§ 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.
853 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.
854 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 855 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 856 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.
857 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.
858 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.
859 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 860 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 861 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.
862 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 863 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 864 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.
865 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.
866 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 867 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.
868 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.
869 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.
870 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 871 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?
872 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 873 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 874 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 875 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 876 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 877 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. 878 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? 879 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 880 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.
881 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 882 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 883 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 884 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. 885 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.]886 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 887 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 888 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 889 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.
890 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.]891 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 892 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 893 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.
894 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.
895 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: 896The 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 897 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 898 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 899 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 900 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.
901 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.
902 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. 903 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 904 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 905 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.
906 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.
907 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 908 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 909 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 910 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 911 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 912 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 913 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 914 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 915 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 916 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.
§ 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.
917 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 918 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.