of travel but it has not received the attention in the Bill that it deserves.
The Government introduced two new clauses in the Bill in another place. The first extends the wearing of seat belts to goods vehicles. If my noble friend Lord Attlee were here, he would certainly have something to say about that issue. I very much hope that he will be back in time for Committee stage to demonstrate his well-known expertise in this area. Following an amendment moved by the Conservative Party in Committee in another place, the Government introduced their own similar amendment to impose a duty on highway authorities to keep roads clear of snow and ice which might endanger vehicles and pedestrians. We welcome the Government's acceptance of the Conservative proposal.
However, the Government resisted the important proposal that the Secretary of State should prepare and lay before Parliament an annual report on the incidence and causes of major road traffic accidents in each 12-month period. We shall want to return to that issue in Committee. It is an opportunity to make a real contribution to road safety by allowing the causes of accidents to be set out and, if possible, acted upon.
Finally, as the Minister said, the Bill makes provision for the transfer of contracts from London Regional Transport to Transport for London and for any subsequent transfer. In addition, it deals with a PPP agreement for London Underground. We are concerned about those provisions and, for example, the consequence of one of the main partners of a PPP

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going bankrupt. We shall be looking at those issues in detail in Committee as well as the many other issues that will be raised today, in particular the burden of costs on the industry. We welcome the Bill. I look forward to the next stage.
11.25 a.m.
Lord Bradshaw: My Lords, I thank the Minister for his courtesy in writing to noble Lords before this stage of the Bill. We welcome the part of the Bill that sets up the rail accident investigation branch although we question the inclusion of the words "wherever relevant" in Clause 4 which concerns general aims.
However, we have to judge the measure against the fact that since the Labour Party came to power 17,000 people have died in road accidents while fewer than 150 have been killed on the railways. We look for an equal concern in dealing with both those scourges, not an hysterical reaction to the former while ignoring or trivialising the latter. We note that we still await a road safety Bill. That has been long promised but has not been delivered.
We seek an assurance with regard to the absolute independence of the rail accident investigation branch and that it will be entirely free of the influence of the Strategic Rail Authority, the rail regulator or anyone else. Will the Minister give that assurance?
We believe that, with the setting up of the rail accident investigation branch, the existing Health and Safety Inspectorate and the Rail Safety and Standards Board the industry has quite enough bodies overseeing safety. We are sure that the Government—at Question Time yesterday the noble Lord, Lord Macdonald of Tradeston, reiterated the Government's zeal to cut red tape—will try to reduce the bureaucracy involved in safety regulation.
The Rail Regulator should henceforth confine himself to matters of economic regulation and access rights and should not be involved in safety matters. I look forward to hearing what the Minister has to say about that. Of course, we welcome the setting up of the rail regulatory board rather than having a single person as regulator.
We believe that the arrangements for charging for the services of the Health and Safety Inspectorate are unreasonable and arbitrary. Every organisation, even the village school with one teacher, has to furnish an exacting budget. Further, the Health and Safety Executive will lose responsibility for the somewhat arbitrary cost impact of accidents which are, of course, unpredictable in their nature.
We want to see a very strict work programme, including inspections. We see no particular reason why the industry should be levied, especially as its much larger competitor, the road industry, is not levied. No doubt the costs are factored into the franchising equation somehow. So in the end, one way or another, taxpayers meet those costs. They meet them either in higher franchise premia or in the franchise itself costing more money.
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I know that the Government have set great store by the activities of the Health and Safety Executive. Can the Minister tell us what the railway part of the organisation cost over the past year, what key results were achieved for the money, and whether that cost really represented an improvement on the activities of the former Railway Inspectorate, judged on a value for money basis or cost per life saved? How does that figure compare with those which apply to the roads?
I turn now to the issue of the British Transport Police. Under the new Chief Constable, this is a much improved force. We want to see that improvement sustained and, as the noble Viscount. Lord Astor, remarked, we are not satisfied with the definition of jurisdiction as it stands. Despite the arguments advanced by Mr Spellar in another place, we want to see the words,
"in the vicinity of railway premises",
added to the Bill. As the noble Viscount also pointed out, we do not want to have to rely on the possible extension of the Anti-terrorism, Crime and Security Act 2001. We also want this facility to be further extended so that the jurisdiction may be extended at the request of a civil police force when circumstances make that desirable. We do not see the purpose of setting a form of boundary over which an otherwise fully-trained uniformed constable should not cross. These are modest requests, but in the main they would assist with the Government's Street Crime Initiative and deal with what is broadly described as antisocial behaviour.
We are concerned about the constitution of the proposed British Transport Police authority. While we fully support the concept of such an authority, we believe that Transport for London, which meets so much of the cost of the British Transport Police, should be guaranteed one or even two places on the authority. We question the proposed composition of the authority, in particular its freedom to choose its own chairman rather than such a person being appointed by the Minister.
One way or the other, all police forces are predominantly financed by central funds, but the 43 civilian police forces in the country are able to select from among their midst a chairman who most members feel adequately and independently represents them. Any comparisons that the Government may seek to make with the MoD police are invalid and the much better option, having settled the issue with regard to the composition of the authority, is to leave authority members to choose their own chairman on the basis of his or her competence.
We also want the British Transport Police to be enabled to employ community support officers, as are other forces, and to enjoy any rights which may be afforded to other police authorities to pay or offer an allowance to special constables.
My final point concerns Clause 111, covering the transfer in London of responsibility for the railways from London Regional Transport to Transport for London. Although we on these Benches have not supported the public/private partnership, we accept

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the Government's right to implement it. Although I may be wrong, I understand that the final act is the passage of this clause in the Bill. As recent events on the London Underground Central Line demonstrated, it is now urgent that the transfer takes place. I should like the Minister to say whether, as an interim measure, a letter of comfort could be issued to those concerned with the PPP so that action can he taken straightaway on the assumption that this Bill will eventually become law.
My noble friend Lady Scott of Needham Market will express some of our concerns about roads and road transport when she winds up the debate, while my noble friend Lord Mar and Kellie will address aviation and shipping matters when he intervenes later in the debate. We look forward to the Committee stage and the initial and, possibly, more considered response of the Minister.
11.35 a.m.
Lord Faulkner of Worcester: My Lords, I welcome this important Bill and wish it well. I have no relevant commercial interests to declare, but I have a long acquaintance with the British Transport Police, having worked with the force during my time at the British Railways Board, and while I served on various committees concerned with tackling hooliganism and crowd violence in football. When I speak about Part 3 of the Bill, I shall do so as someone who knows the force well.
I shall also say a few words about some of the road safety issues touched on in Part 6 of the Bill. My unremunerated interest here is as president of the Royal Society for the Prevention of Accidents.
First, I shall deal with Parts 1 and 2. I, too, welcome the establishment of the rail accident investigation branch, which implements the recommendations of Lord Cullen's inquiry into the Ladbroke Grove accident of October 1999. I see the RAIB as a further step towards reversing the fragmentation of the railways, which was by far the worst consequence of privatisation. There was much that was wrong and frustrating about the former publicly-owned industry, but one of its great strengths—and the abiding legacy of Sir Robert Reid, the second chairman of the BRB, with whom I had the privilege of working—was a unified command structure with clearly defined levels of responsibility. That was broken up by privatisation and replaced, I fear, by what could be called a "blame culture", in which things that went wrong always seemed to be the fault of someone else. That was particularly evident with the accidents at Hatfield and Potters Bar, which followed Ladbroke Grove.
So the RAIB makes good sense and I commend the Government on bringing forward these proposals. I also welcome the late addition to the Bill, made in another place on 31st March, to require the RAIB to publish an annual report on railway safety.
I am also happy with the proposals in Part 2 to establish the office of rail regulation. I accept the logic of the Government's argument that this will bring railways regulation into line with that of other
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industries, and I am pleased that they have resisted the temptation to absorb the regulator into the Strategic Rail Authority. This is, I think, the moment to pay tribute to the current rail regulator, Tom Winsor, only the second—and now, presumably, the last—holder of the post. His term of office has not been free of controversy, but I believe that passengers and freight users have reason to be grateful for his efforts on their behalf, particularly during his battles with Railtrack, an organisation whose public relations were so abysmal that it even managed to make the British Railways Board appear popular in retrospect, and by comparison.
I turn now to Part 3 and the proposals relating to the British Transport Police. The history of the force can be traced right back to 1825, to the start of the railways in Britain and the beginning of modern policing. During the early years, railway company police officer; were sworn in as county constables as well, as each had specific responsibility for the surrounding area. As the railway network spread across the country in 19th century Britain, and criminals discovered that offences could be committed on the move with rapid means of escape—rather in the way that the modern motorway network has created similar opportuni ties—the need for a dedicated mobile police force, able to cross county boundaries, became evident.
The network nature of the railway system also means that incidents affecting its operation in one location can reverberate down the system, creating knock-on effects for thousands of people many miles away. That is why the railways have special policing needs and why a national police force for the railways has always been a cost-effective solution. It is also why the Government are right to reject the suggestion that has been around over the past 12 months to hive off policing on the London Underground and to hand over part of the BTP's activities to the Metropolitan Police. While that might superficially have given the Home Secretary the opportunity to claim an increase in the number of police officers in London, it is far more important to maintain an integrated transport police force covering the mainline as well as the underground railways.
As my noble friend said, the proposals in the Bill follow closely those in the consultation paper published in October 2001 by the Department for Transport, Local Government and the Regions entitled Modernising the British Transport Police. The establishment of a new police authority is a helpful step forward and puts the BTP on the same sort of constitutional footing as Home Office forces. Although I have heard no complaint about the present police committee, it is not sensible for a commercial agreement with the constituent parts of a now diverse railway industry to be the basis of BTP authority.
It is also a good idea to put BTP pay and conditions within a regulatory framework governed by the Secretary of State. That will further reinforce the comparability with Home Office forces and help the modernisation process. I have one question on the issue for my noble friend; it was referred to by the noble Lord, Lord Bradshaw, a moment ago. Will the

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Government be prepared to give the chief constable of the BTP the power to appoint community support officers, in the way that Home Office police chiefs can under the provisions of the Police Reform Act? The BTP tell me that CSOs would be of great assistance to them, and such a power would seem consistent with the principles underlying the Bill and the new status proposed for the force.
The other issue to which we must return in Committee is that of the BTP's jurisdiction. I agree wholeheartedly with what the noble Viscount and the noble Lord, Lord Bradshaw, said on the subject. The House will recall that the Government included in the Anti-terrorism, Crime and Security Act 2001 a provision to extend the transport police's jurisdiction beyond the immediate boundaries of the railway. Parliament was persuaded—a little reluctantly, but rightly in my view—that it was absurd and dangerous for Home Office forces not to be able to call on BTP officers to assist in situations such as the riots in Bradford in July 2001, or to pursue miscreants beyond railway premises.
The Anti-terrorism, Crime and Security Act has a sunset clause, however, and is subject to a Privy Council review later this year. It is possible that its provisions will not be renewed. If that were to happen, the BTP would have to rely on the Bill for the definition of its jurisdiction. The Bill repeals Section 53 of the British Transport Commission Act 1949, which uses the words "in the vicinity of" in relation to BTP jurisdiction on railway premises. Those words are not repeated in the Bill, so the force could finish up with less jurisdiction than it had prior to the passing of the emergency legislation. I hope very much therefore that the Government will accept an amendment—I suspect that it will be an all-party amendment—that puts the words "in the vicinity of" into the Bill.
Finally, and briefly, I turn to one or two of the miscellaneous provisions in Part 6. I welcome the proposals for removing the exemption for delivery drivers from wearing seatbelts in Clause 107, and the new requirements in Clause 108 for highway authorities to deal with snow and ice on their roads. But what a pity it is that the opportunity has not been taken in the Bill to outlaw the use of mobile phones by people when driving vehicles.
I shall also raise in Committee the case for reducing blood-alcohol levels for drivers from 80 milligrams to 50 milligrams, in line with the department's own consultation document entitled Combating Drink-Driving—Next Steps, the European Commission recommendation of January 2001, and the recent report of our own European Union Committee's Sub-Committee B. The Bill already contains welcome proposals for establishing maximum permitted blood-alcohol levels for safety-critical staff in the aviation and maritime sectors, so I find it extraordinary that the Government seem so reluctant to adopt a measure that would—on their own figures—save at least 50 lives a year, and result in 250 fewer serious injuries and 1,200 fewer slight injuries.
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Those are detailed matters for debate in Committee. Meanwhile, I congratulate the Government on introducing the Bill, and am delighted to support it.
11.44 a.m.
The Earl of Mar and Kellie: My Lords, noble Lords will be pleased to know that I have already voted in the Scottish elections, so I shall not be a non-voter. I completed the constituency ballot, which had a choice of seven, and the regional ballot, which had a choice of 15. It was rather simpler to deal with the local government ward ballot, because it had a choice of only two.
I shall concentrate on Parts 4 and 5 of the Bill, which deal with water, shipping and aviation. We should be glad to see those alcohol and drug regulations set out in the Bill, even though we may wish to dispute some of the levels that are laid down. It is helpful for seafarers and aircrew to know precisely what is demanded of them, rather than that they rely on the vague requirement not to be under the influence of drink and drugs. Although the limit for aircrew is minimal at 20 milligrams, I have to admit that, perversely, the limit for ground engineers and seafarers at 80 milligrams allows them to be under the influence, at least mildly. I should prefer the limit to be set at 50 milligrams, and to see that limit applied also to road users. The decision to legislate separately for off-duty crew members who have emergency tasks is undoubtedly sensible, as it will make everything quite clear and beyond doubt.
I am musing over the special regulations for fishing boats on two counts. First, why should the crew be granted the medicinal defence when other professional seafarers are not so entitled when on duty? My second point is on the prospect of ensuring that all the crew members are sober at the start of a four-day fishing trip on an early Monday morning. The duty placed on marine officials, especially harbour-masters and assistants, to detain a ship or fishing boat if it is believed that there are some drunk crew members aboard could be provoked, somewhat maliciously, by other crews reporting them on a sort of competitive basis. However, I note the huge discretion granted to the police in Clause 83(2)(b) not to attend in such circumstances, and thus allow the powers to detain the vessel to lapse. Clearly, the message is: get everyone aboard and out of sight, and leave harbour swiftly.
There are references to Scotland in both Parts 4 and 5. On the face of it, it seems as though Scotland is being exempted. However, it is even more morally gratifying to learn that this legislation is enabling the rest of the United Kingdom to catch up with the existing Scottish provisions for right of entry.
Finally in Part 4, the Armed Forces and visiting forces provisions wisely exempt such ships from being detained because of drunkenness among the crew. That could otherwise enable reluctant seamen to avoid going on a difficult exercise, or even on active service. With regard to the likely exemption of small boats and canoes from the alcohol limit, I am not yet persuaded at all as to why anyone should be allowed to be drunk

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in charge of any craft, both from the safety angle—of the craft and its crew, and of other craft—and from the rescue angle.
In Part 5, the provisions for drink and drug offences among aircrew, ground staff and air-traffic controllers are similar in construction and layout. What is different is the alcohol limit set at 20 milligrams for aircrew and air-traffic controllers. That will obviously require the provision and availability of new, or at least recalibrated, test equipment. Although there are no separate provisions for on-duty and off-duty aircrew, Clause 93(5) makes it clear that staff on any form of stand-by are included in the drink and drug regulations.
There does not appear to be a provision for the power to detain before arrest similar to that granted to a marine official. I must therefore conclude that it will be up to the captain of the aircraft to decide to call for the police. No person at the airfield seems to have the same powers granted to them as the harbour-master.
I note the special limit granted to the licensed aircraft maintenance engineer. I should prefer the limit to be 50 milligrams, as I continue to want to see that applied in relation to the roads.
I conclude by mentioning some concerns about items that are not in the Bill. I am concerned that the Bill says nothing about an increase in security at harbours and airfields, as identified by my noble friend Lord Carlile of Berriew. Only yesterday, I read a report in the Daily Telegraph of a plan by the Home Secretary to increase airfield security, while noting that there were at least 80 airstrips in Kent alone. It is also undoubtedly true that our lengthy coastline has a myriad of small harbours and other landing places. I hope that the Minister can inform us about the new plans for airfields and, presumably, harbour security.
Secondly, as this is a transport safety Bill, I regret that there seem to be very few measures in relation to road safety, in particular to deal with intoxication, speeding, both excessively and inappropriately, the creation of a rural road hierarchy, "four-by-fours" on green lanes and mobile phone use while driving and moving.
To complete my remarks, I return to the subject of water and complain about the lack of provision in relation to buoyancy aids in small boats and canoes—a subject undoubtedly close to my heart as a dinghy sailor, canoeist and canoe instructor.
11.51 a.m.
Lord Berkeley: My Lords, first, I declare an interest as chairman of a rail freight group. In doing so, I welcome this Railways and Transport Safety Bill. As the Minister said, its prime purpose is to set up the rail accident investigation branch. I welcome that, as I do the announcement that Caroline Griffiths, an eminent mechanical engineer, has been appointed chief inspector.
As my noble friend said, the RAIB will bring the policy on rail accidents broadly in line with that on air accidents. To me, the key is the incorporation of confidential reporting. That is absolutely essential for
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any body which wishes to get to the bottom of an accident. It will be very important that, as time and the process develop, the rail industry has confidence that confidentiality will not be breached. I am sure that it will result in much more speedy resolution of the causes of accidents without the enormous expense and the fear factor which have become endemic in the industry, caused largely, I believe, by privatisation, as referred to by the noble Lord, Lord Bradshaw, and my noble friend Lord Faulkner. I welcome its creation.
I also welcome the creation of the Rail Safety & Standards Board, which is completely different. It is the start of self-regulation in the industry. Part of its role includes the development of standards. Together with the European Union's Technical Specifications for Interoperability and Directives 2001/12 and 14—noble Lords will be glad to hear that I shall not go into any more detail on those—it will provide a new framework under which the railways can operate more efficiently, more safely and, I suggest, in a more cost-effective way, if they are allowed to.
At present, there are various estimates about how much the cost of doing anything on the railways has risen, but many people have said that it is at least double the cost under British Rail. Although Network Rail and the Rail Regulator are seeking to reduce and identify the cause of the costs, there is a general acceptance that the supervisory structure of the railway, the over-detailed standards and the way they are implemented are seriously out of balance compared with the application to roads. That is a major cause of such cost increases with very little, if any, safety benefit.
The new structure clearly means that the industry must manage its own safety and other standards and the custom and practice that goes with it. The Health and Safety Executive will become the national authority to ensure that the railways operate safely in accordance with EU and domestic legislation. I believe that that means a change from the structure set up to control the industry at privatisation, where every detail had to be approved, checked and reported on. In turn, that led to Railtrack—in addition to performing extremely badly—introducing a company culture of total avoidance of risk. As I said, that did little for safety, contributed greatly to the cost and added an enormous layer of bureaucracy to no benefit.
I believe that, with the creation of Network Rail, that can and must change. The Bill provides the opportunity for that to happen. I hope that the Government will allow and encourage change. Similarly, the industry must demonstrate its ability to deliver the change. Central to all this is the role of the HSE. It must take a step backwards and upwards to concentrate on its prime role—the avoidance of accidents involving people. There is some evidence that it intends to do that, and I hope that that continues. But it must take into account the similarities and competition with road transport, in terms of both passengers and freight. Therefore, I want to consider the role and responsibilities of the HSE in more detail.

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The first question is: is the Health and Safety Executive responsible for roads? I heard yesterday from an HSE official at a conference that it was definitely responsible for road maintenance, and rightly so. In a Written Answer which I received on 22nd April 2002, the Government said:
"Section 3 of the Health and Safety at Work Act 1974 places a general duty on employers to conduct their undertaking in such a way as to ensure, so far as is reasonably practicable, the health and safety of the public".—[Official Report, 22/4/02; col. WA 9.]
We all know that. But the Answer went on to say that Section 3 is not enforced where public and worker safety is adequately protected by more specific legislation.
Two things arise from that. I would question whether road is adequately protected by other organisations. But I do not believe that that absolves the Health and Safety Executive from responsibility, even if it has, in my parlance, sub-contracted it. Therefore, I should be pleased to hear some comments from the Minister as to whether I have interpreted that correctly.
Secondly, I am pleased to see that the Rail Safety & Standards Board's objectives will not only cover safety but that it will also be required to promote efficiency and economy on the part of persons providing rail services. Therefore, there is also a reality check in what the board does and that is very welcome.
However, central to the whole issue is the question: what is the value of a human life? I believe that that is the issue against which all new works, maintenance, procedures and standards on the railways should be checked. It is interesting that in February the Department of Transport published a book called Managing the accidental obstruction of the railway by road vehicles. That is rather a dry title, but it is the first time I have ever seen a document suggest, as it does on page 55, that the Department of Transport puts the value of a human life at £1.15 million per life saved on both road and rail. I believe that is significant.
But, at a conference a few months ago, we then heard a statement by Lord Cullen in which he said that we must never have another serious rail accident where 100 people die. I wonder whether he would say the same about an air accident where 100 people were killed or if a large double-decker coach went off the top of a viaduct and everyone was killed. It is a nice thing to say but it is unachievable. One could never totally avoid an accident unless one stopped moving around. I do not believe that Lord Cullen is suggesting that there should be no railways, no roads and no air traffic. Therefore, I suggest that it is impracticable.
The only way to consider this matter is to have the same value for a life saved on road and rail and acceptance from the Health and Safety Executive, the RSSB and others that the 10,000 or so railway standards, the custom and practice and the interpretation of safety law by HSE inspectors should be assessed against those values and nothing else.
I give noble Lords one example. The Health and Safety Executive says that one cannot join two halves of a passenger train in a station because it is unsafe, even
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though it has been done on the southern region for longer than I have been alive. Such a recommendation may not cost very much but it reduces flexibility, and there is no evidence that anyone has been killed or even injured when such coupling takes place. I believe that one can find thousands of such examples.
Therefore, I would welcome comments from my noble friend about whether the Government are interested in pursuing this line of assessing all standards, safety and regulations on the basis of one value of human life saved across, certainly, road and rail and perhaps other forms of transport as well.
On reporting, the Health and Safety Executive designates much of the railways as "hazardous". I do not know whether it is more hazardous to work on them than on a road—and I doubt whether that is hazardous in the eyes of the HSE. However, the RIDDOR regulations published in 1995 require the reporting of every conceivable occurrence on the railways to the HSE. I shall not read out all 57 pages, but they require the reporting of any case of a train striking a buffer stop where damage is caused to the train. I thought that the role of the HSE was to prevent injury to humans. Surely, the owner of the train and the infrastructure should be concerned about whether the train is damaged.
Furthermore, it is necessary to report whether, if a train strikes cattle or horse, damage is caused to the train. Why should the HSE be interested in that? Surely, the owner of the horse, possibly the police and the owner of the train are interested. As I say, there are 57 pages of regulations. I shall not bore your Lordships with them now, but they need reviewing. I hope that my noble friend will consider that they and similar regulations should be reviewed so that reporting between road and rail is brought in line. I emphasise the fact that the only time one has to report a road accident to the police is when someone is injured.
As regards charges, several noble Lords have raised the question of whether the Health and Safety Executive should be able to propose a levy. The levy consultation was extremely rushed over the Christmas period. I obtained a copy of the HSE consultation report from the Library, which was most helpful, but I do not believe that any of the consultees have received a copy of its results. That is not in line with the Government's consultation processes.
The current method of HSE charging is inefficient and inappropriate, but a levy is not much better. Furthermore, we do not know who is to be levied and on what basis, and who will decide on the amount of the levy. It is not a way of encouraging the HSE to take a step backwards and do less; it is a way of encouraging it to do more and hope that more people can pay for it.
My question is: why should the HSE pay a levy charge? Road transport does not, so why should not the costs of the HSE in relation to railways be similarly funded out of general taxation? I shall return to that matter in Committee. In that, I have the support of the CBI, the FTA and the Railway Industry Association.

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I would make the same comment in respect of the British Transport Police. I welcome the changes proposed in the Bill, but it is a national police force so why should it not be funded out of general taxation? As the noble Lord, Lord Bradshaw, said, it does not matter very much because the SRA will pay for all of it. He is right in respect of everything except Rail Freight. Rail Freight is not paid for by the SRA, so it will have to pay for the police, even though only two policemen are allocated to Rail Freight at any one time throughout the country. That is unfair, so the easiest way is for the Government to pay for the lot.
Finally, I shall have something to say about the rest of this lovely publication we received from the Department of Transport in February about cars landing on railways, the subject of the book. Although the book states that whoever is responsible for preventing cars landing on railways should pay the costs of mitigation, it appears that the Highways Agency and Network Rail have come to a cosy agreement whereby each pays 50 per cent. In my simple terms, if cars are to be prevented from landing on railways, it is the job of the highways authorities and the drivers to prevent that occurring and to pay for any mitigating measures, rather than the railways. I shall probably table an amendment on that in Committee.
Like my noble friend Lord Faulkner, I want to pay tribute to Tom Winsor, whose role is Rail Regulator, for his independence. I hope that the new structure will continue that independence with the new board. It is essential for the private sector part of the railway to retain the confidence necessary to attract private sector investment.
In conclusion, although I have raised detailed concerns, I welcome the Bill. I look forward to it completing its stages with a few positive amendments.
12.4 p.m.
Lord Dixon-Smith: My Lords, I want to raise three matters. The first is peripheral, but I hope that the Minister will be able to respond to the point I make and set a number of hearts and minds at rest. It relates to the position of the heritage rail associations and their operations.
Heritage railways are a large tourist attraction. They operate on some 450 miles of track and their earnings run into hundreds of millions of pounds. Whether they attract tourists from abroad is a moot point, but they are immensely popular with many people in this country who love railways, love the countryside, or simply want something to do with fractious children during school holidays or weekends. They are serious enterprises. The businesses are run by volunteers and the question is whether they should be burdened with the overhead regulation that applies to the normal railways.
I am aware of two or three such operations. The Colne Valley railway, in my part of the world, operates on about one kilometre of track. The Nene Valley railway operates on about 12 miles of track. The Romney Hythe and Dymchurch railway is a longstanding, narrow gauge but specific tourist attraction.
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There is a serious question behind all those railway operations which are non-public service but are none the less railways. It may be a matter of technical definition, but can the Minister put at rest my mind and, more importantly, those of many other people as to whether and how much such operations are affected by the Bill and by rail safety regulation generally? I acknowledge that safety must always be an important factor, but should we not establish a specific regime to deal with their particular circumstances?
The second issue I want to raise will come as no surprise to the Minister. It relates to Clause 108. The Explanatory Notes on page 2 explain that:
"The Bill also contains a miscellaneous section, which makes provision for measures including … a duty on highway authorities to remove ice and snow from roads for which they are responsible".
Paragraph 176 of the Explanatory Notes gives the background to that. It states:
"On 15th June 2000, in the case of Goodes v East Sussex County Council, the House of Lords"
our noble and learned friends—
"decided that the duty of a highway authority, under section 41 of the Highways Act 1980, to maintain a highway did not include a duty to keep the highway safe by preventing ice from forming. They considered that if such a duty were desirable, that would be a matter for Parliament".
I am immensely pleased to see the paragraph because it allows us to throw some clarity on the subject, which is of great interest and concern to highways authorities across the country. They would find it useful to have a precise definition of their responsibilities and liabilities.
However, paragraph 175 of the Explanatory Notes states:
"This clause extends to England and Wales. Clause 108 provides a duty on a highway authority to ensure, so far as is practicable, that safe passage along a highway is not endangered by snow and ice".
There is an immediate inconsistency between those two parts of the notes. The Bill repeats the words of paragraph 175, including the words "so far as is reasonably practicable". We have to spend some time in Committee exploring by way of amendment precisely the meaning of those words. I can see why they are there. Local authorities cannot control the weather and would have great difficulty if there was an obligation to prevent the formation of snow and ice on roads. One can think of events last winter where huge problems arose, particularly the event on the M11. One could imagine writs flying around and cases arising as a result of what happened. This is an important matter. It will greatly affect the costs of highway authorities if they are bound to have more and more cases against them.
The third subject relates to the use of drugs in various forms of occupation. I am grateful to the Minister for his exposition at the beginning of the Bill. The Bill deals with the use of alcohol and drugs in both the maritime and aviation sectors. It defines offences for both sectors with great precision in relation to alcohol. I hope the Minister will forgive me raising this, but a few weeks ago on 4th April I introduced a

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Bill relating to the prevention of driving when under the influence of drugs. The Minister rightly raised the criticism that a great part of the difficulty with that Bill is that of deciding how to measure impairment in relation to drugs. I have considered the wording in this Bill and it does nothing to tackle that specific issue. Subsequently, I spoke to the Minister about that Bill and he gave me the assurance that the Government are working on this matter and hope to bring forward legislation at some future date.
It seems rather peculiar that we should be dealing with the subject of drugs and drug impairment in a piecemeal way. What we have here created is an offence which will be difficult to deal with if we do not tackle the question of impairment or a definition of being affected by drugs. Again, this is a matter which we should explore further in Committee by way of amendment. I shall have to decide precisely how to do that, but the Minister will not be in the least surprised that this particular subject arises once again.
Those are three subjects which are relevant to the Bill. It would be helpful on many fronts if we could deal with those matters and get better definition as a consequence of the passage of the Bill. I welcome the Bill in its entirety, as have all noble Lords who have spoken.
12.13 p.m.
Viscount Simon: My Lords, your Lordships will be glad to learn that I do not intend to repeat everything other noble Lords have said. Therefore, I have struck a line through probably about nine-tenths of what I was going to say. Of the one-tenth, half relates to the Bill and the other half does not.
What is the logic between the differing levels for aircrew and engineers when the latter may also be working at night and subject to the additional effects of fatigue as well as alcohol? That seems totally inconsistent. Further, what is the logic of comparing the maritime sector with motorised road users rather than with aviation? Again, that is inconsistent. Why are harbour masters not included in this legislation when air traffic controllers are, as mentioned by the noble Viscount. Lord Astor?
I ceased to be a professional mariner in 1968. A couple of years before then, just prior to taking my master's certificate, we were leaving port—it happened to be in Australia but it could have been here—when the captain was totally and completely incapable through drink. If that happened here under the Bill, or the Act as it will become, who would enforce that? Would it be the harbour master, who is not subject to these regulations on alcohol levels? He might be three times over the limit and could not care a damn. What is the relevance of it?
Similar to the noble Earl, Lord Mar and Kellie, the second aspect I want to raise is a total digression from the Bill. A crash on the railway attracts everyone's attention even if there are no injuries or deaths to crew or passengers. Yet a death on the road, even if there are
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four, five, six, or Heaven knows how many people involved, rarely attracts the attention of the media, except in the local press.
Indications have been given by Ministers that a road safety Bill will be introduced in some future parliamentary Session. It is a pity that that has not already happened. That is to be welcomed, but we must not lose sight of the fact that more people are killed and injured on our roads than by any other form of transport. If only one jumbo jet crashed in this country every month, something would be done. But in effect that is how many people, in rough terms, are killed on our roads every month.
I urge the Government to pay more than lip service to those killed and seriously injured on our roads. The cost savings would be immense and the health service and other government departments would benefit accordingly, as would the country.
12.16 p.m.
Lord Greenway: My Lords, several speakers have alluded to the maritime section of the Bill. It will come as no surprise to the Minister or, indeed, to your Lordships, that I shall concentrate my brief remarks on that particular section.
As regards professional seafarers, most shipping companies have in place alcohol policies which are far stricter than those proposed in the Bill. Therefore, concern that the Bill might possibly undermine those have been unfounded. As to recreational seafarers—there have been several mentions of yachtsmen—the Government admitted at the outset when the Minister introduced the Bill in another place that that would present difficulties. The Minister here also alluded to that in his remarks.
I believe that all of us would recognise that blanket enforcement of alcohol policies and breathalysers on the yachting and boating fraternity as a whole would be completely impractical, not to mention hugely expensive. That conjures up some wonderful scenes, with which the cartoonists would have a field day. Imagine, for instance a couple of policemen in a boat observing a yacht innocently tacking its way up ahead. One policeman, reaching for his breathalyser and at the same trying to switch on the blue flashing light says to his colleague, "Come along sarge, full speed ahead. We've got one here".
There are those kind of difficulties and also the fact that unlike cars and trains, boats do not run on roads or rails; they veer all over the ocean. That does not necessarily mean that the occupant at the wheel is incapacitated through alcohol.
I have mentioned exorbitant expense, a matter touched on by the noble Viscount, Lord Astor. Paragraph 105 of the Explanatory Notes, states:
"The Association of Chief Police Officers has indicated that the slightly increased resource implications for the police would be largely offset by use of current resources such as harbour launches and search and rescue helicopters".
I am bound to say that the operators of harbour launches have other duties to perform for much of their time. Harbour authorities would not be too

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pleased if their boats were commandeered by policemen to chase drunken yachtsmen. On that same subject, rescue helicopters are also exorbitantly expensive if it comes to dealing with any alcohol-related offence.
In his introductory remarks I believe that the Minister said that the Government are taking a proportionate approach. I welcome that. He said that certain types of craft, such as rowing boats, sailing dinghies and narrow boats probably would be excluded. I take great comfort from that. It means that even drunk as a Lord after a heavy night ashore I can still row myself back on board without being prosecuted. As regards Members of your Lordships' House who take part in the annual dinghy race on the River Thames against another place, similarly we will be let off the hook.
As the Minister said, in terms of recreational craft, the measures are aimed primarily at fast motor-boats and personalised water craft, known as jet-skis these days. But I am bound to say that in the 30 or so years that they have been in use, incidents have been remarkably few and far between. Again, I take comfort from the final words in paragraph 105 of the Explanatory Notes. Regarding breath tests, it is envisaged that the numbers required are expected to be low, as would be the number of prosecutions.
The Government are treating this area of the Bill in the correct way. Negotiations are going on with the boating authorities regarding the regulations. I think that everything will hang on the regulations in this instance. We look forward to seeing what they will produce in the long term. In the mean time, the Minister will be pleased to know that at present I have no reason to table any amendments.
12.21 p.m.
Lord Clinton-Davis: My Lords, I declare an interest as president of the British Airline Pilots Association. Before I turn to the aspect of aviation, in my view, this Bill is to be warmly welcomed. Passenger safety is of critical importance, whatever the mode of travel. This debate has underlined that aspect.
I turn now to Part 5 which the union has explored in considerable depth for a long period. The union has also had most useful correspondence with the Minister of State to which I shall allude in some detail. BALPA wrote to the Minister suggesting harmonisation with procedures adopted by the Federal Aviation Authority in America and applied in the British helicopter industry over several years. It was suggested that it would be appropriate for there to be 40 milligrams of alcohol in 100 millilitres of blood. Arguments in support of that were advanced. However, I do not propose to elaborate on that today because the Minister chose not to accept that aspect of the submission made by BALPA.
Suffice to say that that is worthy of more consideration and, of course, we shall have an opportunity to do that. But the Minister of State was clearly of the view that as regards air crew an even higher standard—namely, 20 milligrams of alcohol in 100 millilitres of blood—should apply. That applies to
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train, coach, taxi and lorry drivers, as the Minister of State pointed out in the correspondence. But I am not wholly convinced that this parallel should be applicable. I am not proposing to pursue the same point today, but I think that I shall return to it later.
I want to argue for extensive peer intervention. Indeed, this is not unprecedented. It is applied in the United States through the human intervention and motivation system. It has worked as an alternative to criminal sanctions. Moreover, as the Minister of State pointed out—but it is not generally well known—the CAA utilises a procedure of this kind. In short" what the Minister of State has elaborated on is that peer intervention should be considered as complementary rather than an alternative to the provisions of the Bill. I agree with that approach.
How specifically is peer intervention to be applied evenly throughout the industry? There can all too easily be a disparity of procedure if companies introduce their own safety schemes. In my view, this is to be avoided in favour of a comprehensive application of a workable procedure. This matter should be dealt with in the Bill or by regulation. I await what the Minister has to say about that.
I turn now to the police rights of entry introduced in Clause 95. The present position needs some reinforcement. Equally, there is a need to avoid alarming passengers unduly. It would be best, in my view, that the operator should appoint an agent and that the alleged miscreant should be transferred to a side room. It is there that the police should undertake whatever tests they propose. If the person concerned refuses to co-operate in the aircraft, the police should be able to exercise their right of entry. All that can be dealt with procedurally; but out of sight, out of mind is not a bad dictum to guide us in this regard.
In a minority of cases, there is a danger that a person wrongly suspected, acting through pique or a genuine sense of grievance, would be unable to fly. Should such a situation arise—it cannot be left entirely to the individual in question—there should be a strong presumption that the flight crew should be stood down from that particular duty.
There are other matters concerning aviation which can be left appropriately to Committee stage. In the main, the Bill performs a valuable function regarding aviation.
I turn to certain aspects of the Bill which, as far as railways are concerned, implement some of the recommendations of the reports into the Southall and Ladbroke Grove cases. As others have asked my noble friend before, in what regard are the recommendations not applicable as far as the Bill is concerned?
What, in my view, is of the highest significance is the establishment of the rail accident investigation branch, rather like the Air Accident Investigation Branch. My noble friend Lord Berkeley, with whom I worked closely in opposition on transport matters, emphasised the importance of confidential reporting. I think he is entirely right about that. Incidentally, when at the end of his remarks he referred to cars venturing on to

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railways, I became vividly concerned that he was referring to cows. However, I have been confidently assured by him that he meant to refer to cars.
As PACTS points out, the enforcement of drug and alcohol legislation comparable to that in place for the roads is of inestimable importance. Having said that, why are the words which apply to air accidents, namely "the sole objective", omitted? In my view, the improvement of the safety of the railways and the prevention of accidents and incidents is all-important.
Perhaps I can ask my noble friend two specific points. What is envisaged will be dealt with by regulations rather than by this Bill, and what does he hope will be achieved by a voluntary application? What do the Government expect will be the result of the European Rail Safety Directive?
In all, the Bill, despite some omissions, advances the cause of safety in significant areas of transport. For that reason, it is worthy of support.
12.33 p.m.
Baroness Scott of Needham Market: My Lords, it has been, as ever, a privilege to listen to the contributions of noble Lords on transport. From these Benches, we offer our wholehearted support for the legislation, and assure the Minister that the concerns that we will express during the Bill's passage in no way detract from our support for it. Those concerns are born of a genuine commitment and, in many cases, many years of expertise. I hope that the Government will accept our comments in the spirit in which they are intended.
I start by declaring some interests. I am an elected member of Suffolk County Council, chair of the Local Government Association Transport Executive, a member of the Commission for Integrated Transport and of First Great Eastern's advisory board.
My noble friend Lord Bradshaw has flagged up some of our concerns about the Bill and some of the issues to which we intend to return during the later stages. We need to discuss the precise remit of the rail accident investigation branch and whether the wording of the Bill is exactly right. My noble friend Lord Bradshaw, along with the noble Viscount, Lord Astor, and the noble Lord, Lord Faulkner, all referred to the need for greater clarity with regard to the roles of the various organisations involved in rail safety. The noble Lord, Lord Berkeley, made a powerful point about the need to balance the level of bureaucracy with the delivery of safety. We agree with him that we need to look most carefully at the levy on the rail companies for the Health and Safety Executive. We join the Conservative Benches, the noble Lord, Lord Faulkner, and the noble Lord Lord Berkeley, in wishing to look at the powers and exact jurisdiction of the British Transport Police.
I am indebted to my noble friend Lord Mar and Kellie for his insight into marine and aviation issues. I look forward to hearing the Minister's response to the issues raised by the Conservative Benches on the Government's response to the Wheeler report which has a particular salience as far as the Bill is concerned.
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Noble Lords will not be surprised to hear that local authorities are taking a particular interest in Clause 108 on the clearance of snow and ice. They were expecting legislation later in the year as part of a street works Act. As the noble Lord, Lord Dixon-Smith, implied, there are concerns about the exact interpretation of "reasonably practicable" and its implications for finance but, more importantly, the likelihood and nature of court challenge. The fact is, local authorities have detailed winter maintenance plans and, in most local authorities, at most times, they work. It would be a great pity if problematic legislation were to be enacted primarily on the basis of a few days when the system collapsed in a small number of places. I have a fear that these clauses are accompanied by the gentle click of joints as knees jerk throughout the Department for Transport.
I was originally under the impression that this was intended to be a railway Bill only, and I welcome the fact that it is now the Railways and Transport Safety Bill. I take a pragmatic view that parliamentary time, being limited and very precious, should be used to maximum benefit for the public. The opportunity therefore should be taken to include some other measures which have so far not found parliamentary time.
It is of course quite right that the Government and the industry should take an ever-closer look at rail safety following the tragic accidents at Paddington, Southall, Potters Bar and Hatfield. It is vital that passengers are not just as safe as they can possibly be but that they feel safe. The switch from rail to road in the aftermath of those incidents might be understandable but it puts those passengers at much greater risk, given the much greater statistical likelihood of an accident on the road rather than on the railways. We heard some very important figures from the noble Viscount, Lord Simon, the noble Viscount. Lord Astor, and my noble friend Lord Bradshaw. The noble Lord, Lord Berkeley, made a particularly interesting point on the need for equality and parity in the way that we measure accidents in different modes of transport.
I was particularly interested to hear the noble Lord, Lord Dixon-Smith, refer to recreational railways. I have to confess that I had not given that any thought, so I look forward to hearing more about it.
This country has a good record on highway safety compared with other countries, but that leaves no room for complacency. Each of the 3,500 deaths that occur each year on our roads is a personal tragedy. We on these Benches are looking to the Government to put into practice some of the policies that they outlined in their road safety strategy three years ago. For example, we are still awaiting the regulations on home zones and quiet lanes which were introduced in the Transport Act 2000. I tabled Written Questions on this both last year and this year and was told that the regulations were on their way, but so far we still do not have them. The same applies to camera enforcements of bus lanes outside London—they were also part of the Transport Act and we still do not have them.

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I am very disappointed that the proposed review of the rural road hierarchy as laid out in the Transport Act 2000 has never taken place. The rural road network is of particular significance in accident reduction. There is a large body of evidence suggesting that the unsuitability of much of the network for the national speed limit of 60 miles an hour is at least partly to blame for these accidents. I am very pleased that PACTS and the Council for the Protection of Rural England are supporting this change.
Another road safety issue is that of the drink-driving limit. Most countries have limits considerably lower than ours, and there is a massive body of evidence to show that the reduction to 50 milligrams has a positive effect, not only on the number of road crashes but on the rate of offending. I join other noble Lords in wanting more clarification, perhaps at a later stage, on the reasoning behind apparent inconsistencies between the limits for different modes of transport. We especially support the noble Lord, Lord Dixon-Smith, in his crusade on the issue of drugs and driving.
There are three other road-based issues that I shall raise. Two of these relate to the power of the Traffic Commissioners. Firstly, there are a number of circumstances in which heavy goods vehicles can be impounded, some of which are safety related. However, a loophole in the legislation means that vehicles that are on hire cannot be impounded. It is not unreasonable to suggest that hired vehicles are, if anything. more likely to be in breach of the rules, yet the sanction of impounding is not available.
Secondly, we wish to consider the question of extending the powers of the Traffic Commissioner with regard to heavy goods operating centres. Currently, most sites do not require planning permission in order to become licensed for HGV use, and therefore the local authority has no remit in the matter. The Traffic Commissioners have only powers to take into account the site itself and its immediate access on to the road network. In other words, provided that the immediate access is deemed to be safe, it does not matter how unsuitable or dangerous the rest of the road network might be—no one has the power to do anything about it. That is a situation that needs urgent rectification.
My final point is, I have to admit, only tangentially related to highway safety, but I hope nevertheless that your Lordships might feel moved to support me. It is the question of vehicular use of motorised vehicles on national trails. Whatever the current law allows, it seems unreasonable to most people that vehicles can travel on some of our most ancient and best loved recreational trails, such as the Ridgeway. For most people who walk, the great pleasure is in escaping from wheeled vehicles. Their presence on these routes is objectionable to most people, and the mixing of walkers, cyclists and horses with vehicles on these routes is at least potentially dangerous.
I hope that your Lordships do not object to my raising some of these issues in the context of this Bill. It is a subject on which I have some strong and passionate beliefs, for which I make no apology. Some
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five years ago, a close friend received the phone call that every parent dreads. His 15-year-old daughter had been knocked down on her way back from school by a vehicle travelling at 60 miles an hour in a 30 milean-hour limit. For weeks, she clung to life, and after that her long-term prospects did not look good. However, the determination of her parents, the very special care that she received at the head injuries unit at Tadworth in Surrey, and above all her own spirit, mean that today she leads an almost normal life. However, having observed at close hand the misery represented by every single one of the statistics to which we refer, I cannot remain neutral on the matter.
I wish the Bill well.
12.43 p.m.
Lord Luke: My Lords, we have had a most refreshing debate. As so often happens in your Lordships' House, speeches have reflected the knowledge and expertise that is the great strength of the House.
I simply want to reiterate some of the points made by the noble Viscount, Lord Astor, and other speakers. My noble friend asked a large number of questions, and I hope that the Minister will be able to answer most of them.
There is no doubt that the confidence of the general public in the safety of travel by rail was very badly shaken by the series of fatal disasters, in particular in Southall, Ladbroke Grove, Hatfield and Potters Bar. Statistics show how relatively safe rail travel is compared to the roads" but the public perception has been otherwise. Why is that? The noble Viscount, Lord Simon, had the answer—it is because rail disasters always become media events, and casualties sadly tend to be extensive. Far greater numbers die overall in accidents on the roads, but they get little media coverage, unless the incident is a multi-vehicle smash on a motorway, with a correspondingly large number of casualties.
As a result of those accidents, various investigations have taken place and weaknesses have been revealed that this Bill seeks to remedy. The Cullen inquiry made a large number of recommendations to the Health and Safety Executive, many of which have already been acted on. The proposed rail accident investigation branch, which everyone welcomes, is an eminently sensible development and the main plank of the Bill. Incidentally, we are pleased that the RAIB will produce an annual report of its activities.
As my noble friend said, our party regards the Bill as largely uncontroversial, as was reflected in another place on Second Reading. However, we shall address some details in Committee and I shall mention some of our concerns now.
My noble friend Lord Dixon-Smith referred to the Heritage Railway Association, which is important from a tourism point of view, especially as regards English rather than foreign tourists. It must be a moot point how much small, slow railways should be subject to rail safety regulations designed for very different railway conditions.

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Part 2 of the Bill provides for a new regulatory board to replace the Rail Regulator, in line with standard practice for regulating utilities. We notice that the functions will remain the same.
Part 3 deals with British Transport Police, as mentioned by several of your Lordships, and particularly the jurisdiction boundaries. British Transport Police are not very happy with those proposals, and we shall explore that issue in Committee.
Part 4 deals with the statutory alcohol and drugs limits for crews of water-borne vessels in UK waters. That particular item has been discussed by more noble Lords than any other during the debate. I understand that the enforcement of the new regulations will be similar to that for drink-drivers on the roads, but passengers in cars who might have to take over in an emergency are not subject to drink-drive testing, whereas stand-by crew members on a ship are. However, crewmen of lifeboats are on permanent stand-by. Can they never, ever, have a glass of beer? Enforcement of the marine limits on drink in port should present no particular problem, but how does a police launch deal with a 55,000-ton container ship that is yawing all over the Solent? Do pilots have a role in that? There is also a proposal to extend the regulations to amateurs, but how does one define a fast motor boat or a cruiser? There is, I admit, a good case for jet skis being included in the Bill, as they are very dangerous articles. I also have a horrific vision of police launches descending on Henley Royal Regatta—not on the rowers but on the launches, which are a feature of that event.
I am glad that the Government will consult as to where lines will be drawn and hope that common sense will prevail. As the noble Lord, Lord Greenway, stated, a proportionate regime is required.
Part 5 lays down the alcohol and drug limits for air crew and all those involved in aircraft movements. I am surprised that that had not been done before. Like everyone else, we all thoroughly approve of those measures.
The Bill seeks to do a great deal to make travel safer for us all, but it must not be considered to be a panacea for all causes of accident and incident. In the end, however good the precautions and clever the technology, it will come down to the human element. Therefore, there is no substitute for rigorous training and the best possible supervision.
Technology is improving all the time and to update it always costs companies and governments far more than they feel able to afford. However, the public will not tolerate accidents occurring because of underfunding of relevant, new technological advances that are aimed at, and capable of, saving life.
I look forward to the Minister's reply to this excellent debate and conclude by wishing the Bill a fair wind from these Benches.
12.50 p.m.
Lord McIntosh of Haringey: My Lords, I am grateful to all noble Lords who have taken part in the debate. It has, as always, been well informed, but on this occasion, it has been entirely constructive and supportive of the Bill. I am immensely grateful for that.
Due to the large number of questions that were raised and in order not to detain your Lordships from their lunch—at least, those noble Lords who do not have to take part in the debate on the next Bill—I propose a hierarchy in the way in which I shall respond. Where there were questions about the content of the Bill, I shall do my best to respond to them in as much detail as is necessary. Where there were questions which were not about matters in the Bill but which sought reassurance or information, I shall do my best to respond, but some questions were some way from the subject matter of the Bill. Where markers were put down for amendments in Committee on matters that are not included in the Bill at the moment, I hope that your Lordships will forgive me if I wait to see the whites of their eyes. I will address those matters in Committee rather than now. Otherwise, I will address the Bill in the order in which it is printed.
I turn first to the rail accident investigation branch. I am grateful for the welcome that was given to it and, in light of the fact that it was one of Lord Cullen's recommendations, I am sure that it is acceptable.
The noble Viscount, Lord Astor, asked which of Lord Cullen's recommendations were accepted. There were 295 recommendations from the Ladbroke Grove and Southall reports, some of which overlapped. My understanding is that 179 of them have already been met.
The noble Lord, Lord Bradshaw, asked whether I could assure him of the independence of the rail accident investigation branch. Yes, it is fully independent of the Strategic Rail Authority and the Office of the Rail Regulator, as Cullen recommended. It will be responsible for its own conclusions and recommendations.
The noble Viscount, Lord Astor, asked who would be responsible for prosecutions. The whole idea of the rail accident investigation branch is to produce a quick report so that safety recommendations can be implemented quickly without allocating blame. The more detailed investigation and any subsequent prosecution would remain with the police and the Health and Safety Executive.
The noble Lord, Lord Bradshaw, asked why the phrase "wherever relevant" is in the provisions for the rail accident investigation branch. Our idea is that there may be occasions when the rail accident investigation branch is called on to help the Air Accident Investigation Branch and the Marine Accident Investigation Branch. That phrase will enable them to do so.
There has been some confusion—but not in this House—about the relationship between the rail accident investigation branch and other bodies. I wrote to the noble Lord, Lord Bradshaw, and the noble

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Viscount, Lord Astor, about that. Now that I know who has taken part in the Second Reading debate, it might be helpful if I copied that letter to all those noble Lords. The important point is that the Bill does not alter the statutory basis of the Health and Safety Executive, which is, and will remain, the rail safety regulator.
The noble Lord, Lord Berkeley, pointed out that the Health and Safety Executive should concentrate on prevention, but it must also take action in respect of breaches of health and safety regulation. That is true not only for the railways, but also for wherever it operates. I confirm to him that the Health and Safety Executive has an overarching brief for health and safety wherever there is not more precise sector legislation, which can be more detailed and effective. All of the other bodies remain unchanged, but the new body will be the rail safety and standards board. That will be an industry body which sets operating standards. That is accountable to its membership, which is drawn from the rail industry. There is no conflict with the rail accident investigation branch.
Turning to the general rail safety issues, I agree with a number of noble Lords who confirmed that rail is one of the safest forms of road transport. I was struck by the remark that it is more dangerous to get to the station than it is to travel on the train. Travel by rail is six times safer than travel by car.
The noble Lord, Lord Berkeley, made some points about the reporting of accidents. That is a matter for the Health and Safety Executive and we are anxious to maintain its independence from government.
The noble Lord, Lord Clinton-Davis, asked about the European safety directive. That is still being debated by the European Parliament, but any regulations that are enacted after Royal Assent will comply with the directive.
There was a general welcome for the change in the structure of the Office of the Rail Regulator and there were tributes to the work of Tom Winsor, the Rail Regulator. I can confirm that the change in structure is in no way to be interpreted as a criticism of Tom Winsor. It is planned not to take place before the middle of next year, which is the end of Tom Winsor's term of office. There are no other changes in the functions and duties of the Office of the Rail Regulator.
I turn to the British Transport Police. There was a general welcome for the change in its governance, but some specific questions. The noble Lord, Lord Bradshaw, asked why the authority should not appoint its own chairman. The Secretary of State is appointing all the members of the authority. It would be a little odd for him to delegate the appointment of the chairman to a body that he had appointed himself. If I were asked to be appointed to a body of that kind, I would want to know who the chairman was before deciding whether to accept. I would want the chairman to have some say in the appointment of the other members. He could not do that unless he were appointed first.
Earl Russell: My Lords, I declare an interest as a trustee of the National Portrait Gallery. The
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arrangement recommended by my noble friend Lord Bradshaw is well understood and accepted in the museum and galleries world.
Lord McIntosh of Haringey: My Lords, I do not doubt that.
Lord Bradshaw: My Lords, I have been a member of a police authority for a long time. I think that we have changed chairmen four times. It emerged from the membership that they wanted a change of leadership and that in a closely knit body some people are better than others.
Lord McIntosh of Haringey: Indeed, my Lords. That could happen. I have no doubt that if it did, the members of the authority would make their views known to the Secretary of State. We are talking about a new authority. I hope that we would wish the chairman of the new authority to have some say in the appointment of the other members.
My noble friend Lord Faulkner asked whether the British Transport Police could appoint community support officers. The chief constable has not raised that matter with us in the past. Clearly, any such request will be considered seriously.
A number of points were raised—notably by the noble Lord, Lord Bradshaw, and my noble friend Lord Berkeley—about the funding of the British Transport Police. It has been funded by the railway industry ever since its creation in the 19th century. It is not really equivalent to the funding of the police on the roads because we do not have a roads police. We have police who cover roads and other matters. They are funded by general taxation, which includes vehicle excise duty and fuel duty from motorists and the road transport industry. So the comparison and the demand for equivalence is not really appropriate. In any event, we are talking about a budget of £136 million, which is less than 2 per cent of the rail industry's turnover and excludes London Underground.
My noble friend Lord Berkeley made a specific point regarding the rail freight industry. Freight operators will pay about £1 million in 2003–04, which is less than 1 per cent of the British Transport Police's total budget and far less than 0.1 per cent of the freight companies' turnover.
The noble Viscount. Lord Astor, the noble Lords, Lord Bradshaw and Lord Luke, my noble friend Lord Faulkner, and no doubt other noble Lords, referred to jurisdiction outside the railways. The position is that the Anti-terrorism, Crime and Security Act gave the British Transport Police jurisdiction outside the railways in urgent situations on non-railway matters. The Act, following serious debate—perhaps I may put it that way—in Parliament included a sunset clause. It provides that the Secretary of State should appoint a committee of Privy Counsellors who must report within two years—that is, by December this year. The Secretary of State will lay a copy of the report before Parliament as soon as possible; and the report can operate so that all or part of the Act can cease to have effect six months after the report is laid

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before Parliament. But if both Houses of Parliament pass a Motion within that period, then the provisions in question will remain on the statute book.
We do not want to pre-empt what the committee of Privy Counsellors will say on this or on any other matter on the Anti-terrorism, Crime and Security Act. Having made that provision, it would be wrong for us to pre-empt its decision in response to strong pressure within Parliament. However, first, we believe that it is highly unlikely that the committee of Privy Counsellors will think that the jurisdiction outside the railways should not continue; and, secondly, if by any chance the committee of Privy Counsellors do so decide, we shall take action in the six-month period which is allowed to ensure that it does continue. Therefore, there will be continuity. I do not believe any amendment is necessary on that matter.
We have had little discussion of the amendments to the Greater London Authority Act. Because of its complexity, I am grateful for that. The noble Lord, Lord Bradshaw, asked me when the transfer will take place. We are keen for it to take place as soon as possible. But, for the reasons that I have given, we need the Bill in order to ensure that the PPP contracts will continue as intended, and as intended originally in the Greater London Authority Act. The transfer cannot take place until the Bill is passed. Transport for London is involved in all these negotiations. It will give any assurances that are required.
There was generally—but not universally—a current of feeling that the Health and Safety Executive functions for the rail industry should not be charged to the rail industry. My noble friend Lord Berkeley made the comparison with roads. We are now talking about a figure only of £9 million cost, of which 55 per cent is for operational work that is being charged hourly. These are very small sums in relation to the costs of the rail industry. The Bill simplifies and improves the ways in which those sums are calculated.
On marine alcohol, I was shocked to hear the noble Lord, Lord Greenway, suggest that anyone who takes part in the Lords and Commons dinghy race might be under the influence of drink. I look to him for an "absolute assurance"—because that is how governments are always asked for assurances—that that is not the case. Of course the issue of who should be included or excluded is difficult. That is why we are consulting on the details rather than laying it down in the Bill. The noble Earl, Lord Mar and Kellie, would wish for no exclusions; the noble Lord, Lord Greenway, poured scorn on that suggestion: I shall leave it to them to fight it out.
As to the question of harbour masters, they will be subject to the legislation when they are acting in a professional capacity on board a boat, but not otherwise. There are no equivalents to harbour masters and air traffic controllers. The noble Viscount, Lord Astor, raised the question of costs. They are set out in the regulatory impact assessment. However, I can give him a general assurance that they are not very significant.
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The noble Earl, Lord Mar and Kellie, made specific points about the medical defence for fishermen. Those provisions are unchanged from Section 117 of the Merchant Shipping Act. As to the point raised about standbys, who are people who must hold themselves ready to take over in a case of an emergency, clearly, that is not possible for lifeboats and fishing vessels.
I shall not comment about the demand, in particular from the Liberal Democrat Benches, for a decrease in the alcohol limit from 80 milligrams to 50 milligrams. We shall respond to any amendments that are tabled.
The noble Viscount, Lord Astor, asked me about our response to the Wheeler report. I shall write to him on that point.
Viscount Astor: My Lords, before the Minister leaves the subject of alcohol limits, what is the justification for different limits rather than one limit for all those involved in safety?
Lord McIntosh of Haringey: My Lords, I had intended to turn to that matter. We propose that the alcohol limit should be set at 20 milligrams for air crew and air traffic controllers. The reason is that a combination of concentration, unremitting attention and exceedingly swift reaction is required for air crew and air traffic controllers. That is why we have set a tougher limit. That does not apply—this is in response to the point raised by the noble Viscount, Lord Simon—to aircraft maintenance engineers. They of course have to be sober to do their work, but speed of reaction is not critical in aircraft maintenance work any more than it is in any other vehicle maintenance work.
My noble friend Lord Clinton-Davis suggested that we should adopt a process of peer intervention, as happens in the United States. I was glad to hear him suggest that it should be complementary to statutory limits rather than instead of them. In so far as it is complementary, it should be a matter for the Civil Aviation Authority rather than for legislation. But testing and the exercise of breathalyser powers should be and will be the responsibility of the police under the Act.
This is not a road safety Bill. We have a legislative programme and we shall have in due course, when parliamentary time allows, a road safety Bill. Out of the goodness of our hearts, and because we were already convinced of the merits of the case, we allowed two road safety measures—on seat belts for van drivers and on snow and ice—into the Bill in another place, but I do not want to encourage a Christmas tree. I do not want to encourage a whole range of other measures.
I listened carefully to what was said about mobile phones. We are consulting on that and will report on our conclusions as soon as possible. I listened to what was said about the 80 milligram limit. We said no to that, giving our reasons, last March—on the basis that with a slightly higher limit, we also have significantly higher penalties than countries with lower limits.
On the specific points made by the noble Lord, Lord Dixon-Smith, the Heritage Rail Association is of course covered for accidents, as I am sure that he

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would want it to be, but for many other aspects of regulation, it is not covered by public service agreements. However, it is represented on the Health and Safety Commission. On the issue of snow and ice, the phrase "reasonably practicable" follows that used in Scotland, where it seems to work all right. I gave my answer to the noble Lord, Lord Dixon-Smith, about driving under impairment from drugs when I responded to his Private Member's Bill. I have nothing to add to that.
As I said, because I have exceeded any reasonable time, I shall resist the temptation to respond to those other matters that are not contained in the Bill, but of course they will be given due and careful consideration if and when they arise in Committee. I am grateful to noble Lords for their welcome for the Bill and I commend it to the House.
On Question, Bill read a second time.

Industrial Development (Financial Assistance) Bill
1.12 p.m.
Lord McIntosh of Haringey: My Lords, on behalf of my noble friend Lord Sainsbury, I beg to move that this Bill be now read a second time.
Section 8 of the Industrial Development Act 1982 has been a great success. It provides the legislative basis for a number of measures providing financial assistance to industry. I shall give some examples of how it has been used in a moment. But the power will run out in about a year's time, unless the ceiling of expenditure is raised. The Bill provides for that by raising the ceiling and allowing the Section 8 power to continue to be used. Since 1972, when a similar power was first introduced, more than 60 measures have been established using the Section 8 power, of which 15 are still in operation at present.
In recent years, we have increased our expenditure under Section 8, for which we make no apologies. We are using it more than the previous government, although the previous government enacted both the 1972 and 1982 Acts. We have been introducing initiatives to improve the competitiveness of the economy and to help with the consequences of industries in transition, such as coal.
Eight of the current schemes are operated by the Small Business Service, established in 2000 to meet the needs of small businesses. With the exception of the small firms loan guarantee, all of them have been introduced by this Government as part of measures to bridge the funding gap faced by small businesses. The small firms loan guarantee offers guarantees on loans to small firms with viable business proposals that cannot get conventional finance because they do not have assets to offer as security against a loan. We provide a guarantee against default, which encourages lenders to lend where they would not otherwise do so.
We have reviewed that process and extended the small firms loan guarantee on 1st April. The other Small Business Service schemes are the UK high-technology
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fund, the regional venture capital funds, the early growth funding initiative, the enterprise grant scheme, the business incubation fund and two elements of the Phoenix Fund—support for community development finance institutions and the Government's investment in a community development venture capital fund.
The scheme is also used for particular industrial sectors, notably the UK Coal Operating Aid Scheme, introduced in 2000 to help the coal industry at an especially difficult time. That scheme came to an end at the end of December and had accounted for almost £170 million by the end of the previous financial year. It did what it set out to do: it helped coal producers to stay afloat and to overcome short-term market problems. That was good news for the miners employed and for the local communities and service industries that depended on them.
We also used Section 8 last year to supplement redundancy payments to those who lost their jobs following flooding at Longannet Colliery, the last deep mine in Scotland. We are in negotiation with the European Commission about our intention to use Section 8 to support redundancy payments arising from closure of UK Coal's Selby complex.
Section 8 was also used to make payments to redundant steelworkers through the iron and steel employees readaptation benefits scheme. Most recently, we used it for the urban post office reinvention programme, to enable the Post Office to carry out its programme to restructure the urban post office network and ensure that sub-postmasters whose offices close are compensated for the loss of value of their business, and that those who stay can benefit from investment grants. That will probably account for about £210 million of the money left under the 1982 Act.
The National Assembly for Wales uses Section 8 to operate two schemes: the regional innovation grant and Assembly investment grant schemes. It funds those initiatives, but the expenditure counts towards the cumulative Section 8 limit.
The European Community is involved because, where assistance under Section 8 is regarded as state aid, it must be compatible with state aid rules. Any new scheme under Section 8 that is a state aid needs to be notified to and approved by the European Commission before it can be introduced, unless it falls within one of the bloc exemptions, when simpler notifications procedures can be adopted and the aid can be given immediately. We have told the Commission of our intention to raise the limits in the Bill.
Together, those schemes have accounted for the increase in Section 8 expenditure. Without the new limits, we would run out of money when the current limit of £2.7 billion allowed for under the 1982 Act is reached. At the end of March 2002, cumulative expenditure since 1972 was almost £2.35 billion. For the financial year 2002–03, the provisional figure is £130 million. For the current financial year, we forecast a further £208 million, and £221 million in financial year 2004–05. So we expect to reach the current limit by early next year.

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Section 8 assistance has always been subject to a statutory limit that could be raised by Commons affirmative order on up to four occasions. That dates back to the Industry Act 1972. All expenditure since then counts towards the cumulative limit. We have retained the structure of tranches in the 1982 Act, but replaced the numerical ceilings with new, higher ones, reflecting the growth of the economy since 1982.
Clause 1 replaces Section 8(5) of the 1982 Act by increasing the initial ceiling from £1.9 billion to £3.7 billion, and the subsequent four tranches from up to £200 million to up to £600 million each. Clause 2 simply gives the short title.
Limits were chosen with regard to the effect of rolling forward the existing limit of £2.7 billion in real terms, using 2.5 per cent as the proxy for the long term gross domestic product deflator for a 20-year period. That gave a ceiling of £4.5 billion and four subsequent tranches of £400 million each. We varied that to create a lower ceiling and larger tranches because we wanted to provide more regular scrutiny than that which would have been provided otherwise. If we have a lower initial ceiling and bigger tranches, we reach the same ultimate ceiling of £6.1 billion. As this is a money Bill, the House of Commons has more regular scrutiny.
To give an example from the 1982 Act, the first tranche was not exhausted; therefore, there was no parliamentary scrutiny for 14 years after the Act was passed. Under this Act, there will be scrutiny after around six years and after that at more regular intervals—probably every three years—until the ultimate limit is reached. Parliamentary scrutiny is not very serious. The House of Commons takes an average of around half an hour to consider the orders. We expect the provisions under this Bill to continue for almost 20 years. If expenditure increases, the limit will be reached sooner, and, if it is reduced, it will be reached later. That compares favourably with how the 1982 Act operated. It provides a more rational chance for the House of Commons to consider the need for more money.
The House of Commons also has the opportunity to scrutinise larger cases of assistance to industry—those of more than £10 million for any one project. That was provided in Section 8(8) of the 1982 Act and is being maintained. We have no plans to raise that threshold.
I suggest that the proposals represent a way of continuing a worthwhile project agreed by both major parties and, I believe, supported by the Liberal Democrats. We believe that the Bill provides the best basis for continuing support for industry and accountability to Parliament. I beg to move.
Moved, That the Bill be now read a second time.—(Lord McIntosh of Haringey.)
1.22 p.m.
Lord Razzall: My Lords, 1st May being election day I cannot allow one of the Minister's points to go unanswered. So far as I am aware, the Conservative
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Opposition are still one of the three major parties. But I am perfectly happy to accept that the Minister's remark was a slip of the tongue.
The debate on this Bill in the House of Commons was materially extensive. The Conservative Opposition and my own party raised several very significant points and concerns. Having read the material and reflected on the matter, I do not believe that this House is the appropriate place for an extensive debate on the Bill, because not only are we approaching the lunch hour but this is a money Bill. Our words will simply be recorded in Hansard without any potential effect other than perhaps to influence debate.
The underlying thrust of the concerns expressed on the Bill in another place—which I share—relates to whether a framework of legislation that was appropriate in 1982 will remain an appropriate structure for the modern economy from 2003 onwards. After all, taking the example of industrial assistance, in 1982, when the legislation originated, we still had a significant manufacturing sector, with highly concentrated industries such as coal, steel and shipbuilding. As those industries ran down, there was a significant need for adjustment assistance, which could be provided under the Section 8 powers. I would welcome a response from the Minister as to whether he really thinks that, 21 years later, that degree of industrial assistance is still as necessary.
The second concern, which was raised quite extensively in another place, relates to the small industry loan guarantee scheme which the Minister correctly said was significantly used. He failed to mention that, since the scheme was introduced in recognition of the fact that the banking system was defective in providing loans to small-and medium-sized businesses, the Cruickshank report has been published. It made many recommendations on how the banking sector ought to deal with the difficulties that the small industry loan guarantee scheme was introduced to deal with. The Minister seems to assume that the guarantee scheme will continue in its existing format, with exactly the same requirements. He makes no reference to how the Government propose to ensure that the Cruickshank report's conclusions are followed through. To a large extent, that would remove the need for the scheme.
The third substantive point raised on all sides of the House of Commons was accountability. I note with interest that the Minister indicated wryly that, although parliamentary scrutiny took place in another place, we should not take it seriously as regards its effectiveness. The substantive point is that, notwithstanding the existence of this power for more than 20 years, there has never been a significant report from the DTI—which would normally be expected in the commercial sector—evaluating the success of the programmes and financial assistance given, using normal means of business measurement; the opportunity cost, alternatives and effectiveness. Although noble Lords have no power other than to speak in this debate on the Bill, it would reassure many of us and many critics of the increase in

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the power if the Minister could indicate whether the Government propose to improve DTI's reporting mechanisms on accountability.
1.27 p.m.
Lord Hodgson of Astley Abbotts: My Lords, I begin with an apology. My noble friend Lady Miller was due to speak in the debate today. Sadly, yesterday afternoon, her husband fell and broke his hip. He had to undergo an operation this morning, which is why my noble friend cannot be present. She asked me to present her apologies to the House for her non-appearance.
I declare an interest, albeit historical: for a number of years I was a member of the West Midlands Industrial Development Board. In that role, I considered, and was involved with, applications for regional selective assistance and other grants.
As the Minister explained, the Bill has its origins in the Industry Act 1972, introduced by the then Conservative government. That Act was substantially modernised by the Industrial Development Act 1982, which was also passed under a Conservative government. Both Acts had the provisions contained in the section that this Bill seeks to amend—Section 8.
Noble Lords may therefore assume that we on these Benches support the principles of the original legislation and the principles of this present Bill. However, that does not mean that we should allow it to pass without raising some important questions, to which the Government should provide answers. As Mr Speaker has certified this as a Money Bill, we in this House may not table probing or other amendments. This debate is the one opportunity for us to request clarification from the Government.
Three years ago, in a debate in the Standing Committee in another place, the Government stated that they anticipated that the funds available under the present legislation would last until 2010, and that replacement legislation, such as we are now debating, would not be needed before then. Will the Minister tell us what unexpected, unbudgeted events have occurred since then that have resulted in this legislation being brought forward by no fewer than seven years?
The main purposes for which funds may be provided pursuant to Section 7 of the 1982 Act are, in general terms,
"to provide, maintain or safeguard employment in any part of the assisted areas".
Subsection (2) more closely defines, in six paragraphs, the way in which that is to be achieved. Four of those paragraphs refer to such positive matters as the promotion of development and modernisation; the promotion of efficiency; the creation, expansion or sustaining of productive capacity; and the encouragement of growth.
In contrast to those positive objectives, there are two paragraphs that provide for assistance in promoting the reconstruction or reorganisation of industry—subsection (2)(d)—and ensuring that the contraction of an industry proceeds in an orderly way. Some of the funds were used to prevent the premature closure of
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viable coalmines, which certainly seems to be within the ambit of the Act. However, Ministers here and in another place have explained that funds have been used to support redundancy payments arising out of the closure of the Selby coal complex and the disastrous flooding of the Longannet colliery. However laudable those two objectives were and however much they fell strictly within the wording of Section 8, subsections (2)(d) and (2)(f) were intended for the purpose of introducing new employment into areas hit by large industrial closures. They are not for the purposes of meeting the Government's obligations under the Employment Rights Act 1996. On the other hand, the payments that the Government have made under Section 8 to redundant steelworkers through the iron and steelworkers re-adaptation benefits scheme seem to comply with the purposes of the Act.
This morning, the Minister, like his colleague in another place, explained that Section 8 funds had been used for the urban post office re-organisation. The Minister's colleague said that it was done,
"to enable the Post Office to carry out its programme to restructure the urban post office network, and to ensure that sub-postmasters whose offices close are adequately compensated for the loss of the value of their business and that those who remain can benefit from investment grants".—[Official Report, Commons, 24/2/03; col. 51.]
My noble friends Lady Miller of Hendon and Lady Byford and many others have campaigned in the House for support for urban and rural post offices. However, I must ask by what stretch of interpretation post offices can be described as an industry. Despite the fact that the Government's compensation proposals were, apparently, discussed in another place on 15th October 2002, the funds that the Government promised to provide are not new money. They are money taken by the Treasury from the funds that are supposed to be used for the purposes of the 1982 Act—namely, to maintain employment in assisted areas. If that is true, it is a classic piece of government double counting, perpetrated by experts in creative bookkeeping.
The use of money earmarked for the purposes of the Act to meet the Government's other obligations is not appropriate. The Minister should tell us in detail what the Government have spent so much money on in the past three years that it has resulted in their having to come back to Parliament for more money seven years earlier than previously predicted. I appreciate that the Government have presided over an unprecedented decline in our industrial base, but the money provided under the Act is intended to establish new jobs and opportunities and not to enable the Treasury to evade its obligations under other Acts, or to fulfil high-blown promises by using the usual government smoke and mirrors.
Several requests for greater transparency and more information about the operation of the 1982 Act were made during the debates at all three stages of the Bill's passage. The noble Lord, Lord Razzall, has already raised that issue. Although it is possible to find accounts of different schemes on the DTI website, it would be helpful if comprehensive interim written

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reports were published at intervals. As the DTI has a continuous data-gathering operation, will the Minister offer to see that that is done and is made available to interested parties, especially those in Parliament?
We are talking about large sums—an immediate increase to the ceiling of £1 billion and provision for subsequent increases totalling £2.4 billion. When I sat on the West Midlands Industrial Development Board, I became concerned at the activities of professional grant-getters; that is, firms, or individuals, who offered grant-getting help for a fee that was usually linked to success. They knew how to present cases, how to hit the hot buttons—to use modern parlance—and how to achieve a good outcome for their clients.
My worries then and now are twofold. First, there is the issue of what is known as "additionality". Is the grant critical to the proposal going ahead or, in the last resort, would it proceed in any case? If the latter is the case, taxpayers' money is not being used to best effect. My second worry is about what is called "cross-competition". Grants that are obtained can adversely affect the operations of other perfectly competent, well-run competing firms that have not gone cap-in-hand to the Government. In his response, will the Minister reassure me and the noble Lord, Lord Razzall, about the analysis that the Government have done of the impact of those important topics?
We also need an answer to the question of the extent to which the Government's operation of the Act is controlled by the European Commission. At Second Reading in another place, the Minister told the House that,
"The Government are in negotiation with the European Commission over our intention to use Section 8 to support redundancy payments arising from the closure of UK Coal's Selby complex".—[Official Report, Commons, 24/2/03; col. 51.]
I have already referred to the inappropriateness of using the funds available under the Act for the purpose of meeting the Government's obligations under other legislation with regard to the payment of redundancy money, as distinct from the laudable objective of introducing new employment opportunities in areas affected by large-scale industrial closures. What is the current role of Brussels as regards this country's policies for compensating workers who have lost their job?
In parallel with that issue, there is also the fact, as I remember from my experience in the West Midlands, that international competition used to develop between governments to attract new industries. Too often, it seemed from our worm's eye view in Birmingham that the UK played scrupulously by the rules. Other countries appeared to be less fastidious. Whatever provisions are laid down in Brussels, is the Minister satisfied that they are fairly and evenly enforced throughout the European Union?
At Second Reading in another place, Mr Henry Bellingham, the honourable Member for North West Norfolk, asked the Minister to consider the removal of some of the sector restrictions, including vehicle
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repairs and servicing and retailing. I accept that they are on the borderline of the definition of "industry", but no more so than urban post offices, for which the Government took funds from the resources for this Act. Many of those made redundant in a major closure must resort to that sort of trade, as there is no other way for them to make a living. Even the Government's Small Business Service, which provides funds under the Act, is unable to help such businesses.
Under the Act, the turnover limit is £5 million. That figure has remained unchanged for some time. My honourable friend Mr Bellingham suggested that it was now too restrictive, but the Minister did not respond. Now that the Government have had a couple of months to think about the matter, will the Minister give us a more a considered reaction? My honourable friend also asked for details of the sums that have had to be written off from loans in the past four years and for the global figure that the Government have had to pay under guarantees. The Minister admitted and expressed surprise that the analysis existed but was, as he put it, "all over the place". He promised a proper analysis to the members of the Standing Committee in another place, and I assume that it was prepared and circulated. Will the Minister ensure that Members of this House who are interested in the matter receive the same courtesy?
More important for the transparency that I have called for than the bare figures for the money paid out and paid back would be some sort of periodic report on how productive the funding has proved to be overall, especially in helping small businesses. As my honourable friend the Member for Sevenoaks pointed out in an intervention at Second Reading in another place, we are progressing in one step from a commitment of £2.7 billion—the current total—to £6.1 billion. An extra £3.4 billion, even spread out over 20 years, is a lot of money. That is especially so, given that, in the last period for which we had a report, expenditure under Section 8 was £113 million. In his introductory remarks, the Minister said that that figure would rise in the current year. We look forward to hearing from the Minister what extra calls the Government expect to be made on the facility.
I ask for this information because, as I said, the Government expect the present funding to run out seven years ahead of schedule, hence the need for the Bill. I also ask because of my suspicion that the Government may be planning to use the facilities of the Bill to fund activities that should be more openly discussed elsewhere in the accounts.
As Mr Henry Bellingham pointed out, this is a small Bill, but one with a large price tag. At 92 words long, I calculate it to have a price of about £37 million per word.
For all those reasons, and the points adduced by the noble Lord, Lord Razzall, there must be a strong argument for an improved method of parliamentary scrutiny. That could take several forms, including a requirement for a specific report to be debated in both Houses when either a specified increased level of Section 8 funding was reached—say, the £600 million tranches to which the Government refer—or at

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chronological intervals of, say, three years. That would have the effect of increasing public confidence that taxpayers' money was being used to best effect. Given all the circumstances, it was a pity that the Government could not respond more constructively to the amendments proposed on this issue in another place. When he responds, perhaps the Minister will also give us his considered reflections on that point.
Finally, and nevertheless, as originators of this concept and sponsors of the two preceding Acts, we on these Benches support the principles of the Bill and the need for some industry-specific intervention by the Government as well as for assistance in some of the regions, perhaps especially for small businesses, which are so often described as the engine of new employment opportunities.
1.42 p.m.
Lord McIntosh of Haringey: My Lords, I am grateful to both noble Lords for the detailed consideration they have given to this small but important Bill. I shall do my best to respond to the particular points made.
I start with the noble Lord, Lord Razzall, who queried whether the 1982 legislation is still relevant 21 years later. The demand for assistance, particularly for small businesses, in relatively small sums to individual enterprises, is continuing and will continue in good times and in bad times. As the noble Lord, Lord Hodgson, said, small and medium enterprises are in many ways the engine room of the economy. It is the case that one of the measures of the success of the economy is the extent to which small businesses start up.
There is no doubt—it has never been questioned—that small businesses have benefited from the programmes which have been operated by the Department of Trade and Industry. It is true that there have been far too many of these programmes; the fact that there are more than 100 of them is confusing for businesses and for government. We recognise that, and that is why the Secretary of State has conducted a review and is proposing to reduce the number of schemes from more than 100 to more like 20 or 25. The ones that are included in Section 8 provision are undoubtedly important parts of the schemes that will survive the review.
The noble Lord, Lord Razzall, asked me whether the small firms loan guarantee scheme was necessary after the Cruickshank report and after the Government are able to implement that report. The recommendations of the Cruickshank report are, of course, only partly to the Government; they are also to the venture capital industry. It is not within the Government's powers to control these matters. We do our best to help, but we cannot actually say what venture capital will do. The latest report of the British Venture Capital Association shows that only 3 per cent of total private equity investment was invested at the start-up stage in 2001 and only 8 per cent in early-stage investments, whereas MBOs and MBIs accounted for 60 per cent of investment. There is not much change there. I suggest that it is a good justification for continuation of the small firms loan guarantee scheme.
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The noble Lord asked me about accountability. The extent to which the House of Commons considers the reports that are made is a matter for the House of Commons. There is an annual report under the 1982 Act. It is capable of being debated by the House of Commons, and if they wish to do it no doubt they will do so. If the Liberal Democrat or Conservative Opposition feel like doing so, I have no doubt that they will demand government time or provide time of their own. But that is not a matter for me.
The noble Lord, Lord Hodgson, asked why the money which three years ago we thought would last until 2010 will now last only until 2004. The answer is that there have been worthwhile schemes under Section 8 which do seem to be justified. With one or two exceptions, I think that the noble Lord, Lord Hodgson, accepts that the schemes that we have been funding come under the proper purposes of the 1982 Act—the purposes in Section 7(2), and including those in (2)(d) and (2)(f).
The noble Lord's two queries are, first, about coal redundancy payments—although I noticed not about steel redundancy payments—and about the use for post offices, which he describes as not being "industry". On the question of redundancy payments, the European Commission has agreed that redundancy payments are proper uses of industrial development funding. It is, after all, in the interest not only of those who are made redundant, in the way in which the coal industry and the steel industry have been making people redundant, that they are compensated, but in the interest of the communities in which they live. It also increases the chance that replacement employment opportunities will arise.
The noble Lord talked about a stretch of interpretation to count post offices as industry. When I started a market research company, in 1965, I called it Industrial Facts and Forecasting because the contrast which we then made was between industrial and consumer market research. It became very apparent that the real market for us in non-consumer market research was business. I suggest to him that our economy consists of manufacturing industry and service industry. To make a point about the wording as to whether something is industry or part of the effective economy is not very helpful. These are all essential parts of our economy and if there were to be service industries which fell within the remit of Section 8 I am sure that we would take those opportunities regardless of the title of the 1982 Act. It was the correct title at the time. It is not the correct title now, but the provision is still appropriate.
I understand what the noble Lord says about the work of professional grant-getters. I have seen that in action myself and it is not particularly valuable. However, I think that the review of these small business schemes that the DTI is carrying out will attack that issue as well.
The noble Lord asked me about the European policy on compensation for job loss. All uses of Section 8 which are state aids under the EC treaty require notification to meet our obligations under the treaties. We require that

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support for Selby, which is one of those that he questions, and that is why we have notified it to the European Commission. We do scrutinise possible cases of noncompliance by other member states which are publicised, and we have been known to intervene in the European Court of Justice if we think that there are cases of intervention. We believe that if we are to obey the rules, other people should keep to the rules themselves.
The noble Lord asked me whether the measure we are discussing constituted new money. Each government department or devolved administration funds its Section 8 schemes out of its own budget in the context of the overall priorities of each department. Section 8 is not a budget; it is an enabling power. All the money has to come out of DTI budgets and those are determined by the spending review.
I believe that I have responded to the point made about the reports. I do not believe that a comprehensive evaluation of such a wide variety of schemes would be possible but there have been evaluations of individual schemes. For example, the small firms loan guarantee scheme was evaluated by KPMG. The small business services schemes are also subject to evaluation. In any case, the business support review which I have already described is in itself a form of evaluation. I am strongly in favour of evaluation. I am very sympathetic to what both noble Lords have said but I do not believe that a cross-cutting evaluation of such a wide variety of schemes would be appropriate.
I shall ensure that both noble Lords have a copy of the analysis which was given to the Standing Committee in another place. I do not think that I can say what extra calls will be made in the future on Section 8. Clearly, those are matters which arise from time to time. For example, one does not have notice of flooding at Longannet. If I can tell the noble Lord anything further about the future, I shall certainly do so. However, at present I rest my case on the position that, broadly, the schemes that have been funded and continue to be funded are worthwhile. There is no other way of funding them. The proposals to extend the scheme are rational and legitimate and provide such accountability to Parliament as the House of Commons wishes. I commend the Bill to the House.
On Question, Bill read a second time; Committee negatived.

Business of the House: Extradition Bill
1.52 p.m.
Lord Bassam of Brighton: My Lords, unless any noble Lord objects, I beg to move that the Second Reading of the Extradition Bill be postponed until after Starred Questions.
On Question, Motion agreed to.
Lord Bassam of Brighton: My Lords, I beg to move that the House do now adjourn during pleasure.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 1.53 to 3 p.m.]

Credit Rating Agencies
Lord Higgins Lord Higgins asked Her Majesty's Government:
Whether any further progress has been made in preventing the practice of credit rating agencies releasing personal financial information about an individual to family members and others thought to have a financial connection with that individual: and what steps have been taken to ensure that individuals are not denied credit because of inaccurate or inadequate information supplied by such agencies.
The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal): My Lords, the Information Commissioner, who operates independently of the Government, announced on 28th April that he is now looking to establish a firm date for full implementation across the whole of the credit industry, including the credit reference agencies, of the new procedures to restrict disclosure of such third party information. The Data Protection Act requires information to be both accurate and adequate and the commissioner can take enforcement action if it is not.
Lord Higgins: My Lords, I thank the noble Baroness for that Answer. Is it not a disgrace that five years after the enactment of the Data Protection Act, and a year after I first raised the question with the Minister, the credit rating agencies are not complying with the legislation? Does the Minister accept that we must have a deadline? She mentioned that the commissioner proposes to have one. In fact, the Minister failed to mention the date to which she referred last May. What is the deadline now?
As to the second part of the Question, the Minister said that the information must be both accurate and adequate. Is it not the case that while people can complain about the inaccuracy of data—and certainly many people have done so—they are not able to insist that the credit rating agency adds to the information it holds, with the result that some people, either very rich or very prudent, are not able to get a credit rating, which is particularly important if they wish to open a bank account?
Baroness Scotland of Asthal: My Lords, I understand the passion with which the noble Lord makes his comments in relation to his description of the credit rating agencies' approach. I said on the previous occasion that this matter is very much within the province of the commissioner. As the noble Lord

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knows, the commissioner is now Richard Thomas. He has a duty to look at this issue. He has now issued a press release suggesting that compliance should take place across the whole sector not later than the end of 2004. He has not given a date but he has certainly said that. I remind the noble Lord that it is not only the agencies which have to become compliant. Other entities have to get their systems in place to enable them to produce the necessary information.
Baroness Byford: My Lords, is not the Minister concerned that people are losing their jobs, or not being taken on, simply because they are unable to open a bank account? Is not the Minister concerned that certain credit facilities require extra information to be taken into account? The small print of a credit agreement may state,
"Information about you and other members of your household and those with whom you are financially linked, will be used to verify your identity for credit assessment of you and them",
even though they are not applying for credit facilities. Surely that is totally unsatisfactory.
Baroness Scotland of Asthal: My Lords, there are concerns in this area but the noble Baroness will know that it is for lenders to decide whether to grant credit based on their own commercial judgment, including an assessment of the risks involved in any case. I can understand that there are difficulties. The noble Baroness will know also that, historically, both the previous commissioner and the current one have looked at the matter very robustly. The commissioner's role is not only to enforce but to persuade and encourage improvement in services, and both the previous commissioner and the present one have undertaken to do so.
Lord Newby: My Lords, many on all sides of the House will be concerned about the Minister's previous answer. If people find themselves denied credit, it may not be literally a life or death matter but it will have a very serious impact on their ability to conduct their daily lives. I find extremely worrying the apparent lack of urgency with which the matter is being pursued and the long deadline which has been imposed. Will the Minister look at the issue again and encourage the Information Commissioner to consider whether the deadline to which she referred might be brought forward somewhat?
Baroness Scotland of Asthal: My Lords, let me say two things in response to the noble Lord's question. First, the Information Commissioner has not set a deadline of the end of 2004; he has said that it should be no later than that. At the moment he is actively considering when the fixed date should be, but he has alerted the industry that the very latest point will be that date. I make that plain straightaway. Secondly, noble Lords will know that under Section 7 of the Data Protection Act it is possible for individuals to obtain a copy of the information held about them by a credit
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reference agency for a fee of £2. If they find that their credit file contains information about people in their family with whom they have no financial connection, they can write to the agency to dissociate themselves from them. Further information about this is given in the leaflet "No Credit?", which is available, free of charge, from the Information Commissioner's office. So individuals can take action to correct the information held on file about them.
Lord Higgins: My Lords, the individual can ask for the information to be corrected but cannot add to it if it is totally inadequate. The Minister has not answered the second part of the Question at all. Will she now do so?
Baroness Scotland of Asthal: My Lords, an individual is entitled to have an entry amended or information in the entry expunged. I understand that it is possible to request that a note be kept on the file. I emphasise that this is not within the Government's gift. The matter is being dealt with, quite properly, by the Information Commissioner, as is his right and duty.

Government Debt Accounts
3.7 p.m.
Baroness Wilcox Baroness Wilcox asked Her Majesty's Government:
Whether the Comptroller and Auditor General has approved the accounting treatment of debt in the government accounts.
Lord McIntosh of Haringey: Yes, my Lords. In his general report for 2001–02, the Comptroller and Auditor General noted that he had been able to give a unqualified audit opinion on the Government's debt accounts—that is, the National Loans Fund and the debt management account.
Baroness Wilcox: My Lords, I thank the Minister for that Answer. I am still concerned about the issue of disclosure of contingent liabilities. Why are they still not listed following the recommendation of the House of Commons Treasury Committee which stated:
"in the interest of greater transparency, that the existence of all contingent liabilities be stated in the Red Book"?
Lord McIntosh of Haringey: My Lords, I return to the view of the Comptroller and Auditor General, which is what the Question is about. The Comptroller and Auditor General said in his general report for 2001–02, in relation to financial auditing and reporting, that he has not yet had to qualify his audit opinion on departmental resource accounts as he would do so only should departments fail to reflect correctly in their financial statements liabilities resulting from financing arrangements under PFI deals. The answer is the same whether it refers to off or on balance sheet or to debt accounts.
Lord Sheldon: My Lords, can my noble friend confirm that the decision by the Chancellor of the Exchequer to ask the National Audit Office to report on the fiscal assumptions within the Budget was a major step towards openness? It is difficult to envisage any financial judgment which would carry any more weight and distinction than that of Sir John Bourn, who, during his 15 years as the Comptroller and Auditor General, has been an outstanding holder of that office.
Lord McIntosh of Haringey: My Lords, I agree entirely with my noble friend.
Viscount Goschen: My Lords, is the Comptroller and Auditor General, Sir John Bourn, fully content with the Government's decision to take the over £20 billion worth of Network Rail borrowing off the Government's balance sheet?
Lord McIntosh of Haringey: Yes, my Lords. Sir John Bourn has said that the Network Rail obligations should be in the accounts of the Strategic Rail Authority, and they are. If he does not know already, the noble Viscount, Lord Goschen, may be interested to learn that from 2003–04 we are introducing whole-of-government accounts. Those whole-of-government accounts will consolidate the accounts not only of central government, but also of executive agencies and non-departmental public bodies, including the Strategic Rail Authority.
Lord Newby: My Lords, does the Minister agree that the full potential impact of the Government's contingent liabilities can be understood only if a proper risk assessment of the guarantees given by the Government is undertaken? Does he further agree that the appropriate body to undertake such a risk assessment might he the National Audit Office?
Lord McIntosh of Haringey: Yes, my Lords, but in the first instance the evidence has to be available. That evidence is available in the supplementary statements to the Consolidated Fund and National Loans Fund accounts which I am holding in my hand. Table B.14 of those accounts, which are published every year, sets out all the departmental contingent liabilities, including an assessment of the risk. Perhaps I may add that in the whole-of-government accounts, in line with Financial Reporting Standard 12, we shall report all contingent liabilities which fall within the definitions of United Kingdom generally accepted accounting practices. Furthermore, we shall also be reporting on more remote liabilities.
Lord Saatchi: My Lords, perhaps I may help the Minister to understand why my noble friends persist in asking him such uncomfortable questions about the Government's accounting treatment for debt. Can I take him back to 10th December last when, in response to a question not dissimilar to that tabled today by my noble friend Lady Wilcox, he said that our suggestions were. "wholly unfounded"? He has also said that,
"in the Red Book … all contingent liabilities over £100,000 are declared".—[Official Report, 27/11/02; col. 781.]
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We persisted and on 16th December the Minister underlined that answer by saying,
"in case there is any misunderstanding, the aggregate of contingent liabilities is contained in the Red Book".—[Official Report, 16/12/02; col. 451.]
On 18th December we visited the subject again. On that occasion the noble Lord wrote to me to say that his previous answer had been "mistaken", and that in fact the figures are not contained in the Red Book and are included only in the largely unknown document to which he has referred.
Does that help the Minister to understand why, when he responds to questions in this way, my noble friends do not automatically accept that his answers are as clear-cut as he might like?
Lord McIntosh of Haringey: My Lords, any discomfort is in the minds of the Opposition, not in my mind. The difference between the Red Book—which is constantly criticised by the noble Lord, Lord Saatchi, for being too long and complicated—and the supplementary statements, which are published just as freely as the Red Book, is nothing like as significant as the failure of the Opposition to justify and give details of its constant asseveration—it is no more than that—that there is a £100 billion hole in the Government's accounts. When the Opposition can come forward with some justification for that, which can be answered as I responded to the points made by the noble Lord, Lord Saatchi, on 10th December, I will be a happy man.
Lord Desai: My Lords, is it not worth making the point that, whatever the numbers may be, overall the debt position of the Government is very sound indeed? It is far better than the position that we inherited.
Lord McIntosh of Haringey: Yes, my Lords. Not only is the position sound, but it is sound in a way that the debt position of the previous government was not. There has been a very significant reduction in public sector debt during the period of this Government.
Baroness Noakes: My Lords, is the Minister aware that many private sector companies involved in PFI transactions record them as financial transactions; that is, as loans to the Government? Can the Minister therefore explain why the Government persist in asserting that the substance of these transactions is not loans to the Government in the Government accounts?
Lord McIntosh of Haringey: My Lords, I am not responsible for what private sector companies put in their accounts. Almost uniquely among developed countries, the Government adhere to generally accepted accounting practice in the presentation of their own accounts. I should have thought that, of all people, the noble Baroness, Lady Noakes, would appreciate the value of that.

Teacher Recruitment
3.15 p.m.
Lord Campbell-Savours Lord Campbell-Savours asked Her Majesty's Government:
What consideration is being given to a national online teacher recruitment service run on a nonprofit making, self-funding basis; and what potential savings would arise for the taxpayer.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland): My Lords, the Government do not recruit or employ teachers directly, but are interested in any measures which increase efficiency in the system. We are aware of some existing online recruitment activities. We will continue to maintain an interest in the market with a view to promoting measures which provide schools with good value for money. Meanwhile there is considerable government investment supporting the recent significant improvements in overall teacher supply, which should lead to efficiencies in advertising generally.
Lord Campbell-Savours: My Lords, is it not true that the Times Educational Supplement and other recruitment agencies are now picking up something in the order of £60 million per year to provide a service which could be offered online at a fraction of that cost, at perhaps £2 million or £3 million per year? Could we not save a good deal of money by promoting that approach?
Baroness Ashton of Upholland: My Lords, various estimates have been made of how much money is spent by schools on recruitment advertising, but of course we do not collect those figures centrally. That would place an inappropriate burden on schools. So I cannot comment on the figures cited by my noble friend with regard to the Times Educational Supplement. What I can say on behalf of the Government is that we want to stimulate and support what is a market in enabling schools to choose what works best for them.
Noble Lords will be aware that the basis of teacher recruitment is often regional rather than national, that it is still very much paper-based within classrooms and staffrooms and so forth, and that often it is led by local education authorities providing interesting work to support their schools. We want to support and promote all those different methods.
Baroness Perry of Southwark: My Lords, is the noble Baroness aware of an academic website that is extremely successful and on which almost all universities rely for advertising jobs? It certainly attracts a much wider range of applicants both from this country and from Europe than do most newspaper advertisements. Is she further aware that it would be very much easier for schools to recruit good quality applicants if they were free to advertise jobs at salaries which suited the cost of living in their geographical area rather than being tied to national scales?
Baroness Ashton of Upholland: My Lords, turning to the second point, the noble Baroness will know that we
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have done a good deal of work to ensure that schools do have flexibility within the offers that they wish to make to applicants. Those offers recognise experience and other features and factors within schools. I do not think that we are tied in the way that perhaps the question suggests.
I am aware of the academic website to which the noble Baroness referred. It is an extremely good and powerful medium. Hence the Government are looking across the market to ensure that we are able to support what is an emerging and flourishing market offering different alternatives for schools based, as I have said, on a regional understanding of what schools are looking for.
Lord Addington: My Lords, does the Minister agree that it would be dangerous to become too dependent on online recruitment? Many people, such as, for example, returning teachers who have been away for some time, may not have access to the Internet on a regular basis. The one computer in the family may be dominated by the children. We should not be drawn too deeply into the notion that the Internet is the answer to everything, or at least not in the short term.
Baroness Ashton of Upholland: My Lords, I agree with the noble Lord, Lord Addington. As I said in my earlier response, we recognise that many teachers search the newspapers, whether it be the Times Educational Supplement, local and regional newspapers or other national papers, to meet their recruitment needs. Noble Lords who have served as school governors will know that it is important to consider a variety of mechanisms when seeking to recruit. That was certainly my experience.
As I have pointed out before, local education authorities often provide support by producing newsletters that are sent out across the education authority, because much recruitment is local.
Lord King of Bridgwater: My Lords, in the spirit of the Question of the noble Lord, Lord Campbell-Savours, does the noble Baroness agree that one of the biggest wastes of money in the public sector at present is the endless production of colourful publications, many of them circulated to noble Lords, Members of Parliament and public bodies? Very few of them are read. Would it not be a good idea—I understand from the Printed Paper Office that one or two organisations are doing this now—if the publications were available online, and could be printed off if people actually wanted to read them? It has been a huge area of increasing government expenditure, and a very considerable waste.
Baroness Ashton of Upholland: My Lords, I was not expecting to deal with quite that aspect of policy, otherwise I would have had with me the figures on the number of publications that we produce and how many are online. Everything that the Department for Education and Skills produces is available online. We encourage schools to use that service and to print off publications, or whatever parts of them they want to

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print off; as noble Lords will know, teachers often look for certain parts of documents. I am proud of the quality of the publications that we produce, because they are accessible. That they are colourful is a good thing.
Baroness Byford: My Lords, although the Minister may say that the subject is a little wide of the mark, the Question refers to potential savings for the taxpayer. Might I therefore raise the whole question of retention of school teachers, which is nearly more important than recruiting new teachers? The biggest waste that we have is that, unfortunately, teachers become disillusioned and leave, so we are always catching up. It seems such a crying shame that we do not spend as much effort on retaining teachers as we do on seeking their replacements.
Baroness Ashton of Upholland: My Lords, the noble Baroness raises a very important point about retention. As noble Lords will know, the Government place great store on that. It is why I am very pleased that the figures just released show the number of vacancies for teacher posts to have gone down from 1.4 per cent last year to 1.2 per cent in 2003. That means that the figure is 1,940. I am pleased that we are seeing that decrease across the range of different subjects, many of which noble Lords have raised before in this House. That therefore means that not only are we recruiting well, but we are retaining teachers.
The Earl of Listowel: My Lords, in order to increase retention of staff, how is the Minister improving the level of consultation with schools? For instance, there is a school in Lambeth that uses a child psychotherapist to come in and support the staff on a regular basis. That is very helpful, given that we know that some schools have more and more troubled children in their ranks. There is some rearrangement in the administration of the special schools, which have special skills. How are they being used to provide extra support for mainstream schools?
Baroness Ashton of Upholland: My Lords, that question is probably wide of the mark. However, I shall make a couple of comments, because I know that the noble Earl takes the subject extremely seriously and I am pleased to be in dialogue with him on such questions. At the moment, I am looking very closely at the relationship between our special schools, which have great expertise to share, and what we shall call for the moment mainstream schools. We need to ensure that assistance is available to teachers to enable them to support the children in their schools, some of whom have complex needs.
Lord Campbell-Savours: My Lords, in so far as a strong lobby is developing in favour of setting up a national single online system, which would cost so little and be run on a non-profit-making basis, would
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Ministers be prepared to consult people in the education profession about the potential of that for the future and the savings that might arise?
Baroness Ashton of Upholland: My Lords, I am not aware of a national lobby. I am aware that we have had some interest from individuals who have talked with officials, and officials have assured me that they will shortly give advice to Ministers on how we might better involve ourselves in the whole question of advertising. However, we are some way from saying that there is a strong lobby. At the moment I am convinced that, as a government, we need to be clear about our role and responsibility, which is to make sure that schools are able to access different opportunities to recruit and retain staff.

Iraq: Trade in Antiquities
3.24 p.m.
Lord Redesdale Lord Redesdale asked Her Majesty's Government:
What their policy is concerning the removal of international sanctions from the trade in antiquities from Iraq.
The Minister for Trade (Baroness Symons of Vernham Dean): My Lords, United Nations Security Council resolutions make it illegal to export anything from Iraq except under the Oil for Food programme. Therefore, it is illegal to export antiques from Iraq. Negotiations are under way in the Security Council to lift sanctions against Iraq. We will be discussing with other Security Council members how best to protect Iraq's cultural assets in the circumstances.
Lord Redesdale: My Lords, I thank the Minister for that Answer, which will be helpful. However, any ban on the export of antiquities does not solve the problem that many of the antiquities were looted in the first place, as was expressed most movingly by Mr Donny George at the British Museum earlier in the week. Will the Minister say what efforts the coalition forces are taking to stop the ongoing looting? It is not taking place at the Baghdad museum but outside Baghdad, especially on archaeological sites. There is no confirmation because no one is there at the moment, but we believe that such sites are suffering from gangs looting the artefacts to sell on the international market.
Baroness Symons of Vernham Dean: My Lords, the problem is very serious, and we all join in the real regret expressed at the meeting held on 29th April under the auspices of the British Museum about the looting that has taken place. The noble Lord may know that the MoD consulted the archaeological community widely before the conflict started. Newcastle University and University College, London, provided lists of sites of key cultural and historical interest in Iraq. The troops were briefed accordingly to avoid those sites during the conflict.

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In the area dominated by American troops, there is now some security around the Baghdad and Mosul museums. As I understand it, there was a limited amount of looting in Basra, where we have said that we will have an amnesty for those wishing and able to return looted objects. The issue goes wider than that. I am sure that other noble Lords will ask me questions relating to other matters that we are putting in hand to try to recover some of the looted articles.
Lord Strabolgi: My Lords—
Baroness Rawlings: My Lords, for a second time now, priceless antiques from the Iraqi museums have been looted and possibly sold, some even to order. We on these Benches fully support UN Security Council Resolution 661 and all the laws that prohibit the trading of such looted antiques. However, in the present climate, does the Minister feel that either keeping or lifting sanctions on the exporting of valuable antiques from Iraq is the most efficient method to stop the illicit trade? In the light of this, will the Government now give official support to the Bill of my noble friend Lord Renfrew—it is currently in another place—which would deal with the problem?
Baroness Symons of Vernham Dean: My Lords, the lifting of sanctions is very important in taking forward the future of oil for the Iraqi people. However, as I hope that I made clear in my initial Answer, we would wish to do so only in such a way as was consistent in protecting Iraq's cultural assets in the circumstances. Basically, we are talking about many goods and cultural artefacts that have been stolen. Trade in those artefacts would of course be entirely wrong.
The noble Baroness referred to a Bill that had its Second Reading in another place on 4th April. As I understand it, there is wide cross-party support for that Bill, and the Government will support it.
Lord Strabolgi: My Lords—
Noble Lords: Order!
The Lord Privy Seal (Lord Williams of Mostyn): My Lords, I think that we would like to hear from my noble friend Lord Strabolgi.
Lord Strabolgi: My Lords, is my noble friend aware that advance warning was given that the Baghdad museum was at risk? Was there any advance plan to protect the museum once Baghdad had been liberated?
Baroness Symons of VernhamDean: My Lords, I am aware of the advance warnings—the noble Lord, Lord Redesdale, raised them with me on Monday—about not only the Baghdad museum, but also a number of very important cultural sites. As I have indicated, we did our best to ensure that our troops knew where those cultural sites were. However, while the majority of the looting was taking place, the situation in Iraq remained extremely unstable. Therefore, it was too dangerous for troops to
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undertake static guarding of specific sites, as I hope that I explained to noble Lords when I answered points on the subject on Monday. Such activity was deemed too dangerous, until the security situation allowed for it. It does now, and that activity is being undertaken.
Lord Maclennan of Rogart: My Lords, in view of the fact that the greatest destruction and looting appears to have taken place in areas for which the coalition partners and the United States have had responsibility, in what dialogue are the Government engaged with the American authorities?
Baroness Symons of Vernham Dean: My Lords, as I understand it, my noble friend from the Department for Culture, Media and Sport, Lady Blackstone, discussed these matters during her recent visit to Washington. I hope that the noble Lord will also be pleased to learn that at the meeting held on 29th April representatives from many of the institutions with interests in these cultural artefacts came over from the United States. I understand that the J Paul Getty Museum, the Metropolitan Museum of Art and, I believe, the State Museum of Pennsylvania were all represented on that occasion. We are working, together with UNESCO, to try to find a way forward.
Lord Lea of Crondall: My Lords, is my noble friend aware that at the British Museum meeting this Tuesday a list of the items stolen from the Iraq Museum was produced and that there can now be no question but that any trader knowingly selling anything on the list will be blatantly selling an item that is known to be stolen? It is now very clear that the main objects on the list of stolen items are on all the websites around the world.
Baroness Symons of Vernham Dean: My Lords, I am, indeed, aware that such a list was produced because my noble friend was kind enough to furnish me with a copy before we entered the Chamber today. However, I should point out to your Lordships that, at the beginning of the month, my right honourable friend the Secretary of State at the DCMS wrote to the British Art Market Federation and the Antiquities Dealers Association to ask for their assistance in locating and identifying looted material, should it arrive in the United Kingdom. She has also written to John Healey, the Economic Secretary to the Treasury, asking him to ensure that Customs officers are alerted at all ports of entry into the United Kingdom so that they, too, are aware of the particular goods that are of very great concern. I know that there are very many, but this list will also be conveyed to them.

Extradition Bill
3.32 p.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Filkin): My Lords, I beg to move that this Bill be now read a second time.

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It gives me great pleasure to bring forward a worthwhile and necessary Bill which will modernise and improve our extradition arrangements. I hope that none of your Lordships will seek to defend our present extradition system. Under that system, fugitives are able to raise one legal challenge after another, often on the very same point, as a means of delaying and frustrating the extradition process. As a result, it takes, on average, 18 months in a contested case to extradite someone from Britain, and certain notorious cases have gone on for five years or more.
Perhaps I may give a real life, if anonymous, example. Mr R was wanted by the French for trafficking in cannabis. It was alleged that he had assisted his father in importing some 531 kilograms of cannabis resin, worth approximately £1.3 million, into the United Kingdom. He was arrested in the UK in November 1995. He appealed against his extradition no less than five times and attempted to delay his extradition on health grounds just before his actual surrender. Mr R was finally extradited to France in September 2001—nearly six years after his arrest—and was sentenced in November 2001 to four years' imprisonment and fined 45,000 euros. The costs of detention alone in this case exceeded £120,000, while we estimate that the court and legal costs were in excess of £30,000.
Delays of that kind do enormous harm to justice. They cost the British taxpayer large amounts of money in court costs, legal aid fees and prison costs. They harm our international standing, as we have the unwelcome reputation of having the most cumbersome and convoluted extradition procedures. And, most of all, they harm the interests of the victims of crime and of justice generally. The old maxim "justice delayed is justice denied" applies every bit as much to extradition as to any other part of the criminal justice system.
Perhaps I may say a few words about the history of the Bill. The Government first announced their intention to review our extradition laws in 1999 and a consultation paper was published in March 2001. The House will note that that was a full six months before 11th September 2001. After those terrible events, the European Union accelerated its negotiations on the European arrest warrant. It is worth noting that many of the features of the European arrest warrant are modelled on what appeared in the UK's consultation paper of March 2001.
The framework decision on the European arrest warrant was agreed on 13th June 2002. Again, that was after the framework decision had properly cleared scrutiny in both your Lordships' House and another place in the approved way. We published the draft Bill for consultation in June 2002. We are very grateful to all those who took the trouble to respond and comment on it. We amended the Bill before it was introduced to take account of many of those comments. We also made significant amendments to the Bill at Report stage in another place to take account of points that had been raised earlier during its passage. Therefore, I hope that no one will accuse us of a lack of openness or of failing to listen.
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With that preamble, I turn to the specific measures in the Bill. Part 1 is concerned with our extradition relations with other EU countries and gives effect to the European arrest warrant. It may be helpful if I describe the procedures that will operate and, in doing so, try to set at rest some of the anxieties or alarms that have been expressed.
European arrest warrants will generally be transmitted using the Schengen Information System. This is a secure computer system, so we can be sure that the request has come from a bona fide source. Once requests have been received, the UK's designated authority, which will be NCIS or the Crown Office in Scotland, will check that they contain all the necessary information, such as details of the offence, when it was committed and the punishment that may be imposed in respect of it.
The warrant will also have to be accompanied by a statement that, in accusation cases—cases where the person has not been convicted—the warrant has been issued for the purpose of putting the person on trial. That is important because there have been suggestions that EAWs—I shall use that shorthand form—will be used to bring people back for interrogation or evidence-gathering. In fact, the reverse is true. Our current legislation simply requires a person to be "accused of" of a crime. The Bill, for the first time, makes it clear that extradition to another EU country will be possible only for the purpose of putting a person on trial.
Similarly, in conviction cases—cases where the person has already been convicted—there must be a statement that the person is wanted so that he can serve the prison sentence which the court has imposed. Once the extradition request has been certified by the UK authority, the person can be arrested.
In another place, we took the opportunity to amend the Bill to put beyond doubt what had always been our intention—that such arrests can be carried out only by UK law enforcement personnel. That gives the lie to accusations that foreign police officers will be entering our country and knocking on doors to seek arrests. That is not the case.
Once the person has been arrested, he must be brought as soon as practicable before a UK judge, who will decide both whether the person before him is the person whose extradition has been sought—if it is not the right person, he will be released—and whether he should be granted bail or remanded in custody. On that point, it is worth noting that, for the first time, the Bill creates a presumption in favour of bail in extradition cases.
The initial hearing is followed shortly by the main extradition hearing—again, before a UK judge, who is required to consider whether any of the statutory bars to extradition apply. Again, I am at a loss to know how those who have claimed that under an EAW the extradition process takes place with no legal proceedings in this country can support their argument.
The bars to extradition cover matters such as double jeopardy, age and specialty protection—that is, the rule that a person can be tried only for the crime for

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which he is extradited. I want to draw particular attention to three further safeguards. First, extradition is barred if the extradition request has been made for the purpose of punishing or prosecuting the person on the grounds of his race, religion, nationality or political opinions. I hasten to add that we would certainly not expect those factors to apply in respect of a request from another EU country, but it is there as an additional safeguard and was included at the explicit request of the Joint Committee on Human Rights.
Secondly, no one can be extradited if extradition would breach their ECHR rights. That is made explicit on the face of the Bill and is an important safeguard. Thirdly, no one can be extradited if their mental or physical condition would make extradition unjust or oppressive.
One thing that the court will not be required to do is to examine the case against the person. I would not expect there to be any complaints about that from the Official Opposition since it was in 1991 that the UK removed the requirement to provide prima facie evidence from EU countries and, indeed, from all Council of Europe countries. I am not aware of there having been any significant accusations that that has led to major problems of process.
Following the hearing, there is a right of appeal to the High Court, and cases where important points of law have been raised can go to the House of Lords. That adds up to a significant package of safeguards.
I think I should say something about the issue of dual criminality, since I am sure we will have many discussions on that in Committee. First, the Bill makes it perfectly clear that the partial removal of dual criminality applies only in cases where the conduct occurs in the requesting state. Where the conduct in question occurs outside the requesting state, the dual criminality rule applies. So no one will be extradited for conduct which occurs here in the UK and is not contrary to UK law. Suggestions that people will be extradited for writing a Sun editorial or reading a "Biggles" book might be exciting but simply are not true.
However, if a person goes to another EU country and breaks its law while there, he should expect to face justice. The fact that the UK happens not to have an exact equivalent offence should not excuse him. If a person breaks the law while in France and is arrested there and then, no one would think that unreasonable. There is no reason why such a person should be able to avoid justice simply because he has been able to cross the border before the police can reach him. The reverse side of that is that if a French person comes here, we expect him to obey our law. We would not accept the excuse that the conduct in question happened not be against the law in France. That has to cut both ways.
So the Bill removes the dual criminality requirement for offences which fall within the 32 generic offence categories. This, again, is a point I need to stress. The list of 32 comprises offence categories, not individual offences. So while it is true, as has been commented on repeatedly, that the UK has no specific offence of racism and xenophobia, we have plenty of offences
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which fall within that category; for example, incitement to racial hatred and all the other offences created by our important race relations legislation.
Therefore, very real benefits flow to the UK from the partial abolition of dual criminality. Not every EU country has an offence of incitement to racial hatred. Not every EU country has an offence of fraudulent trading. As long as we retain an absolute dual criminality rule, people can come to the UK and commit these serious offences with impunity provided they can cross the frontier quickly without being apprehended. That is not justice.
As I am on the subject of the benefits of the European arrest warrant, it may be helpful if I set out more of them. The most obvious is speed: we estimate that a normal EAW case in this country will take about three months, whereas the average contested case is 18 months. But this, too, works both ways. Other EU countries will be obliged to return those accused of crimes in Britain more quickly.
Noble Lords may have seen the recent press reports about the case of Trevor Masters. Mr Masters fled from Britain during the course of his trial. He was subsequently convicted of indecent assault, assault occasioning actual bodily harm and rape. We made a request to France for his return to serve the 12-year sentence which the court had imposed. We might have thought this is a very straightforward case as the person had already been convicted of very serious offences. In fact, it took us two years to get him back. We can only imagine the added anguish that was caused to his victims during this period. In future, thanks to the EAW, France, too, will be seeking to ensure that all cases take no more than three months.
There are other benefits to the UK flowing from the European arrest warrant. Some EU countries—for example, France, Germany, Denmark and Greece—have traditionally refused to extradite their own nationals, much to the UK's frustration. In some cases, they will put the person on trial themselves, but, of course, they may not regard the crime with the same severity that we do. It also makes life much more difficult for victims and witnesses if they have to travel to a foreign country to seek to obtain justice for an offence that took place in our country. Again, that does not seem to me, in procedural terms, a situation that we should seek to defend. Therefore, it will far the first time be possible to try in this country people from France, Germany, Holland and other countries which have refused to extradite their nationals. I would expect the House to be strongly supportive of that change if we believe in justice for our citizens. That benefit has come to our country as a consequence of the European arrest warrant.
The UK has always believed that people should stand trial in the place where the crime was committed. That best serves the interests of justice and of those who have been wronged by the crime. By ending the ability of countries to refuse to extradite their own nationals, this Bill will help us to achieve that.

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Some EU countries have refused to extradite for purely fiscal offences, to the intense annoyance of our responsible authorities. That has in the past allowed people who may have been guilty of major tax or Customs fraud to live with impunity on the costa del crime. In future, no EU country will be able to refuse to extradite for fiscal offences. This is a further specific benefit of the European arrest warrant and, again, I would find it hard to believe that the House did not think that an important benefit.
Some countries have refused to extradite when their statute of limitations has expired, even though we could perfectly well put the person on trial. There is a particular case of a paedophile who has escaped justice in Denmark because of this. That loophole, too, will be removed by the EAW.
Part 2 of the Bill is concerned with extradition from the UK to the rest of the world outside the EU. In many ways, the procedures are more akin to what we have at the moment with both the courts and Ministers having a role. However, the important distinction is that there will be just a single court process at which all the bars to extradition will be considered. The case will then pass to the Secretary of State to consider whether a limited range of factors which would preclude extradition apply. Any appeal which the fugitive wants to bring is heard, by the High Court, at the very end of this process and at that appeal all the decisions that have been taken up to that point can be considered. There is also a right of appeal to the House of Lords in cases where there are important points of law. This system both fully safeguards the rights of fugitives while eliminating the duplication and delay that plague the present system. We estimate that, under the Bill, a normal Part 2 case will take about six months from start to finish.
Part 3 is concerned with outgoing extradition requests; that is, the requests which the UK makes to another country for the return of someone to the UK to stand trial. Our existing extradition law is largely silent on this point as we rely on Ministers making requests under the royal prerogative. However, Ministers will have no involvement in EAW cases, so we have taken this opportunity to spell out the procedure for making outgoing requests to other EU countries.
Something similar lies behind Part 4 of the Bill which sets out the powers of the police in extradition cases. It had always been thought that the police could use the powers set out in the Police and Criminal Evidence Act 1984 in extradition cases, but a court ruling in the case of Rottman cast doubt on that. That case is subject to further appeals so I will not say more about it. However, the Government took the view that the most sensible course was to set out definitively in statute the powers available to the police in extradition cases and that is what Part 4 does.
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It may reassure your Lordships if I say that Part 4 is very closely modelled on the provisions of PACE and that, as with PACE, there is a requirement to produce a code of practice which must be published in draft.
Lord Lamont of Lerwick: My Lords, I am grateful to the noble Lord for giving way. He has outlined why all these provisions are important and he has outlined much of the history behind the European arrest warrant. Will he confirm that it is open to this House to amend the provisions of the Bill and that it is not merely a fait accompli, however convenient it would be for the Government? Will he confirm that it is open to this House to amend the provisions of the arrest warrant?
Lord Filkin: My Lords, the constitutional position is clear. On framework agreements to which the Government have been a party and have signed with other member states, there is an expectation that member states will put them into effective law in their own countries. However, as I am sure the noble Lord, Lord Lamont, knows, the position is that Parliament is sovereign and Parliament can do what it wishes in this respect. Clearly, if there were to be a discontinuity between our treaty obligations and our own law, that is another issue that goes further. But Parliament is sovereign.
Finally, Part 5 contains miscellaneous and general provisions. I do not believe that I need say more, although I have no doubt your Lordships will find much of interest when we reach the Committee stage.
That is a brief summary of what the Bill contains and, I hope, a brief explanation of the significant advantages it brings. Extradition is a classic balancing act. The rights and protections of those who are the subject of extradition requests must be set against the needs of society and of victims of crime to see justice done and done swiftly and effectively. Our present extradition system clearly fails to achieve that balance. In no other area of criminal law would we be prepared to tolerate a situation in which a person can frustrate the judicial process by repeatedly raising the same, often spurious, point. The six years' delay before a person comes to trial in a domestic case would be seen as outrageous. It is equally unacceptable in an extradition case.
I believe that the Bill represents a sensible way forward. It safeguards the rights of those who are subject to extradition requests while ensuring that such requests are dealt with using simplified and streamlined procedures. It will ensure that the victims of crime have a chance of seeing justice done swiftly. And far from having been foisted on us by the European Union, it is an important step towards our mutual recognition agenda, of which the UK has been one of the leading advocates. In a world where travel and movement are so cheap and easy, especially within the EU, we have to recognise that crime, particularly organised crime, is much more trans-national and we need the mechanisms to cope with that if we are to be serious about combating crime in our country and society.

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The Government would be opposed to full-scale harmonisation of criminal justice systems across Europe as, I suspect, would most of your Lordships. That being so, the only option is mutual recognition. The Bill will modernise our extradition arrangements, large parts of which date from 1870. It will ensure that we can extradite people within a reasonable time-scale while still ensuring that those people have a right to a hearing and an appeal before the UK judiciary. This is a necessary and worthwhile measure. It will bring quicker justice and is an effective measure in the fight against serious and organised crime. I therefore have great pleasure in commending the Bill to your Lordships.
Moved, That the Bill be now read a second time.—(Lord Filkin.)
3.50 p.m.
Baroness Anelay of St Johns: My Lords, it is clear that we should improve our extradition procedures. We should not allow people to raise the same spurious points time and again, simply as a means of delaying the process of extradition for serious offences. So the Government are right to put reform of extradition law on the agenda, but their plan for a two-tier system is wrong.
Part 2 of the Bill is a practical and sensible way forward but Part 1 makes inroads into the civil liberties of British citizens that are both unacceptable and unnecessary. It goes too far by eroding the principle of dual criminality and removing the backstop power of the executive to make the final decision. We support measures to improve co-operation with other countries to fight crime—we always have—but we oppose the Government's proposals to harmonise our judicial processes with those of other EU states.
I was intrigued, as were other noble Lords, to receive from the noble Lord, Lord Filkin, this week a letter purporting to set out the myths and facts on the Bill. I look forward to putting to the test his assertions when we reach Committee. He states, for example, that mutual recognition of criminal justice systems within the EU is the only alternative to a harmonised criminal justice system.
The problem is that in the hands of this Government, their version of mutual recognition is not the alternative to the introduction of corpus juris. It is its friend and facilitator; that will not do. So, we shall vigorously oppose new Part 1 powers to arrest and deport British citizens for activities that are not crimes here. We shall oppose measures that compromise the presumption of innocence or undermine our right to challenge the basis on which we are arrested. The right way forward is simple—we should remove Part 1 from the Bill.
We believe that the Government should apply the Part 2 procedures to all applications for extradition. If Part 2 is applied effectively and thoroughly and is good enough for the rest of the world, including our Commonwealth colleagues, why is it so repugnant to the EU? I listened carefully to the case made—as always, persuasively and clearly by the Minister today but I am afraid that he has not persuaded me—with
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regard to the need for the European arrest warrant above all other procedures. Listening to his mathematics of saying three months from France and six months from other countries it appears that he was arguing—we shall have a chance to examine it later—that we are sacrificing our civil liberties for the case for three-months extradition. We believe that we simply do not need the European arrest warrant and its hidden agenda of the framework list. Even the list is hidden from the face of the Bill at present.
I note that the report of the Select Committee on the Constitution recommends that the list should be included on the face of the Bill in a schedule. What is the Government's response to that? If the Government are determined to force through the arrest warrant, we believe it should be at least confined to terrorist offences only. We shall listen to the argument that the unique threat of terrorism alone could justify the extreme measures in Part 1.
If the Government are determined, as they seem to be, to turn their face against our proposals for Part 1, they should at least accept amendments we shall table which will ensure that Part 1 does what the Government claim it should do—no more and no less. As currently drafted the Bill does not deliver the safeguards the Government claim. Myth or fact, the Government still have some myths of their own.
First, as the Minister said today, the Government claim that extradition will be permissible only for the prosecution and not for the investigation of a person. But that is not what Clause 2 achieves despite the Government's best attempts at some amendments in another place. That is simply because of the way in which the inquisitorial system works within the EU.
The noble and learned Lord, Lord Scott of Foscote, explained the problem behind all this in our debate on the European arrest warrant last April when he said,
"under continental procedures, the dividing line between investigation of a crime and the point at which there is enough material for a prosecution is not always easy to draw. The investigation will be under the control of an investigating magistrate—a judicial figure. It is presumably he who authorised the … warrant. That seems to me a risk that the extradition of a suspected offender will be sought in order that the investigating magistrate may complete his investigation by interrogating, or authorising the interrogation of, the suspect, rather than for the purpose of a prosecution in respect of which he already has sufficient material to start".—[Official Report, 23/4/02; col. 210.]
Secondly, the Home Office website says that a person who has been convicted in his absence is guaranteed a full retrial. At present he is not. There is no guarantee that, once returned, the person will have a full retrial, not just a review, with all that we would expect that to entail—the full rights of defence and legal representation.
Thirdly, as the Minister stated, there should be safeguards against our being prosecuted as a result of our race, religion or political views. It is a case of do we or do we not have that safeguard. We are left in limbo. What does a judge do when faced with the need to decide whether a person who is accused of a xenophobic offence should or should not be extradited when the

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very nature of that xenophobic offence is rooted in that person's political opinions? How does the judge decide whether a person can have the protection of Clause 13(a) or should be exposed to extradition under Clause 63(2)? Which part of the Bill is paramount?
To make matters even worse, the Bill gives the Government the power to extend Part 1 procedures by "mission creep" to other countries that are currently in the Part 2 category. Part 1 could become the norm. How? Part 1 and the European arrest warrant apply initially to requests from other EU member states and Gibraltar but that could be extended to other countries by Order in Council subject only to negative procedure. That is not, we believe, sufficient parliamentary accountability.
Indeed, to make matters worse, countries can slither from one part of the Bill to another at the requirement of the Government by the same inadequate procedure. And there are no criteria on the face of the Bill stating how a country should be allocated to either Part 1 or Part 2.
The list of offences for which dual criminality has been surrendered can be extended later by agreements within the EU governments. Can the Minister confirm that no parliamentary approval at all would need to be sought for that? To cap it all, there are provisions that would permit the Government to remove from certain countries in Part 2 the prima facie requirement that does survive there at the moment.
Effectively, we could end up with Part 1 being extended little by little to other countries. I would hope and expect that the Minister will say that that is not at all their intention. If so, I welcome it and say let him prove that by supporting our amendments when we table them in Committee and beyond. We intend to ensure that there is effective and strong parliamentary scrutiny of any future extension of Part 1 procedures.
Overall, in the past the Government have said in another place and elsewhere, "Don't worry about all this because really there are no major changes of principle at all". Yes, we know that under existing extradition conventions in Europe the prima facie rule has already been surrendered for EU countries' applications. We know that an extradition offence is generally one where the minimum sentence is 12 months rather than the three years stipulated in the framework document. We have seen all that.
So why do we complain now about these safeguards and limitations being surrendered under Part 1? It is because this is a whole new ball game. The extent and effect of the European arrest warrant combined with the loss of dual criminality for a list that includes vague and ill-defined offences such as xenophobia and computer-related crime, combined with the loss of executive authority and unprecedented trust being placed in jurisdictions across Europe and possibly beyond make this a new procedure requiring at the very least very strong safeguards.
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The crux of the matter is indeed how far we have confidence in the judicial process and police systems of other countries which will be party to the reciprocal agreements enshrined in Part 1. Liberty pointed out in its helpful briefing to this House that,
"the Eurowarrant is based on the presumption that EU countries all have fair and equal systems of justice which should remove the need for any other country to scrutinise the fairness of extradition to such a country. This presumption is seriously open to question".
I agree with it. Are we so confident of the systems of all countries that we can jettison so comprehensively the traditional safeguards? I think not.
As the Bill progresses, we shall take a constructive and determined approach in our amendments. We shall need to hear from the Government what is in the new UK/US and EU/US treaties on extradition and how they will impact on the provisions of this Bill. At present, those provisions are hidden from this House. We hope that the Government make sure that they are revealed.
For a variety of reasons another place scrutinised only 25 per cent of the Bill. Scotland received spectacularly short shrift. With the assistance of my noble friend Lady Carnegy I am sure that we shall do better here. My noble friend regrets that she is unable to participate today but, as one would anticipate, she is in Scotland engaging in the Scottish parliamentary elections. I thank the Minister for setting up a meeting with both my noble friend and myself to discuss the operation of this Bill in Scotland. That is very helpful and I welcome it.
We believe that it is in the interests of the public here and across the EU that we co-operate effectively in judicial and police matters in the fight against crime and terrorism. Criminals do not care about what is right. We do, and so we fight them with the restrictions imposed upon ourselves by our commitment to democracy, freedom and human rights—everything that underpins our civil liberties. We abandon those at our peril. Of course extradition procedures must ensure that criminals are prosecuted but, just as important, is that justice should actually be done.
4.2 p.m.
Lord Goodhart: My Lords, before I start the substance of my speech I should like to say a couple of things. First, I have interests to declare. I am a vice-chairman of the Council of Justice and a trustee of Fair Trials Abroad—both organisations very much involved with the issues being debated today. Secondly, I am pleased to see that the noble Lord, Lord Kingsland, is not only present in the House today but is returning to battle and will be addressing your Lordships later.
The United Kingdom law on extradition is plainly archaic. Although most of it is contained in the Extradition Act 1989, that Act re-enacted large parts of the Extradition Act 1870—more than 130 years ago. Our procedure is complicated and gives far too many opportunities for a determined objector to delay extradition until the cows come home. On the whole, the speed of the criminal process in United Kingdom courts is comparatively good. But extradition is very

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much an exception to that rule. As the Minister said, there have been notorious cases where extradition proceedings have taken some six or seven years before the defendant was sent to trial.
There are surprisingly few cases of extradition. In the years 1999–2001, taken together, the United Kingdom extradited only 139 people—an average of fewer than 50 people a year. That must be many fewer than the number of people in the United Kingdom who have committed extraditable offences elsewhere and it suggests that the difficulty and expense of extradition processes means that there are many people in the United Kingdom who are escaping justice in other countries. And, of course, equally, vice versa. There are many people abroad who are escaping justice in the United Kingdom. For many years, the Spanish costa del crime was notorious as offering sanctuary to United Kingdom criminals, although the situation has improved notably in recent years.
Part 1 of the Bill implements the European arrest warrant. Unlike the Conservatives, we on these Benches support and welcome the European arrest warrant in principle. It greatly simplifies procedure. It eliminates the involvement of the Minister in decision taking and the consequent opportunities for delay. We believe that that is all to the good. We also welcome the improvements made by the Government to the Bill since its original publication in draft—for example, the tightening up of the rules about extradition to countries which apply the death penalty and the acceptance that the "specialty rule" should continue in force.
But there are issues that still remain and a number of them are important. The first comes at the beginning of the Bill in Clause 1(1). This provides that category 1 territories will be designated by an Order in Council. The difference between category 1 and category 2 is of enormous importance. For example, in category 1 there is no need to show a prima facie case, whereas, in general, in category 2 there will be such a need. As I indicated, in category 1 there is no ministerial involvement; in category 2 there is.
Therefore, we believe that designation of a category 1 state should require an affirmative resolution which ensures that there is formal parliamentary approval for this step and not merely reliance on someone praying against an order if they notice it happening. In deciding to go for the negative procedure, the Government claim to be relying on a precedent in the Extradition Act 1989. That raises a somewhat different issue. In any event, we should not rely on a precedent if it is a bad one. I shall be very surprised if the Select Committee on Delegated Powers and Regulatory Reform does not press for the affirmative resolution procedure in this case.
Which states will be in category 1? The Government say that they intend to designate all EU states as category 1 states. That is understandable and appropriate. The Home Affairs Select Committee of the House of Commons suggested that membership of category 1 should be limited to signatories of the framework decision so that countries which were not
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parties to that decision could not get the benefit of the removal of the dual criminality rule. That is a fair point, although perhaps the Home Affairs Select Committee has gone too far in its solution. We have no objection to Norway and Iceland becoming category 1 countries, as has been specifically suggested. We can imagine a number of other countries which could appropriately be included in category 1, although not, I have to say emphatically, the United States of America.
The way of dealing with the point made by the Home Affairs Select Committee may be to provide that the present rule on dual criminality should continue to apply to all countries in category 1, except those which are signatories to the framework decision. I think that it is at least possible that we should also impose some statutory restriction on the right to become a category 1 state. An appropriate test would be the acceptance of some form of oversight on human rights issues by an international tribunal. This would include acceptance of the jurisdiction of the European Court of Human Rights and for non-European countries the ratification of the optional protocol of the International Covenant on Civil and Political Rights which gives individuals the right to refer complaints to the international covenant's human rights committee.
I turn now to the most controversial element in the Bill—the removal of the dual criminality requirement for offences on the European framework list. The importance of this issue has been exaggerated. I fully accept that people ought to comply with the laws of the country in which they are at any given time, even if they are not residents or citizens of that country. I also believe that in the case of an offence carrying a penalty of at least three years imprisonment in another member state, it is nearly certain that there will be a corresponding offence in the United Kingdom.
I recognise that the abolition of the need to identify a specific United Kingdom offence to match the offence in the requesting state will simplify matters procedurally, but I have concerns. First, the gold-plating of the requirement of the framework decision by extending the removal of dual criminality down to offences carrying only a one-year maximum penalty increases the possibility of extradition for offences which genuinely do not match United Kingdom offences. I believe that it creates a real possibility that an offence might be committed without the knowledge that an offence was being committed. Of course, even in cases of offences of this kind, the great majority of extradition offences will be clearly matched by a UK offence and there will be no problem about extradition. I believe that we should limit the removal of the dual criminality rule to cases in which we are actually required to do so by the framework decision.
The next concern on this issue is the lack of parliamentary control over additions to the European framework list. I believe there plainly should be such control, perhaps by putting the list in a schedule and then requiring a change to the list to be made by Order in Council under the affirmative procedure.

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Finally, on this issue, there is the inclusion of racism and xenophobia on the list. I see no reason why serious racism offences should not be on the list. Incitement to racial hatred, as the Minister mentioned, is an offence in the United Kingdom, and a serious offence. Protection is given by Clause 21: anyone charged with an offence that is, for example, incompatible with freedom of expression under Article 10 of the European convention would be protected from extradition. But I feel still a residual problem with the vagueness of the expression "racism and xenophobia". I understand that a framework decision on racism and xenophobia is under negotiation within the European Union. I accept that it is the definition in the requesting state which matters, but the framework decision will create a benchmark against which national definitions can be tested. I believe that it would be best if racism and xenophobia were not treated as part of the European framework list until the framework decision on that subject has been adopted.
I turn to an issue which I believe to be far more serious than anything to do with the European framework list—the defects in criminal procedure in some European Union states. Some of the criticism on this ground goes too far. I am greatly surprised by the number of articles about the European arrest warrant which repeat the old fantasy about defendants in European criminal trials being presumed guilty until proved innocent. That is complete nonsense. Article 6.2 of the European convention says—and this recognises and repeats what is general law throughout the European Union—that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
However, Article 6.3 of the convention contains important provisions which are not always observed. These are the right of a defendant to free legal assistance when the interests of justice so require and the right to have the free assistance of an interpreter if the defendant cannot understand or speak the language used in court. The experience in particular of Fair Trials Abroad shows serious problems in some countries in getting assistance from competent lawyers and interpreters, even in some of the European Union countries which are already members, such as Greece. This problem will undoubtedly become worse following accession.
This will cause a serious problem. Some people will seek to challenge extradition on human rights grounds based on defects in the criminal process in the requesting state. What evidence will be needed to support that challenge? Will a decision in one case be binding in other cases relating to the same state? I wonder whether it would be desirable, in cases where there are doubts about the availability of legal and interpretation assistance, to give a judge power to require assurances that the defendant to the extradition hearing will be given the necessary assistance comparable to the assurances which are required under Part 2 that the death penalty will not be applied.
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Another problem not limited to extradition cases but including them is discrimination against non-residents for the grant of bail. In some countries, it is far harder for foreigners to get bail than for national residents. Refusal of bail can be the cause of extreme hardship. There is a danger that discrimination in the grant of bail may also be grounds for objection under Clause 21. There is, I believe, a strong need to develop a Eurobail system under which a person granted bail in one country can be rapidly returned to that country if he refuses to go of his own will. That would make it much easier to obtain bail.
Part 2 of the Bill also speeds up proceedings. We welcome the fact that the power of the Home Secretary to exercise discretion is much reduced, with a likely reduction in the opportunities for judicial review. I note that under Clause 106 the decision of the Home Secretary will be subject to appeal to the High Court rather than to judicial review. That is a welcome step. I wonder whether it will be possible to require an appeal to the High Court from the decision of the judge under Clause 101 to be combined with an appeal to the High Court from the Home Secretary's decision under Clause 106 in a single set of proceedings. That could speed up proceedings greatly.
On perhaps a more important point, Clause 83 gives power, once again by Order in Council, to designate some category 2 territories as exempt from the need to present prima facie evidence of a case to answer before extradition can be ordered. That power already exists; it has been used to exempt signatories of the European convention on extradition. That convention is sponsored by the European Council, not the European Union, so its parties include many non-EU states. I believe that a further extension should require proper parliamentary control through an Order in Council, once again approved by both Houses under the affirmative procedure. The exemption from the need to show a prima facie case provides an intermediate case somewhere between category 1 and category 2. I can imagine a number of states where it would be appropriate to exclude the need to show a prima facie case. Once again, those would not include the United States of America, a country where there are 51 different jurisdictions—one federal and 50 state jurisdictions. None is under the control of another and standards are wildly different. I would have no problems with procedure in Massachusetts; I would have enormous problems with procedure in, for example, Texas.
In conclusion, I welcome the Bill in principle. I believe that the European arrest warrant is a useful weapon in bringing cross-border criminals to justice. It is far from being the threat to the English legal system that its enemies portray it as being. But the Bill needs a good deal of improvement. I hope that we shall be able to make those improvements in your Lordships' House.
4.18 p.m.
Lord Donaldson of Lymington: My Lords, I would be very far from suggesting that the present law of extradition does not require major reform, particularly to get rid of delays. But I have some

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experience of getting rid of delays in the judicial context. It can be done by strong judicial management and by putting in requirements, which in my day were called leave and I think are now called permission or something else newfangled. The use of those two instruments will cut down delay immeasurably, but I do not think that the way in which the Bill seeks to do it is right. I agree that a lot of the claims of eroding the rights of the British public may be overblown, but they are considerable, and this is a very serious Bill from that point of view.
Faced with an extradition request under Part 1 of the Bill, the courts are concerned solely with form and not with substance. If the warrant looks all right, the "extraditee" might just as well pack his bags and get on with it. I am reminded of the apocryphal story of the accused in a British court, who had the perfect alibi; namely, that he was the guest of Her Majesty in a prison at the time when the offence was alleged to have been committed by him. He refused to take that point, because he thought that it might prejudice the jury against him. That does not arise in this form in the Bill, but the fact is that if someone was in that position, he could tell the judge about it till he was blue in the face, and the judge would not be prejudiced against him—the judge would simply say, "Tell that to the Greek judge". I do not regard that as satisfactory.
It is unfortunate that the Bill comes before the House on this particular day, as I am sure that many of your Lordships are out on other activities. I do not mean the sort of activity that is causing a Metropolitan Police helicopter to hover overhead, but the activity of encouraging a reluctant and uninterested public to take part in local government elections. It is doubly unfortunate in that the pearls of wisdom that fall from the lips of other speakers here today will go entirely unnoticed, as everyone does their sums in tomorrow's newspapers about the number of seats that have been won and lost.
I found the Explanatory Notes provided by the Home Office immensely helpful. Nothing in the Bill told me what was an extradition offence and, not being as steeped in matters European as no doubt I should be, I simply did not know. However, the Explanatory Notes helpfully drew my attention to what Clause 65 refers to.
Attention has already been drawn to the problems of racism, xenophobia and swindling. I accept the point made by the Minister that these are categories rather than specific offences, but they are very wide categories.
I find it slightly regrettable that paragraphs 6 to 11 of the Explanatory Notes seem to be promotional material. When I wrote Explanatory Notes for a Private Member's Bill, I hit against the fact that paragraph 6.21 of the Companion told me that I could not use the Explanatory Notes to promote my Bill, although I thought that its merits justified promotion. Well, I would, would I not? However, the Home Office should have complied with the rules if I have understood them correctly.
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The Bill consists of three major parts: extradition from the UK to a category 1 country; extradition from the UK to a category 2 country; and extradition to the UK. I gather from the Explanatory Notes that there is enthusiastic support for this Bill from,
"the Crown Prosecution Service … Metropolitan Police, Foreign and Commonwealth Office'',
the Bow Street court—although I am not sure how a court could have an opinion—and others, whoever they may be. I am not surprised. I am sure that people from those bodies all read Part 3, relating to extradition to the United Kingdom. I shall say nothing about that aspect of the Bill, as I want to put the spotlight on category 1.
The first that Joe Citizen knows that he is to be arrested on a foreign warrant is when the constable taps him on the shoulder and says, "I have a warrant here, please come with me". The constable knows nothing about the warrant, either. It is true that he has to give it to the accused, if he has it—but I would query to what extent it informs the citizen, who knows only that someone has arrived in his home, interrupted his television programme and told him that he must start forthwith on a journey to the toe of Italy, or wherever.
The citizen then appears before a judge. The question that the judge has to decide in the first instance is whether the arrested man is the person named in the warrant. However, that is not really what matters. What matters is whether the arrested man is the person who actually committed the offence, or even who is alleged to have committed the offence. The country seeking the extradition knows only the identity that was acquired from the evidence.
The easiest way of explaining the situation is to draw attention to the South African case, in which the identity of a British subject was stolen and used by a criminal in the course of committing his offence. It is true that the warrant did not come to this country. However, the warrant issued by the United States authorities to the South African authorities called for the arrest of Mr X, and it was a Mr X that the United States authorities wanted arrested. That was the man who was arrested by the South African authorities.
There would be no opportunity under the category 1 system for him to say, "I have never been to this country, or wherever the offence was alleged to have been committed. Clearly, my identity has been stolen". The judge then has to decide a crucial and fundamental question on the balance of probabilities. Is that good enough? Surely, although it is not the right question, the judge should at least be sure of the answer to the wrong question. The right question is, "Was the accused the person who is truly alleged to have committed the crime?" not "Was he the person named in the warrant?"
The consequences of an arrest warrant are far too serious to be dealt with on a civil basis. The citizen is taken abroad even if he can prove a complete alibi. He does not have the cost of the journey out, but he will have the cost of the journey back whether he is convicted or not. If he is granted bail, he will have the double cost of returning here and then going back to the country concerned.

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Mention has already been made of the problems of language, of being faced with a strange system of law, of getting adequate legal advice and assistance and so on, but I shall focus on the question of bail. If I may be anecdotal for a moment, I ran into a problem over bail in the context of the difference between English and Scottish law. A Scottish trawler put into Grimsby and, when the sailors had celebrated their arrival unduly, they proceeded to cause a great deal of damage in that town. They were all, very properly, arrested and told that they could have bail in the sum of £500 each, or whatever. That was perfectly all right, given that under English law it is unnecessary to produce the money. However, under Scottish law it was necessary, and real family hardship was caused as the families tore madly round trying to raise what were to them enormous sums. Happily, the matter came to the High Court, and it was easily resolved by the High Court saying that there should be no monetary bail.
The point of that story is that one can have those problems. In other countries where one does have to produce the money, there could be considerable problems in raising it and transferring it to that country. If the Greek plane-spotters' case is any criterion, there are even greater difficulties in getting it back afterwards.
The further stages seem to follow what I would describe as a flow chart or board game. The judge is at each stage faced with a very limited question that has to be answered "Yes" or "No". Usually the answer is "No", and then the next question comes. It is only in the rare cases when the answer is "Yes" that the accused is discharged. That method of drafting confines the judge to a narrow question. He cannot look at the issue in the round. There are some bars to extradition which allow him to exercise his mind. The only discretionary elements under Clause 11 are "passage of time", where the issue is too stale to be properly tried, and "extraneous considerations"; in other words, where the country seeking extradition is cheating.
Clause 20 relates to conviction in absentia. I have no particular objection to it. It merely illustrates that there is a case where the judge can exercise some discretion, just as he can in the case of physical and mental states objections in Clause 25.
Clause 21 relates to the Human Rights Act. I believe that each extradition request will be fought out under that clause. A very real question will arise if an accused person chooses to say: "I am sure that all the paperwork is right and I do not doubt that I am the person in the warrant. I obviously cannot say anything about the way in which my case will be handled, because it has not been handled at all, but it is well known that the courts of Ruritania do this, that and the other". A mass of evidence will be put before the court that is designed to deal not with a particular case but with the generality of justice systems abroad. That is not a sensible approach, although I frankly admit that I do not quite know how one would get around it. If there were other, lesser objections to the system, it might he possible to do so.
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Turning to the question of appeals, I was heartened to see in the Explanatory Notes that the judge would have all the powers of a magistrates' court. The notes added that that meant that he would be able to adjourn the case on any day—I should jolly well hope so. He would not need any extra powers to do that. I looked a little more carefully at what that meant. It does not mean that the judge has the extended jurisdiction of a magistrates' court, which could always dismiss a case straightaway. Oh no, he cannot do that. It relates only to the very narrow issues with which he is concerned.
I agree that dual criminality is a problem. If there is no dual criminality, the situation becomes vague. A situation could arise where everybody in this country agreed that there is no turpitude or culpability involved, irrespective of whether there is a criminal offence. There is also the problem of people not realising what they are doing. I assume that if I were to say in France what I have said so often here—namely, that the French regard international obligations as something to be taken à la carte—I might risk falling foul of French law; I do not know.
I draw attention to one minor injustice, although I do not wish to divide the House on it. It is that, under Clause 58(4) in Part 1 and Clause 130(4) in Part 2, if one is an extraditee who is serving a sentence of imprisonment in the United Kingdom and who is extradited and eventually returns here—perhaps after having been acquitted—that person's absence would not count towards serving his sentence in this country. That is monstrous. He did not ask to be extradited; he would no doubt have resisted it. Why should imprisonment abroad not be counted in any way?
I return to my original point. I am not asking for the inclusion in the Bill of a prima facie case provision but I am asking—without any confidence—that the Bill be altered in some way to enable the accused to provide proof in this regard. so that the judge is sure that the person did not commit the offence.
4.34 p.m.
Lord Clinton-Davis: My Lords, it is a great privilege to follow the noble and learned Lord, Lord Donaldson. He made some fundamental points which we can consider at a later stage rather than now. I hope that he will not go to France because I do not want to visit him in a prison there.
I am delighted, as was the noble Lord, Lord Goodhart, to see the noble Lord, Lord Kingsland, here today and to note that he will speak in this debate. The noble Lord served in the European Parliament during the time that I was a commissioner. We have always had a very good relationship. Long may that survive.
As the Minister pointed out in his initial remarks, the important thing about the Bill is that we should get it right. It should not be a party matter because extradition is far too important for that.
My regret about the comments of the noble Baroness, Lady Anelay, on Part 1 is that, much as I admire her, I do not believe that she put anything in its

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place. There cannot be a vacuum in this regard. What does she suggest should be applied so far as concerns Part 1?
Baroness Anelay of St Johns: My Lords, I may be able to assist the noble Lord, for whom I also have great regard. I hope that I made it clear in my speech that Part 2 will do.
Lord Clinton-Davis: My Lords, I do not know about that. That is a doctrine of despair rather than a doctrine that we should follow.
The noble Baroness was loud in her denunciations of Part 1 but almost silent as she explained how it could be improved. She said that it was incapable of improvement.
Baroness Anelay of St Johns: My Lords, again, I may be able to assist the noble Lord, although it is not my practice to interrupt Second Reading speeches. I laid out three instances as regards which I believe the Government have given assurances that there are safeguards under Part 1 that could be improved by this House—all of them were repeated, I was glad to hear, by the noble Lord, Lord Goodhart—and another three occasions as regards which Part 3 procedures are in need of further safeguards through changing Orders in Council from the negative to the affirmative procedure. I did not want to bore the House, but I have a list of 37 improvements that we could make.
Lord Clinton-Davis: Well, my Lords, we shall wait and see.
The Minister did us a service by outlining the differences between the Bill and the current procedures. He rightly emphasised the limitations that currently apply and which are far too lengthy and cumbersome. However, while there is a need for greater efficiency, we must be careful to ensure that human rights are not infringed. That fundamental principle is important regardless of a person's nationality and the venue of his alleged criminal activity. I am deeply troubled that the Bill does not address that issue as carefully as it should. However, we have a long way to go. As we consider the Bill, we should be concerned whether the framework decision on the European arrest warrant, which was adopted by the European Council, is fully reflected in our national law.
The principle of dual criminality is still highly significant. That is, that the crime alleged is applicable in both the requesting and requested countries. Is it not right that the European arrest warrant removes that principle as far as concerns EU countries where the alleged offence carries a maximum sentence of at least three years in the country requesting extradition? Am I right or wrong about that issue?
The Extradition Bill permits extradition from the UK only where a maximum sentence of one year is applied in the requesting country and when it is not even an offence in the UK. Is that just?
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Is it right that the Home Secretary should enjoy almost unbridled powers to reduce the protections which may apply to any country if he decides that procedural safeguards should or should not apply with regard to category 2 extraditions?
At present, countries that have signed the European Convention on Extradition—and that applies to most countries in the EU—are not required to produce evidence of a case to answer in support of the extradition requests. All those countries have signed the European Convention on Human Rights. All other countries are required to produce evidence of a case to answer in support of their requests for extradition.
Recently, the UK signed a treaty with the United States. The result of that treaty, so far as I can see, is that there is no need for evidence to be supportive of requests for extradition by the United States. I believe—and I am glad to see that Justice has reached the same conclusion—that this constitutes the removal of an important safeguard because the US is not a signatory to the European Convention on Human Rights. Of course it is not bound in any way by how we operate in Europe. I should like to hear from my noble friend on that issue.
The noble and learned Lord, Lord Donaldson, and other noble Lords have referred to the case of Mr X, and so on, but I can mention it as the case of Derek Bond. That case illustrates what I have said. I hope that my noble friend can put my mind to rest about that matter. All in all I consider—Part 1 included—that the Government have answered a very difficult question in the correct way. It may be that in Committee. on Report or later on, that we will consider certain improvements to the Bill, but essentially at this time I think that the Second Reading should be approved by all sides of the House because, however sensitive the issue of extradition may be, the Government have tried and have not been found wanting.
4.45 p.m.
Lord Lamont of Lerwick: My Lords, this is a significant and controversial Bill, of which the public are hardly aware. For that reason, I regret that it has been agreed that the Committee stage of this vital Bill will be condemned to the usually empty theatre of the Moses Room.
The admirable organisation, Fair Trials Abroad, has described the Bill as one of "extreme recklessness". The Bill certainly fits in with a good deal of government legislation on criminal justice. Part 1 is almost entirely concerned with bringing people before the courts. There is hardly any section concerned with the risks of wrongful imprisonment or miscarriage of justice. Recent parliamentary answers to questions from myself have indicated a growing number of cases being discovered in this country of people who have been wrongfully imprisoned. If the Bill does not have adequate safeguards it risks adding British nationals in foreign prisons to those numbers.
The very fact that there is an organisation called Fair Trials Abroad indicates that there is a problem. That organisation has sprung up and is not just

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concerned about justice in far away places such as Malaysia or Saudi Arabia. Much of its casework relates to continental Europe and the European Union.
The Government's case is simple. Extradition takes too long. There are all these clever English lawyers preventing French terrorists being sent back to France. So that is that.
But the Bill deserves careful examination. Collateral damage may be an acceptable concept in warfare, but surely not in justice.
Part 1 is based on the premise of mutual recognition of different judicial systems. When responding for the Government in another place, the Minister accused the Conservative Party of being against the Bill because it was allegedly against other EU countries' justice systems. In the Minister's opinion that accusation was enough to brush aside the Opposition's arguments. Little attempt of any kind was made to address some of the serious procedural issues, some of which have been raised very tellingly by the noble Lord, Lord Goodhart. I am sure that the noble Lord, Lord Filkin, who is very well regarded in this House and always extremely helpful and informative, will give us much better answers.
The argument was simply put in another place. British subjects in foreign countries are expected to obey the laws of other countries. If we accept that one has to obey the laws of other countries when abroad, it follows that people should be extradited back to those countries if they have committed offences in those countries. This is surely not an adequate enough case. Even the Government would not attempt to apply that principle to Saudi Arabia. We may accept that Britons should observe the drinking laws in Saudi Arabia, but it does not follow that Britons should be extradited to Saudi Arabia because they have broken those particular laws if we think possibly that the system is flawed, that the penalties are disproportionate, or that the procedures are suspect.
Of course, systems in other countries have different strengths. In some respects continental systems may be superior, and in certain types of cases they are perhaps weaker.
The key point is surely that even legal systems, including our own, which work well for nationals may not work so well for foreigners. There are special problems that arise in handling the legal cases of foreigners. If the proceedings are incomprehensible because they are not properly translated, justice is denied. If access to competent legal advice is not available, justice is denied. If bail is not reasonably made available, justice is denied, particularly if the accused needs time to collect evidence from his own country. I agree with all the points of that nature made by the noble Lord, Lord Goodhart. If the noble Lord tables amendments to that effect, I shall certainly support them.
Given the difficulties currently experienced in extradition procedures with the receipt of non-translated or poorly translated documents, it is questionable
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whether the rights of those without a great knowledge of languages can be safeguarded. In many European countries interpreters are provided for the benefit of the judge, not the defendant. Frequently, interpreters lack the requisite training and interpreting skills.
In 1997, a European Council questionnaire sought to discover the extent of provision of interpreters and translation of documents. The French reply was that if the suspect did not understand French he would be assisted by an interpreter at all stages of the proceedings. It continued to say that there was no limitation on that. Fair Trials Abroad commented that, in the whole of its experience, there is not a single case on its books in which any English-speaking suspect has received that level of service.
Greece emphasised the care given to suspects with an insufficient knowledge of Greek and stated that there would be sufficient time for the translation of relevant documents. In spite of that, Fair Trials Abroad is trying to secure justice in a case where that did not happen—the assistant British skipper of a Greek-owned yacht who was accused of people trafficking and sentenced to 10 years' imprisonment three days after his arrest.
Portugal did not respond to the questionnaire. Again, according to Fair Trials Abroad, a judge in a Portuguese case that it was monitoring decided that the accused should pay for the interpreter services, as he had been found guilty—a practice that Strasbourg ruled inadmissable more than 20 years ago.
The Government's answer to all misgivings about miscarriage of justice is to chant, "The European Convention on Human Rights", "The European Convention on Human Rights". That is their answer to every objection raised. But in the real world, the European Convention on Human Rights cannot guarantee much for ordinary people. The ECHR is ultimately dependent on every judge in Europe being fully conversant with it and its applicability to the individual circumstances of a case. The ECHR guarantees only that a victim can complain to the human rights court in Strasbourg. That may take years, and many accused cannot afford to go the court in the first place.
In 1998, a monitoring system was set up by the Council of Europe into compliance with the European Charter of Fundamental Rights. It examined the national justice system in all European states. Some of the findings were unexpected, showing the existence of political interference, especially concerning judges, frequent cases of corruption—largely due to the poor salaries and status of judges—a shortage of resources, frequent delays and, perhaps most alarmingly, the proximity of the prosecution to the judiciary in some EU countries and many of the candidate nations.
The European arrest warrant puts the cart before the horse. It is like introducing the single market without commonality of trading standards. The concept should only be considered, if at all, after there has been agreement on certain procedural basic minimum standards. There should be legal aid at an adequate level in all category 1 countries, if there is to

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be a category 1. In theory, that is meant to be an ECHR requirement, but everyone knows that many southern European countries—such as Greece and Spain—provide little or no legal aid, and often with badly trained, inexperienced lawyers.
There should be a system of bail throughout Europe. Fair Trials Abroad has produced statistics showing that there are literally thousands of European citizens on remand in Europe's prisons at any one time who would not be there if they were natives of the country holding them. If acquitted, compensation is rarely available, leaving them and their families in unnecessary financial distress. Discriminatory imprisonment of foreign nationals before trial not only punishes before guilt is established but handicaps the victim in the collection of evidence for his defence.
Fair Trials Abroad has long advocated Euro-bail. The local bailing authority would consider whether the offence was bailable for nationals. If that were the case, the accused would return to his own country. It would then be the responsibility of the law enforcement officials in the accused's country to ensure that he or she was returned to the trying jurisdiction on reasonable notice when required. What is the difficulty with that? Why should that not be done before we move to the arrest warrant?
The problem with the idea of a single judicial space is not just that different countries have different laws—that is difficult enough—but that different countries have different rules of fairness. In Belgium, a suspect paedophile is still being held on remand after more than five years. In Britain, suspect terrorists can be held without trial for six months and then another six, and another. Some people would not accept that. In France. British lorry drivers are held for months without trial.
Clearly the concept of the presumption of innocence means different things in Britain from other European countries. To the British mind, the idea of the investigating magistrate detaining someone for an indefinite period without charge simply for the purpose of investigation is at odds with the presumption of innocence; indeed, many people would call it outrageous. It is not so in continental countries. The practice of the investigating magistrate has been accepted under the European Convention on Human Rights as consistent with the presumption of innocence.
In Germany, France, Italy, Spain or Belgium, an investigating magistrate can hold someone without charge for questioning for quite long periods. Pressure thus builds on the detained person to strike a bargain with the prosecuting authority and concede guilt. Mr Strauss-Kahn, the former French Finance Minister, recently acquitted on charges of corruption, said:
"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".
The Confederation of British Industry has not been much interested in this Bill. It soon will be, because one of the biggest impacts will be on business. In both
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Germany and France, a number of high-profile investigating magistrates have inflicted almost ritual humiliations on all of the countries' top businessmen. Some people have welcomed that and viewed it as a long-overdue coming to terms with corporate malpractice. Others see the judiciary as over-eager to pursue anyone famous.
So many business leaders in France have had that experience that the process is in danger of becoming devalued. A common Paris banking joke is that any worthwhile French executive has the initials "MEE" on his business card after his name, standing for mise en examen.
Minsters say that, under Clause 2, one cannot be extradited for questioning, only if one is actually charged. That is a key point, which must be probed in Committee. Under the system in many continental countries at present there is a vague, thin, almost nonexistent line between being accused and charged. Indeed, people have been extradited from one European country to another under warrants merely on suspicion, with no mention of being charged.
The Minister referred to the scandal of delays in the extradition process—although presumably the courts had good reason for those delays—but what about the scandals of delays in continental cases? Let us take the case of Mr Soros—some people think that I do not have much feeling for him; but I do. He has now been charged and convicted of insider trading 14 years after the offence was committed. He had heard nothing until last year from the French magistrate who first questioned him in 1993. Is that justice? Would we want someone to be extradited on that basis?
Then there is the problem of standards of justice in the former Communist countries. They have signed the European Convention on Human Rights. But what is that worth? In one eastern European country that I visited the other day, I read in the local paper about someone who had listed on the Internet the houses of his country's Prime Minister and questioned how he could afford them. He was put in gaol for "undermining the security of the state". That is the standard of justice in that country. Yet those countries can be added to Part 1 of the Bill without a vote in Parliament. We know what we will be told: "It is all right. They have signed the European Convention on Human Rights. You can go to Strasbourg to appeal".
This Bill should be called the "Abolition of Extradition Proceedings Bill". The Government claim that there will be a "full" extradition hearing—a point made by the noble and learned Lord, Lord Donaldson. Note the word "full". The Explanatory Notes say that there will be a right of appeal to the High Court, and possibly to the House of Lords. But what will it be about? Some very narrow question, such as, "Are you Mr Ali or are you really Mr Singh?" I suspect, as the noble and learned Lord, Lord Donaldson, suggested, that the partial ending of dual criminality will remove the last grounds for substantive court hearings and very much narrow them. The proof of that is that the Government have said that they expect to be able to

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reduce the time for extradition to three months. That does not leave much time for appeals to the High Court and the House of Lords.
This is a Bill with over-reach. It is reckless. It does not achieve the correct balance between efficiency and justice. It requires massive amendment, or it should be thrown out.
5.1 p.m.
Lord Corbett of Castle Vale: My Lords, it is a pleasure to follow the noble Lord, Lord Lamont of Lerwick, who made an extremely thoughtful contribution. That said, I suspect that we will end up going in different directions in the conclusions that we draw from those comments. I wish to remind the noble Baroness, Lady Anelay of St Johns, of something that I suspect she knows but has forgotten in the context of this Bill. When the Bill was in another place, it was the Opposition who suggested the number of days on which there should be Committee sittings. Later, as the Bill went through Committee, it became obvious to the Government that they were fast running out of time. Several offers of more time were made to the Opposition. Each time the offer was made, it was turned down. With great respect to the noble Baroness, I do not think it lies with her to remark that only 25 per cent of the Bill was discussed in another place, as she did. I am not sure whether it was a complaint or merely a comment.
Baroness Anelay of St Johns: My Lords, I am grateful to the noble Lord for giving way. He is leading me to develop the bad habit today of intervening during Second Reading speeches. I was very careful not to draw conclusions from the fact that only 25 per cent of the Bill was debated in another place. I am grateful to him for drawing to the House's attention the Written Answer in response to a Question on that very matter. I think it was planted by the Government. There are many reasons why only 25 per cent of the Bill was scrutinised in another place. One reason why more of it will be scrutinised here is that the House of Lords does a better job anyway.
Lord Corbett of Castle Vale: My Lords, I am grateful to the noble Baroness; I am not arguing about that. I clearly misunderstood her. Now that she has explained her comment, I think that she meant it as a compliment.
It is understandable that, when this House considers criminal justice matters, it should, quite properly, be cautious, sensible and sensitive about the rights of defendants. The most basic human right of citizens of EU member states and elsewhere is the right to live in peace and security in and around their own homes and communities. Our justice system rests upon the critical importance of that. It is for juries to decide guilt beyond reasonable doubt.
It is too often forgotten that the criminal justice system is not only—or, dare I say, mainly—about the defendant; it is about the victim. Over the years, the victim has tended to be sidelined in the judicial process.
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I am not picking on the noble Baroness, as she will see in a second, but not once did she use the word "victim". The same applies to the noble Lord, Lord Goodhart. My noble friend on the Front Bench used the word at least twice. I do not make that point in any silly sense. But, when considering changes to the law, we should get in the habit of including the victim in our judgment and consideration of proposals. We should remember that there would be no legal process without a victim. There is no such thing as a victimless crime. The right of victims to respect and redress gets overlooked because the focus is on the need for a fair process and a fair trial. I agree with that, of course. But the victim also has a right to fairness.
Present extradition arrangements across the EU are unfair to victims who are citizens of the countries making up the European Union. I do not think that any noble Lord has gainsaid that extradition procedures in Britain are notoriously slow. I was an unwitting party to the outcome of one case—although it was not my intention at the start—where someone sat in gaol on remand for, I think, eight years, resisting attempts to have him extradited to Hong Kong to answer serious criminal charges there.
As the Minister said, some EU countries now simply refuse to extradite their own nationals, even if suspected of committing the most serious crime in Britain. That is absolutely astonishing. Other EU states refuse to extradite for fiscal offences. That means that UK criminals who have stolen public money—that is what fiscal crime is often about—through VAT fraud or major tax evasion can sit in the sunshine while the rest of us foot the bill for what they have stolen. I cannot believe that anyone will defend that.
Much was made in another place of not allowing extradition for UK nationals to another EU state for an alleged offence that is not an offence here. How on earth is that expected to meet the right of all citizens of all EU states for justice? I do not understand it. Is it really argued that a victim's access to justice will be determined by differing national views on what constitutes a criminal offence? Are we really offering to play host to suspected criminals from other EU states merely because their criminal justice system is different from that of their home country? It is not so much a victim's charter as an offender's charter. Never mind all the paraphernalia of the law. If one goes along with this argument, seemingly all a suspect must do is cross a frontier to avoid justice. Where is the justice in that for a victim?
It is argued that our district judges should not sanction a European arrest warrant unless there is prima facie evidence to support the extradition request. Why? The Minister reminded the House of that. It has been more than 10 years since we thought it necessary to make that judgment. Surely, from the victim's point of view, the issue of a suspect's guilt or innocence is a matter for the courts of the requesting country. What is the relevance of our views on their criminal justice system?

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The European arrest warrant does something else that victims should welcome. It will provide that extradition in response to a request from one of our EU partners is for decision by the courts and not by politicians. I was amazed to hear from the Opposition Front Bench the argument that the decision was far better left to politicians, who can make all sorts of judgments for all sorts of reasons, than to an independent judiciary. I find that remarkable. No doubt we will have some very interesting debates on the matter in Committee.
Given that all EU member and candidate states are signed up to the European Convention on Human Rights, it is reasonable to assume that their justice systems operate fairly. I shall come to a qualification on that in a moment. If that is not generally the case, what on earth are they doing as members of the European Union? There are various chapters that must be negotiated, ratified and put in place before countries can join. One of the requirements is that they satisfy the European Commission and those doing the negotiation that their criminal justice system qualifies them to sign the European Convention on Human Rights.
Lord Monson: My Lords, I ask the noble Lord to tell us who was the victim in the case of the British plane-spotters in Greece?
Lord Corbett of Castle Vale: My Lords, the noble Lord anticipates exactly what I was going to say. I wanted to refer to the points made by the noble Lord, Lord Lamont of Lerwick, about the availability of bail, the availability of legal aid, the problems with interpreting services and the problems with affordable access to properly qualified and trained lawyers. Given all those things and the practices and procedures of some courts, it is right that your Lordships should look for better assurances from the Government than we have had. I take that point absolutely.
The plane-spotters' case is not the only one. If I may delay your Lordships for a moment, I can tell the House of an acquaintance of mine—an international lorry driver—of some years' standing. He dropped off a load in Spain, and the lorry was re-loaded to go elsewhere in Spain. Normally, he would oversee the loading of the lorry. But, at the depot in Spain where it was being re-loaded, when he said that he would stay around and see that everything was OK, they said, "No, no. It's quite all right. We shall be an hour and a half at least. Go down the road—there is a lovely little café there—and have a meal. We'll see you at four o'clock". Back he comes, and, quite coincidentally—I assume—about 10 kilometres into the journey to the new drop-off point, he is stopped by the Guardia Civil. The lorry is impounded. It is broken down, and there, right in the middle of the lorry—noble Lords are ahead of me—is a substantial quantity of drugs.
It was the driver's case that he knew nothing about it. I believe that. Perhaps, it is by the by, but, given my personal knowledge of the driver, I believe the man. After a long delay—more than two years—he was brought before the courts and found guilty. At times, he behaved in a robust manner, and he constantly bombarded a series of incompetent lawyers and people
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in the Spanish judiciary with complaints about breaches of the Spanish criminal code. He gave article numbers, examples, arguments and the rest of it. In passing, I should say that, whereas others in the prison were getting weekend leave preparatory to their release, he was denied it. Where a foreign national would get that weekend leave—one of your Lordships made that point—he was denied it, even though he furnished the prison authorities with the name and address of Spanish citizens who had kindly said that he could go and stay with them. I am not pretending for a moment that a mere signature on the European Convention on Human Rights guarantees absolutely that the courts will function as well as they should. I look forward to joining other noble Lords in exploring that in Committee.
We have a duty to victims—let alone defendants—to speed up, simplify and make more effective the extradition arrangements throughout the EU and with other mature criminal justice systems, such as those of some Commonwealth countries. If it is not thought right that we should do that by respecting criminal justice systems throughout the European Union, the only other route to achieving it would be to have a single judicial system throughout the European Union. My hand would not go in the air for that, and I am not sure that any other hand in your Lordships' House would either.
5.14 p.m.
Lord Kingsland: My Lords, first of all, I thank the noble Lords, Lord Goodhart and Lord Clinton-Davis, very much for their extremely kind remarks. In turn, I express my admiration for the clearly and incisively expressed speeches that they delivered today.
Unfortunately, I shall not be able to be with your Lordships during the Committee and Report stages of the Bill, so, rather than dwell on some of the particular issues to which the Bill gives rise, I shall reflect on two more general issues that lurk behind the Government's approach to the framework decision and the Bill itself.
The first question is whether the Bill is really a piece of primary legislation or whether it is delegated legislation disguised as primary legislation. The second question is whether the Government have understood the doctrine of mutual recognition that they claim to have applied in their approach to the Bill.
Your Lordships' House is about to embark on detailed scrutiny of the Government's proposals—rightly so. The trouble is that your Lordships are undertaking the task at the wrong time: it should have been undertaken before the framework decision was made. There is no reason why that should not have been so. Unlike so many decisions in the European Community, those taken by the Council of Ministers, under the third pillar, are taken not by majority vote but by unanimity. In other words, the Government had the power of veto throughout the framework decision procedure. The Government could have used that power to include some of the welcome elements in the Bill itself that were not included in the framework decision; but they failed to do so.

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I ask myself, "Why was that so?". I suppose that an uncharitable response would be to say that the whole process under the third pillar takes place in secret. The initial draft is considered first by civil servants behind closed doors. It then goes to the ambassadors, also meeting behind closed doors. Finally, it goes to the Council of Ministers, also seated behind closed doors. At no stage is there any parliamentary participation, either by the European Parliament or by any domestic legislature.
However, I want to be charitable to the Government, so I will say rather that the Government did not, for example, seek to include in the framework decision a clause like Clause 21 of the Bill and did not fight for the doctrine of speciality before the framework decision was taken because they believed that, under pillar three, they had a bigger margin of manoeuvre in crafting domestic legislation than they had under pillar one.
Is that really so? It is true, under pillar three, that the framework decision has no direct effect. It is also true under pillar three that, unless the Government make a declaration, they are not obliged to accord to a domestic court the right to refer to the European Court of Justice, for a preliminary interpretation, a matter concerning either the construction of the framework directive itself or any conflict between the framework directive and the domestic Act.
However, several other member states have made such a declaration. Sooner or later, issues such as the relationship between domestic legislation implementing the framework directive or the interpretation of the framework directive itself will come before the European Court of Justice. The court will express a view, and, once it has done so, it will be hard for judges in the United Kingdom to act in a way that contravenes it, even though that view was not a consequence of a case heard in the United Kingdom.
Moreover, under paragraph 7 of Article 35 of the amended treaty, we read:
"The Court of Justice shall have jurisdiction to rule on any dispute between Member States regarding the interpretation or the application of acts adopted under Article 34(2)"—
like the framework directive—
"whenever such dispute cannot be settled by the Council within six months of its being referred to the Council by one of its members".
So if a state, for example, seeks extradition but does not get it because a litigant successfully submits to a court that it would be contrary to what is now Clause 21, the member state seeking extradition could take to the European Court of Justice the issue of whether Clause 21 really reflects the intention of the framework decision.
So, in the end, the Government cannot escape the fact that the final decision on what is in the Bill, and subsequently in the Act, is really going to be a matter for the European Court of Justice. As the noble Lord, Lord Lester, has constantly reminded your Lordships' House over the years, the European Community has still failed to adhere to the European Convention on Human Rights. There is no mention of the European Convention on Human Rights in the framework
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directive although there are references to fundamental rights. Can we be really confident that the European Court of Justice will accurately reflect what the Government intend under Clause 21 in any decisions that that Court might make about the role of the convention in relation to the framework directive?
This is a rather dusty submission, and many of your Lordships who are also lawyers may disagree with it; but, in my view, although we are acting in the guise of primary legislators, we are really implementing a Community decision that has been made wholly behind closed doors without any participation of any democratic legislature whatever.
I hope that your Lordships will be sufficiently incensed to attend the debate that your Lordships' House will have next Friday, 9th May, on how your Lordships' House deals in future with European Community legislation. Although only a very small percentage of the time of your Lordships' House is devoted to these matters, about 50 per cent of the law that appears on the statute book each year originates in the European Union. Your Lordships spend nothing like 50 per cent of your time dealing with these matters which are just as important in terms of the obligations imposed on citizens as primary legislation.
So I should like to hope—perhaps rather boldly—that, next Friday, your Lordships will agree to a radically changed way in which your Lordships deal with third pillar legislation. There are, as I said, three stages to the legislative process—if you can grace it with that expression—for third pillar matters: the first is the civil servants; the second, the ambassadors; and the third, the Ministers. I should like to hope that your Lordships will decide to have a debate at each stage, on the Floor of the House, perhaps under the canopy of the European Union Scrutiny Committee, where Ministers report to your Lordships about the progress made at each stage of the third pillar process; and, at the end of that process, before there is a final vote in the Council of Ministers, initiate a vote in your Lordships' House about the measure under review. Otherwise there will, indeed, be a democratic deficit between the way in which domestic legislation is made and the way in which legislation emanating from the European Community is made.
I must confess that the third pillar was an invention of the Conservative government. It was intended to get round what was seen as the increasing encroachment of the European institutions—the European Parliament, the European Commission and so forth. In fact, under the third pillar, we have the worst of both worlds. We have neither the participation of the European Parliament and the conciliation process, on the one hand, nor the participation of national parliaments on the other.
The second observation I should like to make—and I shall be a good deal briefer in making it than I was on the first—is on the issue of mutual recognition. I was particularly struck by a response made by Mr John Denham, who answered a question posed by Mr Douglas Hogg in another place. My right honourable friend wanted clarification on whether a

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district judge will assess the quality of the trial that a defendant will receive in the country to which he is to be extradited. The Minister said:
"The Bill is based on mutual recognition of each EU country's judicial and criminal justice systems. The presumption on which the original framework decision and the legislation are based is that decisions in one another's countries are respected and trusted. None the less, we need to be sure that ECHR rights are not breached. Personally, I think that unlikely in the case of the states under discussion, but it would be open to people to argue, as it always is in legal processes, that that would be an issue. It is important that the House understands that mutual recognition is a point of principle on which the Bill is based".—[Official Report, Commons, 9/12/02; cols. 45–46.]
The doctrine of mutual recognition was developed as part of, and indeed ultimately underpinned, the rules that led to the single market. It is perfectly true that one component of mutual recognition involved the recognition of the validity of other states' laws about the production, marketing and exporting of particular products. However, as the noble Lord, Lord Clinton-Davis, will well recall, it also involved, before that recognition took place, the harmonisation at Community level of certain fundamental minimum standards. In the case of the single market, those usually involved the safety of products, the environmental standards applied to those products, and other matters connected with financial and commercial probity.
In the case of the framework directive here, the doctrine of mutual recognition may well have been applied by the Government; but in my submission that has been done wholly improperly. It was not preceded by any process of minimum harmonisation of standards to protect individuals in the judicial process.
If the Government get their way on the Criminal Justice Bill, that point may, of course, be made against us by other countries. We must wait and see what the outcome of that process is in your Lordships' House.
Nevertheless, to the extent that the Government were influenced by the doctrine of mutual recognition as a way of opposing the encroachment of the threat ofeorpusjuris, they have, in my view, wholly misunderstood what the nature of the doctrine of mutual recognition is about. To that extent, the proposals that are before your Lordships' House today are, at best, wholly premature.
5.28 p.m.
Baroness Gibson of Market Rasen: My Lords, like other noble Lords, I should like to start by expressing my pleasure at seeing the noble Lord, Lord Kingsland, back with us again.
In rising briefly to comment on the Bill, I feel somewhat inadequate in that I am not a lawyer, do not have the expertise of other speakers and am not able to dissect the Bill's clauses as other noble Lords have done. However, for many years I have had a layperson's interest in our criminal justice system. I have tried to approach the Bill from the viewpoint of the average layperson. I hope that I have succeeded. If I have not, I am sure that my noble friend will correct me in his summing up.
As I understand it, the Bill aims to update, simplify and streamline our existing procedures and bring greater clarity and precision to laws noted for their
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ambiguity. It is a Bill for which we have waited a long time—since the days of Queen Victoria, in fact. For, as has been said, it was in 1870 that our first extradition laws were drawn up. That was a very different age from our own. It was an age when travel was far more difficult and much more expensive than it is today and when commercial travel did not exist, when few people travelled abroad and those who did were most likely to be the wealthy and/or the adventurous rather than the financial swindler, the drug trafficker or the murderer of today. Unfortunately, it is a sad fact that organised international crime is part and parcel of our way of life in the 21st century, and it is increasing.
I am a member of Sub-Committee F of the European Union Committee. Among other matters which the committee has recently considered is the question of cross-border criminal activities. During our work we have met a good number of international organisations including the police and border guards in a number of countries. All those organisations emphasise that international crime is increasing and is of major, major concern to them. They believe—the committee agrees with them—that currently they are able to deal only with the tip of the iceberg of such crime and that international crime has expanded into areas not previously involved, in particular trafficking of drugs and of children and women for the purpose of prostitution and other even worse fates.
There is no doubt that our current extradition laws are inadequate and in urgent need of reform. With the average time for carrying out a normal con tested extradition case currently being 18 months, that appears rather obvious. The possibilities of prevarication and delay are notorious. Defendants can raise the same delaying points time and time again, making numerous challenges to the requested extradition. My noble friend the Minister gave an example of the person wanted by the French police for trafficking cannabis. As my noble friend outlined, that case took six years of court wrangling before the man was eventually sentenced to four years' imprisonment plus a fine. That occurred at considerable cost to the British taxpayer. His detention costs alone were well over £120,000.
As the organisation, Justice, has stated,
"extradition involves a fine balancing act, between the need to prevent crimes in an increasing international atmosphere, and the requirement to protect people who are within our jurisdiction from human rights abuses, whether or not these people are British citizens, and even when these abuses will potentially take place in another country".
Currently we do not achieve that balance. The Bill aims to assist us in doing so.
The Government listened carefully in another place to points raised by their own Back-Benchers, the Opposition parties, the chair of the Home Affairs Committee, Chris Mullin, and the chair of the Joint Committee on Human Rights, Jean Corston. As a result, important amendments were made to the Bill which my noble friend outlined earlier and which I shall not repeat.

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I wish to add one or two points. I am trying desperately not to repeat what other noble Lords have said. I believe that it is right for those who have allegedly committed a crime to stand trial in the country in which the crime was committed. It seems to me that that must simplify matters. It must lead to better justice to have the trial close to where the alleged crime took place, not least because I would think that local witnesses are more likely to come forward, either for or against the defendant, if they know that they do not have to travel to another country, especially if they fear repercussions from being a witness.
A number of points in the Bill are aimed at speeding up the current processes. Many of our citizens, especially those who have been the victims of crime, cannot understand why it takes so long currently to bring criminals to justice. Under those circumstances any measures to speed that process and to ensure that justice is not only carried out but is seen to be carried out must be welcomed.
For the past 100 years we have believed in extradition as a vital part of our justice system. That, I believe, should apply whether it is a matter of extraditing a British citizen suspected of a crime to another country or of extraditing someone to this country to face our justice system. The Bill levels the playing field in that respect. I also believe that we should expect our citizens to behave themselves in other EU countries. We should surely not be seen as giving sanctuary to criminals. People should not be able to avoid justice simply because they have been able to cross a border before the police could catch or arrest them.
The noble Lord, Lord Corbett of Castle Vale, "beat" me to the matter of the victims of crime who are often forgotten when legislation is drawn up. I am sure we all agree that it is vital that justice is seen to be done. That applies to the victims of crime just as much as to the perpetrators. The current system is often seen from the victims' viewpoint as not assisting them. Indeed, some believe firmly that it does them a grave disservice.
When a victim sees prevarication and delay and has to wait many, many months for the perpetrator to be extradited, it is bound to have a depressing and debilitating effect upon them and often upon their friends and family. They cannot get beyond that stage in their lives when the crime was committed and nor can their loved ones. Their future is "on hold" until such matters are finally settled. The Bill should shorten the current proceedings. Surely that must be better for all concerned.
Finally, I want to refer to two speeches made in another place during the debates on the Bill which I think sum it up well. The first is an extract from the speech made by Lady Hermon, the Member for North Down, who at one period of her life taught European and constitutional law at Queen's University, Belfast. In welcoming the Bill she said,
"In a previous incarnation many years ago, when I lectured in the law faculty at Queen's university, Belfast, I taught international law, and I must confess that I dreaded the weeks when I had to lecture on extradition law. It was extremely complicated, and I am sure that the students ended up no more enlightened. I am therefore delighted that the extradition procedure has been simplified".—[Official Report, Commons, 25/3/03; col. 254.]
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Lady Hermon is far more expert than I on this issue and I would certainly listen carefully to her words.
I shall end with an extract from a speech made in another place by my honourable friend Bob Ainsworth, the Parliamentary Under-Secretary of State for the Home Office:
"The Bill is a much-needed reform of our outdated and antiquated extradition laws. It is in the interests of us all, including our international partners, that criminals are not able to string out our extradition proceedings for years on end. The old maxim 'justice delayed is justice denied' applies in extradition as it applies in other fields of criminal justice. This Bill will finally enable us to have an extradition system that is capable of coping with a world of free movement and cheap travel".—[Official Report, Commons, 25/3/03; col. 258.]
I have quoted those remarks because I believe that they put the Bill into context. I support the Bill in principle and look forward to the detailed debates in this House.
5.38 p.m.
Lord Carlisle of Bucklow: My Lords, I shall start by associating myself with the remarks made by the noble Baroness, Lady Gibson, with regard to my noble friend Lord Kingsland. It was a delight to hear him speak in this House again. Perhaps I may say that I was sorry to hear that he felt he would be unable to take part in the Committee and Report stages. I fear that we will miss his experience, his erudition and, in particular, the succinct way in which he always puts his case.
I agree with much that has been said in the debate, both by the noble Baroness who has just spoken and by the Minister in his helpful exposition of the contents of the Bill when opening the debate. As the noble Baroness pointed out, crime is becomingly increasingly international. That is particularly the case with regard to serious crime, whether it involves acts of terrorism, major fraud or, in particular, drug trafficking. We have to accept that there is a vast international element growing in those kinds of crime.
I also accept that today it is easier for those who commit crime to attempt to avoid arrest, trial and conviction—to avoid being brought to justice—by crossing borders into other countries. To combat this problem, it is necessary that we should have, as far as possible, international co-operation in the fight against crime. I think the Minister will agree that that was part of the purpose of the Crime (International Cooperation) Bill, with which some of us were recently involved. If I may put it in general terms, the Bill dealt with improving the powers of hot pursuit so as to ensure that criminals do not disappear or avoid being watched.
I accept that a speedy and effective system of extradition to effect the return of an alleged offender to the country in which his crime was alleged to have been committed is of great importance. Of equal importance is the need for us to be able to extradite into this country those who may have committed crimes here and who have attempted to avoid justice by moving elsewhere.
At present, as has already been pointed out, all this is covered by the Extradition Act 1989, whether one is dealing with cases of extradition from other European countries, from other Commonwealth countries or from those various parts of the world with which we

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have bilateral extradition treaties. I accept what the Minister said to the effect that the process under that Act can be time-consuming and complicated. It can give rise to the opportunity to lodge a variety of appeals, which in turn can be long-drawn-out and time-consuming. Both he and the noble Lord, Lord Corbett, gave examples of how long some cases have taken.
We are justified, therefore, in looking to see whether it is possible to speed up and simplify the extradition procedure, whether it concerns extradition out of the United Kingdom into other countries or extraditing people back into this country. I agree with the fundamental principle of the Bill; namely, the attempt to speed up, clarify and simplify that law.
If I may make an ironic remark, I am bound to say that it is rather typical that we should be starting our consideration of a Bill that runs to 213 clauses and covers 116 pages for the purpose of simplifying one Act of 38 clauses that covered 33 pages. That is meant to be a serious point. When one looks at, for example, the Sexual Offences Bill and sees the enormous complication and length of such Bills, it says a lot about the change in parliamentary draftsmanship. I accept that it is not all one party's fault. We invite the government of the day, on whichever side they are, to put things into Bills, which in itself extends their length. It is remarkable how much longer it now apparently takes to simplify a procedure that was succinctly contained in one earlier Act.
Surely it is absolutely vital that, although desiring a speeding-up and simplification of extradition, we must always remember, as the noble Lord, Lord Clinton-Davis, urged, that extradition is in fact a judicial procedure, the purpose of which is not only to return the alleged offender to the country in which he is alleged to have committed his crime, but to ensure that proper safeguards exist for the individual. The noble and learned Lord, Lord Donaldson, made that point. Those safeguards must ensure that British nationals, or others who may have sought refuge in this country, are not unduly and unjustly extradited to other countries where the rules of law may be somewhat different from what they are here.
The Bill divides extradition into two parts, depending on the country from which the request for it comes. As the Minister said, category 1 countries are basically the European countries, and category 2 covers the rest of those countries with which we have extradition procedures. If I understand it correctly, Part 2 appears to make little change to the existing law, although it attempts to use the procedure to speed up the carrying out of that law. The context of the law is probably not greatly changed.
On the other hand, Part 1 seems to take away two safeguards that have been vital for the protection of the individual. First, it removes the role of the Secretary of State in being able to approve or refuse to approve extradition in all circumstances in which he thinks it right or wrong to do so. Secondly, for some 32 types of offences, it does away with the rule of dual criminality under the European arrest warrant, so that
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people will be eligible to be extradited to other countries to face trial for conduct that is not criminal in this country.
I accept again that the Bill contains safeguards. Clause 11 sets out the bars to extradition. The Government appear to have accepted some of the arguments put forward in another place to strengthen those bars. They have accepted the bar of speciality, so that people can be tried only on the case on which they have been extradited. Clause 21 brings in the whole question of the right of the judge to see that European human rights are taken into account when deciding whether extradition should take place. However, I see no real justification for changing still further and making new reductions in the vital safeguards that we have.
On the executive right of the Home Secretary to have the final decision in extradition matters, I want to remind the House of what Liberty said in its briefing to Members. It said that the European arrest warrant is based on the presumption that European Union countries all have fair and equal systems of justice, which should remove the need for any other country to scrutinise the fairness of extradition to such a country.
As I believe my noble friend Lord Lamont showed very potently, that presumption is seriously open to question. In the 13 years since the Extradition Act 1989 was enacted, UK courts have intervened to refuse extradition following habeas corpus or judicial review proceedings in a significant number of EU cases. The Home Secretary has also refused to extradite in a significant number of other cases where extradition would plainly have been wrong and unjust. At this stage, are we right to remove the Home Secretary's role in that matter and to rely merely on Clause 21 of the Bill?
The removal of the necessity to prove dual criminality will cover a very wide area of offences. The 32 categories in the European arrest warrant are all of a wide nature. I suspect that, when dealing with serious crime within those categories, the test of dual criminality would, if it remained, be met and there would be little difficulty in meeting it.
What is worrying to me is that the removal of the requirement for dual criminality may mean that people can be extradited from this country back to other countries on, to some extent, minor matters, which, as has been said, had they been committed in this country would not have been crimes at all. I do not consider that the abolition of dual criminality will have any effect so far as concerns serious crime because I believe that in serious crime cases the test would always be met. The danger lies in the greater use of requests for extradition from category 1 countries in areas where the offences are of a less serious nature and, indeed, concern matters not even of a criminal nature in this country.
Finally, I want to make three major criticisms of the proposals as they stand. With regard to the first, I do so rhetorically. Am I right in understanding, as has been said, that the provisions which seek to do away with dual criminality act retrospectively? If they do, it

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seems to me that that is completely wrong and that it should be made clear on the face of the Bill that they are not retrospective, as has been suggested.
Secondly, since the European arrest warrant framework document itself provides in relation to the 32 scheduled types of offence that the removal of the need for dual criminality should apply only if the minimum sentence is three years, why in this legislation are we reducing that to 12 months? Again, it seems that that is more likely to catch the minor rather than the serious case.
Thirdly and perhaps most importantly, is it right to give to the government of the day the power to add other countries to the list of category 1 territories merely by Order in Council without reference to parliamentary scrutiny? It seems to me that there is a grave danger that category 1 territories will be extended to meet countries outside the European Union without Parliament being able to scrutinise whether or not the methods of justice in those countries justify the removal of the safeguards that currently exist.
I listened to what was said by the noble Lord, Lord Corbett, and I accept the argument about people being concerned when others are seen to commit crimes in this country and then disappear to, say, Germany, from where they cannot be extradited. Am I right in understanding that to date we are the only country which has attempted to implement the European framework document into our law? If so, the passing of this Bill will not affect in any way what was said by the noble Lord, Lord Corbett. The abolition of the rule of dual criminality will apply on applications to this country to extradite to others. The law will not change in those other countries until they choose to implement the European framework document so their rules on dual criminality will still apply when applying for extradition from those countries.
I hope that the Bill will receive careful scrutiny in Committee. I hope that some amendments will be made to the decision to abolish the safeguard of dual criminality.
5.56 p.m.
Lord Stoddart of Swindon: My Lords, by this stage of the debate, probably everything has been said and said well. But there are one or two points I want to make and on which I seek clarification. First, I must point out that whenever a Bill of this kind comes before us, I always sit down and think what the Labour Party would have done in opposition if the Tories in Government had introduced it. I have been a Member of this House for 20 years and I was a Member of another place for 13 years, so I know the Labour Party a little by now. My guess is that its reaction to Part 1 would have been one of absolute outrage. Mr Blunkett would probably have been jumping up and down with rage that something of this kind should have been brought forward.
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That would have been a correct attitude because Part 1 ensures that British subjects can be extradited to foreign countries without normal judicial processes for acts which are not offences in the United Kingdom and without the provision of prima facie evidence. That is a huge step. We should remind ourselves that last year. when the world was worried about terrorism, the United States wanted to extradite a British person who it thought was guilty of terrorist offences. But it had to provide prima facie evidence to our courts and they were not satisfied that that evidence was provided. They refused to extradite the British person who, had he been extradited, could have been subject to the most severe penalties. We should consider that aspect very seriously indeed.
The noble Lord, Lord Filkin, listed some of the benefits of Part 1 of the Bill, one such benefit being speed. Speed can be very dangerous, not only on the roads. Speed in legislation has been found to bring about peculiar results. Certainly, in the matter of justice it can bring about some very baleful results. What is necessary when we are discussing extradition or anything else for that matter which might involve a person being imprisoned, fined or whatever is not that the matter is dealt with speedily but that it is dealt with justly. I thought that that is what British justice is about. However, there is a danger in Part 1 that speed will be considered more important than justice. In my book that is completely wrong.
The noble Lord, Lord Kingsland—like all noble Lords, I am glad to see him back in his place in fine fettle and voice—made a very important point. He said that the question of the European arrest warrant had been considered too quickly, in secret and without any input from national parliaments. That is the essential point about the European arrest warrant: that it has not been discussed properly. Indeed, one of the reasons that it was not considered as it should have been was the twin towers outrage. This is myth 5 of the Home Office paper with which I shall deal. Undoubtedly, advantage was taken of the twin towers outrage to push this reactionary legislation through the EU institution and to extend proposals on terrorism to cover virtually every offence under the sun contained in that list of categories of offence.
I am surprised that the noble Lord issued the paper headed:
"The EAW and the Extradition Bill: Myths and Facts".
Myth 5 states that EU empire building is being veiled under the guise of September 11th. The Minister says that that is not so. I would refer him to the speech I made on 23rd April 2002 when we were discussing the EUC report on the European arrest warrant. I quoted Mr Watson, rapporteur to the European Parliament, when he was discussing this matter of the European arrest warrant and an amendment to it. He stated:
"I would like to thank the President-in-office for reminding us that this judicial spate did not start on 11 September last year, although it would be churlish not to recognise that the attacks on New York and Washington on 11 September gave a political momentum which allowed us to knock heads together and overcome certain objections".—[Official Report, 23/4/02; col. 221.]

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So, it is quite clear that the noble Lord, Lord Kingsland, is right: there were objections but, because of the attacks in New York on September 11th 2001, the people who were making the objections were stampeded into making decisions which they otherwise would not have made. That is one myth with which I hope I have dealt.
My views about the European Union are well known. But there can be no doubt that the European arrest warrant is yet another step towards the creation of a single European legal space. The noble Baroness, Lady Anelay, is right about that. There are people who want to do this and they say they want to do it. They have been saying it for a long time. That is why corpus juris was produced. It is all there. The European arrest warrant will be seen as part of that plan.
Indeed, if it were not so the Bill would be in one part. There would not be a Part 1; there would be only a Part 2. That is all that is necessary to deal with modernising the extradition system which, as the noble Baroness, Lady Gibson, said, has been around for 100 years. Therefore, that can be done without the introduction of the European arrest warrant. Part 2 would suffice for what most noble Lords want to do.
I turn now to the briefing note sent out by the Home Office. I do not know why it did that. It is completely unnecessary. We could have dealt with all this in Committee, and most of it we shall. However, I want to look at a couple of the subjects. Myth 1 states:
"The EAW will allow foreign police officers and Europol to arrest British subjects in Britain".
That is cited as a myth. But the original Bill sent to Parliament, before it was amended, stated:
"police constable or any other appropriate person",
That was what was worrying everyone because that would have been the decision of the Secretary of State.
We are pleased that that amendment has been made. I hope that the noble Lord, Lord Filkin, will confirm absolutely that the Bill now precludes any possibility of foreign police officers being able to arrest British subjects in Britain. I hope that he will give us that assurance.
The other myth with which I should like to deal is myth 6 which states:
"The EAW is the first step in the road towards a single harmonised European jurisdiction with its own police force".
That is the alleged myth. This is the fact according to the noble Lord, Lord Filkin:
"No, quite the reverse. The EAW is based on the principle of mutual recognition of criminal justice systems within the EU. As crime becomes more trans-national in nature this is the only real alternative to a harmonised criminal justice system".
The noble Lord surely must have noticed that the convention president, Mr Giscard d'Estaing, is calling for a European public prosecutor; that he believes there should be qualified majority voting for justice and home affairs. Surely he must know that Mr Denis MacShane, the Minister for Europe, has stated that the Government are in favour of communitising the European legal system. No wonder
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people think that this is a first step towards a harmonised European jurisdiction with its own police force.
I hope that the noble Lord, Lord Filkin, realises that some of what he terms myths are not myths at all but are opinions based on facts; facts which have sometimes come out of the Government of which he is part.
All the other points that I wanted to cover have been mentioned. I have just one problem in relation to the gold-plating of the legislation. The framework document says:
"European arrest warrants issued in respect of crimes or alleged crimes"—
the reference to "alleged crimes" means, so as far as I can see, that people can be extradited for interrogation, although the noble Lord, Lord Filkin denies it—
"on this list have to be executed by the arresting state irrespective of whether or not the definition of the offence is the same, providing that the offence is serious enough and punished by at least 3 years' imprisonment in the member state that has issued the warrant".
I would have thought that that has to be standard. Why have the Government decided that in our legislation the three years should be converted to one year? What happens if all the other countries of the European Union say, "We are not going to have one year; you can have it if you like", although they may take it before the European Court? The noble Lord, Lord Kingsland, made a good case for saying that it might be justiciable before the European Court. I really would like some clarification. Are we allowed to do that? Can we do it? What will be the effect of doing it on British subjects and other European citizens?
I hope that we shall have some very good discussions on the Bill in Committee and on Report. I sincerely hope that a large number of amendments will be made to Part 1. I say nothing about the second part. I do not believe Part I is necessary and if it is to go through at all, it needs to be amended very thoroughly.
6.12 p.m.
Lord Pearson of Rannoch: My Lords, I take as my text a beautiful extract from the Home Office's briefing note sent to us by the Minister entitled, "The EAW and the Extradition Bill: Myths and Facts". I will come back to other nuggets in this breathtaking document, but the quote with which I start goes as follows:
"The Extradition Bill is going before Parliament which, of course, has the final say so on the legislation".
I join others in welcoming back to your Lordships' House my noble friend Lord Kingsland. It gives me special pleasure on this occasion because, I think for the first time, I have been able to agree with every word he said in a speech on the European Union. He., along with my noble friends Lady Anelay and Lord Lamont, probed the Minister as to how we got to where we are with this Bill and exactly what our powers are. What would happen if Parliament—and by that I mean, lest

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anyone has forgotten, the House of Commons and your Lordships' House—were to amend or, indeed, reject this wretched Bill altogether?
I have no doubt that we shall receive a silken reply from the Minister, who will do his best to reassure us without actually answering the question. After all, that is what always happens when we ask the Government to come clean on the extent to which we are already enmeshed in the tentacles of the corrupt octopus in Brussels. The Minister already went some way towards that end today when my noble friend Lord Lamont pressed him on whether we were free to reject the Bill. He said that it was a framework decision and therefore the expectation was that member states will enact it. He then said that further issues would arise if we were in breach of our treaty obligations. My question is "What further issues?"
In order to assist the House and, I hope, the Minister in his reply, I fear it would be helpful if I placed on the record the salient words of Sections 2 and 3 of the European Communities Act 1972. That Act took us in to what was then the European Economic Community and still governs our relationship with what has become the European Union. Some noble Lords may be aware that I placed these momentous words on the record in your Lordships' House during the debate on the British constitution in the name of my noble friend Lord Norton of Louth, on 18th December last year at col. 679 of the Official Report. That debate was answered—or, as usual in my case, not answered—by the noble and learned Lord the Lord Chancellor, and I suspect that the vital quotation is gathering dust somewhere in the recesses of his ample department. However, this is a Home Office debate, so I hope that it will be helpful if we start at the beginning and remember how this Parliament, without the consent of the people, started to give away so much of their sovereignty to Brussels.
Section 2(1) and (2) read as follows:
"All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties … are without further enactment to be given legal effect … and be enforced, allowed and followed accordingly.
Subject to Schedule 2 to this Act, at any time after its passing Her Majesty may by Order in Council, and any designated Minister or department may by regulations, make provision … for the purpose of implementing any Community obligation of the United Kingdom".
Section 3 reads as follows:
"For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any Community instrument, shall be treated as a question of law (and, if not referred to the European Court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court)".
Those words mean, as I mentioned on 18th December, that once the executive or the government of the day have agreed or been outvoted on a new law in Brussels, this Parliament—the supreme guardian of our democracy—must enact that law. We can scrutinise it for as long as we like, we can debate it ad nauseam, but we must enact it. Thus, the supreme guardian has become a rubber stamp.
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I understand that this Bill arises as an obligation on us under the treaties because the Home Secretary, Mr Blunkett, agreed the relevant framework decision, on 13th June 2002 in the Council of Ministers. If that is so, my first specific question to the Minister is whether it is true that the decision was taken as what is called an "A" item on the agenda. In other words, was it a decision about which there was no debate in the Council; one that went through on the nod? If that is so, I have little doubt that the Minister will say that it is entirely acceptable, because Parliament's scrutiny reserves had been lifted and the arrest warrant had been agreed by all the internecine and labyrinthine EU committees—COREPER and so on—in Brussels.
That may be technically true, but if so it merely demonstrates yet again the ineffectiveness of the scrutiny reserve system. I say that because of your Lordships' last debate of the European arrest warrant, on 23rd April last year, after which the scrutiny reserve was automatically lifted. Such is the system. Yet none of your Lordships who spoke in that debate supported the arrest warrant, as later agreed by the Home Secretary. Similar disquiet was expressed in another place. As other noble Lords have said, and as usual with European legislation, no vote was taken in either House as to whether the United Kingdom should suffer the EU arrest warrant before the executive signed up to it.
The point is that, if the arrest warrant went through the Council of Ministers on the nod and, as usual, in secret, that rather undermines the position of those who claim that democracy in the European Union is safeguarded because all the decisions are taken by the Council of elected Ministers. So I await the Minister's reply with interest.
Could the Minister clarify under which treaty the obligation to pass the framework decision arises and what penalties might we face if we do not? My understanding is that the obligation arises out of the Treaty on European Union: the TEU or so-called Maastricht Treaty. If so, that might be helpful. I believe that it means that the United Kingdom would not be subject to unlimited fines in the Luxembourg court if Parliament rejects or amends the decision, as we would be if the warrant had emerged from the Treaty Establishing the European Communities or TEC. So far as I can see, we do not face any penalties, even if we reject the Bill altogether, let alone if we amend it substantially. Surely all that would happen is that Mr Blunkett would merely have to return to the Council of Ministers and agree to abandon the whole project or make changes. I know that that agreement would have to be unanimous, but so is everything that is passed in the areas of justice and home affairs—at least until the convention's dark cloud has dropped its fatness upon us.
I join with my noble friend Lord Carlisle in asking how the other European countries are faring with ratification of that decision. If none of them has done anything about it, it is not of great inconvenience to Mr Blunkett to return to the Council and to say that we wish to think again.

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Perhaps we could come to a separate accommodation with the Government over genuine terrorism. The Government have tried to mislead us into believing that the arrest warrant is all about that, and one does not want to be difficult. What precisely happens if we refuse to rubber-stamp the Bill? What is the meaning of the Government's assurance that we in this Parliament have the final say?
I turn to the famous list of crimes that are set out in Article 2.2 of the framework decision and to the Government's grotesque attempt to defend their importation into British law, as set out in the Home Office's briefing note which was mentioned earlier. To put the Government's sleight of hand into clear perspective, will the Minister confirm a Written Answer that I received during the scrutiny period of the arrest warrant? The Question asked the Government for their definition of racism and xenophobia. The Government's Answer was that the crime of racism and xenophobia will be what the extraditing magistrate says it is—no more and no less.
My third and last question to the Minister is whether that is still the position. Will the crime of xenophobia be defined by the Belgian, Italian, German or whatever magistrate? If so, how can the Government possibly defend their dismissal of at least three of their so-called myths?
Those myths are so misleading that I fear that they are also worth putting on the record. How can they defend their justification of myth number three for instance? The myth goes as follows:
"The EAW will allow foreign judges to arrest the editor of a newspaper or a comedian if they are rude about foreigners or Euro-sceptic".
The "fact" put forward by the Government goes as follows:
"Nobody is suggesting that rude comments or jokes about foreigners arc criminal or will suddenly become criminal under the Framework Decision. But making comments that incite racial hatred is a serious matter that is already a crime in UK law".
We are not worried about that. We are worried about whether it will be the extraditing magistrate who has the power to define the crime of racism and xenophobia. If that Written Answer is still correct—I ask whether it is—I would have thought that the editor of the Sun should have a care before writing some of the stuff that has been written in that journal in the past.
I turn to myth number nine. It is supposed to be that:
"The EAW abolishes our right to Habeas Corpus".
The Government's "fact" goes as follows:
"British citizens' rights to common law habeas corpus have existed for centuries and are unaffected by this Bill. The Framework Decision allows for a route of appeal within time limits",
and so on. Other noble Lords have dealt with that point. I shall return to myth number nine in a moment. But what about myth number ten, which is supposed to be that the EAW introduces the alien concept of racism and xenophobia into British law? The Government's "fact" on that one is really clever. It is as follows:
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"The UK has plenty of offences which could fall into this category such as racial discrimination, incitement to racial hatred, possession and distribution of racially inflammatory material and publication of material intended to stir up racial hatred. Criminal xenophobic behaviour is already covered by our existing laws".
So what? What I am asking about is xenophobic behaviour which will be identified by foreign magistrates according to their law and which will become criminal under this Bill.
Surely, the Minister must agree that all these so-called facts or justifications are swept aside if it is true that it will be the foreign magistrate who decides whether or not the crime of xenophobia—or indeed any of the other crimes on the list—has been committed. That is, if the foreign magistrate defines the offence. It is not just the crime of xenophobia. One could go through many crimes on the list—as other noble Lords have indicated—given their breadth. What about environmental crime, including the illicit trafficking in endangered plant species and varieties? There are a number of plants growing on Rannoch Moor which are fairly common there, but they are extremely rare in Belgium. Who decides whether or not the plant is endangered?
The British court does not have to be convinced even of prima facie evidence, as other noble Lords have said. The British subject is simply bundled off to stand trial under an alien system. So I reach perhaps the biggest deception of all, which I have already quoted in myth number nine. It is:
"British citizens' rights to common law habeas corpus have existed for centuries and are unaffected by this Bill".
Which other EU countries have habeas corpus and indeed trial by jury? None, so far as I know. So if British citizens are bundled off to foreign and alien jurisdictions where there is no habeas corpus, how can their right to habeas corpus not be affected?
I end by saying that I really would be grateful if the Minister could answer my three very simple questions. In debates on European matters I have grown used to not receiving an answer to my questions. However, as we start our way down the road of considering the Bill, and, as I say, with the shadow of the Giscard convention hanging over us, the three simple questions are as follows. First, was the arrest warrant passed without debate in the Council of Ministers? Secondly, is the framework decision taken under the TEU? If so, what penalties would we face if we reject or substantially amend it? If there are no physical penalties, what happens? Are we merely cast into the outer darkness of failing on our treaty obligations or can Mr Blunkett return to the Council of Ministers and say, "I am awfully sorry, we have come unstuck in the British Parliament on some of these aspects". Thirdly, will the definition of "xenophobia" and other crimes in the list be defined by the extraditing magistrate? If not, by whom will they be defined? I look forward to the noble Lord's reply.
6.29 p.m.
Viscount Bledisloe: My Lords, it is by now obvious that there are convincing grounds for simplifying and speeding up the procedures for extradition. That is

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particularly to be welcomed if the improvement is mutual so that persons wanted for trial in this country are surrendered to us more rapidly and readily.
However, general approval for an improvement in extradition procedures—and even, perhaps, a measure of acceptance of the two-category approach—does not involve an uncritical acceptance of everything in the Bill. Like many other speakers, and other persons previously, I have serious concerns about the provisions that give effect to the European arrest warrant. Those concerns have been voiced in many quarters during the past year or two, not least in two reports from your Lordships' Select Committee, of which I was then a member, and in the debates that have taken place following those reports.
The Minister sought to suggest that the matter had been approached carefully and thoroughly. But he cannot—either by what he said today or by a document that claims to rebut myths but which does so mainly by creating other myths—get away from the fact that the arrest warrant was rushed through by Brussels on the coat-tails of the events of 11th September, even though, in fact, it has nothing to do with terrorism or anti-terrorism.
Indeed, the Minister, Mr Ainsworth, candidly admitted when he appeared before the sub-committee that he could not give a single example of how the European arrest warrant would have been of use since 11 th September. It is unfortunate that the Government did not heed the warnings and that they have now signed up to the framework decision. Unfortunate it may be, but it is a fact. I therefore have specific questions for the Minister about the Bill as drafted.
The first concerns the designation of countries as category 1 countries. Will designation or continuance as a designated country depend on genuine mutuality? In other words, will we recognise as a category 1 country only a country that has and genuinely operates an equal facility for deportations to this country? Or shall we blindly categorise as category 1 countries all countries in the European Union, even though they may not have given effect to the framework measure in any way or not be operating it at all effectively?
Secondly, can, and, much more importantly, will, the Government be minded and able to revoke the designation of a country—I of course include a country within the European Union—if, for example, there is in future real evidence that its procedures and courts do not, or no longer, deliver fair and unbiased justice, or is the unfortunate situation that once a European Union country is designated, it remains designated forever?
Clause 13(b) of the Bill bars extradition if the arrested person can affirmatively show that his trial might be prejudiced by reason of his race, religion, or so on. That may be difficult to establish if, at the time, the country's methods are genuinely arbitrary—not anti-Jew or anti-homosexual; just very prejudicial and arbitrary. It would also be wholly wrong to place on
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him the onus of establishing that by evidence when it is well known that the country in question is shown to be unfair.
We should not have category 1 relations with a country whose regime is no longer just. Some noble Lords, particularly the noble Lord, Lord Lamont, indicated ways in which, at present, certain EU countries do not meet the requirements for a fair trial. But, even if one glosses over that, it is obviously highly possible for a country's regime to change completely. If the Bill had been introduced in the 1920s, we might have accepted Germany as a country that had fair trials. But that would not have been appropriate in the mid or late 1930s.
What happens if a country in the European Union slips into a regime that no longer holds fair trials? Can it be de-designated—if such a nauseating word exists? In those circumstances, will the Government undertake to exercise the power of de-designation? As the noble Lord, Lord Lamont, said, the Government's answer tends to be that the countries are subscribers to the European Convention on Human Rights. It would be wholly wrong if a regime became unjust but we continued to give it preferential extradition arrangements until it was expelled from the European Union.
In the previous debate on the subject on 19th November 2001, the noble Lord, Lord Rooker, very reasonably said:
"We must not work on the basis that every new proposal will be subject to gross abuse".—[Official Report, 19/11/01; col. 986.]
That is fair enough. But, equally, we cannot assume that a new measure such as this will never be used by a regime in a manner that constitutes serious abuse. If that arises, what will we do about it?
My next point is a request for enlightenment. We are told in the Bill that a person cannot be extradited for conduct that takes place solely in the United Kingdom if that conduct is not an offence in the United Kingdom—so far, so good. But what if that conduct is not wholly, but largely, within the United Kingdom? What is the position if the conduct is spread over several countries? Take, for example, the controversial topic of racism and xenophobia. Let us suppose that I publish an article in an English magazine in terms quite acceptable under English law, but a relatively small number of copies of the magazine are sold in various countries in the European Union. The article is said to offend the criminal law of one of those countries. The country wishes to prosecute me as the author or publisher of the article. Can I be extradited in those circumstances? I recognise that the answer to that question is governed by Clause 63. But, having studied the clause, I am not clear on the answer. Unless it is a very clear "No", that is a very serious defect in the Bill.
Unlike some noble Lords, I accept that it is perfectly reasonable that, if I choose to go to a foreign country, I must obey its criminal law and must be punished for conduct that breaches its criminal law, even if it is not an offence here. I do not honestly see why I should not be extradited for such conduct. But the position is wholly different if I am in England, regulating my

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conduct by English requirements, and some consequences of my actions spill over into a foreign country so that technically they constitute an arguable offence there. It would be wrong if, in those circumstances, I could be extradited.
It is noticeable that in many speeches, particularly those made by the noble Baroness, Lady Gibson of Market Rasen, and the noble Lord, Lord Corbett of Castle Vale, it has been assumed that the victim and the witnesses will all be local to the court that is extraditing. If there is a rape in Belgium, Belgium is obviously the sensible place to try the case. It is not the sensible place to try me for something that I did in England just because a few copies of my article or the financial consequences of my conduct spread into Belgium. I should not be extradited for that.
There is a similar, but different, question. It also seems that a country can issue a valid arrest warrant, although the relevant misconduct did not take place in that country, if it is an offence under the extraterritorial jurisdiction of that country. Certain countries—I think of Spain and the case of General Pinochet—exercise extra-territorial jurisdiction. We shall assume that the conduct that is being complained of is an offence in this country but is not one for which we would venture to exercise extra-territorial jurisdiction. In those circumstances, can I be extradited to that country, which has no connection with the offence, merely because it has a wide view of extraterritorial jurisdiction?
Finally, there is the point made by the noble and learned Lord, Lord Donaldson of Lymington. I fully accept that it should no longer be necessary for the intending prosecutor to demonstrate affirmatively that there is a proper case to answer. However, what about a situation in which the accused can show conclusively that he cannot be guilty? We might imagine that an arrest warrant had been issued by some foreign country against the noble and learned Lord, Lord Irvine of Lairg, in respect of a criminal act that happened at 2.30 p.m. on a Tuesday. It would be demonstrable that, at that time, the noble and learned Lord was seated on the Woolsack in the House, seen there by 200 people and, more importantly, by the Officers of the House, who are, I am sure, more reliable witnesses than most of your Lordships. None the less, the noble and learned Lord has been described in the arrest warrant, and there can be no question that it is he who is described, not a Mr Andrew Smith, who might be anybody, for there is only one Lord Irvine of Lairg. He has been described in the arrest warrant but can demonstrate conclusively to the court that he was not present. Must he still be extradited?
Again, the answer may lie in Clause 7(2). The judge must decide whether the person brought before him—Lord Irvine—is the person in respect of whom the warrant referred to in subsection (1)—the foreign warrant—was issued. It may be arguable that the warrant was issued not just in respect of the person named in it but in respect of the person who might have committed the crime and that, therefore, the court could say, "No". However, it is outrageous that, without some way in which the court can, in those
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circumstances, say, "No", when the person can demonstrate conclusively that it could not have been him who committed the crime, the court will have to extradite him none the less. I would be grateful for enlightenment on that point.
As he is now back in his place, I shall conclude by adding my expression of great pleasure at seeing the noble—albeit, technically, not learned—Lord, Lord Kingsland back among us. I express my delight at his speech, which was delivered, in his customary style, with no notes. It threw an interesting and different light on the matter.
6.44 p.m.
Baroness Park of Monmouth: My Lords, I am grateful for the opportunity to speak in the gap. My question has essentially been put far better already by the noble Viscount, Lord Bledisloe. It is whether there will be provision in the Bill to allow this country not to execute an extradition warrant because the right judicial requirements to ensure justice are not yet in place in the country which is issuing the warrant.
Let us consider Bulgaria and Romania, two candidate countries. In the report on the accession partnerships through which the EU helps candidate countries to prepare to comply with the acquis communautaire which qualifies them for membership, we read the following on Bulgaria. The section on the rule of law, reviewing the judicial system, requires Bulgaria to,
"review the structure of the judiciary in line with EU best practice, including a review of the organisation of the pre-trial phase",
and to take,
"steps to improve judicial proceedings, in particular to reduce excessive length and ensure full implementation of fundamental rights in penal cases, in particular as regards legal aid".
Further on, we find that Bulgaria must,
"continue efforts for police officers to respect basic human rights",
and,
"take further steps to bring all places of pre-trial detention in line with the basic requirements identified in the Council of Europe Committee's report on the prevention of torture".
Moreover, it must,
"provide a legal framework which ensures the necessary safeguards against arbitrariness of detention".
These are concerns about transparency and accountability. There is proper concern about the need to transpose all that so that it can be implemented and enforced,
"in a way appropriate to the situation in Bulgaria".
In the Romanian document there are similar concerns, and concerns also about corruption, the independence of the judiciary and the need to revise the penal code dealing with "offence against authority" to ensure that it complies with the convention on human rights. Noble Lords will be glad to hear that the Romanian document also requires the necessary steps to implement mutual recognition and eventually the European arrest warrant.

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This judicial programme of reform to meet the acquis is only a small part of an immense burden of new legislation on these candidate countries. They are required to make a general reform of everything, from the law to fiscal policy to fisheries to education. The list is endless, and the judiciary is only one part of it. Does the Bill ensure that being admitted to the EU will not automatically be regarded as having created the right conditions for extradition to those countries? The sheer weight of what has to be done is bound to cause great problems of delivery everywhere. I fear that political correctness will cause governments not quite to like to say that they do not think that the situation is as it should be in that country.
We are going to have to have moral courage. But it seems that we are going to have something in the law that requires us to exert that moral courage. Of course, everything I have quoted on those two countries is true in spades of Turkey.
6.47 p.m.
Baroness Ludford: My Lords, I should first declare an interest as a patron of Fair Trials Abroad and as a Member of the European Parliament—one of the tentacles, I suppose, of the "Brussels octopus" cited by the noble Lord, Lord Pearson, although not, I hope, corrupt.
From these Benches we agree on the need to simplify the present cumbersome and outdated procedures to ensure that fugitive offenders are returned to face trial while at the same time ensuring their right to be properly protected. One important right is that of citizens to live in a safe society free from crime. Liberal Democrats support the principle of the European arrest warrant. The question is whether the Bill strikes the right balance between the needs of law enforcement and the defendant's right. We welcome many of the changes, although my noble friend Lord Goodhart has expressed our reservations.
There are those who make exaggerated protests against the very existence of the European arrest warrant. We are entitled to ask whether they actually want to catch the Ronnie Knights as well as the Ronnie Biggses of this world. I thought that the Tory party used to be the law and order party and the Daily Mail the law and order paper. So it is not appropriate to huff and puff about the prospect of Brits having to face the music abroad. What about football hooligans who kill or injure in drunken brawls? What about the M25 murderer, Kenneth Noyes? Should he still be swanning round the costa del crime? Surely, Eurosceptics want those "cheese-eating surrender monkeys"—to quote the current delightful insult to our French friends—to have to surrender to a judge if necessary.
The fact is that the European arrest warrant is a big step forward in cross-border law enforcement. It is right that in the EU, which is creating an area of freedom, security and justice, we should not allow major criminals to ignore borders in their operations while we let borders impede co-operation.
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One advantage of the EAW is that it works in favour of granting bail for, say, a British defendant charged abroad. A court faced with a defendant from another member state who wants to return home pending trial may be more inclined to grant hail as it will be aware that if the offender fails to return it will be far easier to compel him to do so by issuing an EAW. It may also reduce the tendency to demand large bail bonds. The British plane-spotters in Greece had to put up £9,000 each which they are only just getting back six months after their convictions were quashed. I noted what the noble and learned Lord, Lord Donaldson, said on that.
There are certainly defects in the European arrest warrant—
Lord Lamont of Lerwick: My Lords, if the noble Baroness will allow me to intervene, will she comment on the fairness of the Greek plane-spotters' trial? Is it not the case that although in the end the matter was resolved the Foreign Secretary had to intervene? What sort of justice system is it when a Cabinet Minister has to intervene? How can we possibly have confidence in Greek justice?
Baroness Ludford: My Lords, if the noble Lord will permit me, I shall come on to defendants' rights.
As I say, there are certainly defects in the European arrest warrant. It was too hastily drawn up. The remarks of the noble Viscount, Lord Bledisloe, were correct on that matter. Unfortunately, the Council failed to follow the Commission's proposals, which the European Parliament supported, that rights to legal advice and interpretation should be absolute, and therefore aided or free, rather than in accordance with national law, which leaves a great deal of latitude. I was present at the plane-spotters' appeal in Kalamata. They had to pay themselves for inadequate interpretation. I am also sorry that the Council failed to follow the European Parliament in inserting a reference to the European Convention on Human Rights and full jurisdiction by the European Court of Justice, and that the suggestion for a European habeas corpus did not succeed.
There is great concern at the lack of transparency in the way the Council deals with instruments affecting individual liberties. I was interested in what the noble Lord, Lord Kingsland, said about secrecy and about scrutiny of third pillar measures. In fact, the European Parliament is consulted although we are usually completely ignored. Certainly, the European Parliament will not have influence until it has co-decision rights with the Council.
Scrutiny by the Westminster Parliament is, of course, a national matter. Some national parliaments have more teeth. I listened with interest to what the noble Lord, Lord Pearson, said, but it really is up to this House and another place, with the Government, to change those arrangements. It is nothing that Brussels imposes on us.
The noble Lord, Lord Kingsland, also made interesting remarks about the way in which ECJ scrutiny will come in through the side-door, as it were.

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I would certainly prefer the front door but any step towards full democratic and judicial supervision of EU criminal justice harmonisation is welcome.
I wish to address the way in which the Government propose to implement the European arrest warrant. Their response to the report from the Home Affairs Select Committee in another place was that they are committed to the principle of mutual recognition and determined to play a role in the development of that principle in preference to "full-blown harmonisation". But that is setting up an Aunt Sally. No one is proposing full harmonisation of the criminal justice systems in EU member states, and the Government unwisely feed paranoia when they make such assertions. As the Government well know, the suggestion is only such harmonisation as is necessary to ensure mutual trust in each other's systems—not only that they are efficient in catching criminals but, crucially, free of corruption and robust in guaranteeing fundamental rights and fair trial rights under the ECHR and the Charter of Fundamental Rights of the EU, which I and my party hope becomes legally binding next year as a result of the convention and intergovernmental conference.
The EU must put flesh on the bones of observance of fair trial rights such as legal advice, interpretation, bail, disclosure of evidence and minimum standards of investigation. There needs to be a way for the requested state to monitor the proceedings once transfer has taken place, perhaps with a proactive role for the consular service, and making sure that the justification for extradition for the purposes of conducting a criminal prosecution is not abused by any fishing expeditions. Without effective and transparent protections in place there is a risk of miscarriages of justice and loss of public confidence throughout Europe.
The European arrest warrant is acting, as my group in the European Parliament hoped, as a catalyst for ratcheting up the observance of procedural rights. There is now a Green Paper from the European Commission with the objective of putting in place legally-enforced European standards. I hope that the Government will take the lead and that the Conservative Party, including noble Lords such as the noble Lord, Lord Lamont, will support this work and agree that the European Court of Justice should enforce observance. If, in addition, the European Union signs up to the European Convention on Human Rights and the charter becomes legally enforceable, we will have a much sounder basis for guarantee.
The Government have certainly gold-plated the European arrest warrant. In doing so, they are banking on the fact that most MPs and Peers will not have read the original. Such legislation is usually put through as secondary legislation, if it is debated at all. It receives no publicity. We may not receive much publicity either, but we can try. And the media will always assume the worst of Brussels. You can get away with all kinds of unfair accusations about how Commission bureaucrats are forcing you to do
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something. That will not work this time. Many of us are perfectly well informed on what the European arrest warrant does and does not require.
There is no need to implement it 200 per cent. It does not require the abolition of dual criminality for offences carrying a potential sentence of 12 months; the threshold is three years. I do not understand what has possessed the Government to seek to throw away a perfectly reasonable safeguard unanimously agreed by all our partners. I agree with the noble Lord, Lord Stoddart, on this point. That may be a first for both of us.
In their response to the Home Affairs Select Committee in another place, the Government came up with the weakest argument ever heard. They said that,
"thresholds in extradition have always been based on 12 months and we believe introducing a three year threshold would be a novel departure and could lead to confusion".
I am sure the Government do not think that our judges are too stupid to cope with change and, for a government that pride themselves on their modernisation credentials—a government who castigate the opponents of their public service reforms as dinosaurs—to rely purely on tradition is an odd position to adopt.
I welcome the fact that the Government have done some rethinking. I am glad that they have changed their mind over the blanket waiver of speciality protection, which was not required in the EAW. I am glad that, after all, an exception will be made for political offences, such as when the French refused to extradite David Shayler. The EAW does not require removal of this exception. I am pleased that the Government have been persuaded to change their mind. Article 2(4) of the EAW allows for dual criminality tests to remain for the non-32 offences. We will want to examine carefully whether the Government have taken as much advantage of this freedom as they are able.
My noble friend Lord Goodhart, along with the noble Baroness, Lady Anelay, and other noble Lords, stressed the need to include strict criteria on the face of the Bill for moving countries to Part 1. It is certainly difficult to see how the United States could qualify. The new clause stating that a country which imposes the death penalty cannot be a Part 1 country is very welcome, although it is hard to see how that fits with the presumed agenda of the United States. Are the Government able to give a clear statement that this means that the United States could not be included in Part 1?
The Government have said that the extradition agreement they signed on 31st March with the United States,
"brings the evidential rules for requests from the US into line with those for European countries".
In effect this will remove the requirement for evidence showing a prima facie case in respect of the US, despite the fact that obviously it is not a party to the EC'HR or that it applies those standards.
The case of the Algerian pilot, Lofti Raissi, demonstrates the importance of such protection. An urgent request was made by the US, but despite

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statements to the court there turned out to be no evidence of his being involved in terrorist or any other criminal acts. In the absence of a prima facie requirement, Raissi would probably have been surrendered. I agree with the noble Lord, Lord Stoddart, on the dangers of that.
The Government have said that they would lift the prima facie case requirement for,
"well-established democracies and robust and respected criminal judicial systems".
However, as my noble friend Lord Goodhart pointed out, there is great variation from state to state within the United States. Furthermore, the experience of the military courts at Guantanamo Bay does not inspire confidence. Nor do cases such as that of the British citizen Jackie Elliot in Texas, who was executed despite new DNA evidence, and where the presiding judge himself lobbied the parole board against delaying the execution to hear the new evidence. That was extraordinary.
The European Union and the Government must stop the secrecy and come clean on their agenda regarding extradition with the US. The UK-US agreement signed in March is still not available, as I understand it, and the text of the EU-US agreement is being made confidential. Neither the Westminster nor the European Parliament has the opportunity of proper, open and democratic scrutiny. That has led European committees in both Houses of our Parliament to suspend their work and write to the president of the Council, Greek Prime Minister Simitis.
The EU says that the text is confidential, but it is for governments to decide the Council's transparency rules. Are the Government, who say that they believe in openness, taking a lead in removing the confidentiality gap? Is it not scandalous that the US Senate is examining the text but, on this side of the Atlantic, governments arrogantly exclude parliaments?
Lord Lamont of Lerwick: My Lords, may I remind the noble Baroness that she said that she would answer my question.
Baroness Ludford: My Lords, I said that what we are doing is having a Green Paper, with the prospect of EU-binding law putting flesh on the bones of the rights enumerated in the European Convention on Human Rights. We would rely on EU law, as well as simply our common membership of the ECHR, so that the content of those rights was spelled out in EU law.
In relation to the sum of both the national and the EU-proposed agreements, one of which is signed, we need clarification. In particular, we need it as regards what evidence we would insist on before extradition, how watertight the guarantees are against the death penalty, whether our obligations to surrender war crimes suspects and human rights abusers to the International Criminal Court would be compromised, and whether we would extradite people to be interned without trial in legal limbo in Guantanamo Bay or to face military tribunal.
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The early finding seems to be that the UK Government want the US wish to be put on the same footing as our EU partners as regards ease of extradition to be acknowledged. However, that begs the question whether we can have the necessary degree of trust in the fairness and integrity of their justice systems, as we can have in the guarantees of the European human rights convention in Europe, provided that there is due enforcement of such rights.
On the ICC, surely if there is to be any exemption from speciality protection, it should first and foremost focus on offences against human rights so serious that they are within the scope of the ICC. We also need an amendment to Part 2 to provide that extradition should be banned if it appears that it would be unjust or oppressive to return the person. I hope that such an amendment will be made. That would reflect the Extradition Act 1989. It surely is a traditional practice to which we should stick.
Finally, I would like to ask another question in relation to the United States. It is on the fate of detainees from, say, Afghanistan or Iraq who might be transferred to Guantanamo Bay. If they are simply transferred, will there be any safeguards by analogy with extradition law as though they had been extradited?
We on these Benches welcome both the updating of extradition law and the principles of the EAW, but there is scope for greater substance to the safeguards, and no reason why we should throw away options that the framework decision gives. I urge the Government—and the Conservatives, if I may be so bold—to support vigorously an EU civil liberties programme to complement and balance the law enforcement programme. Then we really would have an area of freedom, security and justice.
7.4 p.m.
Lord Hodgson of Astley Abbotts: My Lords, we approach the end of a fascinating debate. The House has had the privilege of hearing speeches of great experience, great vigour and, at times, great passion. I join other noble Lords in saying that it was a particular pleasure to hear the contribution from my noble friend Lord Kingsland—not just any old contribution but one made with his old verve, clarity, and forensic skills. I hope that I misheard him when I thought he said that he would not be available for the Committee stage. That would be a great pity.
Why has the Bill aroused such interest this afternoon? In my view, it is because the proposals in it stand astride two issues that dominate the current political landscape. The first is the long-running debate over the ultimate shape of the European Union and the nature of this country's relationship with it. The second is more recent: the emergence of the shadow of world terrorism. The impact of that—especially the twin towers outrage—was graphically underlined in the speeches of the noble Lord, Lord Stoddart of Swindon, and the noble Viscount, Lord Bledisloe.

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Like many other noble Lords, I can begin from a point of agreement with the Government's proposals. There is a general acceptance, which we on these Benches share, that our extradition procedures are in need of updating. The present arrangements offer the malevolent too many opportunities to take unreasonable advantage of the possible delays built into the present system.
However, it must be pointed out that those delays cannot be laid entirely at the door of the legal and judicial system. In a powerful Second Reading speech made in another place, Mr John Maples, the Member for Stratford-on-Avon. referred to the delays caused not by the courts or the legal system but by the unwillingness of Ministers to exercise their powers of decision. I quote from col. 75 of Hansard of' 9th December last year. Mr Maples said:
"I came to this issue after 11 September when I discovered that some suspects who were wanted in the United States and France for terrorist offences had been in this country fighting extradition for a very long time … There were four of them, but I was horrified to find on checking the matter at the end of last week that they are all still here. Three people are wanted for the African embassy bombings in August 1998 and are still here four years later. It took the courts a long time to deal with their cases, but the House of Lords dismissed all their appeals on 17 December last year"—
that is 2001, not 2002; this was said in December 2002—
"Nearly a year has passed, yet the Home Secretary has failed to decide whether to deport them. He can hardly blame the state of current legislation when he cannot make decisions in a year".—[Official Report, Commons; 9/12/02; cols. 75–76.]
I shall be very interested to hear from the Minister, when he comes to reply, whether these cases, which, at the time of the Second Reading on 9th December 2002, had already been on the Minister's desk for over 12 months, have yet been determined.
Further, I was interested to note in the pile of evidence that we have all received about these proposals that, while it may have taken on average 12 months for a person to be extradited from the United Kingdom—a process which the Government consider unnecessarily slow and cumbersome—the reverse process of extradition to the United Kingdom takes 10 months. There is a difference but hardly a hugely significant one.
Notwithstanding that, on this side of the House we accept that there is a need to respond specifically to the spread of world-wide terrorism. As my noble friend Lady Anelay pointed out in her speech, we do not believe that Part 1 of the Bill is necessary at all. The proposals in Part 2 are perfectly adequate. But if the Government were, in their infinite wisdom, to restrict their efforts to the reform of extradition in respect of category 1 territories to those suspected of terrorist offences, then I believe there would be some sympathy on these Benches for that approach.
But, as many noble Lords have pointed out, the reality is that the Government have not been candid, or at least sufficiently candid, about the strategic objectives behind these proposals. A key issue that the Government must answer, and which we shall wish to probe in Committee, is whether the purpose of this
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legislation is co-operation or, in fact, harmonisation. We are debating what is titled the "Extradition Bill". As, again, many noble Lords have said, it implements, inter alia, the provisions of the European arrest warrant. Paragraph 5 of the preamble to the framework decision reads as follows:
"The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities".
Co-operation or harmonisation? And perhaps if the Government were to be really open about their plans, they should re-title the Bill the "Surrender and Extradition Bill".
As regards category 1 territories, our main concerns about the Bill can be summarised as follows: we are concerned about extent and process. As regards category 2 territories and extradition to the United Kingdom, our worries are perhaps less fundamental. But as my noble friend Lady Anelay pointed out, we have to be aware that large chunks of the Bill have reached this House with, at best, a low level of parliamentary scrutiny.
For the Bill as a whole, our concerns are about, first, the future role of the UK Parliament in monitoring this legislation; and, secondly, about proportionality. What is the balance being struck between safeguards surrendered and advantages gained?
Let me deal with those concerns in order. First, the extent of the category 1 territories. We shall want the Government to be clear about the criteria for countries to be included in categories 1 or 2. We find it extraordinary that there is to be no effective parliamentary scrutiny of any future changes made to the list of countries included in the two categories. Therefore, Clause 210 deserves a careful discussion.
In the Second Reading debate, the Minister, Mr John Denham, attempted to deflect concern on that point by saying:
"All the states that we are talking about are mature democracies and ECHR signatories".—[Official Report, Commons, 9/12/02; col. 45.]
But that is not the point. First, with the enlargement of the EU we will have partners who are not necessarily mature democracies and whose legal systems are relatively new. Secondly, there is nothing in the Bill to stop a future government adding other countries to the category 1 list.
Further, while the Government have claimed that being a signatory to the ECHR is an effective safety net, the drafting of the Bill belies this. Otherwise, why would we need Clauses 11, 12 and 13, or, most significant of all, Clause 21 on human rights? The second point as regards category 1 territories is process. We shall wish to examine in Committee the issues of dual criminality; of specialty; of availability of translators and legal aid; of presumption of innocence; and of double jeopardy. The latter may require particular investigation, given the Government's proposals in the Criminal Justice Bill.
There are also a number of other broader topics on which we need to tease out the Government's thinking. The first is the way in which the Government envisage

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the interplay between the different judicial approaches of many continental European countries and that of the United Kingdom—characterised as an investigative as opposed to an adversarial system.
That is not to say that one system is superior or inferior to another; just that systems are different and the application of the two systems within a single extradition law poses particular dangers and questions that the Government need to answer. I appreciate, as the Minister pointed out in his opening remarks, that at the Report stage in another place clarification was given. But, as my noble friend Lord Lamont made clear, we still have some way to go on this issue.
Secondly, as my noble friend Lord Carlisle of Bucklow stated, the Government have to explain why, given that the framework directive applies only to offences carrying three-year goal sentences, the United Kingdom has instead adopted a 12-month period.
In replying to accusations of "gold plating" at the Committee stage in another place—a topic raised today by the noble Baroness, Lady Ludford—the only answer that the Minister, Mr Bob Ainsworth, could produce was that most of our EU partners have lower sentencing thresholds, thus equalising the position. No evidence for that assertion was produced. Therefore, Clauses 63 and 64 are likely to detain us for some time.
However, Clause 65 and its potential list of offences goes to the heart of our concerns about process. It is not a clearly defined list. Some of the crimes listed are not crimes as such in the United Kingdom and, last but least, it is a list capable of being amended without proper parliamentary scrutiny.
Finally, I turn to proportionality. What do we gain and what do we lose if these proposals are enacted? As the Minister accepted in his opening speech, there is a balance to be struck. Are we striking the right balance? On Report in another place, we recognise that the Government made an effort to respond to some of the criticisms that had been made and we are grateful to them for that. But as regards category 1 countries in particular, there can be little argument that the Bill represents a reduction in the safeguards available to the citizens of this country. The eloquent and informed speech from the noble and learned Lord, Lord Donaldson, put more clearly the dangers that we are running.
Ministers are fond of producing lurid examples. There are always three. The Minister produced the first two: Mr R and the race issue, and paedophiles—this time from Denmark. If the Minister had gone on to produce the third example, which is always produced in the briefing papers, it would be a drug trafficker who was funding terrorist networks. They produce these very extreme examples to make the case for the wider approach that they are seeking to adopt.
No one disagrees that such people are evil. No one doubts that they should be brought to trial as quickly as possible and that unnecessary delays should not be available to them. The noble Lord, Lord Corbett of Castle Vale, and the noble Baroness, Lady Gibson of Market Rasen, should be clear that we on these
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Benches are far from unconcerned about the position of the victim. We are very concerned about it. That is why in broad principle these Benches accept the new proposals for extradition to category 2 territories contained in Part 2 of the Bill. But the reality is that there is not a huge volume of extradition cases. To buttress their position, Ministers in another place very cleverly made the point that over the past 30 years extradition requests have gone up by 400 pet cent. The reality is that this is one of those cases where percentages are unhelpful and absolute numbers are a more accurate reflection.
According to Appendix E on The Law on Extradition—a Review, published in March 2001, in 1970 there were 19 requests for extradition and 12 completed extraditions. In 2000 there were 78 requests and 47 completed extraditions. With the greatest respect to the noble Lord, Lord Goodhart, I did not follow the logic of his assertion that because that number of cases is low there must automatically, therefore, be hundreds of cases out there that are not being followed up.
No one is suggesting that those 47 cases or 78 cases should be treated lightly, but it does mean that in order to speed up the extradition process because of an increase of 59 cases per annum taking place over 30 years, the Government are proposing to reduce the civil liberty safeguards for all the 55 million citizens of the United Kingdom. That is what my noble friend called "collateral damage". It is not something to be done lightly. Although we understand the principles behind the Bill, we shall need to examine very carefully the balance being struck in the Bill when we reach Committee stage.
7.18 p.m.
Lord Filkin: My Lords, I am pleased to join many other speakers in saying what a pleasure it is to see the noble Lord, Lord Kingsland, back in his place. I say that even from the Government Benches, which may surprise some. He is not an easy advocate. I experienced the force of his intellect and assiduity throughout the Nationality, Immigration and Asylum Bill. I am also genuinely sorry that he will not be with us in Committee. That intellect and probing makes for better legislation. We do not always agree, but that is what this scrutiny is about and that is why he contributes greatly to it.
It has been a useful Second Reading debate. We have ranged between issues of high principle and important detail as is often and rightly the way. In many ways it sets out the broad terrain of issues which we shall need to examine in considerably greater detail at subsequent stages of the Bill. Without being utterly tedious to the House, it will not be possible for me to answer every point raised in a debate of this length. I shall undertake my usual practice of reading carefully what noble Lords have said. Often it is only when one reads Hansard that one captures the full weight of what has been advanced. With my officials I shall seek to write to every noble Lord with a fuller response, or a response if I have not covered the point at all, on the

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issues raised. I shall seek to do that before the first day of Committee because I think the House is entitled to that.
As ever, the noble Baroness, Lady Anelay, made a strong challenge to the Government. I was slightly surprised that she advanced the argument that Part 1 should be removed from the Bill. I shall not go into detail, but by doing so we would deny the benefits that British citizens and British justice would get from Part 1. I shall not repeat what I said earlier but those benefits are substantial. Later, in her measured way. she signalled that if it was not possible to remove Part 1, she would look to where amendments could be made. That is the spirit in which we normally enjoy working with her on these measures.
The noble Baroness mentioned the offer I made to her and to the noble Baroness, Lady Carnegy of Lour, who does a first-class job on scrutinising from a Scottish perspective. Of course, that invitation will be extended to the Liberal Democrat Benches so that they, too, can be party to such a process.
Perhaps I should mention, because it has not been mentioned a great deal so far, the nature of what we are usually talking about in these issues; namely, the type of the offences and why that is germane to our discussions. On looking at the main offences by category of current cases in the system—either incoming cases to us from other European countries or outgoing cases from us to other European member countries—drugs criminality is the greatest category by far. I do not need to labour the point about the seriousness of international drugs trafficking to the quality and stability of our own domestic society and other countries. Theft tends to be the second highest offence and murder or attempted murder is the third.
These are significant issues of criminality, which is why one can expect people to do everything they possibly can to avoid extradition, but why it is crucial that there is an effective system of them being brought to justice either in another European Union country or in this country. If they are not brought to justice or brought to trial, our societies are worse as a consequence.
The noble Baroness, Lady Anelay, asked why the list of the 32 offences is not on the face of the Bill and whether member states can add to the list. Clause 65 of the Extradition Bill makes it clear that the list is to be found in the framework decision. I do not accept that there is any ambiguity about that; the linkage is transparent. Although there are no plans to amend the list, and it requires unanimous agreement of all EU member states, we need to retain the flexibility to respond to changes.
Individual member states cannot unilaterally add to the list. If any EU country introduces a new domestic offence, it would still need to fall under one of the categories in the list for the dual criminality requirement to be disapplied. The list can be amended only by unanimous decision in council.
We had a short discussion about 25 per cent of clauses being scrutinised. That probably was dealt with, but, clearly, the fact that the majority of clauses
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were not subject to scrutiny does not imply that there was a failure of scrutiny. One does not go through every clause. It was because the Opposition did not table any amendments or oppose the Motion that they should stand part of the Bill. I do not criticise them for doing so for the reason that I have given. But. neither would I think it fair to infer that this meant that the Bill had not been scrutinised.
The noble Baroness, Lady Anelay, asked why we need Part 1. Why cannot we just use the EAW for all countries'? The difference between the EU and the rest of the world is that there is total free movement within the European Union and it has been a great advantage to the citizens of Europe. But it also makes it much easier for criminals to move around Europe.
Whether the EAW will be used for interrogation or evidence gathering is an important question. The Bill makes it clear that extradition is possible only for the purpose of putting a person on trial. That is a change from existing legislation which is silent on this point. If countries with the inquisitorial system want to extradite people for the purpose of interrogation, that ought to be a problem at the moment, yet difficulties of this kind have not apparently arisen. I am sure that we shall return to these issues in Committee, as, no doubt, is right and proper.
A number of noble Lords, including the noble Lords, Lord Goodhart, Lord Carlisle and Lord Stoddart, and the noble Baroness, Lady Ludford, asked whether it is sensible, as the Government intend, to go to a 12-month limit rather than a three year one. Perhaps I may.set out the main argument at this point. I am sure that this will not completely resolve the issue and that we shall come hack to it later.
First, all current extradition arrangements are based on a 12-month threshold. Within the 32 categories of offences a large number of serious UK crimes have a sentence threshold of between one and three years. These include racially aggravated assault, possession of a sharp blade or weapons and unlawful intercourse with a girl under the age of 16. Other countries have similar offences and we would want these to have the full benefit of the EAW regime if it were possible to do so. In other words, there are arguments in practice as to why this is beneficial.
There is a further point: UK sentencing thresholds tend to be higher than those of the EU, and we would not want individuals to escape prosecution for these offences because our threshold is too high. If the Bill were changed to reimpose dual criminality for offences in the one to three-year category, people would still ultimately be extradited but only after considerable argument and delay. So that does not seem to us to comply with the spirit of what we are seeking to do, which is to improve justice and fair trials in such cases. We reaffirm that no one will be extradited for conduct which occurs here but is not contrary to UK law. We will come back to these matters.
The noble Baroness, Lady Anelay, also asked about the negative resolution for designated Part 1 countries by order. Under the current legislation, there is no parliamentary scrutiny of the vast majority of

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designation orders. The sole exception is where such an order removes the requirement to provide prima facie evidence. We are therefore increasing the level of scrutiny by introducing the negative resolution across the board. The Minister in another place, my honourable friend Bob Ainsworth, agrees that we would consider introducing the affirmative resolution procedure if a very strong case for doing so were to be made. So far we have not been persuaded that such a case has been made but, as ever, I have signalled that our ears are open, which does not mean we are persuaded, or even persuadable.
The noble Lord, Lord Goodhart, asked whether the appeal against the district judge's decision to the High Court will be heard at the same time as an appeal against the decision of the Secretary of State. If there is an appeal against the judge's decision at the extradition hearing, the appeal must not be heard until after the Secretary of State has made his decision. That is contained in Clause 101(5). We envisage, however, that if there is also an appeal against the Secretary of State's decision, the two appeals will be listed together which is, I think, what the noble Lord wanted to hear.
The noble Lord was the first of a number of speakers to raise issues about the integrity of the justice system of other EU member states or accession states. I cannot pretend that I can dispose of this issue in a few short words. We will, quite rightly, explore it in some detail later in the Bill's proceedings. However, I have heard some very interesting arguments from all Benches that we should stop doing what we propose until such time as we effectively have the harmonisation of criminal procedures and/or a system that almost guarantees that we have nearly comparable standards to our own on bail, procedure or what-have-you.
This is a classic situation of the good being the enemy of the best. I remind the House that we currently extradite to EU member states and to accession states. There is not perfection in any other EU state; there is not perfection in the British state. Therefore, if I took the thrust of the argument that we should stop doing anything, we would essentially put the benefits of the individual who is accused—and I remind your Lordships of the severity of the offences we are in general talking about—at a much higher level than the interest of the victim. In other words, we would virtually cease to have any system of effective extradition until we had reached this Valhalla, these sunny uplands, where all legal systems were equally good and equally perfect. I do not think that is justice, nor do I think it is practical politics. That does not mean that we should give up on the attempt to work towards improvement of our own judicial procedural systems and those of other countries. But I do not think it is valid to imply that we should not extradite until we have that in place.
I shall write to the noble Lord, Lord Goodhart, on Eurobail, as it will take too long to cover it now.
I had an interesting session of scrutiny before EU Sub-Committee E yesterday on the framework decision on racism and xenophobia. I shall return to the question
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later in responding to some of the questions asked by the noble Lord, Lord Kingsland, on scrutiny. The measure appears to have run into the sand. I say that in sorrow, because it had some benefits, but it appears that there is such a fundamental logjam on it that the Greeks have not decided that they will proceed with it under their presidency. It is open to question whether the Italians will have it as a high priority. In that sense, it is not an imminent issue.
The noble and learned Lord, Lord Donaldson of Lymington, asked whether there was any system of checking whether the person has committed the offence of which he was accused. In short, guilt or innocence is the matter for the court at the trial, not the extradition hearing. We have not asked the Council of Europe countries to provide evidence of cases against a person since 1991. The measure was introduced by the then Conservative government, and we have not taken the view that they were wrong to do so nor that evidence has since proved that the measure has been a failure.
The noble and learned Lord also said that if a serving prisoner was extradited, the time spent abroad should not count against his UK sentence. If a UK prisoner was extradited at the end of his UK sentence, he would not expect the sentence in court in another country to take account of his UK sentence imposed for an entirely different reason. Exactly the same principle should apply if a person is temporarily extradited to stand trial in the course of his sentence. By the shake of his head, I see that I have not yet persuaded the noble and learned Lord. I shall try to put it in writing to him. We may make better progress that way.
The noble Lord, Lord Clinton-Davis, as is his wont, both said some supportive things to the Government and made some challenges. I shall not answer all his points now, if he will bear with me, but I was grateful for his acknowledgement that we had got a difficult balance broadly right, while not saying that we had achieved perfection.
The comments made by the noble Lord, Lord Lamont, contained much thoughtful challenge. I have already given my initial response to some of his remarks in my comments on other points. If I do not repeat those comments or go into detail now, I hope that he will not treat that as a discourtesy. I intend to read what he said carefully, as I know the passion and concern that he feels on this measure. He is entitled to the fullest consideration of that, both during Committee stage and in correspondence before it. I own the seriousness of it, but I hope that he will forgive me for not going into detail now.
I should refer briefly to some of the processes that are in place to ensure that the accession states come up to the decent standard that we expect from them in terms of judicial systems and procedures. We already have extradition arrangements with them—that is the first point. They have all incorporated ECHR into their laws, and there has been a generous package of support of money and practical help to strengthen the administrative and judicial capacity of their systems. It

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is good and right that the incentive of joining the European Union is pushing forward justice in those countries as a consequence.
There is a monitoring process that requires candidate countries to report on progress. If candidates demonstrate serious flaws in their ability to implement the EAW or any measure, it will be possible to prevent them from using the EAW. The JHA safeguard can also be triggered by the Commission or a member state, either before membership or up to three years afterward, saying that they are not fit in that country to operate EAW. We will come back to that later, I am sure.
The noble Lord, Lord Lamont, also raised the issue of investigating magistrates and the presumption of innocence. That is such a detailed and technical issue, but I shall make one short positioning comment. Our view is that other EU countries do not operate on the basis of presumption of innocence. They are countries with which we have extradition relations, and it has not given rise to problems. No one can be convicted or punished for a crime in another EU member state unless they have been found guilty in a court of law. Additionally, the presumption of innocence is guaranteed in the ECHR, to which all EU countries have signed up. I do not expect the noble Lord to be satisfied with that level of generality, but we will go into the question later in more detail.
We spoke about the Greek plane-spotters, as it was inevitable that we should do. Of course, on one level the issue was serious, as seen by the Greeks. They believed that espionage was taking place in their state. We may have thought that they were wrong or misguided, but one would be foolish not to think that a country might not perceive that as a potentially serious issue. I will not go into the detail. The case was heard swiftly, the defendants were granted bail during the process and were even allowed to return to the UK on the bail process. So it was not all sin and wickedness, although I would not claim that it was perfect.
The noble Lord, Lord Kingsland, made a fascinating speech, which linked the Bill and the nature of third pillar legislation. The noble Baroness, Lady Ludford, also referred to that. As one who is privileged to take part in some of that legislation in the Justice and Home Affairs Council and to be part of the process of scrutiny here, I believe that those are good points. Next week, a parliamentary process will start looking at the current nature of parliamentary scrutiny. I will not therefore go into more detail now. I will offer just one short anecdote of my own experience of that.
The system, as we know, works the other way round. This House and another place, if they are working well, seek to scrutinise the draft documents that must be deposited at all stages before decisions are made. The Government treat that process seriously in terms of deposition and by seeking to try through correspondence and interrogation to respond to those questions.
My example is that yesterday I was up before—if that is the right expression—the noble Lords, Lord Neill and Lord Lester, and the noble and
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learned Lord, Lord Scott, on the racism and xenophobia framework agreement. I signalled that that was pretty well dormant at this stage. I invite Members of the House to have a look at that; it involved absolutely first-class parliamentary scrutiny, as one would expect from those noble Lords. They also raised points with us that made us think that we should go away to consider the issue and come back to them. In other words, they did not merely say, "Go away. This is our answer". A proper process of scrutiny is involved. We cannot take the position that the process of pre-legislative scrutiny—that is essentially what JHA legislation is—cannot deliver results. The noble Baroness, Lady Ludford, is right: we seek to make the process work as well as we can and do not say, "It is all hopeless"—not that that was being advanced.
The noble Lord, Lord Kingsland, asked why we did not press for the inclusion of an equivalent to Clause 21 in the framework decision. The framework decision includes a provision on human rights—paragraph 12 of the preamble sets that out. I shall later come back to the harmonisation of judicial procedures. It is easy, in a sense, to say that that is attractive. There are serious risks and challenges in so doing. We have certain relevant judicial practices in this country, including trial by jury and how bail operates in our country. It is not in our view automatic that harmonisation of our criminal procedures necessarily leads to perfection. I give notice that we shall return to those issues in much more detail later.
Lord Kingsland: My Lords, I am grateful to the noble Lord for giving way. I hope that he did not conclude from my remarks that I was recommending the harmonisation of criminal procedure. I was saying that the Government cannot on the one hand pray support from the doctrine of mutual recognition and on the other hand ignore the necessary harmonisation dimension that goes with it.
Lord Filkin: My Lords, I thank the noble Lord. As ever, I shall reflect again on that matter. Noble Lords will be relieved to hear that I am being encouraged to be brief.
A noble Lord: My Lords, it is fascinating; carry on.
Lord Filkin: My Lords, I shall ignore barracking from behind at this point in the proceedings.
The noble Lord, Lord Carlisle, asked about dual criminality and retrospection. No, the European arrest warrant and the removal of dual criminality will apply to new cases. The Bill allows for existing cases that are already in the system to be transferred to the new arrangements. It is our intention that that power should be used only very sparingly where that is in the interests of justice. He also asked whether the UK is the only country intending to introduce that into law. No, everyone else has to do so by 1st January 2004. By that date, all countries are obliged to encapsulate it. There is little likelihood that we will be early. Given the timetable for parliamentary legislation, we will make the deadline but we are hardly likely to be a front runner or in advance of most of the pack.

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The noble Lord, Lord Stoddart, asked some important questions. He asked about foreign police officers. I repeat categorically that foreign police officers will not be able to arrest under the EAW in the UK. I believe that that was the categoric assurance for which he was looking.
I have spoken to the point regarding three years and one year, a matter to which we shall return. I hear the warning that a large number of amendments will be tabled, as I would expect.
The noble Lord, Lord Pearson of Rannoch, asked me three difficult questions before breakfast. The first was whether the framework decision was taken on an "A" point? The answer is, "Yes, it was". There is nothing malign in that. In essence, when a negotiation is completed—in other words, there is agreement between the all Ministers of the JHA—it then goes back on to the agenda for the formal "Yes" decision. That does not mean that there has not been an enormous amount of pre-scrutiny, argument and debate, as the noble Lord well knows.
The noble Lord also asked about terrorism. It has never been the Government's view that the FD, the EAW and the Extradition Bill deal solely with terrorism. We believe that the Bill will speed up the extradition process. That will apply as much to serious criminals as it will to terrorists. He also asked whether it would be for the issuing magistrate to determine whether the offence constitutes racism and xenophobia. We have already explained that this is a category rather than a specific offence. It will be for the requesting state to certify that a particular offence falls within the relevant category, just as when we make an outgoing request we would decide whether the offence for which extradition is sought falls within whatever the list offence is.
The noble Lord finally asked under which treaty the framework decision was agreed. It was agreed under the Treaty of the European Union. So it is strictly correct that there will be no financial penalties for noncompliance, but there would of course be the significant consequence that none of the reciprocal benefits would incur either. As I have said previously, the Government believe that that matters to British citizens and to justice.
The noble Viscount, Lord Bledisloe, spoke about the designation of countries under category 1. We intend to designate all EU countries plus Norway and Iceland, all of which will operate the EAW from 1st January or when they join the EU. Any designation can be revoked by Parliament, which I think was the answer he sought. We would consider so proposing if the country seemed to us to have fundamentally and systematically breached ECHR. So the power is with Parliament to reverse if it thinks that is necessary. The framework decision specifically allows for that.
The noble Viscount, Lord Bledisloe, also asked about conduct in the United Kingdom. He gave an example of a magazine published in the UK, which was then seen as creating an offence elsewhere. I said yesterday at a meeting of Sub-Committee E of the
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European Union that we intend to bring forward amendments in Committee that will provide that should any part of the conduct in respect of which extradition is sought occur in the United Kingdom, we will be able to extradite only if a dual criminality requirement is satisfied. That will mean that for someone in the circumstances described by the noble Lord extradition would not be possible, because if the magazine was not offending UK law, dual criminality would not kick in and therefore the offence would not be extraditable.
I regret that I shall not be able to answer all the points that I wanted to. We have talked about gold-plating. The noble Baroness, Lady Park, talked about Bulgaria and Romania. They clearly are not accession countries as yet, but I take her point. If candidate countries demonstrate serious flaws in their ability to implement provisions, it would be possible to prevent them using the EAW. As I have also signalled, it would be possible to de-designate, which I think was the assurance that the noble Baroness sought.
On the question asked by the noble Baroness, Lady Ludford, regarding the USA, we have no intention to put the USA in Part 1. In fact, Clause 1(3) now makes that impossible. She also asked about Guantanamo Bay. No one has been transferred or extradited from the UK to Guantanamo Bay. If we received a request under the Bill for someone's extradition to a detention camp, it is likely that a judge would consider under Clause 21 whether he felt that that met ECHR provisions. I say no more on that subject.
I have not had time to cover everything. I think that this will be a very important parliamentary process. I genuinely look forward to the spirit that we usually have in the House regarding probing issues in Committee. I note that we have a considerable number of days for so doing, which is right and proper. Therefore, I look forward to returning to these issues in more detail subsequently.
On Question, Bill read a second time.

Motor Neurone Disease
7.44 p.m.
Baroness Noakes Baroness Noakes rose to ask Her Majesty's Government whether the services available to patients with motor neurone disease are adequate.
The noble Baroness said: My Lords, my Question asks the Government whether services to patients with motor neurone disease are adequate. I shall lay my cards on the table now and say that I should be astonished if the Minister could say that those services are adequate; I hope to be told how and when they will improve.
I declare that I am associated with the All-Party Parliamentary Group on Motor Neurone Disease as its treasurer. I place on record my appreciation for the briefings that I have received from the Motor Neurone

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Association. However, I stress that the initiative for bringing the debate before your Lordships' House is entirely my own.
Motor neurone disease is not especially common. At any one time, about 5,000 people are suffering from it; it has an incidence rate of about one in 50,000. It is therefore likely that many people will never be touched directly or indirectly by the disease, but those whose lives have been touched by it are profoundly affected. Last week, I visited my local branch of the Motor Neurone Disease Association in Kent. It was full of people from all walks of life who had suffered the loss of a partner or parent but who were united in their determination to raise funds to fight this dreadful disease.
I am fortunate in not having a loss within my family, but I clearly recall the first time motor neurone disease came onto my radar screen. It was about 20 years ago when I was working alongside a remarkable man called Sir Ian Trethowan. He had been a distinguished director-general of the BBC and, in semi-retirement, he was chairman of the Horserace Betting Levy Board, which combined his considerable charm and diplomatic skills with his love of horse racing—a love that we shared.
He was an inspirational man in many ways. But one day motor neurone disease struck him. Within a matter of months he was in a wheelchair, and a few months after that he was dead. I still recall the shock of seeing the rapidity and violence with which the disease attacked him. We should be in no doubt that it is a vicious disease.
Motor neurone disease is a progressive and fatal disease that affects the nervous system. It attacks the nerve cells, or motor neurones, which send messages from the brain to the muscles. As those motor neurones gradually die, the muscles stop working. Eventually, patients cannot walk, talk or feed themselves. It is a particularly cruel disease because the minds and senses of victims are not affected. They feel pain. They know what is happening to their bodies but they also know that there is nothing they can do about it. Once they know that they have got motor neurone disease they also know that their remaining life is short. Half of MND sufferers live only 14 months after diagnosis and that life is full of difficulties.
I want to speak about several different aspects of services for MND patients and I shall start with diagnosis. As I mentioned, life expectancy, after diagnosis, is short, but the average time to diagnosis is 17 months. That means that opportunities can be lost to maximise the quality and extent of remaining life. There is evidence that the earlier treatment is commenced, the greater the impact it has, both physiologically and psychologically.
So what are the barriers to early diagnosis? The first barrier is general practitioner knowledge. General practitioners must have the knowledge and skills to identify the early signs of motor neurone disease so that they can make the correct referrals. The Motor Neurone Disease Association found that more than half of people with MND were initially referred to
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fields other than neurology before obtaining a diagnosis. That contributes to the delay. I am aware that it is a very difficult area because the average GP may see only one motor neurone disease sufferer in his whole career. But the disease is one of a group of serious neurological conditions to which GPs must he alert.
Once a GP decides that his patient should be referred to a neurologist, the next barrier is a shortage of neurological specialists. In this country, we have only six neurologists per million of the population. We fall far behind our European counterparts. Germany has double the figure at 12 per million; the Netherlands has 33 per million; and Italy has 71 per million. We do not compare well.
My questions to the Minister are whether the Government are satisfied with the neurological content of GP training and with the numbers of specialist neurologists. If not—and I hope that the Minister will not say that the Government are satisfied—what practical steps are being taken?
OK, that is the hurdle of diagnosis out of the way. The next problem that an MND patient will face is ongoing service provision. It is hugely complex because of the many different services needed. A patient needs help from a wide range of health and social care professionals, such as occupational therapists, physiotherapists, pharmacists, social care workers and specialist doctors and nurses. There are two important points in that respect. First, the services must be co-ordinated across the organisational boundaries of health, housing, social care and benefits systems. Secondly, the services must be timely.
MND patients never become expert patients because their disease progresses so rapidly that it always overtakes the learning that they have made. Someone must organise their care for them to ensure that the right interventions are made and the right support is available. A recent survey showed that only 55 per cent of people with MND are linked with a specialist MND team after diagnosis—that is, nearly half of all patients lose out. I cannot stress enough the timeliness point. There are many instances, for example, of specialised equipment arriving after a patient has lost the ability to use it or even after his death.
Last summer, the All-Party Parliamentary Group on Motor Neurone Disease heard first hand from a brave man called Andy Fairbrother about the difficulties that he had experienced. Andy lost his job and his wife after he was diagnosed as having motor neurone disease. He had to move into a specially adapted flat but failed on several attempts to get a disabled facilities grant to furnish the flat. As a consequence, his flat lacked basics such as carpets and a washing machine. He had difficulty obtaining disability living allowance. He was constantly told that funding prevented him from getting adequate professional and carer support. He felt that the stress of coping with those difficulties accelerated the progression of the disease. Andy died last autumn.
Does the Minister agree with me that much remains to be done to ensure that MND patients receive integrated and co-ordinated services to match their needs and the progression of the disease—above all, on a timely basis? What do the Government plan to do to ensure that the basic need for co-ordinated and timely services will be universally met?
Some clinical interventions have a transforming effect on MND patients' lives. Given the low life expectancy of diagnosed MND patients, the extra few months that the drug Riluzole provides, now that NICE has recommended its use, are very welcome. But some clinical interventions are not so widely available. The loss of muscle power leads many MND sufferers to experience difficulty in swallowing and chewing. In turn, that leads to malnutrition. There are techniques of percutaneous endoscopic gastrostomy or radiologically inserted gastrostomy that can transform the nutritional intake of patients.
Another effect of the loss of muscle power is an inability to maintain sufficient oxygen intake. That results in sleep disturbance at night, followed by fatigue and/or headaches during the day. There is a remedy in the form of non-invasive positive pressure ventilation—NIPPY—that supports breathing at night. It allows oxygen intake, so that, for the MND sufferer, the following day is largely free of headaches and fatigue.
Nutritional support and respiratory support have dramatic effects on the quality of life and can extend survival, but they are not available uniformly. In fact, only about 5 per cent of MND sufferers have access to NIPPY respiratory support. Does the Minister agree that all patients with MND should be offered those interventions at the appropriate time? How will the Government ensure that it can be done?
All MND patients need carers and become increasingly dependent on them as the disease progresses. Much of the burden of coping with the complex needs of MND patients falls on informal carers who themselves need to be supported. There are many difficulties with the availability of respite care. A survey by the Motor Neurone Disease Association showed that nearly 75 per cent of carers had not even been offered respite care. I know that the Government have a national carers strategy, but it has not had much impact on MND patients and their carers. The carers strategy was long on promises, but they were not bankable by carers. Funding shortages are usually given as the reason for the unavailability of those services. Will the Government commit to achieving real improvements for the carers of MN D patients and ensuring that the funding exists?
I expect to hear from the Minister about the proposed national service framework for long-term conditions. She may even suggest that all the problems will be solved by it. The first thing to mention about the framework is the length of time that it is taking. It was first announced in February 2001, and it took about 20 months to get to the stage of setting up an external reference group. Even when it is finished, it
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may take until around 2005 to start implementation and, perhaps, another 10 years to implement. I am sure that I need not remind the Minister that those timescales are beyond the lifespan and, hence, the comprehension of MND sufferers. I hope that she will not say that there will be no improvement in services to patients or carers until we have seen the outcome of the national service framework.
Apart from the timing of the framework, there are concerns about whether the NSF, when it appears, will offer sufficient hope for MND patients. The working groups have a wide remit, and it could be easy for the relatively small numbers of MND patients to be sidelined. Their needs derive particularly from a rapidity of progression that is not characteristic of other neurological conditions. There is a fear that MND will be submerged below the generic needs of people with other conditions.
There is also a specific concern about the Government's statement that the NSF will focus on people of working age. The onset of MND usually affects people over 55, and, whatever the age of onset, MND sufferers find that they have to cease work after a while. Will the Minister confirm that the needs of all MND sufferers, which are fundamentally about the quality of their remaining short life rather than the ability to work, will be covered by the NSF?
I could have covered other issues in this debate such as the need for research and the way in which the benefit system works. I could even haveo referred to the territory covered by the assisted dying Bill promoted by the noble Lord, Lord Joffe, which will have its Second Reading in about a month. However, I hope that I have conveyed something of the seriousness of the issue facing motor neurone disease sufferers. I look forward to the debate and to the Minister's response.
8 p.m.
Lord MacKenzie of Culkein: My Lords, we should be most grateful to the noble Baroness, Lady Noakes, for tabling this Unstarred Question on this most important matter. If I repeat some of what she said, I hope that it will be to give greater emphasis to it. I should perhaps declare some interests. First, I have a very close personal friend who has motor neurone disease. Secondly, I, too, am associated with the All-Parliamentary Group on Motor Neurone Disease. Thirdly, as a nurse, I have a continuing interest in these matters. I have spoken from these Benches before in support of stem cell research, which may open up the possibility for treatment for at least some of these neurological conditions.
The concept of a national service framework on long-term conditions is much to be welcomed. However, like the noble Baroness, Lady Noakes, I think that it is taking an inordinately long time. One may ask, too, why motor neurone disease should be singled out from other neurological diseases or indeed from other long-term conditions in relation to the national service framework. In my view, it can quite clearly be justified by the rapid progression of the

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condition, which has been graphically spelled out by the noble Baroness, Lady Noakes, and the fact that even where services are reasonably good, help in the form of support and/or equipment all too often arrives after the disease has progressed beyond the point when it is of little or no practical use.
Quite frankly, that is not an acceptable state of affairs in any developed country. It cannot just be left to the Motor Neurone Disease Association—which does a magnificent job and to which I pay tribute—to push at the doors of government. I hope that when my noble friend the Minister replies to the Question, she will be able to tell us that we are pushing at open doors.
I do not suggest for one moment that diagnosis is easy. Motor neurone disease presents with early signs and symptoms which can lead in a number of directions. But should it take an average of 17 months to confirm diagnosis? In the case of my friend, the initial referral was to orthopaedics; it was thought to be a problem with his knee. That led eventually, after some time, to major spinal surgery for what was thought to be trapped nerves. When recovery was not apparent thereafter, further spinal surgery was decided upon. That was in prospect for some time, until one of the several doctors who saw him decided to have tests carried out which ultimately confirmed the diagnosis of motor neurone disease.
I wonder why the appropriate tests cannot be carried out much earlier in pursuing differential diagnosis so as to exclude the possibility of motor neurone disease. If it does prove to be motor neurone disease, it is well known that the earlier the treatment commences the greater the benefit of that treatment. However, it confirms my view that the Motor Neurone Disease Association is absolutely right in demanding that the national service framework on long-term conditions should contain—I say that it must contain—a specific target to the effect that the average time to diagnosis for those with motor neurone disease should, by 2015, be nine months from the first symptom. On the face of it, that does not appear to be an unreasonable objective. I hope, therefore, that my noble friend the Minister will be able to say something positive about that this evening.
I, too, want to address the issue of the number of neurologists in this country. I know that this is not the only field in which there is a shortage of doctors. We can all spend a lot of time spelling out the per capita differences in the very many specialties here compared with other developed countries. However, it is quite difficult to explain how there can be twice as many neurologists per head in Germany, six times as many in Holland, 12 times as many in Italy and something like 16 times as many in Denmark. I think that if the proverbial Martian landed, he would find it extremely strange.
I accept that some splendid work is carried out here, notably the research in Professor Leigh's unit at King's College Hospital, but we need a great many more Professor Leighs. Will my noble friend the Minister say what steps are being taken to increase the number of neurologists in this country?
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It is clear from my own observations as well as from the briefing from the Motor Neurone Disease Association that there is quite rightly considerable concern about the difficulties faced by informal carers. They face a hugely demanding situation, which is exacerbated if the NHS and/or social services do not come up to scratch. I can see how demanding it is in the particular situation of my friend where support is possibly as good as or better than most.
It is right to give credit where it is due. All too often it is easy to knock services rather than to give praise. The multidisciplinary neurological team from the Merton and Sutton Primary Care NHS Trust do a really good job, as do social services in the London borough of Sutton. Tribute needs also to be paid to the St Raphael's Hospice in Cheam for the access to, and quality of, its respite care and to the Winged Fellowship, with which my noble friend Lord Murray of Epping Forest is very closely involved.
But we know that that support is not available everywhere. There are budgetary constraints and, most disappointing, resistance to giving respite and palliative care to people with motor neurone disease. Even where one can afford private respite care, one hears of nursing homes that will promise to provide total care until they find out that motor neurone disease is involved. Suddenly they have no beds and calls are not returned. And not all hospices are able to give respite or palliative care to those suffering from motor neurone disease as their focus is on malignancies, or if they do, they may be down to one bed only. I hope that the Minister can say whether all primary care NHS trusts have multidisciplinary neurological teams. If not, will consideration be given to taking that very important concept forward?
I turn to the issue of palliative care generally and the role of the hospice movement. Hospices are one of the great developments of the past 20 or more years. There would be a huge problem for the NHS if they did not exist. I do not, of course, quarrel with the voluntary concept; it is to be greatly valued. But is the voluntary concept enough on its own? Is NHS support for hospices enough? I do not think that it is. I am given to understand that the hospice to which I referred a few moments ago is considering the ending of its nurse bank due to shortage of available funds. If that happens, fewer patients will be admitted to that hospice. I know of other hospices where the number of beds available has been reduced through funding shortfalls. Here, too, I look to my noble friend the Minister to give some word of comfort about increasing NHS funding support to the hospice movement. In my view there needs to be a sustained increase.
A great deal needs to be done if we are to give the highest quality co-ordinated care to people with motor neurone disease and the best possible support to informal carers. The national service framework must take account of the special issues raised by motor neurone disease and there must be acceptable minimum standards of care which, with all appropriate interventions, should be available in all parts of the country.

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I hope that this short debate this evening will contribute to that. I look forward to the contributions of other speakers and, of course, to the response of my noble friend the Minister. I again extend my warmest thanks to the noble Baroness, Lady Noakes, for tabling the Question.
8.8 p.m.
Baroness Finlay of Liandaff: My Lords, I am most grateful to the noble Baroness, Lady Noakes, for tabling the Question about the services available to patients with motor neurone disease. I must declare an interest as I am also a member of the all-party parliamentary group. As a hospice doctor I have been privileged to provide care for some of these patients who have been truly inspirational in the way that they have faced their disease.
Sadly, I have to speak about services that are not available or, if available, are so delayed that by the time patients access the service they need the disease has progressed. Indeed, it may be more cruel to say, "We shall do an assessment and get back to you" than to say honestly, "It will take nine months before the modifications you need are carried out to your house". Expectations are raised, lives are put on hold and hopes are dashed as the needed services do not materialise. I wish I could say that I was exaggerating but I cannot.
The guidelines on the management of motor neurone disease prepared by the Exerpta Medica Motor Neurone Disease Advisory Group and endorsed by the Association of British Neurologists are excellent, but far too often they are not met. Making the diagnosis is difficult, as has already been pointed out, and a high level of suspicion requires knowledge.
Diagnosis is not easy. There is no single test either to prove or disprove that a patient has motor neurone disease. That is why expert neurological assessment is needed. Yet there is often a delay in diagnosis of around nine months. The noble Baroness, Lady Noakes, reminded us that the average survival from diagnosis is 14 months. Dr David Oliver, in his research on patients' experience, also found that 88 per cent of those dying at home and 93 per cent dying in a hospice had swallowing problems, while over four in five experienced breathing problems. Around three-quarters suffer pain, while a similar percentage experience problems with speech. However, the onset of such symptoms can be delayed by the introduction of the drug Riluzole once the diagnosis has been made.
There are not enough neurologists to meet the diagnostic burden in neurology. This national shortage, so eloquently explained by the noble Baroness, Lady Noakes, and which my noble friend Lord Walton of Detchant has also described to the House on several occasions, means that neurologists are simply not available to meet the educational needs of general practitioners and others. Better informed GPs speed up the diagnostic process.
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The guidelines to which I have referred state that the diagnosis should be communicated in privacy, with the patient accompanied and given immediate support, with written information and regular feedback. But a busy neurology clinic dealing with around seven new patients and 12 follow-ups in a morning, means that that does not always happen. The standard time allocated to a new patient is half an hour, but I am assured by the professor of neurology at my own university that it is not possible to give the diagnosis properly in anything less than an hour.
The Motor Neurone Disease Association has created specialist nurse posts and centres for care and research, but they are not available everywhere. In parts of Wales, the district general hospitals have no visiting neurology service, no local Motor Neurone Disease Association service and no multi-professional specialist palliative care team. In 2000, only 17 per cent of specialist palliative care units were involved in the care of motor neurone disease patients at the time of diagnosis, yet these patients are already terminally ill when they are diagnosed. Even in the last stages, only 48 per cent of specialist palliative care units are involved in providing care. I am a hospice doctor and I find that lamentable.
All should be providing links with neurology services from diagnosis, but lack of resources means rationing of services, with the result that patients in need are often left outside the services which, due to the history of hospice development, are more freely available to cancer patients. As the noble Lord, Lord MacKenzie of Culkein, remarked, there are huge financial pressures on hospices.
Patients with motor neurone disease need speech and language therapy to help with communication and swallowing. They need physiotherapy for mobility and occupational therapy—with workmen available to adapt the home with aids and appliances such as POSSUM devices to help maintain independence and autonomy.
When breathing becomes difficult, intermittent positive pressure ventilation, especially at night, must be considered. Some 95 per cent of carers have reported it as being of great benefit. However, ventilatory support is not available in many parts of the country. In a survey conducted in 2001 of the 376 British consultant neurologists, the majority had not referred any patients for non-invasive ventilation during the preceding year. Only 234 patients had been referred—from a patient population of 1,990 new patients and 2,280 patients under follow-up review. The team from the University of Newcastle which collected this data estimated that under 3.5 per cent of all those with motor neurone disease were receiving ventilatory support. Contrast that with the data I cited earlier: over 80 per cent suffer breathing problems when dying.
Patients are terrified of choking to death, a reason often cited when the desire for early death by euthanasia is discussed. Of course it would be terrifying to choke to death, but the data from a study by Neuder and Oliver

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of patients in Germany and the UK showed that the vast majority—in Germany 88 per cent, and in the UK 98 per cent—of motor neurone disease patients,
"died peacefully and no patient choked to death".
So why do so many patients with motor neurone disease feel such fear and despair? I suggest that the patients become seriously demoralised and cannot access the expertise that they need. They experience delays in getting good control of symptoms of pain, excessive salivation and drooling, muscle cramps, spasticity, respiratory symptoms, communication difficulty, and a possible feeding gastrostomy to maintain nutrition. Their family does not get the training in lifting and handling. They do not get the home modifications quickly, and the equipment within days of needing it. The patients do not have time on their side.
In a study of those motor neurone disease patients who would consider assisted suicide, there were significantly more patients fearful of the future—many fewer were able to say that they had hope or faith in the future and in the support that they and their family needed—than those who felt that they would not want recourse to such action.
No patient who needs assistance with mobility should be denied physiotherapy or appliances. Those staff in the community who do not have the resources at hand to provide good care become rapidly demoralised. Patients endlessly waiting become demoralised and denied precious days or weeks of living. Families and carers become worn down and despair, and the experience remains in the memories of those who live on.
Motor neurone disease is a horrible condition. The tenor of care must be rapidly responsive, sensitive to patients' needs and flexible to their situation. The patients have much living to do in the short time left, and it is cost-effective for the healthcare services to enable them to do that. Expensive modifications are more cost-effective if useful for months or even years, rather than lagging behind a patient's needs. Patients fear putting in a complaint, as they are dependent on the staff for their present and future care, so shortfalls often go sadly unrecorded.
In the standards to be set for the care of patients with neurological disease, rapid response targets would not go amiss, but I hope that the Minister will recognise that they must be resourced.
8.18 p.m.
Baroness Oppenheim-Barnes: My Lords, I too am extremely grateful to my noble friend Lady Noakes for tabling this urgent Question. She does so all the more creditably because of the Front Bench workload that she already has. I know that she spares no time when it comes to the affairs of the Motor Neurone Disease Association, and I thank her for that as well.
Motor neurone is the most cruel and relentless disease of all. I do not think that anyone who has spoken tonight would argue with that. Like my noble friend, I have not had anyone affected in my family and knew nothing of the disease until the son of some very dear friends was stricken. I was asked to become
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president of the Gloucester MNDA and served in that capacity for a number of years. I spoke to neurologists and saw a number of cases. I was struck by the difference in expectations in the various cases. Even within a very short period, the differences were very notable.
Equally notable was the support given by the local MNDA to the families and carers. It created an atmosphere in the circle of people who were desperate to know what to do. I certainly do not support any form of assisted death, but I can understand why internationally a significant number of motor neurone sufferers have sought it.
I believe that one problem we face—this is why the situation has occurred in the health service—is that, apart from anything else, there is so little international awareness among the public about the disease, not helped by the fact that it is called by an entirely different name in the United States.
I also want to thank the MNDA, in particular, for its briefing and for the presentation of the case that it sets out. I believe that it commends itself by the fact that every speaker thus far has quoted from it in great detail. I believe that if the Minister did not already know about the horrors, the difficulties and the multiple complexities of dealing with these problems, she will do as a result of this debate. I know that she has always responded in your Lordships' House with intelligence and, wherever possible, with a background knowledge, and I am sure that she herself is now more aware of the problems and of the humanity needed when dealing with such cases.
It is all very well to say that a hospital allows only half an hour to discuss a case. But by the time the people who make the diagnoses tell patients that they have this terrible disease, the patients know about the disease and the prognosis. Surely, humanity dictates that that information would not be passed on to someone who was not at least with relatives or friends at such a time. Training for such circumstances does not cost anything.
Of course, the shortage of neurologists is the problem. I do not expect the Minister suddenly to produce hundreds of neurologists out of her pocket. But I make the point that GPs and hospital doctors who deal with such matters and who are perhaps unable to make quick diagnoses can at least receive more training than they do at present in arriving at diagnoses. That obviously lies at the heart of the problem. One hopes that, as time goes on, i t will become easier to make the diagnoses, just as, with time, a drug has been discovered which will lengthen sufferers' lives and make them more agreeable than they would otherwise have been. A reference has also been made to stem cell research. Sufferers of the disease should always be given hope because, for some, eventually there will be hope.
I trust that the Minister will now consider the structure within the health service for dealing with this problem. It is not only a matter of targets; action is required to make a difference in every area. We are not talking about an enormous number of patients. Admittedly, those affected

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are spread diversely across the country. Eventually I would like to see regional motor neurone clinics, obviously supported and advised by the MNDA. I do not see why they should not be available and why the resources should not be found for them. Therefore, I hope that when the Minister comes to reply she will give us and the sufferers of motor neurone disease some of the hope that I believe they deserve.
8.24 p.m.
Baroness Howells of St Davids: My Lords, I am grateful to be allowed to speak in the gap. I shall use my two minutes to bring to the notice of noble Lords the excellent report of the King's Fund, published in July 2002, which my community calls "social care fighting spirit". The report calls for psycho-social support to be made available for people with terminal illnesses—something that is badly needed by sufferers of MND.
Julia Neuberger, the King's Fund chief executive, said that people with terminal illnesses need more than medication. MND is certainly one of them. She also claimed that support was patchy at best. The report called upon primary care trusts to use their new health community powers to fill gaps in services. It asks for the greater use of district and community nurses to provide palliative care at home; the pooling of resources across PCTs with social services and, above all, a greater commitment from government to fund care for people with a range of conditions, including motor neurone disease.
Can the Minister say whether this simple recommendation of the report is being acted upon and how successful it has been? If it has not been acted upon, why not?
8.25 p.m.
Baroness Barker: My Lords, I, too, thank the noble Baroness, Lady Noakes, for this welcome opportunity to turn the spotlight on a particularly devastating condition. The noble Baroness, Lady Noakes, used the word "vicious"; a word commensurate with the condition. It is an honour to take part in such a tightly focused and high quality debate. It is the sign of a good brief that those of us who have the joy of speaking near the end have large holes in our speeches. I pay tribute to the MND Association for the quality of its briefing.
I want to pick up on one or two issues. Some have been mentioned but others have not. As the noble Baroness, Lady Noakes, said in her eloquent introduction, we are talking about a range of similar conditions. Amyotrophic lateral sclerosis, as it is known in the United States, is the condition that we have primarily spoken about, but there are similar, rarer conditions such as progressive muscular atrophy and progressive bulbar palsy.
I believe that the most interesting and perplexing of findings from epidemiological studies is that race, diet and lifestyle are not determining factors in the condition. Furthermore, there is no evidence that MND is infectious or caused by any other condition; there is no difference in incidence rates in rural and urban areas; the average age of onset is 50; and the male to female ratio is 1.4:1.
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Diagnosis is the area on which many of us have rightly focused. Diagnosis is primarily carried out by a consultant neurologist using blood tests, EMGs to measure nerve conduction velocity and MRI scans of the brain and/or the spine. The only treatment currently known to slow down the symptoms for a period of three to six months is Riluzole. While there are hopes that studies into the effect of creatine, a naturally occurring substance in the brain and muscle, may have a positive effect, nothing has yet come to light.
The condition is surrounded by mystery and myths. As the noble Baroness, Lady Finlay, said, there is a widespread belief that MND sufferers die by choking, yet the incidence of that is very small. It is not a muscle-wasting condition, as other noble Lords have said. Furthermore, the absence of a known cause and the search for greater understanding has led to a search for causal incidence. Recent examples of that include the Football Association's investigations into the disproportionately high levels of the condition among professional footballers in the UK and Italy. The legendary Celtic winger, Jimmy Johnstone—I can see him now jinking down the pitch—has the disease, and Don Revie died from it. I am pleased to see that the FA is willing to entertain examining the problem. It may result in nothing, but it is willing to look into the possible correlation to head trauma.
Another statistical incidence is rather better known; that is, the incidence of MND among Gulf War veterans. An epidemiological study in the US carried out by Duke University Hospital and the VA Hospital in Durham, North Carolina, found that the incidence of MND amongst soldiers deployed in that conflict was 6.7 per million, while the incidence of soldiers not deployed in that conflict was 3.5 per million. In this country to date only four Gulf War veterans have died from MND. That is a very low incidence.
However, from answers given by Ministers in another place, my understanding is that the MoD registers MND only when someone dies. Will the department track those who have been diagnosed because the incidence may be higher, and will there be a longitudinal study of the health of Armed Forces personnel who have taken part in the war in Iraq?
As the noble Baroness, Lady Noakes, and other speakers said, the average time for a diagnosis is 17 months and thereafter life expectancy is 14 months. That is a very long time to discover that you do not have much time. It is a source of understandable anguish for people with the disease and those who love and care for them. There seem to be a number of reasons for that and we have focused on the main one tonight; that is, the lack of consultant neurologists. I shall not rehearse the figures which other speakers have mentioned.
On 13th March this year in another place in response to a Question from my honourable friend Mr Mike Hancock, the Secretary of State stated that the Government's intention was that by 2004 there should be an additional 78 consultant neurologists. He went on to say that central government funding will be made available for 10 specialist registrar posts in

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neurology. He followed that up by saying that trusts will have the opportunity to create up to 20 locally-funded specialist registrar training opportunities. I have two questions. How will those 10 centrally-funded posts be distributed and what does a local opportunity to fund a specialist registrar training opportunity mean?
I also want to make a point, which has been made by other organisations working in related fields about consultant neurologists. Organisations working in the field of epilepsy—a subject in which I take an interest—have pointed out to Ministers and Members of this House that consultant neurologists are not always acquainted with particular conditions. The epilepsy organisations pointed out to us a recent case of significant misdiagnosis by a consultant neurologist who was not a paediatric epilepsy specialist. That applies to the other conditions, which are all generally lumped together under the heading of neurology. Therefore, I want to ask the Minister what can be done in the training of neurologists in the particular conditions which fall within that heading.
I, too, want to talk briefly about the national service framework. It is not our job to second-guess the work of that reference group, but there are two questions I want to ask. First, as has been alluded to by the noble Baronesses, Lady Finlay and Lady Oppenheim-Barnes, how will it be possible within the current set-up of the National Health Service to ensure that in a designated region—I ask what size the region should be—there is a system in which there is a consultant neurologist who is responsible within a unit for training and support to all the other staff—general staff, GPs, community nurses, CPNs and psychiatrists—for dissemination of training and experience in this subject? The same applies to some of the other long term conditions. I do not know whether it should be at the level of the strategic health authority. I believe it is the key question that could be answered in the national service framework.
Secondly, I am not a doctor and make no claims in that respect. However, given the nature of this disease in which some neuro-muscular functions fail but others such as bladder control do not, and given that there is no sensory impairment associated with MND, it seems to be a condition in which there should be a high probability of a breakthrough at some point for the discovery of a cause, whether chemical, genetic or physiological. Therefore, is there a case for the Government to invest in two or three centres of excellence pursuing slightly different approaches to the condition?
As the noble Baroness, Lady Finlay, and the noble Lord, Lord Mackenzie of Culkein, have said, people diagnosed with MND face a devastating future. For some people, complementary therapies, such as specialist massage or acupuncture, may benefit by prolonging mobility or in pain management. I want to make clear that I make no claim whatever for complementary therapies as any form of cure, but I merely make a case for them as a means which may be effective for some people in prolonging quality of life and pain management. If that is so, above all else, these
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people deserve rapid access to that treatment and they deserve it as part of the National Health Service. For some people it may be cost-effective by allowing them to continue to work for longer than they may have done. Therefore, it is an issue worth following up.
Finally, I, too, pay tribute to the work of the MND Association. It provides calm, balanced information and support of the highest quality and integrity to people who have the disease and to the people who love and care for them. The association has built a good foundation for the work of the specialist group working on the national service framework. I hope that the Government will continue to support its efforts directly. In that way, surely hope must lie and if we can achieve anything we can achieve hope.
8.37 p.m.
Baroness Andrews: My Lords, I am extremely grateful to the noble Baroness, Lady Noakes, for the opportunity to have such an important, eloquent and heartfelt debate on such an important topic. She introduced it in such a powerful and compassionate way with a splendid speech. Although I do not have the MNDA brief, it is a privilege to reply.
In all probability, I shall take a little longer than my allotted 15 minutes. I hope that I can assure noble Lords that we intend to bring both hope and, equally important, action on what—I agree with the noble Baroness—is not a satisfactory situation. There is much that needs improving. There is much that needs extra attention and clear thinking. I hope that I can indicate that we are very much aware of what needs to be done and are trying to do it.
It has been an expert and moving debate. There is nothing that I could say to improve on the experience that has been set out in terms of the effect that this horrible disease has on individuals. The terms describing the disease—cruel, relentless, violent—in themselves probably are not sufficient to indicate what the actual impact is, both on the individual and the carer.
The issue that we are struggling with, both in professional terms and in terms of providing care, is the problem of the difficulty of diagnosis, to which so many noble Lords have referred. Would that we could look forward to the type of scientific breakthroughs seen in some other fields. In time, I hope that they will come. But diagnosis is hugely complex. Probably, we must agree that neurology has not been a very fashionable or popular speciality over the years. That is something we want to change and address. One of the reasons that the NSF holds out some possibilities is to raise the profile and to make people understand how important a speciality this is. There has been incredibly rapid progress in recent years in brain surgery which makes it a more attractive proposition for young and intelligent researchers and surgeons.
Unfortunately, diagnosis is difficult and often slow. As the noble Baroness said, an ordinary GP may see very few cases during the course of his or her lifetime. Every speaker has referred to the difficulties caused by unacceptably long waits. I will not rehearse the things

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that the Government are doing to try to reduce waiting times overall. I am sure that noble Lords are very familiar with what we are doing and the fact that we are on target for this year and, I hope, next year as well. Certainly we are aware of the pressures on neurological specialists in the work place and because of the difficulties resulting from there not being enough of them. We have increased the number in recent years, but it is from a low base.
The noble Baroness, Lady Barker, took the wind out of my sails somewhat by quoting all the figures that I was going to quote. In fact, our best projections are that by March 2004 an extra 80 neurologists will be in place as well as additional registrars. I will have to write to her about how we are approaching local funding and distribution because these are technical workforce planning issues. The long-term conditions workforce, which includes neurologists, is looking at neurology in the context of its general work. It will be looking not just at the clinicians and registrars but at all the tasks and roles that are performed. So work is being done in that respect.
I join noble Lords in paying tribute to the part played by the MND Association. I am delighted that representatives from the association are with us this evening. I know that they had a recent meeting with my honourable friend in another place, Jacqui Smith. I hope that they understand that we are deeply mindful of their continuing contribution and their invaluable support for people with MND. We have an open door and are anxious to listen closely to their expertise. It is irreplaceable and very valuable. The resource of £7 million that I understand has been made available is very significant. The NHS has a lot to learn from the way in which the association works and I hope that it will do so over the next three years. The recent paper No Time to Lose, which was submitted to the team preparing the NSF, outlined the case for improved access and better co-ordinated services.
I will speak briefly about the two clinical interventions to which the noble Baroness, Lady Noakes, referred. I shall not try to pronounce them—it is too risky. I shall simply refer to them as PEG and RIG. PEG is the feeding technology; I can reaffirm that the National Institute for Clinical Excellence has been asked to develop a clinical guideline which includes the use of nutritional supplements. The MNDA is registered as the stakeholder; we are hopeful that that will make a significant difference to access and quality of treatment. We are expecting that around October 2004.
With regard to non-invasive positive pressure ventilation, to which the noble Baroness, Lady Finlay, also referred, we have made progress to improve care for people who are seriously ill and have breathing problems. The NHS Modernisation Agency is kicking in at different stages of the situation that we face with MND, and I will refer to it several times. It has identified improvements in its critical care programme.
Last July, the report Weaning and Long Term Ventilation on how the new technology could help, was produced by a critical care working group, part of the agency's service improvement team. It looked at
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patients with serious breathing problems and identified many ways in which patient care could be improved. It recommended that an NIPPV service be established in each acute trust for the management of patients with acute respiratory failure. That obviously includes people other than MND patients. It is a very significant contribution to the modernisation of the critical care service in this respect. We fully expect and want to see that that will bring about an improvement in both the distribution of the technology and the quality of life of patients with MND.
The noble Baroness also referred to riluzole. Following NICE guidance, the drug has been easier to obtain. The additional months of life that it can bring make it a very important and worthwhile development.
I want to spend some time on the issue of coordination, on which the noble Baroness, Lady Finlay, was right to focus. It is too bland a term for what we want it to mean, which is the proper delivery of all the services, whether speech and language therapy, nutritional advice and diet, or supervision of the wheelchair, which should not happen nine months too late but on time. The challenge is to remove the obstacles.
If one was to ask an MND patient or nurse what they thought were the key elements of a good patient pathway, they would give the following list: informed GPs, who can speed up the referral process; a full assessment of needs, so that patients are not constantly having to return to say that something else has happened; the fullest possible information for patient and family at different stages; the link with a multidisciplinary team—a robust and single link; a single point of contact for navigation; regular reviews as the disease progresses so that patients or nurses can plan ahead for unpredictability; proper palliative care, hopefully in the home when it is needed; and respite care breaks in hospitals.
I want to be able to show that some of those elements are in place, because we are not waiting for the NSF. I take the point that it has taken time to set it up; it is complicated because it deals with so many different elements of different conditions. However, we have to tackle the issue of co-ordination, which is so essential with a disease of this nature, which progresses so fast and has such terrible implications for carers and the whole family. We are working hard to do what we can.
The noble Baroness, Lady Finlay, will know that we have freed up the systems for the health service partnership arrangements. They have been available since April 2000. I was delighted to hear about the case study in Merton and Sutton mentioned by my noble friend Lord MacKenzie of Culkein. Clearly, some excellent work is taking place in parts of the country. It would be nice to be able to bring it all together so that we can generalise that good practice. However, we have some new powers and opportunities pooled by joint strategies for joint teams, and a new and more intelligent way of making things happen on the ground. The new PCTs, with intelligent and broad conditioning, can make a difference.

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Some 190 joint working partnerships have been set up. They are different models—as MND is a different model. We want to maximise those models, so that they help people who present specific and different sorts of challenges to the health service because of the rapid response needed. We have not seen M N Ds in the new 190 working partnerships, but I hope that MNDA will be able to show us how they might become more effective.
Joint working is essential if we are to ensure independence at home in comfort as long as possible. There are many good examples. Sutton and Merton has been referred to; King's College Hospital is another example, as is the Hope Hospital in Manchester, where excellent work is happening inside and outside the hospital. We would obviously like that sort of practice to be introduced elsewhere. MNDA also has a number of regional care advisers working with local services, who train, manage and support association visitors. That shows the difference that a single person could make. It is a model that we would like local health care providers to consider when they develop such services.
I shall refer to two services that are in urgent need of modernisation and which we have done something about. One is the wheelchair service and the other is community equipment, to which several noble Lords referred. We must admit that the supply of wheelchairs has been a source of genuine grievance and a genuine Cinderella service. We are pleased that, driven by the modernisation agency, the 45 wheelchair services have come together to form a collaborative. That is specifically there to redesign the services, to identify when people will need help, how they are going to get it and to close the gap between supply and demand. The programme of work of the collaborative will be made available from this autumn. That will mean a better service.
In relation to the provision of community equipment, I remind noble Lords that we have invested an extra £105 million into the NHS for the three years from 2001–2. A national integration of community equipment services support teams was launched in November 2001 with the aim of helping councils and organisations to meet the relevant targets, which are important. All community equipment services will be integrated across health and social services by 2004. Meeting that target means that 50 per cent more people will benefit from community equipment services by 2004. However, in relation to MND patients, we expect all equipment to be delivered within seven working days. We must speed things up, and integration and new resources must do that.
We are also considering better strategies. From later this year, the modernisation agency team will be developing a programme to improve access to neurology services as a whole. It will do that by examining referrals, waiting times, capacity and demand, choice and treatment and how to redesign services and develop clinical networks. We must see and treat more quickly and coherently.
The noble Baroness, Lady Barker, raised interesting questions about the distribution of neurologists. I expect that that agency team will examine, for
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example, the proper use of neurologists and how they employ their time. We also have the new booking system, which means that patients now say when they can turn up for an appointment at their convenience, not that of the institution. We are already seeing that that means that there are fewer cancellations. Contextual strategies are helping in that regard. Specialist GPs are also being developed. Some of those GPs in certain areas may choose a neurological specialty, not least, as I said, because such interesting work is going on.
Many noble Lords rightly discussed carers. This must involve the most intense, exhausting and emotionally draining form of care that one could imagine. We have expanded investment in respite care, which will make a difference. We are expecting 130,000 new opportunities for respite care. It is important that that is properly delivered on the ground, and funding is going into that.
I turn to direct payments. We need to build in flexibility and choice for the carer. Direct payment means, for example, that a mobile phone will allow for peace of mind if one must, for example, leave the home to go shopping. One can essentially buy in the right sort of care—a personal sort of care. That also helps one to bring in more district nurses to supply the sort of advice and support that teaches one how to use feeding and ventilation systems. That is crucial and we hope that it will be developed.
We have put an additional £50 million into palliative care. One way to ensure that that aid is properly driven is by setting up the palliative care partnership. Clearly, part of the challenge is to ensure that that palliative care is available on the basis of choice.
The noble Baroness, Lady Barker, asked about aromatherapy. We have just announced a research programme into aromatherapy to the value of £1.3 million. I am fully aware that some aromatherapy services are so therapeutic that they can be more effective in some ways than conventional medicine—I refer, for example, to massage for aching limbs. However, that must be the judgment of the clinical team on the ground. I feel positive about that.
I turn to the NSF and return to the patient pathway and what else can be done. We must recognise that the NSF represents a very important opportunity. It is driven by expertise and based on evidence. It must be real and practical as well as visionary. To respond to the noble Baroness, Lady Oppenheim-Barnes, one of its most important tasks is to raise our knowledge of and understanding about the disease and the importance that we attach to dealing with it. The NSF is the right location for our future planning for MND. To respond to the question of the noble Baroness, Lady Noakes, it will deal with all patients of all ages in relation to MND. It aims to set general standards that will improve the quality and treatment for all.
I am delighted that the MNDA is involved in the external reference groups in different ways. I understand that it is actively involved in providing advice and contributions. In considering the pathway, working groups are now looking at the health and

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social care needs of users, transitional issues between services, information to support the needs of users, and, how we can learn from the lessons. In fact, the pathway that I set out as the preferred patient pathway is precisely the kind of thing that the NSF must look at, apply and develop.
The common themes must be rapid referral, information, holistic care, flexible/seamless provision, easy access, co-ordination between the different roles, providing the support that the family wants, recognising complexity and multiple conditions and preparing for them.
So we are very keen that the NSF should bring improved and better services for patients. Its publication is planned for 2004. It is a 10-year programme. I know it feels a long time to wait. We have to be as intelligent and as far-sighted as we can. Sometimes these matters just take time. At the moment the NSF will be supported with a delivery strategy that will look at workforce aspects. So these changes are about practical delivery on the ground.
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In conclusion, I shall write to the noble Baroness, Lady Barker, on her question regarding the syndrome in relation to disorders in different situations. I hope that noble Lords will agree that we take this condition very seriously and are anxious to make improvements and changes.
The noble Baroness, Lady Finlay, said that MND patients had much living to do. That is an extremely powerful statement. If that were taken as the slogan for the NSF in this respect we could certainly guarantee that there would be better outcomes. Certainly, I am confident that the initiatives that I have outlined for the interim, as well as for the long-term, will make a very important and necessary difference.

Electricity (Miscellaneous Provisions) Bill
Returned from the Commons with the amendments agreed to.

Regional Assemblies (Preparations) Bill
Returned from the Commons with the amendments agreed to.
House adjourned at two minutes before nine o'clock.