HL Deb 12 November 2003 vol 654 cc1410-37

4.39 p.m.

Read a third time.

Clause 2 [Part 1 warrant and certificate]:

Baroness Anelay of St Johns moved Amendment No. 1: Page 2, line 9, leave out "with a view to" and insert "for

The noble Baroness said: My Lords, in the absence of my noble friend Lord Lamont, I beg to move Amendment No. 1 and speak to Amendments Nos. 2 and 3 in his name and also to Amendment No. 33 in my name.

The question addressed by my noble friend's amendments is whether someone can be extradited to a category 1 territory for the purposes of interrogation after merely being accused rather than for the purpose of prosecution when there is already substantive evidence to warrant a trial. The Government's position throughout our debates is that the drafting in the Bill already guarantees that a person can be extradited for the purposes of prosecution and not for evidence-gathering purposes. Despite the Minister's insistence on this point, we are not convinced.

My noble friend's Amendment No. 1 would put the matter beyond all doubt and ensure that the arrested person should be extradited only on the basis that he or she would be prosecuted. It is our intention to avoid a fishing expedition.

My noble friend has also tabled Amendments Nos. 2 and 3 which provide a stiffer test to ensure that the person faces prosecution. I note that my noble friend is in his place and I am sure that he will speak in more detail on those amendments.

My Amendment No. 33 has been tabled to ask the Government to clarify some of the remaining uncertainties about the drafting of Clause 2 of the Bill and its impact on the ability of the police properly to carry out their duties of search under Clause 157. The Government published a consultation paper on the draft code of practice for the Bill earlier this summer. In Grand Committee—that lonely place upstairs where I was joined by a hardy band such as my noble friends Lord Carlisle of Bucklow, Lady Carnegy of Lour and Lord Lamont, and my noble and learned friend Lord Mayhew of Twysden—we laboured long and hard on this Bill. I put to the Government some initial questions about the responses but could not pursue the questions until the responses were published. They were published on 4th November.

The consultation paper asked respondents to comment on passages that are confusing, ambiguous or lack clarity. In particular, the Government asked whether, the distinction between investigation of the extradition offence and obtaining evidence for the prosecution of the extradition offence needed further explanation".

The resounding answer from the respondents was "yes". Nineteen respondents ߞ two-thirds of the total ߞ commented on the question. Of those, 18 said that the distinction required further explanation, with three respondents suggesting alternative wording. One respondent felt that the formulation was unworkable.

My amendment adopts the alternative wording suggested to the Government by the law reform committee of the General Council of the Bar. I could just as easily have adopted the drafting put forward by the Magistrates' Association or the Metropolitan Police Service. They would all have served equally well.

My questions to the Government are as follows. What action will they take as a result of these responses? Will they, for example, redraft the code of practice to adopt any of the drafting solutions offered to them by the respondents? If so, which of those drafting solutions? The Government, on page 5 of the response, point out that Parliament has been anxious to preclude any activity by UK police officers that could be deemed to be a fishing trip for evidence. We are still anxious. That is particularly because of the way in which the Government's response continues. They state: Clause 2(3)(b) of the Bill explicitly provides that the person's extradition must be sought for the purpose of being prosecuted for the offence".

But then they go on to state: Any investigation of the extradition offence after a request has been made could be deemed to undermine this provision".

Why only "could"? Why not "would"? Does not that mean that the Government at heart recognise that an investigation rather than a prosecution could occur? What reassurance can the Government give today that they have so far failed to find? I beg to move.

4.45 p.m.

Lord Lamont of Lerwick

My Lords, first, I apologise for being absent when my amendment was called. Either the annunciator is working with a considerable time-lag, or alternatively the last group of amendments was dispatched with extraordinary speed. I apologise for not having anticipated the latter.

We are pleased to see the return of the noble Lord, Lord Filkin, to speak on this issue. We tried very hard with the noble Baroness, Lady Scotland, and got nowhere. I greatly hope that the noble Lord, Lord Filkin, will reply to the amendments in some detail and will listen with an open mind to the arguments for them.

My three amendments return to the question of whether it is sufficient for a person to be extradited when he is simply accused of an offence and it is not definite that he will be charged. There is a problem of terminology, or semantics, because we tend to assume that "accused" implies "charged", or is synonymous with it. But in continental Europe, that is not the case. The word "accused" may be consistent with the beginning of an investigation or an investigation continuing. I previously quoted the opinion of Mr Leolin Price QC about how arrest was the beginning of the process of investigation and that in many jurisdictions being accused was consistent with both being charged and not being charged. A person might be in custody for many months, held by an investigating magistrate under the continental system of investigating prosecutors, without there ever being a trial. The accused may not be charged until the endߞ or he may not be charged at all.

Amendment No. 1 deletes the words "with a view to". This point was first alighted on by the noble Lord, Lord Wedderburn, who pointed out the vagueness of the phrase. I hope that by deleting those words, we are making it more definite that a person who is to be extradited is, in the mind of the extraditing authority, definitely going to be charged.

The Minister and the noble Baroness have frequently said that the Bill provides that a person cannot be extradited simply for questioning; there must be an intent to prosecute. But how can anyone know with that degree of vague wording? I agree that there is a problem; that any extraditing request could on its warrant have whatever we have written into our legislation. I agree that, as a problem, there is no way around that. Whatever was required by our legislation, however we framed it, could be written into a warrant. However, if prosecution were required after extradition and if a pattern of behaviour emerged with a particular country, no doubt the courts would take that into account in the future.

I do not want to weary the House ߞ we discussed the matter previouslyߞbut I believe that this is a serious issue. The noble and learned Lord, Lord Donaldson, and the noble Viscount, Lord Bledisloe, remarked that it was common knowledge that people in certain continental countries were sometimes detained for long periods of time without being charged. This increases the pressure to strike a bargain with the prosecutor; or the prosecutor, in order to protect his own position, may give the person a sentence that is equal to the length of time the person has been investigated. I quoted what John Mortimer QC said on this point. He has written a number of articles using the arguments incorporated in my amendments.

The Government have said on several occasions that they have never known a case of extradition from the UK where the problem I have described has arisen. They will not know if they do not ask the question and are not determined to look into the matter. There may not have been a case of extradition from the UK, but how do we know about the large number of British citizens in gaols in different countries within the EU?

I tabled a series of Written Questions which referred to the individual countries within the EU and asked how many people had been detained, had not been given bail and had not been charged. The Written Answer given by the noble Baroness, Lady Symons, detailed the number of people in prison in different EU countries on 31st March last year but stated that the Government were not aware of anyone who had been detained without being charged.

I then asked what definition was used in the response to those questions: was it simply the word "accused" as opposed to the word "charged"? I should have thought that that was a very simple question to put to the Government. The reply that I received was that the Government did not know of anyone who had been held in prison without being charged. I am not sure of the relevance of that response to the question that I put.

Subsequently, I thought of another way of putting my questions. I asked how many people had been released without being brought to court. That would have given some indication of whether people had been detained without being charged. I was told that the costs of discovering that information would be disproportionate. With all due respect to the Government, I believe that that was an inspired question; indeed ߞif he does not mind my saying soߞ it was inspired by a conversation that I had over dinner with the noble Lord, Lord Goodhart. I hope, therefore, that I shall have some support from the noble Lord for these amendments.

I consider this to be a serious issue, and it strikes me as a rather unworthy reply to say that the cost of finding out that information is disproportionate. I am not indulging in my own fishing expedition; I am trying to find out how systems of justice operate in other countries. It seems to me that debating the rights of someone who may be extradited or, indeed, discussing the rights of British citizens in other countries who have been put in gaol is a fairly serious matter. To put it politely, I am extremely disappointed that the Government do not feel that they can possibly answer that question.

With great respect to the Government, I have to say that for much of the time in Grand Committee the noble Baroness made the assumption that anyone who is accused is automatically guilty. Many of the remarks also implied that it was a two-way trade and that we want people to be extradited back here from other countries. I understand that that is in the public interest. However, surely the rights of the individual and of the person who may be wrongly accused or who may be unjustly imprisoned for long periods simply in the interests of investigation are matters of considerable importance and should not simply be brushed aside. It seems to me that the rights of the accused are being brushed aside. If Ministers were in opposition, I believe that they would be singing a different song and would be far more interested in this issue than they appear to have been in previous responses to amendments of this kind.

In the other two amendmentsߞAmendments Nos. 2 and 3ߞI have tried to tackle this problem by putting a time limit of six months within which a person must be charged or, alternatively, within which he must be charged and returned to this country. Of course, I see that those amendments are impractical but the Minister can no doubt understand what I am getting at. I am trying to address a problem but I certainly do not intend to press those amendments to a Division. However, what I do with regard to the first amendment will depend very much on what the Minister says in reply.

Viscount Bledisloe

My Lords, I give some support to Amendment No. 1, although I certainly would not support Amendments Nos. 2 and 3 if the noble Lord pressed them. However, I should make plain that, in supporting the amendment, I do not in any way associate myself with what the noble Lord, Lord Lamont, said about the approach of the noble Baroness, Lady Scotland, to this matter. I consider her approach to have been exemplary. She has taken the greatest care and trouble to listen and, where possible, to give way to the amendments moved, as demonstrated by the considerable number of amendments that appear in her name on the Marshalled List today.

Everyone agrees that extradition will be only for the purposes of being tried and not for the purposes of being investigated. The Government said that that is already contained in the words, issued with a view to his arrest and extradition … for the purpose of being prosecuted", and that, therefore, the amendment of the noble Lord, Lord Lamont, is unnecessary.

If the interpretation of those words was solely a matter for the English courts, I should suspect, perhaps with the benefit of considering what the Minister said according to the ruling in Pepper v Hart, that that rule would probably prevail, but that is not the way that the measure is to be used. The warrant must contain a statement made by the foreign authority that that is the purpose for which the warrant is issued.

Foreign authorities may well be used to arresting people with a view to their being questioned and will obviously be keen to fill in the form of words required in order to obtain an individual's extradition if that can be squared with their conscience. It seems to me desirable that the wording should be as explicit and as unambiguous as possible so as to make it as difficult as possible for foreign authorities to bend or adapt the rules to fit their view of life and to fill in the form saying, "Of course, this is done with a view to his prosecution. We don't question anyone unless it is with a view to his prosecution. But whether we shall be able to have him prosecuted will depend on the answers that we get to our questions".

Therefore, I believe that, in those circumstances, there is something to be said for making the words 150 per cent explicit. I ask the Minister to give way on that point, which, he said, makes no difference because, on any basis, the wording is already included in the Bill.

Lord Pearson of Rannoch

My Lords, perhaps I may raise a question with the Minister. It was debated at some length in the House of Commons but, so far as I know, it has not been debated in our proceedings on this Bill. No doubt the noble Lord will put me straight if I am wrong.

The meaning of the Bill and the amendment depends largely on the language that we use. What does the language that we use mean and, more importantly, what does it mean in other EU countries with whom we shall be working on extradition in futureߞ particularly Italy? I believe it is acknowledged that Italy has more people languishing in its gaols without the prospect of trial than almost any other European nation. I declare an interest in that I speak Italian, and have done for some time. Therefore, I particularly wish the Minister to bring his mind to bear upon the vital Italian word "prova". In Italian, "prova" means "trial". It also means "proof or "testing". I understand that in the legal profession in Italy the word "prova" also means "the testing of legal evidence".

It would be helpful if the Minister could tell the House the Government's understanding of what the word "prova" will mean in Italy as regards the Bill. What will be the meaning of the Bill in Italy? What will be in the Italian magistrate's mind when he extradites someone from this country for prova in Italia? Does it mean what the noble Lord says it means? Will that person go straight for trial or for the well-known process of investigation by a visiting magistrate in Italy, when one might add the words, "God help him" in any case? However, so far as concerns the Bill, the Minister's answer may be useful, even at this stage.

5 p.m.

Lord Donaldson of Lymington

My Lords, I rise to support Amendment No. 1 and to query a matter which seems to be accepted on all sides in the debate; that is, that "accused" means "charged".

If there is a killingߞa homicideߞand someone is found in the same house with a blood-stained knife, it is almost certain that he will be taken into custody and arrested. So the question arises: why is he being arrested? One can take refuge in the formula that he has been arrested to assist police with their inquiries. One could say that he has been arrested on suspicion of being concerned in the homicide. But in ordinary parlance, surely, what one says is that he has been arrested because he is accused of the homicide. Whether the police go on to charge him within the four days allowed is a different matter but that he is being accused I should have thought was clear.

Stupidly, I had not anticipated this point. I believe it may have arisen on the Criminal Justice Bill yesterday where we were extending the period during which someone can be detained without being charged if a terrorist offence is involved. How does one decide whether a terrorist offence is involved unless the man is accused of it? We should not assume that accused means charged. I think it means "in custody in connection with".

Baroness Carnegy of Lour

My Lords, I shall not detain the House, except to say that my noble friend Lord Pearson made an important point. The whole question of language, interpretation of language and the way various member states use certain words in the law is very much a consideration of this point. Quite frequently in the European Union, when it comes to the crucial point in discussion at which legislation is being worded there are problems of language. Our precision of language and the very large vocabulary of English makes us particularly sensitive to this point. Like French, Italian is a flexible language with a smaller vocabulary, so it is more often the fact than in English that one word can have several meanings. I believe that is the point made by my noble friend.

In deciding this issue the House must not forget that we are discussing a measure which takes away the last moment of protection, the final stage protection, by the Home Secretary of a citizen of this country whose extradition is demanded. It is crucial to justice for our own citizens, as for other citizens in the European Union, that the wording of the Bill is in no way ambiguous. It is ambiguous and I am sure the Government should change it. I hope that the Minister will be more successful in persuading his colleagues than the noble Baroness, Lady Scotland. I am sure she tried and that she understood the argument very well. I hope that he will tryߞperhaps he has triedߞas it is a very important measure. I support Amendment No. 1.

Lord Stoddart of Swindon

My Lords, I, too, support Amendment No.1. The noble Viscount, Lord Bledisloe, was correct. To get this right, we should be 150 per cent certain that the accused, or whoever it isߞthe criminalߞ will receive fair treatment. I would have thought that that was an amendment which the noble Lord, Lord Filkin, would be very happy to accept, which would then satisfy everyone.

However, another point I should like to raise arises from the remarks of the noble Lord, Lord Pearson, regarding the Italians. Apparently, they are not very happy about this extradition warrant. Only today I read the EUobserver on-line and noted a report which stated that the European arrest warrant has caused splits within Italy's coalition. They became apparent yesterday as Justice Minister, Roberto Castelli, from the right-wing Northern League, exposed rifts between himself and the premier, Silvio Berlusconi over the European arrest warrant.

It appears that the Justice Minister, Mr Castelli, did not approve of the European arrest warrant. It was only approved against his will by Signor Berlusconi. So, there are differences about the European arrest warrant within Italy and the Italian Government. Mr Castelli is concerned that the arrest warrant does not contain guarantees for the defence of the suspect. If the Italians of all people are concerned that the proper guarantees do not exist for the defence of the suspect, why on earth are we agreeing the European arrest warrant?

We must also bear in mind that this legislation is due to come into effect on 1st January. I do not know how it can with two senior Italian Ministers quarrelling among themselves. Only three countries have so far approved the European arrest warrant. If the noble Lord, Lord Filkin, wants additional reasons for accepting the amendment, I hope that I have now provided them.

Lord Goodhart

My Lords, I start by associating myself with the comments of the noble Viscount, Lord Bledisloe, about the noble Baroness, Lady Scotland, who handled the Bill in earlier proceedings in a wholly exemplary way.

I agree with the noble Lord, Lord Lamont, and with all other speakers so far that it is clearly necessary that extradition should be used only for the purpose of a prosecution and not for the purpose of an investigation which might or might not lead to a prosecution. Where I find difficulty is in seeing how Amendment No. 1 achieves that purpose.

The relevant passage, which is Clause 2(3)(b), states: The Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence". The argument so far seems to be based on the assumption that the warrant is issued with a view to arrest and extradition to the category 1 territory with a view to being prosecuted for the offence. That I think might be a different situation. But it seems to me that the only purpose for which extradition can be granted under Clause 2(3)(b) is, for the purpose of being prosecuted for the offence". For that reason, I am unable to see how Amendment No. 1 actually takes the matter forward any further.

The Earl of Onslow

My Lords, perhaps the noble Lord, Lord Goodhart, will help me on this issue. I should have thought that the phrase, for the purpose of being prosecuted", is considerably wider than "being charged with". It could involve interrogation or investigation and those would result in prosecution. Surely, "being charged with"ߞa chargeߞis a different thing. The words, for the purpose of being prosecuted", strike me, as a complete layman, as being much more vague than the words "being charged with".

Lord Goodhart

My Lords, perhaps I may just reply to that. Of course, the charge is an event that happens at one particular point in time. It is possible, therefore, that someone is extradited who has already been charged. It is also possible that someone might be extradited for the purposes of a prosecution for which they have not yet been charged because the requesting country has never been in a position to further process the charge on them. So I do not think that "charge" is an appropriate word.

Certainly, "prosecution" appears to be perfectly adequate. Investigation prior to a decision whether to go ahead with a prosecution is not sufficient.

Lord Lamont of Lerwick

My Lords, I am very interested obviously in what the noble Lord says and I can see the logic of what he has said against my amendment. Given that he agreed that there is a potential problem, does he have a better amendment in mind?

Lord Goodhart

My Lords, no. On this particular point I do not. I think that the problem will arise only if it turns out that countries have been seeking extradition and when they achieve it they do not proceed to prosecution. Of course, for some years now it has not been necessary to produce a prima facie case before extradition is achieved under the Council of Europe convention. So far as I am aware, there is no evidence that this problem has raised its head.

Lord Filkin

My Lords, I am grateful to the noble Lord, Lord Lamont, for tabling his amendments and for his kindness in welcoming me back yet again to the Bill. I said goodbye so many times that even I got bored with apologising for returning. Regretfully, I do not think that I shall necessarily make him rejoice with my remarks.

We all know what we want the clause to do: to allow extradition to take place only where there will be a prosecution. Clearly, we are talking about accusation not conviction cases. We believe that the clause as drafted has this effect. I add that the Extradition Act 1989 provides for extradition where a person "is accused" of an offence. We currently operate under legislation which has the same terminology and thrust. The Extradition Act 1989 goes no further than that.

Our present legislation uses the term "is accused". That has not given rise to a problem. However, the Bill goes further than the 1989 Act.

Lord Lamont of Lerwick

My Lords, perhaps I may intervene. Does the noble Lord agree that the whole purpose of the Bill is to expedite extradition? He gave illustrations of the reduction in the average length of time for future extraditions. Does it not follow, therefore, that there are likely to be more extradition cases in the future? The fact that this has not happened in the past is not a guide to what will happen if there is a considerable increase in the number of extradition cases.

5.15 p.m.

Lord Filkin

My Lords, it may do. We do not know. The Bill certainly intends to try to do two things. I am at risk of going back to a Second Reading speech at Third Reading. It is essentially trying to ensure that procedural reasons for avoiding extradition and facing trial for a properly laid charge can no longer be allowed to frustrate justice. We have heard the argument for that many times. It is important because international crime is increasing and to combat it there must be an effective means for extradition between civilised societies.

However, as I shall develop in a moment when I speak to the issue in more detail, the Bill also puts in place powerful safeguards. So it does not seek to ride roughshod over the rights of someone who is sought for extradition; if anything, the power of the courts in this respect is strengthened. But the Bill actually says that the procedural delays that have been usedߞ naturally enough by people who do not want to face trial, and that is what one would expect they should doߞwill be curtailed because it is not in the interests of justice that they are allowed to continue.

So, as I was signalling, our present legislation uses the term "is accused". Notwithstanding that, the Bill goes further than the 1989 Act in saying that a warrant must have been issued, for the purpose of being prosecuted for the offence". I do not see how that can be ambiguous in any way. Of course the court, which makes the decision, must be satisfied that that is the case.

We do not anticipate any difficulties regarding fishing trips or warrants issued for investigatory purposes. Extradition in accusation cases is for prosecution. That is the basis on which extradition is currently run with our international partners and that was the basis on which the European arrest warrant framework decision was agreed.

If a warrant was issued for the purpose of investigation, it could not be certified or executed in the UK. It would not be a Part 1 warrant as defined in the Bill. For those reasons we believe: that the Bill is correctly drafted. We are not being obdurate for the sake of it. My approach on Bills is always to give if we can actually abbreviate our purposes. But we do not see a flaw here: we do not see a problem.

Viscount Bledisloe

My Lords, the noble Lord said that a warrant which is issued not for the purpose of trial but for the purpose of questioning will not be a Part 1 warrant. Is that really right? One requirement of a Part 1 warrant is that it contains a statement by the foreign authority as to the purpose for which it has been issued. The English court, surely, has no power to go behind that statement and investigate whether it is in fact true. That was the point I sought to make.

Lord Filkin

My Lords, the noble Viscount is right on one level. In international and mutual recognition arrangements between civilised societies certain things have to be taken on trust until there is a basis for having doubts about them.

It is not possible to look behind the statement of another country, which is a signatory to the ECHR, when it says, "This is what we want the person to do". It is not possible to do that now. There is no difference in what we are talking about now from the current law of the land in this respect. In order to show where there is a difference in this legislation let us take an example that was touched on. If a member state of the European Union, despite its obligations under ECHR, on a sequence of occasions sought to flout the explicit intent and meaning of the framework agreement, one would expect a defence advocate to make those arguments before the judge in any extradition request put before a court. They would clearly point to whether there was doubt or dubiety at all in those respects.

However, generallyߞas I think that situation is unlikely to happenߞcertain things have to be taken on trust between civilised societies. Otherwise the consequence is that one could never expedite someone to another countryߞor they to usߞto face trial. That is a very serious mischief. I do not need to spell it out.

The second and third amendments tabled by the noble Lord would introduce a requirement that the requesting territory guarantee that the person will be prosecuted within six months of his extradition. The framework agreement does not include that requirementߞnor does our current law or procedure. It would therefore be highly unlikely that any warrant would contain such a guarantee. Were those amendments to be passed, given that a request from another EU member state would not contain such a guarantee, that would mean that we could never extradite someone to another EU member state. That must be a massive mischief.

Basically, if someone were sought for prosecution in France for an offence that he committed in France, because there was not exact synchronicity, he could never be extradited to France. That is not our current law and the Government's position is that such a law would be against the interests of justice and international efforts to combat criminality.

The third amendment goes one step further. It would provide that the statement would have to say that the person would be prosecuted within six months of his extradition. Again, that would unilaterally impose extra conditions on other European Union states and then unilaterally impose a sanction on the requesting state.

Far from strengthening the Bill, that would weaken it beyond all recognition. There may be reasons why the prosecution may legitimately take longer than six months to beginߞfor example, if the person is suffering from an extended illness or has sought extra time to prepare his defence. Writing such a provision into the Bill would give an opportunity to string out and delay the case.

I am grateful to the noble Lord, Lord Lamont, for his signal; I shall not labour the point.

I turn to some of the practical points that have been raised. I confirm that we are continuing to work with other member states on the operation of the European arrest warrant system, including the rights of arrested and extradited people. By that I mean no more than putting the framework agreement into law in member states; we have no reason to believe that other member states will not do so. It is also important that we try to ensure through inter-ministerial discussions and work through officials that the practice of the operation is as good as it should be in all member states.

I now turn briefly to the amendment tabled by the noble Baroness, Lady Anelay: Amendment No. 33. I am sympathetic to the principle behind it and do not think that there is a great deal of difference between our positions on the matter. However, the amendment is unnecessary. Let me explain why.

Clause 157 provides that a magistrate may issue a search warrant for material believed to be evidence of the extradition offence for which the person is sought. The amendment rightly picks up on a concern discussed in the House that searches should be carried out only for the purpose of obtaining specific evidence for use in the prosecution of a person wanted for an extradition offence. Searches should not be used as an excuse for wider "fishing trips" for evidence on behalf of the requesting country.

We agree that extradition should be sought only for the purposes of prosecution and that the conduct of any search and seizure operation under the Bill must support that principle. That is why we included a section in the draft extradition code of practiceߞ which the noble Baroness has adopted as the basis for the amendmentߞadvising officers that searches should not constitute investigation of the extradition offence. I am pleased to accept that we shall redraft the code of practice; we are considering which of the suggested formulations to adopt. We want to make that as clear as possible, so that the distinction between investigating an offence and gathering evidence for the prosecution is understood by everyone. We take that point, but the code of practice is where that should be focused.

As drafted, Clause 157 provides that an officer applying for a search and seizure warrant must explicitly state the material sought and the premises where that material is believed to be. We therefore believe that the clause provides sufficient safeguards, buttressed by a clear code of practice, on which we commit to work. Officers searching under Clause 157 will be authorised to search for and seize only material specified in the warrant.

I turn to some of the many interesting and important points raised in the debate. I have discussed "fishing trips". The noble Lord, Lord Pearson of Rannoch, is right; he has got me there; my Italian does not go much further than what I have learnt from Mozart and Verdi. Of course, that is not the point; he asked how other countries incorporate international agreements into their law to ensure that they have encapsulated their spirit. I am not an expert on that, but I know that there are such expertsߞI am not sure whether they are called juristsߞwho, between them, have detailed knowledge of the meaning of international law.

While I am discussing Italy, as for Signor Castelli, whom I have met several times in my present and future roles, I have not heard that the Italians have any doubts about the issue. I should be surprised were they not to sign, given that they have the presidency. They have already agreed it; so they are already on charge to legislate to do so. They already have an international commitment to do so. If the point that the noble Lord was makingߞthis is at third handߞwas that there are concerns, the fact that signatories to it are all signatories to the ECHR gives fairly strong buttresses on bail, rights to translation, and so on. I need not continue.

I have covered most of the issuesߞif not to everyone's satisfaction. I return to the emphasis. We seek to continue extradition with other member states and to strip out only time-wasting delays that have sought to frustrate people being brought to justice. We have stronger protection in the Bill than in current legislation, by giving the judge powers to be satisfied that someone taken to trial will be met with ECHR conditions. That is progress, not reversal; that is why, with regret, I cannot support the amendments.

Baroness Anelay of St Johns

My Lords, as it was me who rather unexpectedly found myself moving Amendment No. 1, it is my duty to respond to the Minister.

First, I associate myself with the words of the noble Lord, Lord Goodhart, about the working relationship that we have had with the noble Baroness, Lady Scotland, on the Bill. We met her yesterday to discuss matters not covered by today's amendments concerning the Bill's further progress. That meeting was as constructive as has been every previous meetingߞin other words, very constructive.

In tabling Amendment No. 1, as he pointed out, my noble friend was careful to adopt the suggestion of the noble Lord, Lord Wedderburn, at a previous stage. I agreed that that drafting was appropriate. I agree entirely with the noble Viscount, Lord Bledisloe, that we need to be 150 per cent sure in this part of the Bill about what we mean. We must be as explicit and unambiguous as possible.

Part 1 provides a new system of extradition, which all of us want to proceed in as fair and speedy a way as possible, while affecting only those who should properly be caught by extradition law. That is the problem: how we ensure that only those who are properly caught by it are so covered.

By a system almost of osmosis, I have been able to discern from my noble friend that, although the Minister has, as ever, been eloquent in his defence of the Government's position, we do not feel that he has sufficiently reassured us on Amendment No. 1ߞ although he has on the other three amendments in the group. I therefore wish to test the opinion of the House.

5.28 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 110; Not-Contents, 161.

Division No.1
Alton of Liverpool, L. Lamont of Lerwick, L.
Anelay of St Johns, B. Lang of Monkton, L.
Astor of Hever, L. Liverpool, E.
Attlee, E. Luke, L.
Bitten, L. Lyell, L.
Blatch, B. McAlpine of West Green, L.
Bledisloe, V. MacGregor of Pulham Market, L.
Bridgeman, V.
Brooke of Sutton Mandeville, L. MacLaurin of Knebworth, L.
Brougham and Vaux, L. Masham of Ilton, B.
Byford, B. Mayhew of Twysden, L.
Caithness, E. Miller of Hendon, B.
Campbell of Alloway, L. Monro of Langholm, L.
Carlisle of Bucklow, L. Monson, L.
Carnegy of Lour, B. Montrose, D.
Cobbold, L. Mowbray and Stourton, L.
Colville of Culross, V. Moynihan, L.
Colwyn, L. Noakes, B.
Cope of Berkeley, L. [Teller] Northbrook, L.
Craigavon, V. Northesk, E.
Crickhowell, L. Norton of Louth, L.
Denham L Onslow, E.
Dixon-Smith, L. Park of Monmouth, B.
Donaldson of Lymington, L. Parkinson, L.
Dundee, E. Patten, L.
Eccles of Moulton, B. Pearson of Rannoch, L.
Eden of Winton, L. Peel, E.
Elles, B. Pilkington of Oxenford, L.
Elliott of Morpeth, L. Platt of Writtle, B.
Elton, L. Plumb, L.
Fowler, L. Quinton, L.
Gardner of Parkes, B. Rawlings, B.
Garel-Jones, L. Rees, L.
Geddes, L. Renton L
Gilmour of Craigmillar, L. Roberts of Conwy, L.
Glenarthur, L. Rogan, L
Glentoran, L. Saltoun of Abernethy, Ly.
Goschen, V. Seccombe, B. [Teller]
Greenway, L. Sharpies, B.
Hanham, B. Shaw of Northstead, L.
Hayhoe, L. Skelmersdale, L.
Henley, L. Slim, V.
Higgins, L. Soulsby of Swaffham Prior, L.
Hodgson of Astley Abbotts, L. Stewartby, L.
Hooper, B. Stoddart of Swindon, L.
Howe, E. Swinfen, L.
Howe of Aberavon, L. Thomas of Gwydir, L.
Howell of Guildford, L. Trumpington, B.
Hunt of Wirral, L. Tugendhat, L.
Inglewood, L. Ullswater, V.
Jenkin of Roding, L. Vivian, L.
Jopling, L. Waddington, L.
Kimball, L. Wade of Chorlton, L.
King of Bridgwater, L. Wakeham, L.
Knight of Collingtree, B. Wedderburn of Charlton, L.
Acton, L. Bassam of Brighton, L.
Addington, L. Beaumont of Whitley, L.
Ahmed, L. Bernstein of Craigweil, L.
Alli, L. Billingham, B.
Amos, B. (Lord President) Blackstone, B.
Andrews, B. Boston of Faversham, L.
Avebury, L. Bragg, L.
Barker, B. Brennan, L.
Barnett, L. Brett, L.
Bridges, L. Lofthouse of Pontefract, L.
Brooke of Alverthorpe, L. Macdonald of Tradeston, L.
Brookman, L. McIntosh of Haringey, L.
Brooks of Tremorfa, L. McIntosh of Hudnall, B.
Burlison, L. MacKenzie of Culkein, L.
Campbell-Savours, L. Mackenzie of Framwellgate, L.
Carter, L. Mackie of Benshie, L.
Chandos, V. McNally, L.
Chorley, L. Mallalieu, B.
Christopher, L. Mar and Kellie, E.
Clark of Windermere, L. Mason of Barnsley, L.
Clarke of Hampstead, L. Massey of Darwen, B.
Clinton-Davis, L. Merlyn-Rees, L.
Corbett of Castle Vale, L. Miller of Chilthorne Domer, B.
Crawley, B. Mishcon, L.
Darcy de Knayth, B. Mitchell, L.
Davies of Oldham, L.[Teller] Morgan, L.
Dean of Thornton-le-Fylde, B. Morris of Aberavon, L.
Derby, Bp. Morris of Manchester, L.
Desai, L. Murray of Epping Forest, L.
Dholakia, L. Newby, L.
Dixon, L. Nicol, B.
Donoughue, L. Palmer, L.
Dormand of Easington, L. Parekh, L.
Dubs, L. Patel of Blackburn, L.
Elder, L. Pendry, L.
Erroll, E. Pitkeathley, B.
Evans of Parkside, L. Plant of Highfield, L.
Evans of Temple Guiting, L. Prys-Davies, L.
Falconer of Thoroton, L. (Lord Chancellor Radices, L.
Rea, L.
Farrington of Ribbleton, B. Rendell of Babergh, B.
Faulkner of Worcester, L. Rennard, L.
Filkin, L. Richard, L.
Gale, B. Rodgers of Quarry Bank, L.
Geraint, L. Rooker, L.
Gibson of Market Rasen, B. Roper, L.
Gilbert, L. Russell, E.
Golding, B. Sainsbury of Turville, L.
Goldsmith, L. St. John of Bletso, L.
Goodhart, L. Sawyer, L.
Gordon of Strathblane, L. Scotland of Asthal, B.
Goudie, B. Scott of Needham Market, B.
Gould of Potternewton, B. Sharp of Guildford, B.
Grabiner, L. Sheldon, L.
Graham of Edmonton, L. Shutt of Greetland, L.
Grantchester, L. Simon, V.
Grocott, L. [Teller] Stone of Blackheath, L.
Hamwee, B. Strange, B.
Hannay of Chiswick, L. Symons of Vernham Dean, B.
Harris of Haringey, L. Taylor of Blackburn, L.
Harris of Richmond, B. Temple-Morris, L.
Harrison, L. Thomas of Gresford, L.
Haskel, L. Thomas of Walliswood, B.
Hayman, B. Thornton, B.
Hogg of Cumbernauld, L. Tomlinson, L.
Howells of St. Davids, B. Tordoff, L.
Howie of Troon, L. Turnberg, L.
Hoyle, L. Turner of Camden, B.
Hughes of Woodside, L. Wallace of Saltaire, L.
Hunt of Kings Heath, L Walmsley, B.
Irvine of Lairg, L. Warner, L.
Janner of Braunstone, L. Warwick of Undercliffe, B.
Jones, L. Watson of Richmond, L.
Jordan, L. Weatherill, L.
Judd, L. Whitaker, B.
King of West Bromwich, L. Whitty, L.
Kirkhill, L. Wilkins, B.
Layard, L. Williams of Crosby, B.
Lea of Crondall, L. Williams of Elvel, L.
Lester of Herne Hill, L. Williamson of Horton, L.
Linklater of Butterstone, B. Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

5.38 p.m.

[Amendments Nos. 2 and 3 not moved.]

Clause 4 [Person arrested under Part 1 warrant]:

Lord Filkin moved Amendment No. 4: Page 3, line 30, leave out from beginning to first "as" in line 31 and insert "A copy of the warrant must be given to the person

The noble Lord said: My Lords, I beg to move the amendment standing in the name of my noble friend Lady Scotland. Although they are government amendments, they could probably more accurately, and with great courtesy, be described as "Bledisloe amendments", as they closely reflect the suggestions made by the noble Viscount, Lord Bledisloe, to whom I pay tribute.

Noble Lords will recall that the Bill was amended on Report to provide that any person arrested in an extradition case has the right to be shown a copy of the warrant. That was welcomed by noble Lords, but the noble Viscount, Lord Bledisloe, suggested that we should go a bit further and make the requirement that the person should be given a copy of the warrant. We are happy to accommodate that suggestion; that is the effect of Amendments Nos. 4, 9, 22 and 26. They impose a requirement that a person must be given a copy of the warrant as soon as practicable after arrest.

In the light of this stricter requirement, we are also adopting another of the noble Viscount's suggestions. The House may recall that the Bill as currently drafted provides that failure to comply with the obligation to show or give the warrant to the person at the earliest possible moment leads to an entitlement to automatic discharge. The noble Viscount suggested that there is a world of difference between an inadvertent failure in a busy police station to give the person a warrant for a couple of hours and a deliberate attempt to deprive the person of the warrant.

The noble Viscount suggested, thereforeߞand we strongly agreeߞthat the matter should be brought before the district judge who has discretion over whether the person should be discharged, depending on the facts of the case. In reaching a decision, the judge can decide how serious the failure to comply with the obligation was. I trust that the House will welcome the amendments. I beg to move.

Lord Hodgson of Astley Abbotts

My Lords, we are grateful to the Government for this concession which, as the Minister said, reflects discussions in Committee and on Report. There was concern on all sides of the House that the person should be given a copy of the warrant as soon as practicable. I also note that the amendment is a response to the suggestion made on page 8 of the responses to the consultation on the draft code of practice. It would be best practice if, after arrest, the custody officer is required to give the person a copy of the warrant to read and retain. We support the changes and thank the Government for them.

Viscount Bledisloe

My Lords, after the Minister's over-generous remarks, I cannot miss this opportunity of thanking him for adopting the suggestions and for bringing them forward. In particular, I find it desirable that the judge should have a discretion when there has been inadvertence, rather than a serious criminal being released because of some procedural matter that has made no practical difference. I thank the Minister very much.

Lord Goodhart

My Lords, we support these amendments now as we have done at earlier stages.

On Question, amendment agreed to.

Lord Filkin moved Amendments Nos. 5 to 7: Page 3, line 34, at end insertߞ

"(3A) If subsection (2) is not complied with and the person applies to the judge to be discharged, the judge may order his discharge." Page 3, line 35, leave out "(2) or" Page 3, line 39, after "subsection" insert "(3A) or"

On Question, amendments agreed to.

Clause 5 [Provisional Arrest]:

Lord Filkin moved Amendment No. 8: Page 4, line 3, leave out "reason to believe" and insert "reasonable grounds for believing

The noble Lord said: My Lords, in moving this amendment in the name of my noble friend Lady Scotland of Asthal, I shall speak also to Amendments Nos. 21, 25 and 32, and Amendments Nos. 35 to 37. I shall be brief, because we are giving effect to a government concession.

At various places in the Bill, police officers and judges are required to act if they have "reason to believe" certain things to be the case. Various noble Lords have suggested that it might be better if the test were based on a requirement for "reasonable grounds for belief. We are happy to accommodate that suggestion, which is the purpose and effect of these amendments. I beg to move.

Lord Hodgson of Astley Abbotts

My Lords, we welcome this government amendment, which is in response to one put forward in Committee and on Report, which was supported by the noble Lord, Lord Goodhart, as well as noble Lords on these Benches.

On Question, amendment agreed to.

Clause 6 [Person arrested under section 5]:

Lord Filkin moved Amendments Nos. 9 to 13: Page 4, line 34, leave out from beginning to "to" and insert "A copy of the warrant must be given Page 4, line 36, leave out "or (5) Page 4, line 37, at end insertߞ (6A) If subsection (5) is not complied with and the person applies to the judge to be discharged, the judge may order his discharge. Page 4, line 40, at end insert "or (6A) Page 5, line 1, at end insert "or (6A)

On Question, amendments agreed to.

Clause 8 [Remand etc]:

Lord Filkin moved Amendment No. 14: Page 6, line 13, leave out "there are exceptional circumstances" and insert "it to be in the interests of justice to do so

The noble Lord said: My Lords, I can again be brief. The announcement on Report that we would make these concessions was welcome. As currently drafted, the Bill allows for the extradition hearing to be postponed when the judge considers there to be exceptional circumstances. The noble Lord and learned Lord, Lord Mayhew of Twysden, made considerable contributions to earlier stages of the Bill. He suggested that the clause be altered to allow for postponements when it is in the interests of justice. We are happy to agree with that suggestion, which is the purpose of the amendments.

Lord Hodgson of Astley Abbotts

My Lords, I rise to thank the Government for this amendment and for picking up the wording originally brought to the Committee by my noble and learned friend Lord Mayhew of Twysden in an amendment moved by my noble friend Lady Anelay and the noble Lord, Lord Goodhart. We are happy with what is now proposed.

On Question, amendment agreed to.

Clause 55 [Request for consent to other offence being dealt with]:

Lord Filkin moved Amendment No. 15: Page 28, line 18, leave out "there are exceptional circumstances" and insert "it to be in the interests of justice to do so

On Question, amendment agreed to.

Clause 57 [Request for consent to further extradition to category 1 territory]:

Lord Filkin moved Amendment No. 16: Page 29, line 35, leave out "there are exceptional circumstances" and insert "it to be in the interests of justice to do so

On Question, amendment agreed to.

Clause 60 [Return of person to serve remainder of sentence]:

Lord Filkin moved Amendment No. 17: Page 32, line 8, after "sentence" insert "if and

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 31. Briefly, these are drafting amendments. The Bill will allow us for the first time temporarily to extradite serving UK prisoners to stand trial abroad. The Bill provides that time spent abroad does not count against the UK sentence because otherwise the person would be credited twice for the same custody time. The one exception to that is that, following a suggestion from the noble and learned Lord, Lord Donaldson of Lymington, time spent abroad does count against the UK sentence if the person is not convicted at the overseas trial. I am grateful for that point, because, clearly, it is in the interests of justice. I beg to move.

On Question, amendment agreed to.

Lord Lamont of Lerwick moved Amendment No. 18: After Clause 69, insert the following new clauseߞ


This Part shall not come into force until the Secretary of State has laid a report before both Houses of Parliament confirming that all category 1 territories have demonstrated that they have an effective system of legal aid."

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 18 to 20. The three amendments delay the commencement of the Bill with reference to three considerations: legal aid, translation facilities for the accused and the existence of a proper system of Euro bailߞa system designed to ensure that foreigners are treated in exactly the same way for bail purposes as nationals of the countries in which they are detained.

The European arrest warrant and the framework document have been justified as creating one judicial and legal space. I do not know whether the Government would go along with that. However, it would follow that, if we are to have one legal space, we should have one broadly similar system of bail.

There is a flaw in the Government's approach in the Bill. They do not acknowledge that a foreigner is, for several reasons, naturally at a disadvantage in a foreign court. A foreigner in a UK court would also be at a certain disadvantage. Such people can be at a disadvantage because they cannot get bail or legal aid, and may simply not understand what is going on in the court because they do not speak the language. That is why we have to be careful about extradition. We have to have a series of thresholds. That is why we do not extradite for insignificant offences. It is why, in the past, we have had the principle of double criminality. There are risks of injustice occurring through the process of extradition. As I said, we must recognise that the risks that are always there can be increased when a person faces justice abroad, and that person may be innocent.

Amendment No. 18 refers to legal aid. One of the disturbing considerations in our arguments about the European arrest warrant is the absence of legal aid in quite a number of European countries. Many Mediterranean countriesߞSpain, Greece and Portugalߞdo not have adequate systems of legal aid. How can we have a system of adequate justice if there is no adequate legal aid?

That was clearly illustrated in the case of the plane spotters in Greece, which has been rather brushed aside on the grounds that it was not actually extradition. However, the case illustrates a number of issues that could easily arise with accelerated extradition procedures, as provided for in the legislation. Amendment No. 18 provides that the Secretary of State should conduct an investigation and lay before Parliament a report about legal aid within the area covered by the arrest warrant.

Amendment No. 19 adopts a similar approach but with respect to translation facilities. Fair Trials Abroad has highlighted how foreigners or British citizens in European courts often find that they do not have adequate translation facilities during court proceedings or for the translation of documents. Under the European Convention, in theory, there are certain provisions relating to translating facilities.

Fair Trials Abroad says that it has never come across a case in France where adequate facilities have been provided. It has also made extremely serious criticisms of what happens in Portugal. I understand that in Finland the cost of translation falls on the accused, although sometimes some legal aid may be available for part of the cost. I remember watching on television recently a documentary about Geoffrey BoycottߞI am not seeking to comment on the caseߞwho found himself accused in a French court of domestic violence. He was found guilty. When he came out he said that he had not understood a word of the proceedings, which seemed a very unsatisfactory state of affairs. Anyone accused, appearing in court, should have simultaneous translation. Again, the approach in the amendment is that a report should be placed before the House.

Amendment No. 20 refers to bail and has a completely different approach. It would be insufficient just to have a report laid before the House. With respect to a person standing trial in another country, the problem is that there may be prejudice against him being given bail simply on the grounds that, because he is a foreigner, the courts think that he may abscond and, therefore, they would have to go through all the business of re-extraditing him. As has been advocated by many people, including, I think, the noble Lord, Lord Goodhart, and Fair Trials Abroad, one way of dealing with that situation would be to have a system of "Euro bail". This is the first time for a long time that I have advocated a measure of European integration, but it illustrates how one European problem leads to another. This is a very serious problem from the point of view of justice.

The whole concept of Euro bail would be that bail would be made available to non-nationals on the same basis as though they were nationals of that country; that is, the risk of flight out of the country would not be a major consideration. Euro bail would be accompanied by a system whereby the country from which the accused came would be obliged to re-extradite him if he absconded. The three issues of bail, translation and legal aid are very important and bring out one of the fundamental problems of the Bill, which is that a person standing trial in another country faces certain natural disadvantages. I beg to move.

Baroness Carnegy of Lour

My Lords, I support my noble friend, particularly on Amendments Nos. 19 and 20. If the Minister cannot assure us that, for certain, anyone being extradited to any member state would be able to have legal aid and simultaneous translation, the whole concept is flawed. That applies not only to the present European Union but also to when the next two waves of members come in. We are probably some distance from being able to ensure that in some of those countries. The Minister must give us that assurance or we should be very concerned.

Viscount Bledisloe

My Lords, I cannot support the concept of the amendments; namely, that the entire Part I shall not come into force until these things have happened. However, the noble Lord, Lord Lamont, raised a very valid point. The necessity for these provisions and, in particular, the whole issue of an agreement for "Euro bail" is a matter which affects not merely those extraditedߞindeed, not principally those extraditedߞbut those arrested in a foreign country who do not need extradition because they were arrested and kept there.

One can quite understand a foreign country saying, "There is no point in my giving you bail because the only point of you having bail is to go back home and get on with your job until the trial comes on. But once you have gone back there, I have got no way of getting you back without going through the whole process of extradition". Therefore, one can understand a reluctance to grant bail to foreigners. However, it means that it is grossly unfair and very oppressive on those who are arrested in foreign countries or on those who are extradited. I strongly urge the Minister to do everything he can to forward the cause of the Euro bail agreement.

I agree that it is a different matter, but its desirability is surely finally and totally demonstrated by the fact that we have no less a Euro-sceptic than the noble Lord, Lord Lamont, strongly pressing for a Euro agreement. In those circumstances, it must be right.

Lord Hodgson of Astley Abbotts

My Lords, my noble friend has raised the very important issue of the relative advantage or disadvantage of someone in a foreign court, whether it be a UK citizen overseas or an overseas citizen in the UK. He has done so against a background of the importance of legal aid, adequate translation and bail. For those of us who have received briefing from Fair Trials Abroad and other organisations, clearly there are some important points and issues to be addressed. We look forward to hearing the Minister's reply.

My noble friend might be able to comfort himself somewhat that, as a result of points made by him and others in Committee and on Report, Clause 22, entitled, "Minimum procedural rights", now offers some protection and prevention. It particularly allows the Secretary of State to monitor subsequent conduct in different territories and, where that conduct falls short, to draw that fact to the attention of a judge in subsequent cases. Those improvements that have come about, I think, through the noble Lord, Lord Goodhart, have gone a long way to meeting that which my noble friend is seeking. Nevertheless, there is still an issue here to be answered by the Government.

6 p.m.

Lord Goodhart

My Lords, I declare an interest as a trustee of Fair Trials Abroad. On this occasion, the noble Lord, Lord Lamont, will find me much more supportive than I was on his first group of amendments. While my support might not necessarily go so far as to support him in the Division Lobby if he chooses to divide the House, the principle behind these amendments is absolutely vital.

Fair Trials Abroad has found that the two main problems encountered by people facing trial in foreign countries, in particular in the European Union, are the absence of proper legal aid and the lack of competent translation and interpretation facilities. I wish to make a minor point: I would not go so far as to say that simultaneous interpretation is necessary. That would require fairly high-powered electronic equipment to be made available in each courtroom. I should have thought that competent sequential translation would be adequate. However, there is no doubt that the absence of legal aid and lack of interpretation facilities are serious problems.

I recognise that both elements are referred to specifically in Article 6.3 of the European Convention on Human Rights. If it becomes apparent that in certain countries the rights of people who are extradited are not being respected, then obviously it will be possible, under the terms of Clause 21, to object to extradition on the grounds that the convention rights of the person to be extradited will not be met. That will depend on evidence being provided to establish a case for that purpose.

I regret that it did not prove possible to reach a European framework decision on minimum standards of procedure. That would have provided a valuable balance to the contents of the European framework decision that led to the European arrest warrant.

I would be even more enthusiastic about the idea of establishing "Euro bail", because that issue causes real hardship in a significant number of cases. There is no doubt that in a number of countries there is a natural tendency not to grant bail to someone who is a foreigner and who may therefore disappear home. The country could not be certain of getting the person back, and even if it did get him back it would be only after a lengthy struggle. If that is coupled with lengthy periods of detention before trial, the problem would be doubled.

Certainly Fair Trials Abroad has come across a number of cases where people have been detained for very long periods before trial, at the end of which sometimes they have been found innocent. Particular problems have arisen in Spain with cases involving lorry drivers. From time to time, lorry drivers are found transporting drugs or other contraband in the backs of their lorries which they claimߞsometimes rightly and sometimes wronglyߞthey have been carrying without their knowledge. They are detained for long periods in a foreign country; they are not given bail, and often their families cannot afford to travel out to the country to visit them, which increases their hardship yet further.

I understand that discussions are being held with the countries of the European Union which seek to establish some kind of Euro bail system, but that they are still at a preliminary stage. It is important that those talks should be pressed and I hope very much that the Government will be able to express their intention to push for a Euro bail system. It would mean that if someone jumps bail, they would be automatically returned to the country from which they were bailed. In due courseߞI hope sooner rather than laterߞI hope that we will be able to establish a Euro bail system.

Lord Filkin

My Lords, I am grateful to the noble Lord, Lord Lamont, for introducing this debate because in a sense it covers one of the central themes of our discussions on the Bill. It is right and proper that we come back to it at the final stage in this House.

We have been extraditing to other European Union and Council of Europe countries for over 100 years. Never before have we required a Secretary of State to produce a report on those countries' criminal justice systems.

The single most significant change to extradition procedures to Council of Europe countries came with the passage of the Criminal Justice Act 1988. That legislation paved the way for the removal of the requirement for those countries to produce prima facie evidence. Essentially, we operate on mutual recognition between ourselves and other civilised states which we believe uphold the basic principles of the law. Yet that important change was not conditional on a report on various aspects of the criminal justice systems of the countries concerned. Nevertheless, one might say that times have changed and that the burden is still on the Government to consider whether that is good enough.

Let us look at what the noble Lord, Lord Lamont, has specifically proposed in his amendments. While I do not wish to raise hopes, let us pretend for the sake of argument that the Government agreed and produced a report that said that the system in the extraditing country was acceptable. While that may or may not be of comfort, it would not guarantee that, in the future, the system would not change. A snapshot judgment would have been made at a particular point in time about the criminal justice system in another European country.

For that reason and for other more fundamental reasons, we have not taken that route. Rather, we have chosen a substantially better route to ensure that someone who is sought for extradition has their basic rights met. A number of noble Lords who have spoken to this amendment have already signposted how powerful those terms are as they are currently set out in the Bill.

First, Clause 21 ensures that a judge will make the decision on whether to agree to an extradition; it is not for a Minister to decide. That responsibility is placed very firmly on a judge. The clause states: If the judge is required to proceed under this section … he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998". If the judge is not so satisfied at the specific time and with regard to the specific person before him that their convention rights would be met, he must not agree to extradite.

The Bills goes further in Clause 22 by providing that: In reaching a decision under section 21(1) the judge shall have particular regard to the person's Convention rights and Article 6.3 of the European Convention on Human Rights". If he needed to do so, although it would be most unlikely, the judge would look at the article, which covers the right to a fair trial. The position is made explicit: Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly in a language which he understands;… (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require". The last point is relevant to our discussion: (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in the courts". Those decisions will not be in the Government's power; they will be the responsibility of the judge.

Noble Lords know how the system will operate. We have an expert Bar that will deal with extradition cases and it is self-evident that, when the Bill is passed into law, counsel will use these measures powerfully. Arguments will be put before the judge if there is evidence to support the assertion that, in country X or Y, convention rights will not be met. If my memory serves me right, the noble Lord, Lord Goodhart, raised concerns about whether, having closed some loopholes, one might be at risk of creating another great panjandrum of defence around this.

But we are where we areߞand we are at the right place. The Bill could not be clearer in seeking to give a mechanism to the judge to decide, in the specific instances of a particular case before him, whether the convention rights would be met. Without labouring the point, the Bill is as powerful as it possibly could be to meet the aims that the noble Lord, Lord Lamont, seeks to achieve.

As to Eurobail, as the noble Lord, Lord Goodhart, said, negotiations are at a very early stage. I cannot say whether anything will come of them but the UK will play a full part in such negotiations. When we referred to Eurobail previously, we came to the view in Committee that in itself it would not necessarily assist in this case because it would require the fugitive to be transferred twice between the two countries and there were technical reasons why its application may be considered inappropriate in this context.

Be that as it may, the central point is that the Bill could not be clearer in terms of giving a defendant who does not think that he will get a fair trial the strongest possible forum to advance that argument in a court of this country before a judge who is charged very specifically under the Bill. For these reasons, I hope that I have put at rest the minds of at least some Members of the House.

Lord Lamont of Lerwick

My Lords, I am grateful to the noble Lord, Lord Goodhart, for his support. His announcement that he would not join me in the Division Lobbies reminds me of Talleyrand's remark that he had heard a speech often that changed his mind, but his vote never.

As regards the issues of translation and bail, I am also grateful to the noble Lord, Lord Goodhart, for the example that he gave of the plight in which lorry drivers find themselves in many European countries. There are few Members of the House of Commons who do not have constituents who have fallen into such a situation.

The noble Lord referred to Spain being a particular problem. Again, I am deeply disappointed that the Foreign Office is so obdurate about not giving information with regard to British citizens who have been detained in Spain and whether they have been charged or subsequently released without being charged. It is incredible that we can discuss these issues without officials in the Foreign Office being prepared to take off their jackets, do some work and give Parliament answers to questions in the normal way in which other departments have to answer questions. Those in the Foreign Office sometimes believe that they are far too grand to answer questions in Parliament.

The Minister referredߞas he and the noble Baroness, Lady Scotland, have done throughout the passage of the Billߞto the European convention. He quite fairly rehearsed the rights that a person accused in a continental court would have under the convention. Those rights exist but, as regards legal aid and translation facilities, they seem to have had no effect whatever in raising standards. As I said, legal aid does not exist in most Mediterranean countries and translation facilities are not available in France, Portugal and Spain.

Lord Goodhart

My Lords, perhaps I may clarify one point. I have been in correspondence with a former trustee of Fair Trials Abroad about the situation in France, where translation facilities are available but their quality falls short.

Lord Lamont of Lerwick

My Lords, if I recall rightly, Fair Trials Abroad states on its website that in the cases that have come to itߞwhich, of course, are not necessarily typical but are cases that, by definition, have a problemߞit has not come across one that came up to the standards required. That is what the noble LordߞI see that he is noddingߞwill see on the website. Certainly it gives many, many examples.

Lord Filkin

My Lords, if it is as the noble Lord, Lord Lamont, says it is and a judge, on the evidence put before him, thinks that that case is made, he will refuse to extradite.

Lord Lamont of Lerwick

My Lords, yes, although what good that will be to a lorry driver who is arrested while driving through Spain, I do not know. I agree that that does not come under the Bill.

Lord Filkin

My Lords, we are talking about extradition. That is what the Bill is about.

Lord Lamont of Lerwick

My Lords, I totally accept that. I conceded that in my reply to the Minister. However, I am not entirely persuaded that a lorry driver threatened with extradition will be able to challenge on those grounds and will have the assistance of noble and learned Lords from this House. But we shall see.

The Minister also said that we have been extraditing people for 100 years. The conditions under which we have extradited people to continental Europe over 100 years have progressively changed. The prima facie rule, as Ministers have constantly reminded us, disappeared in 1989. That was a big change. We are now in a situation where Ministers are seeking to accelerate the process and to very much reduce the length of time that extradition cases take. As I have observed before, that is likely to mean that there will be more extradition cases.

As the Minister quite rightly pointed out, some countries have not even made requests for extradition because they feared the British system was so lengthy. That has been one of the arguments; for the Bill. If correct, it will mean that people on the Continent will be less reluctant to make requests for extradition from this country. So there will be more extradition cases. If there are more extradition cases, and if these are genuine issues —as a number of people have said they are—they will arise again and again.

We have debated this matter several times. I am disappointed with the Minister's reply—although I am grateful, as always, for his courtesy and the information he has given me—but I do not intend to press the amendment to a Division. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 19 and 20 not moved.]

6.15 p.m.

Clause 72 [Arrest warrant following extradition request]:

Lord Filkin moved Amendment No. 21: Page 40, line 7, leave out "it appears to the: judge" and insert "the judge has reasonable grounds for believing

On Question, amendment agreed to.

Clause 73 [Person arrested under section 72]:

Lord Filkin moved Amendments Nos. 22 to 24: Page 41, line 1, leave out from beginning to first "as" in line 2 and insert "A copy of the warrant must be given to the person

Page 41, line 9, at end insert— "(4A) If subsection (2) is not complied with and the person applies to the judge to be discharged, the judge may order his discharge." Page 41, line 10, leave out "(2) or"

On Question, amendments agreed to.

Clause 74 [Provisional warrant]:

Lord Filkin moved Amendment No. 25: Page 41, line 37, leave out "it appears to him" and insert "he has reasonable grounds for believing

On Question, amendment agreed to.

Clause 75 [Person arrested under provisional warrant]:

Lord Filkin moved Amendments Nos. 26 to 28: Page 42, line 40, leave out from beginning to first "as" in line 41 and insert "A copy of the warrant must be given to the person

Page 43, line 4, at end insert— "(4A) If subsection (2) is not complied with and the person applies to the judge to be discharged, the judge may order his discharge." Page 43, line 5, leave out "(2) or"

On Question, amendments agreed to.

Clause 76 [Date of extradition hearing: arrest under section 72]:

Lord Filkin moved Amendment No. 29: Page 43, line 41, leave out "there are exceptional circumstances" and insert "it to be in the interests of justice to do so

On Question, amendment agreed to.

Clause 77 [Date of extradition hearing: arrest under provisional warrant]:

Lord Filkin moved Amendment No. 30: Page 44, line 15, leave out "there are exceptional circumstances" and insert "it to be in the interests of justice to do so

On Question, amendment agreed to.

Clause 133 [Return of person to serve remainder of sentence]:

Lord Filkin moved Amendment No. 31: Page 72, line 18, after "sentence" insert "if and

On Question, amendment agreed to.

Clause 143 [Issue of Part 3 warrant]:

Lord Filkin moved Amendment No. 32: Page 79, line 10, leave out "is reason to believe" and insert "are reasonable grounds for believing

On Question, amendment agreed to.

Clause 157 [Search and seizure warrants]:

[Amendment No. 33 not moved.]

Clause 163 [Entry and search of premises on arrest]:

Lord Filkin moved Amendment No. 34: Page 92, line 20, leave out "reason to believe" and insert "reasonable grounds for believing

On Question, amendment agreed to.

Clause 165 [Entry and search of premises after arrest]:

Lord Filkin moved Amendment No. 35: Page 94, line 9, leave out "reason to believe" and insert "reasonable grounds for believing

On Question, amendment agreed to.

Clause 173 [Delivery of seized property]:

Lord Filkin moved Amendments Nos. 36 and 37: Page 98, line 42, leave out "reason to believe'' and insert "reasonable grounds for believing

Page 99, line 13, leave out "reason to believe'' and insert "reasonable grounds for believing"

On Question, amendments agreed to.

Clause 188 [Re-extradition hearing]:

Lord Filkin moved Amendment No. 38: Page 107, line 30, leave out "the person must be taken to be discharged" and insert "and the person applies to the judge to be discharged, the judge must order his discharge

The noble Lord said: My Lords, I can be brief. In moving Amendment No. 38, I shall speak also to Amendment No. 39, both of which stand in the name of my noble friend Lady Scotland of Asthal.

On Report, we removed the various references in the Bill to "taken to be discharged" and instead provided for an automatic right of discharge where the appropriate time limits are breached. I fear we missed one reference to "taken to be discharged" and the amendment seeks to correct that omission.

This is not a resigning matter for either Ministers or officials, but I regret that we did not spot it earlier. I beg to move.

On Question, amendment agreed to.

Lord Filkin moved Amendment No. 39: Page 107, line 33, leave out "taken to be

On Question, amendment agreed to.

Clause 213 [Article 95 alerts: transitional provision]:

Lord Filkin moved Amendment No. 40: Page 122, line 12, leave out "and 50(3)(b)" and insert", 50(3)(b), 191(3) and 192(2)(a)

The noble Lord said: My Lords, this is a minor drafting amendment which is consequential on government amendments that the House agreed on Report. I apologise for the fact that the omission was not picked up then. I beg to move.

On Question, amendment agreed to.

Lord Filkin

My Lords, I beg to move that the Bill do now pass.

The Bill is longer and better than it was when it entered the House by almost 250 amendments. I thank all Members of the House who have contributed to the process. We had a good Committee process and some proper challenges. I pay particular tribute to noble Lords on the Front Benches opposite, who worked purposefully on the Bill, and to the officials who have supported us. I commend the Bill to the House.

Moved, That the Bill do now pass.—(Lord Filkin.)

On Question, Bill passed, and returned to the Commons with amendments.