Lords Sitting of 27 October 2003

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

War Widows
Lord Morris of Manchester: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as vice-president nationally of the War Widows Association of Great Britain and as the son of a war widow.
The Question was as follows:
To ask Her Majesty's Government whether they are reviewing the level of benefits paid to war widows whose husbands died before the advent of the Armed Forces Pension Scheme.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Bach): My Lords, the Government recognise the sacrifices made by war widows. However, war pensions paid to those widowed due to service before the Armed Forces Pension Scheme was introduced in 1973 are already substantial, and we have no plans to review them.
All such widows aged 70 or over receive a tax-free pension of over £175 a week, of which £70 is fully disregarded for income-related benefits. The pension is not means-tested and is payable in addition to the widow's own state retirement pension.
Lord Morris of Manchester: I am grateful to my noble friend. Is he aware of the growing concern about Britain's older war widows, as those of later conflicts qualify for "infinitely more generous benefits"—I quote the Forces Pension Society—while theirs are eroded by above-inflation increases in state benefits
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from which they are excluded? Is my noble friend further aware that almost all Second World War widows are now over 80; that their health and other problems multiply as their average age increases; that due, not least, to the rising death rate among them, the total cost of Armed Forces pensions is now falling by 22 per cent year on year; and that thus higher benefits could well be afforded without coming anywhere near to breaching cost neutrality? As another Remembrance Sunday approaches, is it not time now for more help for our older war widows?
Lord Bach: My Lords, I acknowledge, of course, the role that my noble friend has played in supporting war widows over many years, along with many other Members of this House and the other place. I remember particularly their success in 1989 in persuading the previous administration to add a supplementary pension—now £60.97 a week—to the already raised pension that pre-1973 war widows receive.
We believe that the arrangements for pre-1973 war widows are satisfactory and generous. My noble friend is, as always, very persuasive on their behalf. Of course, those people are getting older and their lives more difficult, but we do not think that we should review their benefits at this stage.
Lord Campbell of Croy: My Lords, does the Minister have an estimate of the number of widows in this category? Can he confirm that the description "war widow" applies to all those whose husbands have died while serving in the forces and is not restricted to battle casualties?
Lord Bach: My Lords, I can confirm the last point that the noble Lord made. War widows who are aged 60 and over make up 94 per cent; those who are 70 and over make up 87 per cent; and those who are 80 and over make up 62 per cent. On 30th June 2003, the total number of war widows—pre-1973 and more recent— was 46,935, of whom 41,050 were over 70.
Baroness Turner of Camden: My Lords, is it correct that a war widow cannot claim a carer's allowance because of the rules about overlapping benefits? Is it right that it should be classified as a benefit in that category? After all, the pension has been earned by the loss of the husband's life.
Lord Bach: My Lords, as I understand it, a war widow can receive attendance allowance of either £38.20 or £57.20 a week, depending on the level of care needed, from the Department for Work and Pensions. That is paid on top of her war widow's pension and any retirement pension.
Baroness Strange: My Lords, is the Minister aware that my noble friends Lady Fookes, Lord Morris of Manchester and I all represent the War Widows Association of Great Britain? The association would like war widows aged 80 or over to retain their pension if they remarry or have somebody else living in their house with them. At present, they lose it. Is the Minister also aware that such ladies may not have children, grandchildren or great-grandchildren and may be lonely?
Lord Bach: My Lords, in answering, I acknowledge the role played by the noble Baroness, Lady Strange, in supporting war widows over many years.
The war widow's pension is paid at a rate preferential to the social security widow's pension because of the special circumstances of widowhood. However, like the social security widow's pension, the war widow's pension is paid for the maintenance of a widow whose husband has died as a result of service; it is not and never has been a normal occupational scheme benefit.
If a war widow remarries or cohabits, she is no longer a widow. There is no justification for continuing to pay the preferential war widow's pension, and, as the noble Baroness said, it is withdrawn. That has been the attitude of this Government and of the previous one. However, should the further marriage end through widowhood, divorce or legal separation, or the cohabitation ceases, the war widow's pension is now restored, subject to a claim being made.
Lord Redesdale: My Lords, bearing in mind that members of the Territorial Army are serving considerable periods at present in the Gulf, are the Government thinking of reviewing the situation concerning the lack of pension provisions for those in the Territorial Army?
Lord Bach: My Lords, I acknowledge that the Territorial Army has done a magnificent job during operations in the Gulf, which has brought it to the fore of our thinking. I am unable to answer the question about a specific review of Territorial Army pensions posed by the noble Lord, but I shall find out and write to him.
Lord Pilkington of Oxenford: My Lords, the Minister is suggesting that people can live happily in
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the present age on about £10,000 per year. If a person has lost a husband, has not remarried and has not cohabited, that is the amount being spoken about. Is the Minister satisfied that MPs should vote themselves inflation-proof pensions and not give widows more than £10,000 per year?
Lord Bach: My Lords, a pre-1973 war widow, with entitlement to retirement pension in her own right, can receive more than £250 per week, which is almost 2.5 times the income of a widow on the social security scheme. To suggest that war widows are discriminated against in any way compared with widows who are not war widows would be unfair. The total can be as high as £252.82. A basic war widow's pension, including the supplementary pension and age allowance—to which I have not referred as yet—is £175.37. The basic retirement pension, with national insurance widow's benefit, including the minimum income guarantee, is £102.10. The noble Lord's question has a very wide application: it goes much beyond the income or salary of Members of Parliament; it goes to the salaries of many people outside Parliament altogether.

Education: Parental Support
2.45 p.m.
Baroness Sharp of Guildford Baroness Sharp of Guildford asked Her Majesty's Government:
What they are doing to encourage parental support for children in schools given the evidence from the recent report for the Campaign for Learning that such support has an influence on performance.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland): My Lords, we want to help parents and schools to work well together and to raise children's achievement. We are actively encouraging parents to become more closely involved in their children's education at home and at school. We are making schools aware of key research findings and good practice on parental involvement. We are also telling parents about the free materials available to help them support their children's learning.
Baroness Sharp of Guildford: My Lords, I thank the Minister for her reply. We know that with Sure Start a great deal of work is being done to encourage parents to be involved with their children's education in the early years. Given that the Campaign for Learning report—based on work done for the DfES by Professor Desforges at Exeter University—indicates that parental involvement in education is eight times more likely to be a determinant of academic achievement than social class, does the Minister think that enough is being done to carry that forward and to involve parents in their children's education at the primary and secondary stage?
Baroness Ashton of Upholland: My Lords, I pay tribute to the research carried out by Professor

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Desforges for the Department for Education and Skills. Sure Start is a good example of the importance of early years support. We want the message of Sure Start—that is, key parental involvement—to continue through primary and secondary schools. We have a head teachers' group looking specifically at secondary schools and parental involvement. A programme of work has also been started to ensure that parents receive as much information as possible to support their children in primary education.
Baroness Massey of Darwen: My Lords, is my noble friend aware of the importance of school governors?
A noble Lord: Order.
Baroness Blatch: My Lords, I agree with the noble Baroness. When parents and schools pull together in the interests of children, that is a powerful incentive for children to do well. Does the noble Baroness agree that for many children who are not supported at home— sadly, that is a growing number of children—one reform that would be enormously helpful would be a reduction in the amount of course work required for public examinations? Those children are seriously disadvantaged in examinations.
Baroness Ashton of Upholland: My Lords, the noble Baroness raises an important issue. However, I would approach it by asking: how do we support those children as effectively as we can? There is an important part that we can play in the education system—for example, through extended schools—in order to get the right kind of support to those children through study support, which we know has a huge impact, and through other means.
Baroness Massey of Darwen: My Lords, is my noble friend aware that school governing bodies now have many parents on them? In particular, many schools have developed sub-committees, such as the one in my school where school governors monitor curriculum and performance. Is she further aware that school governing bodies also develop links with the school community, which can help to improve not only the performance but also the behaviour of children?
Baroness Ashton of Upholland: My Lords, I agree with my noble friend. The role of the local community and the parents is critical. It is very important that we ensure that parents an; involved and are aware of the issues surrounding their children's education—that is, issues of attendance, truancy, behaviour and so forth—from the earliest possible age. It is beholden on parents to become involved. Our job is to support them. Schools also need to reach out to parents— perhaps those who do not spend much time in the school playground.
The Lord Bishop of Portsmouth: My Lords—
Baroness Oppenheim-Barnes: My Lords—
Noble Lords: Cross Benches!
The Lord President of the Council (Baroness Amos): My Lords, I think that the House would like to hear from the right reverend Prelate.
The Lord Bishop of Portsmouth: My Lords, this is a very difficult question. I think that the House would agree that parental support can be two-edged. There are situations in which parental support can put undue pressure on pupils to over-achieve. However, do the Government agree that one of the most fruitful developments to deal with the problem is to encourage after-school activities where voluntary organisations such as the Church are often involved?
Baroness Ashton of Upholland: My Lords, the right reverend Prelate has made an important point and I pay tribute to the work of the Churches in this area. It is true that we must ensure that parents are given good advice. Our leaflets and the new parent-centred website are designed to ensure that parents are able to support their children in the most appropriate ways; that is, offering support without exerting the kind of pressure alluded to by the right reverend Prelate. We shall ensure that those materials are made available to parents to enable them to support their children.
Baroness Oppenheim-Barnes: My Lords—
Noble Lords: Cross Benches!
Baroness Howe of Idlicote: My Lords, does the Minister agree that, regrettably, many parents— perhaps especially those in economically deprived areas—have rather negative views about their own schooling? Does she also agree that one good way of helping such parents to play a rather more positive role would be to encourage more schools to establish "drop-in centres", as seen in certain Sure Start areas, providing a wide choice of ways in which parents and children could get into the habit of working and learning together from an early age?
Baroness Ashton of Upholland: My Lords, I agree with the noble Baroness, Lady Howe. We need to do more to help schools to encourage extended schooling. Further, we are undertaking work with unemployed parents to help them better to support their children's education.
Baroness Oppenheim-Barnes: My Lords, the Minister has acknowledged that parental, school and pupil involvement together are very important. Would she also acknowledge that a complete disaster is about to take place in Gloucester, where the Labour-Liberal county council has threatened to take children out of the grammar schools, against the wishes of their parents, and to distribute them between schools that

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are less successful in order to try to raise standards in those schools? Does the noble Baroness support that policy?
Baroness Ashton of Upholland: My Lords, having explained our position through my previous answer, I would say to the noble Baroness that her question is rather wide of the Question before the House.

Arms Exports Policy
2.52 p.m.
Lord Judd: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In so doing, I declare an interest as a trustee of Saferworld, an NGO deeply involved in security issues.
The Question was as follows:
To ask Her Majesty's Government what arrangements they have in place to ensure that their arms export policy is co-ordinated with their policy towards global terrorism.
The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, in 2001, when the Foreign Secretary reviewed our arms exports policy in respect of the terrorist risk, he concluded that the consolidated criteria on which we assess all arms exports should remain unchanged. Accordingly, the Government will continue to take account inter alia of, first, the attitude of any buyer country in relation to terrorism and international crime and, secondly, the need to avoid diversion of United Kingdom exports to terrorist organisations.
Lord Judd: My Lords, I thank my noble friend for that reply. Does she agree that if the stand against terrorism is to be successful, hearts and minds and a consistent commitment to human rights are essential? How, therefore, do the Government reconcile the FCO human rights report which spells out anxieties about human rights in Indonesia and Saudi Arabia with a 20-fold increase in arms sales to Indonesia over the past two years to the value of £41 million and sales of £29 million to Saudi Arabia? In both cases it appears that there are no foolproof end-use monitoring systems in place. Has not the time come to limit arms sales to NATO allies and, in exceptional circumstances, to UN missions in which others may be involved, with close monitoring of the use of those arms?
Baroness Symons of Vernham Dean: My Lords, I do not believe that the last point made by my noble friend is fair because all countries do have the right, under the UN Charter, to self-defence. In order to maintain effective self-defence, countries require not only armed services, but the equipment required for those forces to operate. However, where I do agree with my noble friend is that it is important to take into consideration
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humanitarian matters. That is why we have a painstaking system in place. Within the Foreign and Commonwealth Office, more than 150 staff work on licensing issues. I am sure that my noble friend will be pleased to hear that their submissions are based on advice from experts in human rights, in sanctions and in counter-proliferation, as well as on work with lawyers and the relevant geographical sections— including, of course, the considerations raised by my noble friend in relation to Indonesia and Saudi Arabia.
I can also tell my noble friend that I am the Minister responsible for these duties, which are taken extremely seriously by the Foreign Office. I can further tell him that many staff from the DTI, the Ministry of Defence and the Department for International Development also feed into the process.
Lord Wallace of Saltaire: My Lords, does the Minister agree that the region to which Britain and our competitors in arms exports have been exporting most successfully over the past 20 years has been the Middle East, not entirely the most stable region of the world? Having inherited from the preceding Conservative government the extraordinary industrial policy of supporting the arms industry while not supporting other industries, does she believe that it is now time for the Government to think again about a much more restrictive approach on behalf of themselves, the European Union and the West as a whole to the further proliferation of arms in unstable regions of the world?
Baroness Symons of Vernham Dean: My Lords, in making such a highly persuasive argument, I think that the noble Lord must also acknowledge that Britain has one of the most restrictive and transparent arms export licensing systems of any country anywhere in the world. This Government have made strategic exports more accountable than has almost any other country. Further, in 1997 we introduced the publication of an annual report on strategic exports, which was entirely the right thing to do. We are clear, we are transparent, and I hope that the noble Lord will acknowledge that the policy introduced by this Government has been very successful.
Lord Howell of Guildford: My Lords, is not the real and most serious problem the one mentioned by the noble Lord, Lord Judd, in his reference to "end-use"? Presumably we do want to provide arms to governments who are fighting terrorism; that is the global task of the age. However, difficulties arise when some of those weapons get out of the hands of governments and into the hands of terrorist groups and other undesirable organisations. Is this not a question of the need to concentrate more closely on monitoring end use and introducing systems for such monitoring? Further, while we are on this subject, can the noble Baroness reassure noble Lords that no arms are going to the illegal regime in Zimbabwe after the

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embargo we placed on them in 2000, and that no arms are reaching the Mugabe regime through the back door?
Baroness Symons of Vernham Dean: My Lords, it is because the Government believe that the point made by my noble friend Lord Judd and reinforced by the noble Lord, Lord Howell of Guildford, is entirely right that they carefully assess the possible risk of diversion before a decision is made as regards any export licence application. We understand the importance of ensuring that UK equipment does not end up in the hands of undesirable end-users. I am sure that the noble Lord will be pleased to hear that the Government are committed to carrying out end-use monitoring where it will genuinely add value to our efforts to minimise the risk of misuse and diversion.
Turning to the question of Zimbabwe, of course there are no arms export licences granted to that country. Whether arms get in by the back door may be an entirely different question. I shall check to see whether any information is available on that point and write to the noble Lord.
Lord Clinton-Davis: My Lords, does my noble friend agree that, as I know myself, the role of individual Ministers is extremely important? As my noble friend mentioned in a previous answer, these issues are not dealt with entirely by officials. I repeat: the role played by individual Ministers is supremely important because they have the ultimate weapon of resignation.
Baroness Symons of Vernham Dean: My Lords, I mentioned earlier that I am the Minister responsible and I have listened carefully to the words of my noble friend. Of course the role of Ministers is very important in this area, but it would be entirely misleading to suggest to noble Lords that Ministers take every single decision on arms exports. Most of those decisions are devolved under criteria which are published for all to see and are well understood by the four Whitehall departments I listed in my earlier response. These decisions are devolved to civil servants. Where cases raise issues of doubt or sensitivity—noble Lords have heard reference to at least two countries this afternoon which are extremely sensitive—those decisions are referred to the appropriate Ministers.
The Lord Bishop of Guildford: My Lords, does the Minister accept that one of the problems we face in this field is that yesterday's allies can sometimes turn into today's terrorists? In the uncertain world in which we live, it is possible for weapons that were supplied under one regime to be used in an entirely different context by another generation. Does she further accept that not only is there a moral reason for imposing the highest possible levels of restriction in this field, but a reason of self-interest as well?
Baroness Symons of Vernham Dean: My Lords, I acknowledge that there is a risk. However, if one takes the argument of the right reverend Prelate to its logical
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conclusion, we simply would not be able to have any kind of trade in anything on the military list. The right reverend Prelate may espouse that position—if he does, it is entirely noble—but it is not the position of Her Majesty's Government. We consider particularly whether there is a real risk of internal repression, external aggression or the fuelling of regional conflicts. We do so painstakingly in a number of departments, and I hope that I have been able to reassure your Lordships that we do so transparently.

Compensation Payments: VAT
3 p.m.
Baroness Blatch Baroness Blatch asked Her Majesty's Government:
Whether compensation payments made by government to individuals are subject to VAT.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey): My Lords, compensation is subject to VAT only in the specific circumstances where something is done in return for the compensation and the recipient is a VAT-registered business.
Baroness Blatch: My Lords, I am grateful to the Minister for that Answer. As the Government are recipients of VAT, does he agree that it is very unsatisfactory that compensation cannot be paid ex-VAT in order to stop the incredibly expensive paper chase? In 1997, two successful claims were made, and compensation received, under the Firearms (Amendment) Act. The two companies involved were both paid for the same kind of reasons but, more than six years later, through a tribunal system—which has been extremely costly—one company has been told that VAT is not due to be paid on the amount of compensation it received and the other company is still waiting, having paid the VAT some five and half years ago. Does the Minister agree that this is a very unsatisfactory state of affairs?
Lord McIntosh of Haringey: My Lords, I am grateful to the noble Baroness, Lady Blatch, for giving me the detail contained in her supplementary question. As regards the firearms issue, under European Community VAT law, compulsory purchase—to which this relates—results in the supply of property. The Court of Appeal has twice found that this applies to guns for which compensation was paid after Dunblane. The Customs and Excise issues guidance to all government departments and those who might pay compensation that if VAT is payable it should be reflected in the level of compensation. In other words, if £1,000 is due, £1,175 should be paid. If the noble Baroness gives me details of the cases to which she has referred, I shall look into them and write to her about them.
Lord Saatchi: My Lords, is there not something about these cases which brings to mind the costly

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merry-go-round that the Government have made of the entire tax system, in which people first pay tax to the Government and then have to fill in a complicated form in order to claim a benefit or a credit from the Government?
Lord McIntosh of Haringey: No, my Lords, nothing brings that to mind. If the noble Lord, Lord Saatchi, wishes to introduce amendments to his Taxation (Information) Bill, with which we shall be dealing next, to make that point, he is fully at liberty to do so.

Taxation (Information) Bill [H.L.]
Lord Saatchi: My Lords, I beg to move that this Bill be committed to a Committee of the Whole House.
Moved, That the Bill be committed to a Committee of the Whole House.—(Lord Saatchi.)
On Question, Motion agreed to.

European Union (Accessions) Bill
3.3 p.m.
Report received.
Clause 2 [Freedom of movement for workers]:
Lord Howell of Guildford Lord Howell of Guildford moved the amendment:
Page 2, line 39, at end insert—
"( ) In each of the first seven years after commencement of this Act, the Secretary of State shall publish and lay before both Houses of Parliament an annual report which shall set out the results of the monitoring of the regulations made under this Act, including details of—

(a) the effect of the regulations on labour movement; and

(b) the broader economic conditions governing the relationship between the United Kingdom and the accession states, focusing in particular on trade flows and investment."

The noble Lord said: My Lords, the amendment is two-sided. It seeks to ensure that Parliament is kept fully informed of the results of the monitoring of the progress of the Bill and the treaty—that is to say, the monitoring of the interests of the United Kingdom and the progress of our relations with the accession states as they continue to emerge from their weak state in the past under the tyranny of communism into fully-fledged members of the European Union.
In particular, we note in the Explanatory Notes that it is the Government's intention to monitor closely developments in the movement of workers, although not to place restrictions on them or to use the regulations in Clause 2. We wish to see monitoring of not only labour market developments but also of investment flows—who knows, there might even be migratory movements in the other direction—and our aim is to ensure that these matters are not forgotten. The discipline of reporting them to Parliament annually will ensure that this is so.
So far as concerns labour movements into the United Kingdom, we have been assured that there are really no prospective problems. In my view, that is probably correct. The Government will monitor these matters closely but they do not propose to use any restrictions, although I gather a number of other EU member states do. The Home Office has informed us that between 5,000 and 13,000 migrant workers annually may come into the United Kingdom from the accession states. If they are skilled workers, that will be an obvious benefit. We need skilled workers and we welcome the contribution that they will make.
It is estimated that by 2010 we will have in this kingdom more than 12 million people above pensionable age. While I, for one, do not believe that pensionable age is a bar to work—indeed, I reject the whole concept of dependence over pensionable age— there is no doubt that if the newcomers are both skilled and younger they will help our economic growth and vitality, which at the moment, I am glad to say, continues to be considerable despite a heavy burden of restrictions and taxation. So we need to be carefully informed of what is happening on the inward side.
Another aspect of migrant worker movements relates to the Roma people. There are large numbers of these people in the accession states and even larger numbers in the potential accession states of the next round, notably in Bulgaria and Romania and, possibly, in Croatia. Unlike most working people in the accession states, these people will want to move. The mobility chances of most people in the accession states are rather low—they intend to stay where they are and to improve their lives—but the Roma people are mobile and will wish to move unless they are more effectively integrated into the countries where they presently reside. We should be kept informed about how their integration into those countries is progressing and, in particular, about what kind of assistance we can give, and how we can focus it, to be of help in encouraging the Roma people to stay where they are and to integrate into their communities. So that is one side of the purpose of the amendment.
On the other side, we wish to be kept informed of the help and encouragement we are giving to those countries which have survived the horrors of communism to grow into strong and prosperous European nations. The overall sums are not very large. The entire GDP of all the accession states adds up to 5 per cent of the GDP of the European Union and equals roughly the size of the economy of the Netherlands. It is not a massive addition to the European Union.
But it could grow considerably larger. Indeed, it may already be larger—these figures are always suspect—because there are also the grey and black economies which add considerable amounts to the GDP of the accession states. There is a huge inflow of remittances from people from these states, which are found are all over the world, including the United States and elsewhere in Europe. When we take account of the purchasing power for parity adjustment, it means the addition to the EU's GDP will be between 9 per cent and 10 per cent, not 5 per cent. In all probability, because these countries' costs are low,

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their education and skills are high, their dynamism and incentives are great, and they are not totally committed to the cobweb of regulations in the euro-zone, they will grow much faster from a lower base than the more ponderous economies at the centre of western Europe.
Parliament will want to be kept informed and up to date on agricultural reform implications. The cost of accession states has been estimated to be an additional 22 billion euros in agricultural subsidies by 2007. They will make a small offsetting contribution, but this is bound to have an impact on the overall EU budget and our own budget contributions.
There is also the flow of foreign investment—FDI, so-called—into these countries. All these states are now attracting a considerable inward flow of investment. One thinks of the vast investment by Volkswagen in the Skoda works in the Czech Republic. Most investment is either German or Dutch—the UK content is very low indeed. It would be very valuable for Parliament to be kept informed on how, as we hope will be the case, the UK content rises as we begin to realise the enormous potential of these countries and their very dynamic workforces.
We need to be kept up to date with the way in which these countries are thinking about the future of Europe. The general view seems to be that they will welcome deregulation, resist tax harmonisation—as we are being urged to do by the Chancellor, Mr Gordon Brown, in his various articles in the Wall Street Journal—and generally be on the side of the more flexible, less centralised and less socialised form of Europe.
Finally, Parliament needs to keep an eye on the next waves of accession after the accession states covered in the treaty and in the Bill. That wave will almost certainly include Bulgaria—which is proving to be a very successful economy but which started from a very low base—and Romania, which still has some difficulties. Both countries are aiming for a 2007 or 2008 entry. Alongside them comes Croatia, and we need to keep a watch on the situation there. Beyond that lies the prospect of Turkey's membership, which will bring in 70 million extra people, mostly Muslim. That will change the European Union out of all recognition from its present form. By 2015, we could have 600 million people in the European Union. Reports and information on these matters, which are vital for the future of this country, need to be kept before us.
To sum up the underlying theme of our amendment: we believe the UK need have no fears about this enlargement, but we need to be kept regularly informed about these vital developments in the interests of ourselves and of the accession states. I beg to move.
3.15 p.m.
Lord Wallace of Saltaire: My Lords, we on these Benches intended to give lukewarm support to the amendment on the grounds that it is difficult for us to stand against calls for further transparency and
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information. However, I am a little puzzled by the speech of the noble Lord, Lord Howell of Guildford— it did not seem to relate directly to the amendment.
I suspect that I am one of the few people in either Chamber who reads the six-monthly reports to both Houses of Parliament on EU development, which were introduced, I suspect, by the Labour opposition many years ago on much the same basis. These reports are not debated and are scarcely read, but people thought it would be a good idea to have them.
I am hesitant about the amendment; it suggests that we should be worried about labour movement from east to west, or so I take proposed paragraph (a) to imply. I was relieved, therefore, to hear the noble Lord, Lord Howell, suggest that we do not expect very much movement. Indeed, all the evidence from previous enlargements has been that when states join the European Union, people go back to their own country rather than leave it. The Spanish began to move back to Spain, the Portuguese back to Portugal and the Greeks back to Greece. So long as their domestic economies enlarge, they are likely to stay in their own country. The problem that we face with regard to migration to the European Union is from those countries that are further out—from Ukraine, Moldova and north Africa.
The question of the Roma is something else. When the noble Lord mentioned the Roma, I was thinking that when I worked on a farm as a student, most of the people picking potatoes and calabrese were Roma from across Europe. Such a situation is not entirely new. I also recall that a number of farms in Britain have not able to get their crops picked this last season because the toughening up of casual work permits has meant there are no longer enough people inside the country to pick the crops available. The Roma question is an important and sensitive one; we need to deal with it with the enlargement countries, and I suggest that it should not build up into another Daily Mail campaign against the dreadful Continent.
The noble Lord then mentioned the grey and black economies. As I understand it, the grey and black economies of Italy, Spain and Greece are, if anything, a higher proportion of the economy than they are in Poland, the Czech Republic and Hungary. These are all questions, incidentally, on which the European Commission provides regular reports which are easily accessible to those of us who are willing to wade through them. Of course, the statistics are provided by that superb outfit, Eurostat, of which the Conservatives are extremely strong supporters in their current form.
We hope that flows of investment will go to the new countries. Incidentally, I understand that the Italian investment flows are fairly large, and so are those of Germany, the Netherlands and Austria. I regret that more British investment does not go to those countries. We need more growth inside the European Union. We hope that these countries will grow 5, 6 and 7 per cent a year in the foreseeable future, and that that will help to lift the German economy out of the recession in which it has been stuck for the past three or four years.

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Given all of these factors, we on these Benches cannot support the amendment. We welcome regular reporting, but regular reporting is already provided by a range of functions. We do not think that we should be concerned about the "dangers" of emigration from the countries that are about to join. There is no evidence of that happening. I remember that in 1990 and 1991, a range of people and the British tabloid press suggested that the fall of the iron curtain would lead to millions and millions of people from eastern Europe coming to western Europe. The figure of 25 million appeared in several reports. It never happened, and it will not happen. Scare stories about immigration are something that we should all resist. Similarly, we hope, in terms of broad economic conditions, that these countries will grow, and we hope that they will help our economy to grow. On that basis, we on these Benches decline to support the amendment.
Lord Dubs: My Lords, the noble Lord, Lord Howell, said that we in this country have nothing to fear from the enlargement of the EU by 10 extra countries. I agree with him. More than that, however, we have a lot to gain through enlargement; I think the European Union will be better for the accession of these countries, in terms of what they have to bring and the message it gives to the people of Europe that we shall be a stronger Continent when these countries join.
I think that the amendment is unnecessary, however. I am pretty confident that this Government—or any British government—and the European Commission would provide the sort of information that the amendment seeks. I should have thought that it is not necessary to have this on the face of the Bill. However, I should like to emphasise one important point. Having visited the Czech Republic and Poland fairly recently and having tried to learn a lot about some of the other accession countries, it is my sense that British business is losing out in those countries. We have a lot of good will as a country, yet the German and Dutch industries, and others, are making the running. We are losing all—or many—of the benefits of enlargement, in terms of British companies being able to develop a worthwhile stake of investment in those countries. That is a pity.
Traditionally, there is a lot of good will towards Britain in those countries and a lot of willingness for us to do more business. Indeed, some people in those countries complain that our industry and business is not sufficiently interested in going into those countries. I very much hope that, if the noble Lord's amendment has done nothing else, it has given us the chance to highlight that. If we let that go on, we shall lose out. If the Germans get the lion's share of EU investment in Poland, for example, as they have at the moment, with that will go political influence. We will lose out both economically and in terms of political influence in the EU. I am not sure how much the Government can do to encourage British firms to
16
invest in those countries; they are already doing quite a lot, but it does not seem to be having quite the effect that it might have.
Having said that, I do not believe that the noble Lord's amendment is necessary and I am sure that he will withdraw it.
Lord Lea of Crondall: My Lords, I shall add briefly to the line of thought developed by my noble friend Lord Dubs. We carried out surveys under the European Trade Union Confederation of migration among the accession countries. Of course, I am referring to the accession countries, not to Albania, Russia or Ukraine. We found two interesting variables: first, the level of prosperity in the country and, secondly, the prospects for the future.
As regards the relative levels of prosperity, we found that there was not massive migration, unless the income gradient in a short geographical distance was more than about five to one. When Bratislava, relative to Vienna, which is next door, became more than five to one, very great pressures were put on the labour market. In addition, now that there have been increases in investment, productivity and production in countries such as Poland, Hungary and the Czech Republic, it is remarkable how people in those countries want to stay at home where they were brought up, because they have prospects for the future. The accession countries have those prospects precisely because they have already, ex hypothesi, jumped hurdles in the acquis communautaire to become accession countries.
Therefore, although monitoring of statistics is always to be supported, I would like to echo the line of thought of my noble friend Lord Dubs.
Lord Hannay of Chiswick: My Lords, I, too, would argue that for two reasons the amendment is unnecessary and—although I would not want to exaggerate this—undesirable.
First, every new country that enters the European Union has only one desire, above all others—to be thought of as a member state like all other member states. That was certainly our case, when we entered it. New member states do not want to be treated in a separate category or patted on the head when they do things well or chided when they do things badly. The systematic organisation of such a categorisation would not contribute to our relationship with those countries, nor would it contribute to making them feel welcome.
Secondly, as the noble Lord, Lord Howell, said, there is that dreadful phrase, coined by the Defense Secretary of the United States of America. Without asking for it, those countries were called "New Europe". Frankly, I can think of no title more likely to repel them from us and others than if we insist on referring to them as "New Europe", and expect them therefore to toe a particular line on foreign or economic policy. Along with the noble Lord, I happen

17
to think that they will often take that line, but telling them that they are part of something called "New Europe" will not make that more likely.
Baroness Carnegy of Lour: My Lords, of course we all hope that what the noble Lord has just said is how people will feel, and indeed I am sure that they will. I, for one, am hugely encouraged by what is happening in the countries of the next wave that are entering Europe.
Nevertheless, we must be realistic. I should have thought that the Government would have learned one lesson last week, in their decision about asylum seekers. We must be realistic about what is going on and accept that we need to keep an eye on it.
My noble friend Lord Howell of Guildford referred to the Roma people. I judge by what I have read in the press that large numbers of Roma people are saying that they want to come into other member states, and that they want to come here. It is very natural that they do. Do we know what the scale might be of that number of people? Of the 5,000 to 13,000 a year that the Government estimate may come from the new member states to this country, is there a proportion allowed for of Roma people? Does that figure include Roma people and, if so, what is the proportion—or are they a completely unknown quantity at the moment?
Countries in the future wave, such as Romania and Bulgaria, have a very large number of Roma people. Bulgaria in particular has a high percentage, and it seems likely that they may want to come here. People in this country will want to know about that, and the Government have a responsibility to keep an eye on the situation. I have no picture of what the effect of large numbers will be, but we should know. People will want to hear reports regularly. If the Government do not like the amendment, I hope that they will make a point of regularly reporting to the public who is coming, what they want to do and where they are. Will the Minister say a word about that?
3.30 p.m.
Baroness Symons of Vernham Dean: My Lords, I am grateful to the noble Lord, Lord Howell of Guildford, for explaining his amendment. Like him, the Government take very seriously our obligation to monitor the impact of regulations made under Clause 2 of the Bill. However, the Government cannot accept the amendment, which we believe to be unnecessary and disproportionate.
Of course, arrangements for monitoring need to reflect the strong and credible assumptions on which the Government's policy is based. The evidence that informed our decision to open the labour market next year strongly suggests that free movement will not significantly increase migratory flows into the UK. Research studies suggest that the small net increase predicted for the aftermath of accession will be spread over the first decade after accession. History backs that up. The noble Lord, Lord Wallace of Saltaire, recalled that there were nearly three times as many Spaniards working in France when Spain joined the
18
European Community as there were 10 years after Spanish accession. The fears of mass emigration from Spain and Portugal that some entertained in the mid-1980s were simply not realised.
The labour market in this country already deals with an enormous flow in and out of work, with around 7 million people starting a new job every year. That dynamism means that the labour market can adjust to structural changes much larger than those implied by the regulations that we are discussing. Furthermore, we are in the longest period of sustained economic growth since quarterly records began in 1955. Employment is at record levels, up by over 1.5 million since 1997, and the underlying trend remains upwards. Recent unemployment figures are the best since the 1970s and the number of new vacancies coming up each month remains consistently high. Unemployment as measured by the ILO is less than 1.5 million, which is 5 per cent, while the UK claimant count stands at 929,800, which is 3.1 per cent. Both of those figures are at their lowest since 1975.
Our policy of sound economic management has delivered steady growth in the economy and in employment. Our active labour market policies, by helping jobseekers look for work, ensure that these new job opportunities are open to as wide a range of people as possible.
Moreover, throughout the existing member states of the European Union, demography points to a shortage of labour in very much the way that the noble Lord suggested, because everywhere the working age population is declining in relation to the non-working age population—and particularly the retired population. Birth rates are falling and so far there is no sign of a trend to later retirement, desirable though that may be for some.
In short, as the noble Lord, Lord Howell of Guildford, acknowledged, there is every indication that far from causing problems, we shall need workers from the new member states. We believe that the amendment is unnecessary because the problem simply is not great enough to merit it. We also think it is unnecessary because we believe that the plans in place are robust enough to deal with any changes in the future.
From 1st May next year the Department for Work and Pensions will monitor a range of existing measures of labour market performance in order to gauge whether the regulations have any impact on the United Kingdom labour market. Statistics will be drawn from already available and published data such as the Labour Force Survey, the claimant count, vacancies notified to JobcentrePlus, and so on. This information should give us an overview of the impact of the regulations. The department is currently working on a way to establish the monitoring framework.
In addition to this, the Government will hold informal consultations with key stakeholders such as the CBI, TUC and employers, to supplement the statistical data. We shall involve the regional and devolved authorities. We shall welcome representations initiated by other parties with a direct

19
interest. For example, the noble Lord mentioned the agriculture industry. It is important that that monitoring is widely spread. Monitoring in this fashion will take place across the seven years of the transitional period. The arrangements we have put in place are designed to be flexible and effective to enable Ministers to take decisions promptly where decisions are necessary.
In an earlier stage of our proceedings, the Government accepted the recommendation of your Lordships' Select Committee on Delegated Powers and Regulatory Reform, following correspondence with the noble Lord, Lord Dahrendorf. The Government's amendment, which was approved and now appears in the latest print of the Bill, will ensure that all regulations made under Clause 2 of the Bill are subject to resolutions of both Houses. It is the Government's practice, when laying draft regulations, to provide explanatory notes and, where appropriate, a regulatory impact assessment.
I give the House an assurance that, if it became clear as a result of monitoring that safeguards needed to be invoked through amending regulations, the Government would lay out the evidence in the explanatory notes and a regulatory impact assessment. Parliament would then be able to study and debate the evidence when it considered the resolutions on the amending regulations.
The Government's intentions for handling monitoring are proportionate and flexible and accord with the principle of utility. However, the amendment put forward by the noble Lord, Lord Howell, and the noble Baroness, Lady Rawlings, fails these tests.
First, the amendment is disproportionate and needlessly bureaucratic. As I argued earlier, there is no evidence to suggest that the risks associated with the Government's policy on free movement are at all serious. They do not justify the regular scrutiny and intense debate that the amendment presupposes. The risks do not justify the cost of formally producing and publishing an annual report and laying it before Parliament. The costs would not simply fall on the UK Government. Many stakeholders within the United Kingdom, including employers, would expect or be expected to make an input into the reports. I am a little surprised that the opposition are trying, through this amendment, to increase the regulatory burden within the UK in that way.
Secondly, the amendment is inflexible and does not satisfy the principle of utility. As I made abundantly clear today and at earlier stages, the Government take seriously the availability of safeguards. I hope your Lordships will recognise that I have made an unambiguous commitment today to let Parliament have the available evidence if, in the Government's view, it becomes necessary to invoke the safeguards. That commitment is more important than the production of an annual glossy report, which I do not believe would lead us very much further.
Thirdly, I am puzzled about paragraph (b) of the amendment. A lot of information about trade and investment flows is already in the public domain. The
20
ONS publishes such data annually in the so-called "Pink Book" and Foreign Direct Investment. It is questionable how much more we need to report on that issue.
I am also bound to say that there are drafting problems with the amendment which render it defective. However, I do not want to dwell on those because this is an issue of policy differences between us. I hope that I have gone some way to persuade your Lordships that the amendment is unnecessary.
As regards the point made about the Roma people, all candidates due to join in 2004, as well as Bulgaria and Romania, have fulfilled the Copenhagen political criteria for membership of which respect for human rights is an integral part. We recognise that all the candidate countries offer protection under the law to all their citizens but I am bound to say that Her Majesty's Government and the EU are working closely with candidate countries to address some of the problems that exist through legislation and development programmes. We are running a range of programmes using funds from DfID with our EU action plans, Global Opportunities Fund and the Global Conflict Prevention Pool to help accession countries set out their programmes specifically to target Roma communities. I assure the noble Baroness, Lady Carnegy, that our embassies in the accession states regularly monitor the situation of the Roma and report back to Her Majesty's Government, allowing us better to focus our actions thereby. The figures that the noble Lord mentioned in moving his amendment are already included in the Roma factors.
My noble friend Lord Dubs made some interesting points. I shall relay those to my colleagues in TPUK and British Trade International. Having been a trade Minister I believe that more work could be done in this area, although we have reached out to the accession countries in a structured way in the past year or so.
I refer to the telling argument here. I fear that an annual monitoring report to Parliament would be viewed with great anxiety by the new member states where the UK Government's policy has been widely applauded, I am happy to say. Of course, all the new member states accept our right to impose safeguards in the circumstances set out in the accession treaty. However, many will assume that the amendment would simply impose a new political condition on the Government's policy. They will fear that its proponents want to give Parliament an annual opportunity for questioning, reviewing or undermining the policy quite apart from the principles and safeguards that underpin it. In short, I fear that it may be seen by some—I emphasise "by some", only— in the accession countries as an additional political hurdle that has to be overcome every year.
I believe that your Lordships' House should give the new member states a clear sign of our confidence in the policy that we have before us and the safeguards already attached to it. It is now time for Parliament to give an unequivocal message of support to the new member states. I hope that the assurances I have given

21
are sufficient to persuade the noble Lord and the noble Baroness, Lady Rawlings, to withdraw the amendment.
Lord Howell of Guildford: My Lords, I am grateful to the noble Baroness and, indeed, to all noble Lords who spoke in this short debate on our amendment. I do not want to discuss dangers posed by large migrations of workers to which the noble Lord, Lord Wallace of Saltaire, referred. I do not believe that that will arise. However, as the noble Baroness said, we are clearly correct to monitor carefully all aspects of the situation and how the treaties are working, not merely in the labour market but in other areas as well. The purpose of the amendment is simply to keep those matters before the House.
I disagree with those who suggest that the smaller countries will be uncomfortable with the proposal. It is not the smaller countries which need reminding or patronising about their position; they are strong independent countries and they know perfectly well where they stand and what kind of Europe they want. However, we in this Parliament need reminding that we used to be the champions of eastern Europe, not just siding with the large countries—the "bully boys" as Austria calls them—but a genuine supporter of the smaller nations of central and eastern Europe. That is what we should become again.
I do not accept the negative interpretation of the amendment, but I accept the assurances and the commitment given by the noble Baroness this afternoon. I believe those will help assure ourselves and, indeed, these noble and gallant countries of east and central Europe that we have their interests at heart and that they will not be forgotten. However, in the light of what the noble Baroness said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

Extradition Bill
3.40 p.m.
The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.
Clause 8 [Remand etc.]:
Lord Goodhart Lord Goodhart moved Amendment No. 51:
Page 6, line 6, leave out "there are exceptional circumstances" and insert "that the interests of justice so require"
The noble Lord said: My Lords, in speaking to the amendment, I shall speak also to Amendments Nos. 214 and 217. My noble friend Lord Mar and Kellie will speak to Amendments Nos. 52, 215 and 239. It will be noted that Amendments Nos. 52 and 215 are very much to the same purpose as Amendments Nos. 51 and 214, but Amendment No. 239 raises a similar point in a different context. Our amendments are
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similar to an amendment that I moved in Grand Committee. However, I have altered it to some extent to take on board a suggestion by the noble and learned Lord, Lord Mayhew of Twysden.
The judge who is required to proceed under Clause 8(1) must fix a date for an extradition hearing to begin. Under subsection (4), that date must not be later than 21 days from the date of the arrest. Clause 8(5) reads:
"If before the date fixed under subsection (1) (or this subsection) a party to the proceedings applies to the judge for a later date to be fixed and the judge believes there are exceptional circumstances, he may fix a later date; and this subsection may apply more than once".
Our amendment would replace "there are exceptional circumstances" with,
"that the interests of justice so require".
The Bill allows the date for the hearing to be postponed only in exceptional circumstances. There may be many reasons why a delay may be needed by either side—either the Crown Prosecution Service or the person against whom extradition is sought. There may be a number of reasons why the subject of the request may not be ready to proceed. There may be and very frequently are serious delays in getting legal aid, even when the hearing is imminent. Clause 8 leaves very little time for having authorisation for legal aid.
Where the defendant, if I may call the person that, argues that his or her human rights will not be observed in the requesting state, it obviously may take a considerable time to gather and present the necessary evidence. There may have been some difficulties in finding a lawyer, particularly if the defendant is foreign and not familiar with the English or Scottish legal system and does not know where to start. The lawyer or defendant may fall ill. There may well be circumstances in which the CPS will need more time to present the grounds for extradition, for wholly justifiable reasons.
The Government's reply to the amendment in Grand Committee was that someone could go to the substantive hearing—the first hearing within the 21-day period—and then ask for an adjournment of that hearing, which the court will have discretion to grant. That is true, but the noble Lord, Lord Filkin, who spoke for the Government on that occasion, recognised that it was not desirable to start substantive hearings and then adjourn them, and promised to look at the matter again. No doubt the Government have looked at the matter again but have not changed their view, which is unfortunate on this occasion.
If there are real reasons for doing so, surely it would be better to be able to go to the court and ask for an adjournment without having to wait for the substantive hearing and ask for an adjournment at that point. It is in everyone's interests that there be a power to do that. If someone has to wait for the substantive hearing, there is at least a risk that the application for adjournment will be refused and that they will have to make what provision they can for proceeding on that day. That would be unnecessary if there were a power to ask for a postponement at an earlier stage.
If the court can order an extension of time in exceptional circumstances before the first day of the substantive hearing, why can it not order an adjournment if the circumstances are not exceptional but it is clear in the interests of justice that the extension should be granted? Amendment No. 51 applies that principle to extradition to category 1 territories. Amendments Nos. 214 and 217 extend the same change to extradition to category 2 territories. Amendment No. 214 does so in cases where proceedings are begun by warrant under Clause 72, and Amendment No. 217 does so where a provisional warrant has been issued under Clause 74.
The entirely reasonable and appropriate course would be to allow applications for an adjournment to be made before the date of the first hearing in not only exceptional cases, but cases where arguably it was in the interests of justice that the extension be granted there and then. That would make it unnecessary to wait for the first hearing before the application could be made. I beg to move.
3.45 p.m.
Baroness Anelay of St Johns: My Lords, the names of my noble friends Lord Hodgson and Lord Bridgeman stand to three amendments in the group, Amendments Nos. 51, 214 and 217. I shall deal with those amendments very briefly at this stage.
As the Government are aware, we fully support the amendments. They pick up on a valuable point made in Committee by my noble and learned friend Lord Mayhew. He referred to the fact that the judge might lack guidance about what "exceptional circumstances" covered and that "for good reason" might not provide the guidance. He concluded:
"On reflection, perhaps it would be better to use the phrase 'where the overall interests of justice require'".—[Official Report, 19/6/03; col. GC 382.]
I agree entirely. We feel that postponement, if it were in "the interests of justice", would give adequate guidance to the judge when deciding whether to set a later date for the hearing.
Like the noble Lord, Lord Goodhart, I was pleased in Committee that the noble Lord, Lord Filkin, who responded then to the amendment, gave a commitment that the Government would think again. The noble Baroness is nodding her head very helpfully, so we may get a good reply when she reaches the amendments.
The Earl of Mar and Kellie: My Lords, I challenge myself to be even more brief than the noble Baroness, Lady Anelay.
Amendments Nos. 52 and 215 have been inspired by the Law Society of Scotland. They would ensure that the judge considered the interests of justice as a whole before granting a continuation of a hearing. The current drafting of the clause is defective in Scottish eyes, because it could lead to the indefinite detention of someone awaiting an extradition hearing. The amendment ensures that a balanced approach, taking
24
account of the interests of justice as a whole, would be deployed before a continuation was granted. I remind the House of the Scottish context. There is a similar requirement for the Crown to proceed within 110 days when the accused is remanded in custody.
Amendment No. 239 would introduce further ideas that should be taken into consideration by the High Court when deciding to extend the required period in Clause 100(10). Clauses 8,76 and 100 of the Bill appear to be inconsistent. When dealing with extensions to the dates for initial and extradition hearings respectively, Clauses 8 and 76 make reference to the need for a judge to believe that there are exceptional circumstances that justify a delay. However, no such reference is made in Clause 100. Is that a mistake? Extensions should not be the norm; they should be granted timeously. The amendment would ensure that the court's discretion to extend the time can be invoked only in exceptional circumstances and when it is in the interests of justice to do so.
Baroness Carnegy of Lour: My Lords, when I looked at Amendments Nos. 51 and 52, I thought for a moment that I was seeing double. The two, Liberal-promoted amendments seem to have very much the same intention. I realise that there is a subtle difference. The Law Society of Scotland has informed me of its point of view on Amendment No. 52, which has been well described by the noble Earl. It will be interesting to see which of the amendments the Government prefer and whether they prefer Amendment No. 214 or Amendment No. 215.
Viscount Bledisloe: My Lords, I support Amendment No. 51, but I confess that I do not understand why it is suggested that if Amendment No. 51 were barred, we would need Amendment No. 52. Amendment No. 52 would not achieve the purpose of Amendment No. 51, if Amendment No. 51 were not agreed to. I therefore support Amendment No. 51, but not Amendment No. 52.
One could perhaps argue succinctly in favour of Amendment No. 51 by translating it into the negative. If we were not to accept Amendment No. 51, the Bill would provide that the judge may not postpone the hearing and fix a new date, even though the interests so require, unless there are exceptional circumstances. That would be a remarkable provision, but it would be what the Bill means at the moment.
The noble Lord, Lord Goodhart, said that the Government have conceded that, on the day of the hearing, the judge could grant an adjournment. That is strictly wrong. The judge should begin the hearing so that it is formally started and does not trigger subsections (7) and (8), but he could then say, "Well, I've begun it, but I see that you're not ready to go on, so now go away". That has enormous disadvantages. First, it means that the unfortunate parties must be ready. If they do not have legal aid, they must be ready in some other way. It also means that since the judge has now started the hearing, he is tied in to presiding over the next hearing, which will make it much more difficult to fix a date.

25
The whole purpose of the Bill, I thought, was that parties should be properly represented and have proper translation and so on. Very frequently, that will not have been achieved in 21 days. It is desirable that the case should be heard as quickly as possible, but the best laid plans of mice and men often do not achieve their desired purpose. In the presence of the noble Baroness, Lady Carnegy, I will not try to render that quotation more accurately.
The fact that one's lawyers are not ready or that the translator has not turned up or that one cannot secure legal aid are not "exceptional circumstances"; they are absolutely bog standard circumstances. As a lawyer, one can readily admit that they are the most unexceptional circumstances that one can think of. To say that because one's lawyer has not turned up or the translator is not (here, one cannot have an adjournment because that happens very often, seems to be utterly extraordinary.
I shall be interested to hear how the Minister can seek to advance an argument that one cannot have an adjournment and postpone the hearing—even though the interests of justice require it—just because the circumstances are not exceptional.
Earl Russell: My Lords, when I first looked at the amendment of my noble friend Lord Goodhart, I had a sudden sense of déja vu. It is almost identical to one which I put down on the CSA in 1991, save that my noble friend's amendment is, needless to say, more carefully and more elegantly drafted than mine was.
That amendment fell due for debate at two in the morning. I decided that it was not the time to ask the House to consider matters of that kind. I looked at the programme of amendments for Report and decided that if I were to put it down at that stage, it would again come up for debate at two in the morning, so I did not put it down.
One can imagine then my astonishment when I found it on the Marshalled List in the name of the then Lord Chancellor, the noble and learned Lord, Lord Mackay of Clashfern. I honour him deeply for that decision. I hope that I may honour this Minister equally deeply for a parallel decision.
Lord Cameron of Lochbroom: My Lords, perhaps I may address the point that has been raised about Amendment No. 52. Of the two amendments, I would prefer Amendment No. 51, which deals with the matter in a slightly better way than that which has been suggested by the noble Earl, for the good reason that it contains words which are familiar to judges, whereas the phrase "exceptional circumstances" produces an almost subjective element into the matter, with which I suggest the judiciary should be careful when dealing with matters such as extradition. There is only one matter to which I would draw the attention of the House. Noble Lords would perhaps wish to consider whether the wording proposed by Amendment No. 51 might produce ambiguity about the point of time at which the application should be dealt with. That apart,
26
I certainly support the thrust of Amendment No. 51 and the related amendments that have been suggested as an alternative.
Lord Bassam of Brighton: My Lords, the debate has ranged gloriously. At one point, I had a sense of déja vu myself, having heard the arguments before. However, I assure your Lordships' House that I am going to make a "bog standard" concession. I give advance notice of that. Concessions come in different shapes and sizes, but this one is definitely bog standard.
We listened to everything that was said in Committee. The noble Lord, Lord Filkin, made it clear that he would take the matter away and give it fair consideration. That is exactly what we have done.
During Grand Committee, amendments were tabled to change "exceptional circumstances" to "good reason". We could not support those amendments at that stage. All experience shows that fugitives will use any and every trick to try to string out the extradition process and delay their extradition.
We were fearful that "good reason" as a test would allow far too many postponements. That would run contrary to one of the key purposes of the Bill, which is to speed up the extradition process. It would also run counter to the interests of justice.
I think that noble Lords who were in Grand Committee saw the force of that argument. However, this afternoon, the two Opposition parties have come forward with an entirely different formulation with which we find greater favour. I think that it was inspired by the noble and learned Lord, Lord Mayhew of Twysden. If that is so, I am sure that it comes with an impeccable pedigree. The words used are,
"where the interests of justice so require".
As I said, we have given that further consideration. Clearly, where it is in the interests of justice that a hearing should be postponed, that hearing must be postponed. At the same time, this particular form of words should prevent hearings being postponed for trivial or improper reasons. I listened to what the noble Viscount, Lord Bledisloe, said about that. I think that his points about exceptional circumstances were both right and compelling.
Accordingly, I am happy to give an undertaking today that we will bring forward government amendments at Third Reading which will allow for hearings to be postponed where that is in the interests of justice. If your Lordships care to look at the amendments to Clauses 31 and 113, standing in the name of my noble friend Lady Scotland, you will see that we have already started down that route. It is essentially a down-payment towards a bog standard concession.
I hope that in the light of that firm commitment, noble Lords will feel able to withdraw or will not press their amendments. In turn, we promise to bring back government amendments on Third Reading that we think will tidy up the loose ends on this issue.
4 p.m.
Lord Goodhart: My Lords, I am, of course, extremely pleased with that concession. If one can call it a victory, I think that it is a victory for the noble and learned Lord, Lord Mayhew of Twysden, whose wording is now incorporated in the amendments in my name and that of the noble Baroness, Lady Anelay. On that basis, I am happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 52 and 53 not moved. ]
Clause 9 [Judge's powers at extradition hearing]:
[Amendment No. 54 not moved. ]
Clause 10 [Initial stage of extradition hearing]:
[Amendments Nos. 55 and 56 not moved. ]
Clause 11 [Bars to extradition]:
[Amendment No. 57 not moved. ]
Clause 12 [Rule against double jeopardy]:
[Amendment No. 58 not moved. ]
Clause 13 [Extraneous considerations]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 59:
Page 7, line 39, after "nationality" insert ", gender, sexual orientation"
The noble Lord said: My Lords, I hope that I can be brief on the amendments in this group as I think that their effect is clear enough, although their history might be slightly less obvious. They respond to a point raised by my noble friend Lord Wedderburn in Grand Committee. We made a commitment at that time to go away and see what we could do to act on his suggestions. I am pleased that we have been able to come back with these amendments.
As currently drafted, both Part 1 and Part 2 of the Bill contain a clause barring extradition if the extradition request has been made for the purpose of punishing a person because of his race, religion, nationality or political opinions or if the person is liable to be prejudiced at his trial for those reasons. These amendments extend the list of factors to include gender and sexual orientation. In other words, if an extradition request is made to the United Kingdom which is motivated by the desire to persecute a person because of his or her gender or sexual orientation, the court will have clear grounds for refusing it.
I am confident that none of your Lordships will object to that and that, accordingly, your Lordships will support these amendments. I beg to move.
Viscount Bledisloe: My Lords, let us suppose that there is a country where, let us say, homosexual offences are illegal. The person concerned might therefore be tried for one of those reasons. I accept, of course, that sexual offences of those kinds would not be within the list. However, let us suppose that they
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wanted to prosecute him for that as well. Would that debar it, or is it merely his orientation rather than his practices that are excluded by these words?
Lord Bassam of Brighton: My Lords, common sense would suggest that it probably would be barred. However, I should like to reflect on the matter and perhaps drop the noble Viscount a line.
On Question, amendment agreed to.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 60:
Page 7, line 42, after "nationality" insert ", gender, sexual orientation"
On Question, amendment agreed to.
[Amendment No. 61 not moved.]
Clause 14 [Passage of time]:
[Amendment No. 62 not moved.]
Clause 15 [Age]:
[Amendment No. 63 not moved.]
Clause 16 [Hostage-taking considerations]:
[Amendment No. 64 not moved.]
Clause 17 [Speciality]:
[Amendment No. 65 not moved.]
Clause 18 [Earlier extradition to United Kingdom from category 1 territory]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 66:
Page 9, leave out line 37.
The noble Lord said: My Lords, again, I hope that we can be very brief as we are dealing with a minor matter. As your Lordships may know, the framework decision on the European arrest warrant allows EU member states to adopt one of two positions on the issue of speciality and re-extradition. There is a "higher" position whereby other member states also adopting that position could assume our consent, and the "lower" position which requires other member states to seek our consent if they want to charge the person with an additional offence or re-extradite him or her.
The Government's view was that the UK should adopt the "higher" position and the Bill was originally drafted accordingly. However, we were persuaded by the strength of feeling in another place to change our view on that and we now intend to adopt the "lower" position. To put the matter beyond doubt, at an earlier stage of the Bill's passage we removed all the provisions relating to the "higher" position. Unfortunately we missed a couple. However, these amendments remedy that and provide, we hope, for consistency throughout. I apologise to your Lordships for the error, but I am sure that you will have little difficulty in accepting these amendments. I beg to move.
On Question, amendment agreed to.
[Amendment No. 67 not moved.]
Clause 19 [Earlier extradition to United Kingdom from non-category 1 territory]:
[Amendment No. 68 not moved.]
Clause 20 [Case where person has been convicted]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 69:
Page 10, leave out lines 9 to 26 and insert "whether the person was convicted in his presence.

(2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 21.

(3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.

(4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 21.

(5) If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.

(6) If the judge decides the question in subsection (5) in the affirmative he must proceed under section 21.

(7) If the judge decides that question in the negative he must order the person's discharge."

The noble Baroness said: My Lords, in moving Amendment No. 69 I shall speak also to the other amendments in this group.
Our amendments follow on from the fascinating discussion that took place in Grand Committee and also from amendments that we discussed a little earlier. There is both a general issue here concerning the burden and standard of proof and a more specific one relating to convictions in absentia. I should like to address the bigger issue first before turning to the specific, and in doing so I shall attempt to make the case for the amendments standing in my name. However, before all of that, I should begin with a tribute to the value of close scrutiny and to the noble Lord, Lord Goodhart, in particular. He will be scoring two goals in very quick succession in this regard.
As I mentioned, we had very good debates on this subject in Grand Committee. The noble Lord, Lord Goodhart, made a particularly effective speech, if I may say so, in which he sought to demonstrate that the wording of what are now Clauses 20 and 86 was internally contradictory and could lead to a significant gap. I am not ashamed to tell your Lordships that those remarks caused a great deal of head scratching in the Home Office and that a great deal of midnight oil was burned to see whether the noble Lord was right. The conclusion was, of course, that the noble Lord was quite right. He had indeed exposed a gap in the Bill. I should like to take this opportunity to give him my thanks for that.
Amendments No. 69 and 227 standing in my name seek to close that gap by amending and simplifying the drafting of Clauses 20 and 86. I hope that that will be welcome to your Lordships and to the noble Lord, Lord Goodhart, in particular. For the sake of completeness, I should explain that Amendments Nos. 157 and 272 are minor consequential amendments.
I turn to the whole issue of the burden and standard of proof. Following the debates in Grand Committee, we took the view that it would be sensible to put a
30
general statement on the face of the Bill specifying the standard of proof that should apply. That is the purpose of Amendment No. 303 in my name. It provides that the normal criminal rules apply to extradition proceedings. That means that, in practice, where the onus of proof is on the requesting state, the standard to be applied is beyond reasonable doubt. Where the onus is on the requested person, the standard is the balance of probabilities. I am sure that noble Lords will see that as a just provision and welcome it accordingly.
I now turn to the amendments standing in the name of the noble Baroness, Lady Anelay—Amendments Nos. 70, 71 and 228, together with Amendment No. 229—all of which are concerned with the whole issue of convictions in absentia. This is an issue on which I believe there is very little between the intentions of those on all sides of the House. The objective of these provisions is clear and, I believe, common to all of us. Nevertheless, the manner by which that objective is to be achieved is at the nub here. Given the existing structure and content of the Bill, I do not believe it is necessary to make these amendments. Perhaps I may explain why.
Convictions in absentia, although rare—I believe they have been in single figures over the past five years—occasionally become a factor in extradition cases and, inevitably, we need to provide for that eventuality. I should also point out that conviction in absentia, although unusual, as a concept is not unknown to the UK criminal justice system. A brief review of some extradition cases where people have been wanted for return to the UK in these circumstances provides a number of pertinent examples.
A man from south Wales went missing from his trial in August 2000 as the jury considered verdicts on a number of serious sexual offences. He was convicted in his absence and sentenced to 12 years' imprisonment for nine serious sexual offences against women and children. He was subsequently arrested in France. Another case concerns a couple from Staffordshire, who fled their trial in September 2002 and were convicted in their absence of attempting to commit a £110,000 VAT fraud. They were subsequently arrested in Ireland. In that case, it is also worth noting that the husband had previously feigned a heart attack in America in order to flee a fraud trial there. That gives us a little insight into the mind of a person who is seeking to evade justice.
I hope that the Government have shown in the Bill that our aim is to make more explicit the rights of the person whose extradition is sought. Extradition is barred if a person has been convicted in his absence, unless he deliberately absented himself, and he will not be entitled to a retrial or a review amounting to a retrial. Again, I should explain that a retrial must confer on an individual the same rights as a trial. It does not constitute a retrial unless it has that effect.
The right to a fair trial is enshrined in Article 6 of the ECHR. Extradition would be barred under the ECHR provisions where a judge or court was of the opinion

31
that a person would not be afforded those rights, either at a trial or a retrial, on return to the requesting state. Noble Lords will know that that is enshrined in this Bill in Clause 21.
The amendments would introduce into the Bill a specific description of what a retrial or review must include. They direct the judge to disregard any proceedings which do not include provision for the extradited person to have specific rights. I believe that we discussed these specific issues at great length in Grand Committee. Indeed, I notice that the amendments have been carefully drafted to include the words "in particular", as suggested by the noble and learned Lord, Lord Mayhew.
At that time, we agreed that we would consider the amendments further to see whether they could be used in any way to improve upon what was already in the Bill. In this instance, we have done so and we believe that the Bill is correct and appropriately drafted. Whatever form it takes, a retrial must comply with the right to a fair trial, as guaranteed by Article 6 of the ECHR. If a judge considered that any of the rights listed in the amendments would be breached, extradition could be refused under Clause 21. I respectfully suggest that the amendments would elongate the provisions to give us something that we already have, and I am sure that your Lordships would be keen to avoid that.
I repeat the invitation that I gave in Grand Committee for your Lordships to imagine how much longer the Bill would be if we were to define all the ECHR issues that could arise. Were it not the case that these issues are all set out in the Human Rights Act, there would be a very strong case for putting them on the face of the Bill. But they are set out in that Act and we suggest that that is the correct place for them. They simply do not need to be repeated, point by point, in this Bill.
The inclusion of these points, and not others, could also attract unfortunate inferences. It could be suggested that these issues are to be regarded over and above, or even to the exclusion of, other ECHR rights. That would not be a desirable consequence. The noble and learned Lord, Lord Mayhew, sought to address that point with the inclusion of the words "in particular". But we are not sure that that alleviates the problem. The words intrinsically suggest that the specified points take precedence or more importance over other Article 6 rights. Again, with the greatest respect, having reflected on the matter, we do not believe that this takes us any further forward or removes the difficulties that we have with the amendment.
We certainly accept that the amendments raise important issues and we agree, without hesitation, that no person's right to a fair trial should be breached. However, I submit to your Lordships that the Bill already provides proper protection against that. I apologise for speaking at a little length, but I considered it important to reassure noble Lords that we have taken into account all the factors that they raised with us in Grand Committee. I beg to move.
4.15 p.m.
Baroness Anelay of St Johns Baroness Anelay of St Johns moved, as an amendment to Amendment No. 69, Amendment No.70:
Line 15, at end insert—
"(8) For the purposes of subsection (5), the judge should not regard as a retrial or (on appeal) a review amounting to a retrial, any proceedings that do not in particular include provision for—

(a) the suspect to be present at the retrial;

(b) the suspect to have like rights to hear and examine witnesses as he would have done at the original trial;

(c) the suspect to have the same right to publicly funded legal services as any suspect or defendant."

The noble Baroness said: My Lords, in moving Amendment No. 70, as an amendment to government Amendment No. 69, I shall speak also to Amendment No. 228, which is an amendment to government Amendment No. 227.
On looking at the Marshalled List, it may seem odd that I appear to have tabled a surfeit of amendments on the subject on retrial. I thought that I should put on the record why some of them have become unnecessary. Amendments Nos. 71 and 229 have, of course, been pre-empted by the tabling of the new government amendments. It would be my normal procedure merely to withdraw my own amendments to the government amendments in recognition of that fact. However, I could not do so on this occasion because I would have needed the permission of all those who had added their names to the amendments. For very good reasons, the noble Lord, Lord Goodhart, could not be contacted last week and therefore could not formally give his consent. That is a long way of saying, "I'm sorry they are still on the list. They should not be there; I shall not talk to them; ignore them; and we shall simply get on with Amendment No. 70".
As the Minister explained very carefully to the House today, the Government have done a meticulous job of redrafting the clauses which deal with convictions in absentia. The noble Lord, Lord Goodhart, pointed out that there was some kind of contradiction and we accept that the Government appear to have solved that problem. I shall be interested to hear later from the noble Lord, Lord Goodhart, whether he agrees with that. It has certainly satisfied us.
Unfortunately, we were not satisfied that, in simplifying and tying up that particular problem, the Government did not then go on, as we felt that they should, fully to address our concerns about the safeguards that need to be added with regard to convictions in absentia. Today, the Minister said that she considers that mechanisms already exist within the Bill—particularly in Clause 21—and within the Human Rights Act to guarantee a sufficiently strong series of safeguards when someone is retried after a conviction in absentia and that we should not continue to press our amendments.
The Minister made similar arguments in Grand Committee. I noted that, at that stage, the noble Lord, Lord Clinton-Davis, who is in his place today, stated:
"Retrials are different in certain member states".—[Official Report, 26/6/03; col. 120.]
That is where our concern lies. Last week, we heard from the noble and learned Lord, Lord Donaldson of Lymington, about the tremendous difference in judicial systems across the EU and, indeed, across the accession states, which will join us in the future. We still consider that our amendments are essential in order to provide three extra safeguards on the face of the Bill. The noble Baroness says that they are there. We consider those safeguards to be so important in respect of convictions in absentia that attention should, therefore, be drawn to them.
The first safeguard is the right of the person to be present at the retrial. Following a conviction in absentia we think it is vital that the person should be present at the subsequent retrial. The second safeguard is that the person must have the same right to hear and examine witnesses as he or she would have done at the original trial. As the Minister spotted, we redrafted this paragraph to take into account the comments of noble Lords, including those of the noble Viscount, Lord Bledisloe, who pointed out that in other countries witnesses may not be categorised as prosecution or defence witnesses. We agree with his comments in Committee and therefore, to meet his point, here we refer only to "witnesses".
Our third safeguard is that the defendant must have the same right to publicly funded legal services as any suspect or defendant would in those jurisdictions. We remain convinced that these safeguards should be made clear on the face of the Bill. I beg to move.
Lord Goodhart: My Lords, I rise briefly, first to apologise. Last week I appeared as counsel in the Court of Final Appeal in Hong Kong, which made it somewhat difficult for me to be contacted. Therefore, I was unable to consent to the withdrawal of Amendment No. 71 or, indeed, to put my name to Amendment No. 70, which certainly I would have done had I been present. Secondly, I endorse entirely the comments of the noble Baroness, Lady Anelay.
Baroness Scotland of Asthal: My Lords, it is important for us to consider Article 6. The right to trial is clearly set out. I remind the House that each and every country which has put its name to the framework document will be equally bound by the provisions of the European Convention on Human Rights. The position is that each country has a slightly different system, and the way in which we deliver trials has to accord with Article 6. So the outcome must be the same although the means we adopt will differ.
Also, I ask the House to bear in mind that if we were to pass provisions in our Bill which contradicted those of other countries or which made it more difficult for them in this way, it may be that we would not receive the same reciprocal response that we would like. I am conscious of what was said by the noble Baroness about putting these matters on the face of the Bill.
34
However, I am concerned that this should go forward in this way. I am particularly surprised that our colleagues on the Liberal Democrat Benches have taken this view. I urge noble Lords not to press the amendment. With the greatest respect, we say that it is unnecessary and misconceived.
Baroness Anelay of St Johns: My Lords, it is always rather confusing when one has this unusual circumstance of amending a government amendment or seeking so to do. I simply reiterate my original contention that when one comes to a retrial of someone who has been convicted in absentia, it is vital that the safeguards are clear and on the face of the Bill. I understand that the Minister is trying to persuade me to accept that this would somehow make the other countries which have signed up to the framework decision feel that we were working against them. I am sure that that would not be the case, and that they would accept the fact that we were simply trying to put a clear commitment on the face of the Bill, which, in principle, the Minister also supports. I should like to test the opinion of the House.
4.24 p.m.
On Question, Whether Amendment No. 70, as an amendment to Amendment No. 69, shall be agreed to?
Their Lordships divided: Contents, 127; Not-Contents, 113.

Division No.1

CONTENTS

Addington, L.

Elton, L.

Alexander of Weedon, L.

Erroll, E.

Anelay of St Johns. B.

Ezra, L.

Astor, V.

Falkland, V.

Astor of Hever, L.

Fookes, B.

Attlee, E.

Gardner of Parkes, B.

Avebury, L.

Gilmour of Craigmillar, L.

Beaumont of Whitley, L.

Goodhart, L.

Biffen, L.

Gray of Contin, L.

Blaker, L.

Hamwee, B.

Blatch, B.

Hanham, B.

Bledisloe, V.

Harris of Richmond, B.

Bradshaw, L.

Hayhoe, L.

Bridgeman, V.

Hodgson of Astley Abbotts, L.

Brooke of Sutton Mandeville, L.

Howe, E.

Brougham and Vaux, L.

Howe of Aberavon, L.

Buscombe, B.

Howe of Idlicote, B.

Byford, B.

Hunt of Wirral, L.

Cameron of Lochbroom, L.

Hurd of Westwell, L.

Campbell of Alloway, L.

Hylton, L.

Carnegy of Lour, B.

Jenkin of Roding, L.

Clement-Jones, L.

Kimball, L.

Cope of Berkeley, L. [Teller]

Kingsland, L.

Craig of Radley, L.

Laing of Dunphail, L.

Craigavon, V.

Lamont of Lerwick, L.

Crickhowell, L.

Lester of Herne Hill, L.

Darcy de Knayth, B.

Listowel, E.

Denham, L.

Livsey of Talgarth, L.

Dholakia, L.

Luke, L.

Dixon-Smith, L.

Lyell, L.

Donaldson of Lymington, L.

McColl of Dulwich, L.

Eden of Winton, L.

MacGregor of Pulham Market,

Elles, B.

L.

Elliott of Morpeth, L.

Maclennan of Rogart, L.

35

McNally, L.

Rodgers of Quarry Bank, L.

Maddock, B.

Roper, L.

Mar and Kellie, E.

Rotherwick, L.

Mayhew of Twysden, L.

Russell, E.

Michie of Gallanach, B.

Russell-Johnston, L.

Miller of Chilthorne Domer, B.

Ryder of Wensum, L.

Molyneaux of Killead, L.

Saatchi, L.

Monro of Langholm, L.

St. John of Bletso, L.

Monson, L.

Saltoun of Abernethy, Ly.

Montrose, D.

Seccombe, B. [Teller]

Mowbray and Stourton, L.

Selsdon, L.

Moynihan, L.

Sharp of Guildford, B.

Newby, L.

Sharpies, B.

Noakes, B.

Shaw of Northstead, L.

Northesk, E.

Shutt of Greetland, L.

Northover, B.

Skelmersdale, L.

O'Cathain, B.

Stevens of Ludgate, L.

Palmer, L.

Stoddart of Swindon, L.

Park of Monmouth, B.

Strange, B.

Pearson of Rannoch, L.

Strathclyde, L.

Peel, E.

Trefgarne, L.

Phillips of Sudbury, L.

Trumpington, B.

Pilkington of Oxenford, L.

Vivian, L.

Rawlings, B.

Wakeham, L.

Reay, L.

Wallace of Saltaire, L.

Redesdale,L.

Walmsley,B.

Rees, L.

Warnock, B.

Rennard, L.

Weatherill, L.

Renton, L.

Wigoder, L.

Roberts of Conwy, L.

Wilcox, B.

NOT-CONTENTS

Acton, L.

Gavron, L.

Ahmed, L.

Gibson of Market Rasen, B.

Alli, L.

Goldsmith, L.

Amos, B. (Lord President)

Gordon of Strathblane, L.

Andrews, B.

Goudie, B.

Archer of Sandwell, L.

Gould of Potternewton, B.

Ashton of Upholland, B.

Graham of Edmonton, L.

Bach, L.

Gregson, L.

Barnett, L.

Grocott, L. [Teller]

Bassam of Brighton, L.

Hannay of Chiswick, L.

Berkeley, L.

Harrison, L.

Bernstein of Craigweil, L.

Haskel, L.

Billingham, B.

Hayman, B.

Blackstone, B.

Hilton of Eggardon, B.

Boothroyd, B.

Hogg of Cumbernauld, L.

Borrie, L.

Hollis of Heigham, B.

Brennan, L.

Howells of St. Davids, B.

Brookman, L.

Howie of Troon, L.

Burlison, L.

Hoyle, L.

Campbell-Savours, L.

Hughes of Woodside, L.

Carter, L.

Irvine of Lairg, L.

Chorley, L.

Janner of Braunstone, L.

Christopher, L.

Jay of Paddington, B.

Clark of Windermere, L.

Jones, L.

Clarke of Hampstead, L.

Jordan, L.

Clinton-Davis, L.

Judd, L.

Corbett of Castle Vale, L.

King of West Bromwich, L.

Crawley, B.

Layard, L.

David, B.

Lea of Crondall, L.

Davies of Coity, L.

Lipsey, L.

Davies of Oldham, L. [Teller]

Lofthouse of Pontefract, L.

Desai, L.

McIntosh of Haringey, L.

Dixon, L.

McIntosh of Hudnall, B.

Dormand of Easington, L.

MacKenzie of Culkein, L.

Dubs, L.

Mackenzie of Framwellgate, L.

Evans of Temple Guiting, L.

Mallalieu, B.

Evans of Watford, L.

Marsh, L.

Falconer of Thoroton, L. (Lord

Mason of Barnsley, L.

Chancellor)

Merlyn-Rees, L.

Farrington of Ribbleton, B.

Mitchell, L.

Faulkner of Worcester, L.

Morgan, L.

Fitt, L.

Morris of Aberavon, L.

Gale, B.

Morris of Manchester, L.

36

Nicol,B.

Scotland of Asthal, B.

Patel of Blackburn, L.

Simon, V.

Paul,L.

Smith of Gilmorehill, B.

Pendry, L.

Stone of Blackheath, L.

Pitkeathley, B.

Symons of Vernham Dean, B.

Plant of Highfield, L.

Taylor of Blackburn, L.

Prys-Davies, L.

Thornton, B.

Ramsay of Cartvale, B.

Tomlinson, L.

Rendell of Babergh, B.

Turner of Camden, B.

Richard, L.

Warwick of Undercliffe, B.

Roll of Ipsden, L.

Whitaker, B.

Rooker, L.

Whitty, L.

Sainsbury of Turville, L.

Williams of Elvel, L.

Sawyer, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and Amendment No. 70, as an amendment to Amendment No. 69, agreed to accordingly.
On Question, Amendment No. 69, as amended, agreed to.
4.35 p.m.
[Amendments Nos. 71 and 72 not moved.]
Clause 21 [Human rights]:
[Amendment No. 73 not moved.]
Lord Goodhart Lord Goodhart moved Amendment No. 74:
After Clause 21, insert the following new clause—
"MINIMUM PROCEDURAL RIGHTS
(1) In reaching a decision under section 21(1) the judge shall have particular regard to the person's Convention rights under Article 6.3 of the European Convention on Human Rights.
(2) For the purposes of subsection (1), the judge may accept a written assurance from an appropriate authority in the category 1 territory in which the warrant was issued that the person's Convention rights under Article 6.3 will be observed.
(3) Where a written assurance has been given under subsection (2), the Secretary of State shall make arrangements to monitor the subsequent conduct of the proceedings against the person in the territory to which he has been extradited.
(4) If the Secretary of State believes as a result of monitoring under subsection (3) that a person's Convention rights under Article 6.3 have not been observed, he may draw that conclusion to the attention of a judge acting under section 21 in relation to any proceedings for the extradition of any other person to the same category 1 territory."
The noble Lord said: My Lords, the amendment raises issues which I believe are of very great importance in the context of the Extradition Bill. The most serious problem with the European arrest warrant is the variable standards of criminal procedure in some member states of the European Union. We should not of course be complacent about our own standards. We need to recognise that many member states have standards that are at least equal to ours. That unfortunately is not yet true of all the other member states. Certain states—and events in the past year will have perhaps suggested that Greece is one of them—do not attain in all cases the standards that we would regard as acceptable.
The European Union has started work on a framework decision on minimum standards of legal process. Progress is moving without any sense of urgency towards that framework decision and I fear

37
that it will be some considerable time before we reach anything that can be regarded as an adequate framework decision.
Clause 21, which we greatly welcome, provides a vital safeguard for the European arrest warrant procedure. The judge must decide whether a person's extradition would be compatible with that person's convention rights under the European Convention on Human Rights. If extradition would not be compatible with those rights, that person must be discharged.
The most relevant convention right is the right to a fair trial under Article 6. Article 6.1 confers the right,
"to a fair and public hearing within a reasonable time by an independent and impartial tribunal".
Article 6.3 is of particular importance. Perhaps I may read the relevant parts. It states:
"Everyone charged with a criminal offence has the following minimum rights",
and then it sets out five rights. I shall concentrate on the two which appear to be the most important. First, the right in paragraph (c) is,
"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";
and, secondly, the right in subparagraph (e) is,
"to have the free assistance of an interpreter if he cannot understand or speak the language used in court".
Of course an interpreter must have a competent knowledge of both languages between which he or she is interpreting.
I should here declare an interest. I am a trustee of Fair Trials Abroad. Much of what I say is based on that organisation's experience. It has found that the two most frequent difficulties are the difficulty in obtaining competent legal aid in the foreign country and the difficulty in obtaining competent interpretation facilities.
Clause 21 may well frequently be used as the grounds for objection to extradition. It has not been used much in the past—although it has occasionally— because there have been other, perhaps more promising, reasons for delay. But some of those are now disappearing and Clause 21 is likely to come to the forefront. That means that when the issue is raised, the court will have to hear evidence about the standards of justice in the requesting state. That evidence may be lengthy, conflicting and uncertain, which means that extradition hearings may be protracted.
Of course, we recognise that cases must be decided on a case-by-case basis. Interpretation is of course entirely unnecessary when the individual concerned is a native or long-term resident of the requesting state and speaks that language as his or her native language or has acquired fluency in it. But that will not always be the case.
Amendment No. 74 therefore serves a dual purpose. First, it draws the court's attention to the importance of Article 6.3. During the debate on the previous group of amendments, the Minister said that those amendments were unnecessary because they were all implicit under the Human Rights Act 1998. However,
38
as I thought about the previous group, it is still of great importance that the court's attention should be drawn to various requirements of Article 6.3.
Lord Clinton-Davis: My Lords, is it not better that it be the duty of counsel to draw the court's attention to that, rather than to include it in the Bill?
Lord Goodhart: My Lords, I would say that the two are not in conflict. Of course it is the duty of counsel to draw the court's attention to that, but that is not a reason why it should not be stated in the Bill. It should be, because that is something that requires particular attention.
However, the question is not just that that receives attention. The amendment provides a possible short cut. It will leave it open for the requesting state—to avoid insulting anyone, let us call it Ruritania, which, we may assume, has become a member of the European Union—to say, "Whatever you may say about our general standards, we guarantee that when extradited this person will receive adequate legal aid and"—if needed—"interpretation facilities". The judge may then say, "I shall accept that promise, which will relieve me from the need to consider the question of the general standards of legal process in Ruritania".
It will then be necessary to keep an eye on whether that promise is fulfilled, so some form of monitoring will be required. It will be unnecessary to send members of the diplomatic staff to attend the court; the Secretary of State can instruct a reliable local lawyer to watch the proceedings and report back. If standards at the trial then turn out to be inadequate, the Secretary of State can inform the court of the situation if the same state asks for extradition in another case. That will greatly reduce its chances of obtaining the extradition.
In Grand Committee, the noble Viscount, Lord Bledisloe, asked about the expense of monitoring. I do not believe that it would be significant. At present, extradition is running at the low rate of only about 50 a year. Easier proceduress may lead to more extradition cases being brought, but even so, it is difficult to imagine them being more than doubled or trebled. Many cases will be of extradition to states that have satisfactory standards; many will involve no need for interpretation; and some no need for legal aid. So we are considering only a handful of cases that will need to be monitored.
The amendment is justified for several reasons. First, it emphasises the need for a fair trial in the requesting state. Secondly, where there is doubt about the process, it means that the person is given a specific promise that he will receive procedural fairness in the requesting state. Thirdly, it means that people who are accused of serious crimes cannot escape trial because general standards in the requesting state are not what they should be. Finally, it is likely to shorten the argument about Clause 21 issues at extradition hearings in the United Kingdom.

39
So the amendment has significant advantages in all directions—except for the alleged criminal who is simply trying to defer or avoid his extradition to a particular state. I beg to move.
4.45 p.m.
Baroness Anelay of St Johns: My Lords, I support the amendments, which are also in my name, and, following the admirable brevity of the noble Lord, Lord Goodhart, in supporting my previous amendment, I shall also seek to be brief. I merely say that these are important safeguards to be included in the Bill. We agree that they would not assist people who are merely trying to delay proceedings.
Viscount Bledisloe: My Lords, I share the view of the noble Lord, Lord Goodhart, that this is an important matter. It is not only a question of countries that at present may not provide the full requirements of a fair trial. We are inclined to forget that the regimes of countries that may be recognised under the Bill may change. Germany in the 1920s may well have been recognised for these purposes. Germany by the mid-1930s would hardly have been so suitable, but I suspect that it would have taken a considerable time before our Government had tabled a statutory instrument to "disrecognise"—if that is the right word—Germany.
However, I do not agree with the noble Lord, Lord Clinton-Davis. In such a matter it is important to state such provisions in the Bill. That is why I supported the previous amendment moved by the noble Baroness, Lady Anelay.
We must remember that counsel preparing for a case in the Court of Appeal or the House of Lords ought of course to look up the convention and such documents and bring them to the court's attention. However, a hard-pressed solicitor asked to go to the magistrates 24 hours beforehand to deal with an extradition matter would like to have all the information in one book, which will probably be all that he has time to grab off his shelf before leaping into his car to go to the court. Important matters such as this should be written into such a Bill.
I am also concerned with two aspects of the amendment's drafting. First, proposed new subsection (2) states:
"the judge may accept a written assurance".
Does the noble Lord, Lord Goodhart, intend that he should be entitled to disregard that written assurance and that the "extraditee"—if there be such a nauseating word—is entitled to bring evidence that, notwithstanding the written assurance, he will not be treated fairly?
Secondly, I am also unhappy that there should be an obligation on the Secretary of State to make arrangements to monitor every case in which the procedure is adopted. There might be many cases where he knows that what may be a lengthy trial will go forward. It should be left to him to decide whether to monitor; therefore, subsection (4) would have to be amended slightly. I agree, however, that where the
40
Secretary of State finds that countries are making such declarations but not honouring them, it is important that the matter is brought to court.
If the noble Lord, Lord Goodhart, thinks that there is force in any of those points and wishes to bring the matter back at a later stage, I will support his amendment in principle.
Lord Clinton-Davis: My Lords, I would like to hear from my noble friend that she supports the principle enunciated by noble Lords who have spoken in favour of the amendment. But the provision proposed in the amendment should not be included in the Bill. There should be a note from the Foreign Office, or whichever office is responsible, to ensure that those points are effectively enunciated in favour of the person concerned. However, the Bill should not contain every possibility.
The noble Lords and the noble Baroness have adduced important arguments. But they have not made out a case for including in the Bill the aspects being debated. I wish to hear from my noble friend that there is a possibility that the arguments adduced will be properly addressed in an explanatory document that will be made available to those who must speak on this important issue.
Lord Donaldson of Lymington: My Lords, the noble Viscount, Lord Bledisloe, raised the point about the solicitor who at the last moment is sent to the magistrates' court. It is very important that he can remind himself of the issues from a single document. The noble Lord, Lord Clinton-Davis, suggested that there should be a Foreign Office handout, but it is certain that it would never get to the solicitor's office.
The noble Viscount, Lord Bledisloe, asked whether it followed from subsection (2) that a judge could reject a written assurance. Surely, it must follow. He must be able to reject a written assurance in the light of subsection (4). I do not know whether he will, but he must be able to when the Secretary of State comes forward and says "I have monitored the past six extradition cases and the human rights have been abused in all of them". The judge might pay attention to that.
My final point may not be well received in some parts of the House. The Human Rights Act has a very bad name. Extraordinary defences are put forward from time to time in the Act's name. It is important, therefore, that the amendment is accepted and included in the Bill. Human rights matter in this context—of course, we know that they always matter. But some cases are different. For example, in Canada, a young man was in the habit of sitting during the religious proceedings at his school assembly and standing during the rest. When it was suggested that that was not a good idea, he said "But I have freedom of religious rights". Another gentleman in the Royal Canadian Mounted Police grew his hair down to his waist and said that that was in accordance with his rights under the Human Rights Act. Utter nonsense is

41
talked from time to time, so it is important that it be made clear that Parliament attaches particular importance to genuine human rights in this context.
Lord Lamont of Lerwick: My Lords, I support the noble Lord, Lord Goodhart, and my noble friend on the Front Bench. The spirit of the amendments is extremely sensible and could be far-reaching in removing many of the concerns expressed about the Bill. It addresses the problem that the noble and learned Lord, Lord Donaldson, referred to previously, when he talked about different standards of justice, even in different EU countries, and our assumption that they are all the same. The noble Lord, Lord Goodhart, put the matter diplomatically and said precisely that many countries come up to our own standards of justice. But the implication was that few surpassed them and some did not reach them. He said that we must avoid offending people. I understand that consideration and the Minister's reluctance to engage in the point when concerns about individual countries have been raised. Ultimately, politeness must take second priority to preserving the rights of our own citizens and ensuring that they face fair trials and justice when arrested and imprisoned abroad.
The amendment also supports two points dealt with in three amendments that I have tabled, Amendments Nos. 315 to 317: translation and legal aid. The absence of translation facilities can make trials extremely difficult for people in a foreign country. Under the convention, it is meant to be a normal procedure that simultaneous translation is always available in trials.
The noble Lord, Lord Goodhart, referred to the observation made by Fair Trials Abroad that it had hardly ever come across a case in France where simultaneous translation was provided. By coincidence, I recently watched a television documentary about a famous sporting English figure who was tried in France. When asked what he thought about the court verdict, which went against him, he said "I did not understand a word of the proceedings". I am not commenting on that case, but a person should not have to go through legal proceedings without understanding a word of what is said.
The second point on which a person can be at a huge disadvantage is not having legal aid. There was criticism in the famous case involving plane-spotters in Greece about the quality of lawyers provided. There were different levels of charge against the different defendants. One was a lady who merely sat in a car reading a newspaper while whatever was going on went on. Most people would have thought that she should have a separate lawyer. There is an absence of adequate legal aid in many Mediterranean European countries. That is a denial of justice.
One of the reasons that I am so uneasy about the Bill is that, when the Government say that people should not evade justice by crossing national borders, they do not seem to acknowledge that a foreigner in another country is at a disadvantage with the legal proceedings, just as a non-British person might be at a disadvantage before our courts. That is why one must have safeguards in extradition. It is in contemplating the
42
problem that I have come to realise why some countries refuse to extradite their nationals. I am not saying that we should refuse to extradite our nationals, but, in considering the sort of dilemmas that arise in the Bill, I am beginning to understand why some countries have refused so adamantly. I accept what the noble Viscount, Lord Bledisloe, said about monitoring. It raises an interesting point on which I hope the Minister, who was a Minister in the Foreign Office, will comment. I am not sure how much monitoring of individual cases goes on or whether the Foreign Office ever takes a view about procedural issues in legal cases. I know that it does in cases outside the EU, but it is my impression that little happens inside the EU. I am not sure how the Foreign Office addresses issues that arise in countries with relatively high standards of justice.
However, although the amendment addresses the translation and legal aid issues, it does not address the bail issue—the third important way in which a person in another country can be at a disadvantage. There is a presumption of a risk of flight if someone is from another country, so that person is not given bail. That is why, although I am reluctant to concede the logic that one step of European integration requires another, I have been converted by Fair Trials Abroad and people such as the noble Lord, Lord Goodhart, to thinking that we need a system of euro-bail, whereby a foreigner or EU citizen in another EU country would be given bail on much the same assumptions as a national of that country. If he absconded, he would be returned automatically by his own country to the prosecuting authorities. That is not covered in the amendment and ought to be addressed later in the Bill. The main thrust of what the noble Lord, Lord Goodhart, said is right. He is absolutely right about translation and legal aid.
5 p.m.
Baroness Carnegy of Lour: My Lords, when the noble Lord, Lord Goodhart, responds, will he clarify something for me? Subsection (2) of the amendment states that,
"the judge may accept a written assurance".
I took that to mean what the noble and learned Lord was saying from the Cross Benches—that if a written assurance comes, the judge may accept it, but, equally, he may reject it. It does not mean that if a good written assurance comes the judge can simply say that written assurances are not on. It is the quality of the assurance that is referred to. I imagine that that is right, but I would like confirmation.
Baroness Scotland of Asthal: My Lords, I have listened very attentively to the debate that has ranged across the House. I take on board what noble Lords have said about the need for a procedure that is fair and honours the human rights of each individual as well as the need to have the European Convention on Human Rights totally respected. I agree with all of that. The amendments are very well-intentioned. However, I regret to say that they are wholly misconceived.

43
The noble Lord, Lord Goodhart, says that he wishes to take a short cut in relation to the provisions in the ECHR and the Human Rights Act. The Government do not think that such a short cut should be taken. The noble Viscount, Lord Bledisloe, asked, "What about the hard-pressed solicitor?". We hope that we have changed that culture. In this country, we now have the Human Rights Act, which applies not only to extradition and this Bill, but to each and every Bill that comes before your Lordships' House. The issues in relation to the European Convention on Human Rights do not only apply as principles of the Extradition Bill. We have debated the same issues on the Criminal Justice Bill, the Anti-social Behaviour Bill, the Sexual Offences Bill and every other Bill that comes through. We must be aware that, if we pick and choose which bit of Article 6, which bit of the European Convention on Human Rights and which bit of the Human Rights Act apply, there is an inference that the other bits—the short cut that we have taken—have less importance and significance.
I reassure my noble friend Lord Clinton-Davis that I agree with the principles enunciated by the amendments and that there will be appropriate explanatory documents. However, I must say to the noble and learned Lord, Lord Donaldson, and the noble Lord, Lord Lamont, that we are talking about a culture of human rights, something that hard-pressed solicitors should have inculcated into their working practice. If they have not, I respectfully suggest that they should not be practising.
On the question of politeness, we are not introducing these provisions out of politeness to other countries. There are pressing rights. The noble Lord, Lord Lamont, is right: these rights are about the protection of our own citizens and the reason for them is to ensure a fair trial. That is the whole point of Clause 21 in this Bill, which applies to the whole extradition process. Clause 21(1) states:
"If the judge is required to proceed under this section (by virtue of section 11 or 20), he must decide whether the person's extradition would be compatible with the Convention rights"—
that is, all of them, not a pick-and-choose short cut—
"within a meaning of the Human Rights Act 1998",
which means all that Act.
We must transport each and every provision of the European Convention and each and every provision of the Human Rights Act into this Bill, not just pick and choose bits of it. I am very troubled by the suggestion that some provisions have greater significance than others.
Extradition is a classic balancing act, with the rights of the person whose extradition is sought on the one hand and the need for society to ensure that those who are accused of serious crimes are swiftly brought to justice on the other. The Government believe that this Bill strikes the right balance between the rights of the fugitive and the interests of justice.
We have built a number of important safeguards into the extradition process. Many of these safeguards are the same as those that can be found in our existing
44
extradition legislation but, arguably, the most important is new. To be certain that the requested person's human rights are fully considered and safeguarded, we have included specific bars to extradition on human rights grounds in both Part 1 and Part 2 of the Bill—in Clauses 21 and 88 respectively. I have already mentioned Clause 21, but the same safeguards are reflected in Clause 88.
Those clauses are quite unambiguous. They provide that the judge must refuse to extradite a person if the extradition would be incompatible. Not only does that protect against the infringement of individual rights in this country, but ECHR case law has clearly established that these obligations extend to the likely fate of the fugitive if he is extradited. If there is a significant risk that his ECHR rights will be breached once returned to the requesting state, we cannot extradite him.
That is a very important point, and a reminder of the key jurisprudence might assist your Lordships. The key case in this regard is that of Soaring. The European Court of Human Rights in its judgment in that case said:
"It would hardly be compatible with the underlying values of the convention, were a contracting party knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, inhuman or degrading treatment or punishment, however heinous the crime allegedly committed. Extradition in such circumstances would be plainly contrary to the spirit and intent of Article 3".
In respect of Article 3 of the convention, the court went on to say:
"The decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country".
The court went on similarly to explain that Article 6 issues could arise in extradition proceedings when there was a significant risk of the denial of a right to a fair trial in the requesting state. I shall take up the point made by the noble Viscount, Lord Bledisloe: if Germany were to change in the way that it changed in the 1930s, the judge dealing with the case on an individual basis—they are skilled, and we have dealt with that matter—would have to examine the facts of the case, examine Article 21, examine the evidence produced before the court and decide whether the rights of that person, in those circumstances and on that evidence, were guaranteed in accordance with the ECHR and the Human Rights Act 1998. Any judge who did not discharge his or her independent duty in each individual case would renege on that duty. I do not believe that we need fear for the honour and integrity of our judges: they will do it.
We should be in no doubt that, when they come before our courts, fugitives will have an opportunity to be represented. They will be advised appropriately, and legal aid will be made available. The issues can be brought before the court. The hard-pressed solicitor may be hard-pressed on the first occasion on which he

45
comes to court but, usually, he is able to draw breath before the substantive hearing and give expression to his client's rights, ably assisted—usually—by counsel employed for that purpose.
That brings me neatly to the amendment. It has four parts, and I shall deal with each in turn. The first part would require a district judge to have particular regard to Article 6.3 of the ECHR. As I am sure your Lordships are aware, Article 6.3 guarantees the right to a fair trial and refers to minimum rights. I reiterate: Article 6.3 is only one part, and the rest of Article 6 is of equal importance. They are all important rights, but I cannot see why that article must be singled out.
As I said, those representing fugitives will, doubtless, seek to argue that extradition should be barred on ECHR grounds generally. In many cases, their submissions will be built on likely breaches of Article 6.3, but there will be times when it is argued that extradition will lead to a breach of Articles 2, 3,4, 5 or 6.2, to name but a few. Each of those would be a serious matter, and the district judge would need to give all such arguments serious consideration, whichever article was referred to. I do not see why we should make particular reference to one article. It almost suggests that potential breaches of other articles would be a lesser matter. They are not. I am sure that it is no part of the intention of the noble Lord, Lord Goodhart, or of other noble Lords, who spoke to press the issue in that way, but that would be the inadvertent effect. We should trust the judges to deal with the matter properly.
The second limb of the amendment would enable the judge to accept a written assurance from the requesting state that the person's rights under Article 6.3 will be properly observed if he is extradited. Apart from the general point that we should not single out Article 6.3, I think that that would be an unnecessary provision, as it would already be allowed.
Under the Bill, it is open to both sides—the fugitive and the requesting state—to make representations to the district judge on the ECHR question, to advance arguments and to present evidence, written or otherwise. In accordance with normal practice, the district judge will weigh up the evidence and arguments put before him and reach a decision. In the course of that, it is open to the requesting state to submit evidence to the judge—in writing, if he wants— about its procedures or any other matter in an attempt to demonstrate that the person will indeed receive a fair, ECHR-compliant trial. The judge will decide how much weight to attach to such assurances. Again, I cannot see what the second limb adds.
The last limb of the amendment would require the Secretary of State to monitor proceedings, once the person had been returned. A moment's thought should demonstrate that that presents serious practical difficulties. Quite apart from the costs involved, we should consider the basis on which the monitoring could be carried out. How would the monitors decide whether ECHR rights had been upheld? I fail to see how it would work.
46
The amendments also ignore the fact that the United Kingdom has had extradition relations with countries throughout the world for more than a hundred years. We conduct a large proportion of our extradition traffic with EU member states, and we have not previously thought it necessary for the Secretary of State to monitor their internal systems. If the situation in countries to which we already extradite were as bad as some imply, we would have stopped extraditing to them.
For the United Kingdom unilaterally and directly to monitor other EU member states' judicial systems, whether generally or specifically in extradition cases, would be a flagrant abuse of their sovereignty. I am sure that your Lordships appreciate that the United Kingdom would take great exception to other countries taking such drastically intrusive measures in respect of procedures in this country. I wonder how we would feel if, every time we got someone back from another country, he was accompanied by an official representative of that country checking to see whether our criminal justice procedures were up to scratch. Some in the Chamber might take mild offence at that.
I doubt that such provisions will be necessary. We must bear it in mind that no two cases are the same. I understand why noble Lords want to put the new clause into the Bill, but I disagree fundamentally with it. It would not inure to the advantage of the accused person; it would not inure to the advantage of the system; and it might lead many to err in believing that Article 6.3 was the only part of the ECHR with which they needed to concern themselves. That would be a tragedy, because it would be wholly and unacceptably wrong.
5.15 p.m.
Lord Goodhart: My Lords, I shall start my reply by dealing with two or three points made by those other than the Minister who spoke in the debate.
First, the noble Viscount, Lord Bledisloe, asked me whether it was intended that the judge should have a discretion under subsection (2) of the new clause. For the reasons explained by the noble and learned Lord, Lord Donaldson of Lymington, there would be a discretion.
The noble Viscount also asked whether subsection (4) should make it mandatory or optional for the Secretary of State to provide for monitoring of the trials. In principle, it would be appropriate that it should be mandatory for there to be some form of monitoring. We need to have a check to see whether assurances are being complied with, so that we do not keep on sending people to countries on the basis of assurances that are not complied with. If it were to make the difference as to whether the Government would accept the amendment—clearly, that is not the case—I would be willing to agree to its being made optional, rather than mandatory.

47
I agree with the noble Lord, Lord Lamont of Lerwick, on the importance of the euro-bail system. It would be an enormous step forward if people who were arrested abroad, instead of being remanded to local prisons for a considerable time because of fears that they would disappear off home, could get their bail on the basis of a guarantee from the country in which they live that they will be returned. I raised that issue in an amendment tabled in Grand Committee, but it seems to be outside the scope of the Bill, as it applies not only to people who have been extradited but, more importantly, to people who have been arrested and detained in the country in which the offence was allegedly committed. There is some doubt whether it even falls within the Long Title of the Bill, so I thought it inappropriate to press the issue further at this stage.
I now turn to what the Minister said. She argued forcefully but not, when one considers the matter, entirely convincingly against the amendment. It is true that we do not say that some provisions of the Human Rights Act or the European Convention on Human Rights have greater importance than others. However, some are more likely to be relevant than others. When we are dealing with member states of the European Union, on the whole, general rights are usually observed—for example, the right to freedom of conscience, the right to freedom of religion, the right to freedom of expression and assembly; and the right to freedom of speech, and so on. Article 6, in general, and Article 6.3, in particular, are likely to be especially relevant.
The noble Baroness said that we do not need to include these provisions because the European convention will be observed and there does not need to be any special reference to it. I am not sure that that fits altogether clearly with what the Government have done in Clause 13, which deals with extraneous considerations where one of the grounds on which extradition is barred is that the warrant is,
"issued for the purpose of prosecuting [someone] on account of his race, religion, nationality or political opinions".
We have now added further qualifications to that through an earlier amendment.
All those considerations seem to be caught by the European convention. On its own, Clause 21 would be enough to block that even without Clause 13. In our belief, the Government, rightly, thought it appropriate to draw particular attention to the matter, but that is inconsistent with their objection to what we are doing now.
The Minister asked how monitors could decide whether the European Convention on Human Rights had been complied with. If they are there, monitors could observe the standard of interpretation being used and observe whether the parties of the people being extradited are able to obtain competent legal aid. That certainly is within the bounds of possibility of monitoring.
48
Finally, the noble Baroness said that we would object to other countries checking to determine whether criminal procedures are up to scratch. If there is anything like Clause 21 in other countries, we may find people from those countries checking on the court procedure here to use as a basis for a refusal of extradition in their home country. I hope that that will not be the case. I have little doubt that any such application would be rejected, but it certainly is a possibility.
This is an important amendment. I do not think that the Government have produced a satisfactory answer. I wish to test the opinion of the House.
5.23 p.m.
On Question, Whether the said amendment (No. 74) shall be agreed to?
Their Lordships divided: Contents, 125; Not-Contents, 122.

Division No.2

CONTENTS

Addington, L.

Hooson, L.

Anelay of St Johns, B.

Howe, E.

Astor, V.

Howe of Aberavon, L.

Astor of Hever, L.

Howe of Idlicote, B.

Attlee, E.

Hunt of Wirral, L.

Avebury, L.

Jacobs, L.

Beaumont of Whitley, L.

Jellicoe, E.

Blaker, L.

Jenkin of Roding, L.

Blatch, B.

Kingsland, L.

Bradshaw, L.

Laing of Dunphail, L.

Bridgeman, V. [Teller]

Lamont of Lerwick, L.

Brooke of Sutton Mandeville, L.

Lang of Monkton, L.

Brougham and Vaux, L.

Lester of Herne Hill, L.

Buscombe, B.

Livsey of Talgarth, L.

Byford, B.

Luke, L.

Campbell of Alloway, L.

Lyell, L.

Carnegy of Lour, B.

McColl of Dulwich, L.

Chorley, L.

MacGregor of Pulham Market,

Clement-Jones, L.

L.

Colwyn, L.

Mackie of Benshie, L.

Cope of Berkeley, L.

McNally, L.

Craigavon, V.

Maddock, B.

Crickhowell, L.

Mancroft, L.

Denham, L.

Mar and Kellie, E.

Dholakia, L.

Marlesford, L.

Dixon-Smith, L.

Mayhew of Twysden, L.

Donaldson of Lymington, L.

Michie of Gallanach, B.

Eden of Winton, L.

Miller of Chilthorne Domer, B.

Elliott of Morpeth, L.

Monro of Langholm, L.

Elton, L.

Monson, L.

Fearn, L.

Montrose, D.

Feldman, L.

Mowbray and Stourton, L.

Fookes, B.

Moynihan, L.

Fowler, L.

Naseby, L.

Freeman, L.

Newby, L.

Gardner of Parkes, B.

Noakes, B.

Gilmour of Craigmillar, L.

Northbrook, L.

Glentoran, L.

Northesk, E.

Goodhart, L. [Teller]

Northover, B.

Goschen, V.

O'Cathain, B.

Gray of Contin, L.

Onslow, E.

Hamwee,B.

Park of Monmouth, B.

Hanham, B.

Pearson of Rannoch, L.

Harris of Richmond, B.

Peel, E.

Hayhoe, L.

Phillips of Sudbury, L.

Hodgson of Astley Abbotts, L.

Pilkington of Oxenford, L.

49

Razzall, L.

Shutt of Greetland, L.

Reay, L.

Simon of Glaisdale, L.

Redesdale, L.

Skelmersdale, L.

Rees, L.

Stevens of Ludgate, L.

Roberts of Conwy, L.

Stewartby, L.

Rodgers of Quarry Bank, L.

Stoddart of Swindon, L.

Roper, L.

Strathclyde, L.

Rotherwick, L.

Taverne, L.

Russell-Johnston, L.

Thomas of Walliswood, B.

Ryder of Wensum, L.

Ullswater, V.

Saltoun of Abernethy, Ly.

Vivian, L.

Seccombe, B.

Waddington, L.

Selborne, E.

Wakeham, L.

Selsdon, L.

Wallace of Saltaire, L.

Sharp of Guildford, B.

Walmsley, B.

Sharpies, B.

Wigoder, L.

Shaw of Northstead, L.

Wilcox, B.

NOT-CONTENTS

Acton, L.

Grocott, L.[Teller]

Ahmed, L.

Guildford, Bp.

Alli, L.

Hannay of Chiswick, L.

Amos, B. (Lord President)

Harrison, L.

Andrews, B.

Haskel, L.

Archer of Sandwell, L.

Hayman, B.

Ashton of Upholland, B.

Hilton of Eggardon, B.

Bach, L.

Hogg of Cumbernauld, L.

Barnett, L.

Hollis of Heigham, B.

Bassam of Brighton, L.

Howells of St. Davids, B.

Berkeley, L.

Howie of Troon, L.

Bernstein of Craigweil, L.

Hoyle, L.

Billingham, B.

Hughes of Woodside, L.

Blackstone, B.

Jay of Paddington, B.

Boothroyd, B.

Jones, L.

Brennan, L.

Jordan, L.

Brett, L.

Judd, L.

Brooke of Alverthorpe, L.

King of West Bromwich, L.

Brookman, L.

Layard, L.

Brooks of Tremorfa, L.

Lea of Crondall, L.

Burlison, L.

Lipsey, L.

Cameron of Lochbroom, L.

Lofthouse of Pontefract, L.

Campbell-Savours, L.

Macdonald of Tradeston, L.

Carter, L.

McIntosh of Haringey, L.

Christopher, L.

McIntosh of Hudnall, B.

Clark of Windermere, L.

Mackenzie of Culkein, L.

Clarke of Hampstead, L.

Mackenzie of Framwellgate, L.

Clinton-Davis, L.

Mallalieu, B.

Corbett of Castle Vale, L.

Marsh, L.

Crawley, B.

Mason of Barnsley, L.

David, B.

Massey of Darwen, B.

Davies of Coity, L.

Merlyn-Rees, L.

Davies of Oldham, L. [Teller]

Mitchell, L.

Desai, L.

Morgan, L.

Dixon, L.

Morris of Aberavon, L.

Dormand of Easington, L.

Morris of Manchester, L.

Dubs, L.

Nicol, B.

Elder, L.

Palmer, L.

Erroll, E.

Patel of Blackburn, L.

Evans of Parkside, L.

Paul, L.

Evans of Temple Guiting, L.

Pendry, L.

Falconer of Thoroton, L. (Lord

Pitkeathley, B.

Chancellor)

Plant of Highfield, L.

Farrington of Ribbleton, B.

Prys-Davies, L.

Faulkner of Worcester, L.

Radice, L.

Filkin,L.

Ramsay of Cartvale, B.

Fitt, L.

Rendell of Babergh, B.

Gale, B.

Richard, L.

Gavron, L.

Roll of Ipsden, L.

Gibson of Market Rasen, B.

Rooker, L.

Goldsmith. L.

Sainsbury of Turville, L.

Gordon of Strathblane, L.

St. John of Bletso, L.

Goudie, B.

Sawyer, L.

Gould of Potternewton, B.

Scotland of Asthal, B.

Graham of Edmonton, L.

Simon, V.

Gregson, L.

Smith of Gilmorehill, B.

50

Stone of Blackheath, L.

Warwick of Undercliffe, B.

Symons of Vernham Dean, B.

Weatherill, L.

Taylor of Blackburn, L.

Whitaker, B.

Whitty, L.

Tomlinson, L.

Williams of Elvel, L.

Turner of Camden, B.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
5.33 p.m.
Clause 22 [Person charged with offence in United Kingdom]:
[Amendment No. 75 not moved.]
Clause 23 [Person serving sentence in United Kingdom]:
[Amendment No. 76 not moved.]
Clause 24 [Extradition request]:
[Amendment No. 77 not moved.]
Clause 25 [Physical or mental condition]:
[Amendment No. 78 not moved.]
Clause 26 [Appeal against extradition order]:
[Amendment No. 79 not moved.]
Clause 27 [Court's powers on appeal under section 26]:
[Amendment No. 80 not moved.]
Clause 28 [Appeal against discharge at extradition hearing]:
[Amendment No. 81 not moved.]
Clause 29 [Court's powers on appeal under section 28]:
[Amendment No. 82 not moved.]
Clause 30 [Detention pending conclusion of appeal under section 28]:
[Amendment No. 83 not moved.]
Clause 31 [Appeal to High Court: time limit for start of hearing]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 84:
Page 14, line 12, after "period" insert "(the relevant period)"
The noble Lord said: My Lords, I hope that I shall not detain the House too long in moving Amendment No. 84 and speaking to Amendments Nos. 85 to 87. They should not cause any great difficulty.
As the Bill is drafted, the main extradition hearing must begin within a fixed period of the date of arrest, but this can be extended where circumstances deem it appropriate. The appeal hearing too must begin within a set period after arrest, but there is no facility to extend the period. Clearly these arrangements could cause problems if the start of the extradition hearing has been postponed. The amendments remedy that potential difficulty by allowing the start of the appeal hearing to be put back.
I wish to draw attention to one further point. Noble Lords will recall that we earlier discussed what test should be applied by the judge when deciding to postpone the extradition hearing. I indicated that the

51
Government were happy to go along an "interests of justice" test, and we shall bring forward amendments to that purpose. Noble Lords will note that we have already adopted that formulation in these amendments, as I telegraphed earlier.
I trust that the amendments will find the agreement of the House. I beg to move.
On Question, amendment agreed to.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendments Nos. 85 to 87:
Page 14, line 14, after first "the" insert "relevant"
Page 14, line 19, after fourth "the" insert "relevant"
Page 14, line 19, at end insert—
"(3A) The High Court may extend the relevant period if it believes it to be in the interests of justice to do so; and this subsection may apply more than once.
(3B) The power in subsection (3A) may be exercised even after the end of the relevant period."
On Question, amendments agreed to.
[Amendment No. 88 not moved.]
Clause 32 [Appeal to House of Lords]:
[Amendment No. 89 not moved.]
Clause 33 [Powers of House of Lords on appeal under section 32]:
[Amendment No. 90 not moved.]
Clause 34 [Appeals: general]:
[Amendment No. 91 not moved.]
Clause 35 [Extradition where no appeal]:
[Amendment No. 92 not moved.]
Clause 36 [Extradition following appeal]:
[Amendment No. 93 not moved.]
Clause 37 [Undertaking in relation to person serving sentence in United Kingdom]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 94:
Page 18, leave out lines 34 and 35 and insert—
"(6) Subsections (7) and (8) apply if the judge makes an order for extradition subject to a condition under subsection (3).
(7) If the judge does not receive the undertaking before the end of the period of 21 days starting with the day on which he makes the order and the person applies to the appropriate judge to be discharged, the judge must order his discharge.
(8) If the judge receives the undertaking before the end of that period—"
The noble Lord said: My Lords, in moving Amendment No. 94, I shall speak at the same time to Amendment No. 247. Again, I hope that these relatively simple amendments will find the agreement of noble Lords. The Bill allows us for the first time to extradite serving UK prisoners on a temporary basis to stand trial abroad.
I am sure that noble Lords will see the benefits of this. Let us imagine that someone is serving a very long sentence in the United Kingdom—perhaps even a life sentence—but is also accused of a very serious offence abroad. As things currently stand, we cannot extradite the person to stand trial until they have completed
52
their United Kingdom sentence, which could be many years later. By that time, witnesses to the foreign crime may have died or their memories faded, while the victims of the crime will be denied swift justice.
I am sure that noble Lords will agree that a provision allowing for the temporary transfer of prisoners to stand trial is a welcome step forward. However, in all probability we shall be dealing with serious and potentially dangerous criminals here. To put it mildly, it would be most unfortunate if we were to transfer a prisoner abroad to stand trial and he or she were to be given bail and promptly disappear.
Accordingly, the clauses in the Bill dealing with temporary transfer allow for extradition to be made conditional on an appropriate undertaking being received. Such an undertaking would include an assurance that the person will be kept in custody while abroad and that they will be returned to the United Kingdom at the completion of the foreign trial.
All that is so far, so good, but when we looked at the Bill again over the summer, we realised that it contained nothing about what should happen if no undertaking was received. I hasten to add that we do not think there will be any difficulty in securing the necessary undertaking, but nevertheless we need to cater for the situation where it is not provided.
That is what these amendments seek to achieve. They provide that if no undertaking has been received within 21 days, the person can apply to the judge or the High Court for discharge under the extradition request. Such an application must always be approved. Obviously the potentially offending person would continue to serve their United Kingdom sentence, but they would not be liable for extradition.
I hope that I have been able to explain why these amendments are sensible and necessary, and I invite noble Lords to agree to them. I beg to move.
On Question, amendment agreed to.
[Amendment No. 95 not moved.]
Clause 38 [Extradition following referral for competing claim]:
[Amendment No. 96 not moved.]
Clause 39 [Position where asylum claimed]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 97:
Page 19, line 30, at end insert—
"(3A) Subsection (3) is subject to section (Certificate in respect of asylum claimant)."
The noble Baroness said: My Lords, this group of amendments deals with the provisions in the Bill relating to the difficult situation when the two issues of extradition and asylum come together. As I explained in Grand Committee—and, indeed, as my honourable friends in another place explained—the Government are very aware of the fundamental principles involved in this complex scenario.
The asylum systems and procedures in this country have been subject to a certain amount of abuse, which the Government continue to make great efforts to reduce. It is also the case that the asylum system has

53
been used ostensibly as a means to frustrate the extradition process. It is for this reason that, when the Bill was introduced some months ago, we included provisions specifically to deal with this issue.
Naturally, the aim was, and remains, that the asylum system should not be vulnerable to abuse with the intent to delay or frustrate lawful extradition. At the same time, the Government are also clear that a person who genuinely is in danger of persecution should not be prevented from having the opportunity to seek refuge.
However, immigration and asylum law has developed significantly since the Extradition Bill was introduced in another place in November last year. Provisions of the Nationality, Immigration and Asylum Act 2002 have now come into force, which have brought with them considerable change. These amendments are therefore designed to reflect the current situation and bring the provisions in line with the Government's wider strategy and objectives on asylum.
Amendments Nos. 98,99,248 and 249 bring Clauses 39 and 121 in line with the approach of Section 109 of the Nationality, Immigration and Asylum Act 2002. Section 109 makes provision for regulations to be made specifically about appeal rights against an immigration decision taken in respect of a person who has a right under any of the Community treaties. To put it simply, we are talking about the modification of appeal rights for immigration decisions relating to European Union and European Economic Area nationals.
The Extradition Bill needs to allow for the same approach, and this is what these amendments do. I should stress that no regulations could be made on this subject under the Extradition Bill; it is simply a question of reflecting the approach of the existing immigration legislation and allowing any related regulations to take effect.
The effect of Amendment No. 100 is to remove the existing provisions relating to certifying "clearly unfounded" asylum claims in Part 1 extradition cases. We do not believe that these are now appropriate in light of the other changes being made and the revised approach to the subject.
I know that this has been an issue of particular interest to the noble Lord, Lord Goodhart, as he explained in Grand Committee. I repeat what we have said at every stage on this subject—namely, that the Government remain committed to their obligations under the refugee convention and to the fundamental right of the individual to seek protection where and when it is necessary.
Amendments Nos. 97 and 102 relate to a person claiming asylum in respect of a third country. Your Lordships will notice that this applies only in Part 1 cases. Therefore, this would apply where a non-EU national claims asylum, after a Part 1 warrant has been received for his extradition, in respect of his country of origin. The effect of this is that a pending asylum claim
54
will not bar extradition where the country requesting the person's extradition has responsibility for that person's asylum claim and refugee status.
This is commonplace in existing immigration and asylum legislation and our agreements with other member states. This approach reflects Sections 11 and 12 of the Immigration and Asylum Act 1999, as amended by Section 80 of the NIA Act 2002.
Amendments Nos. 250 and 310, in conjunction with Amendment No. 100, are purely drafting changes and remove interpretative provisions currently repeated in both Part 1 and Part 2. In their place a single interpretative provision is inserted in Part 5 of the Bill.
Amendments Nos. 291,292,326 and 327 remove the existing provisions relating to new appeals procedures in the situation where extradition and asylum meet. We believe that this system is no longer appropriate, as I explained earlier, in view of the Government's wider strategy on immigration and asylum. We believe that it is preferable to adapt the existing immigration and asylum appeals processes in order to reflect the traditional roles of the relevant appellate authorities.
I am grateful to the noble Earl, Lord Mar and Kellie, for tabling Amendments Nos. 290A, 290B and 291A to 291G in regard to these provisions. However, if your Lordships agree to the removal of Clauses 188 and 189 it will render those amendments otiose.
These amendments represent a positive revision of the provisions originally included in the Bill. The Government have taken great steps, both in legislation and procedure, to tackle abuse of the asylum system while maintaining protection for those who need it. We have made it clear that we intend to deal robustly with spurious or unfounded asylum claims. This applies whether the intention of the claim is general abuse of the asylum system or whether it is specifically to delay or frustrate extradition.
I know that these are issues in which others are interested and I thought it right to take some little time to explain the Government's reasoning for the amendments. I beg to move.
5.45 p.m.
The Earl of Mar and Kellie: My Lords, as trailed by the noble Baroness, my Amendment No. 290A is in this group. This amendment, which was inspired by the Law Society of Scotland, seeks to ensure that the correct Scottish court is named in the Bill when referring to an appeal against rejection of an asylum claim in Scotland.
In Clause 212(8), the Bill refers to the "High Court" as being the "High Court of Justiciary". However, in Clause 188(4), the Bill states that a person will have a right of appeal to the "High Court". In the Scottish context, this would mean the High Court of Justiciary—an obviously criminal court which does not deal with civil matters. The correct and corresponding Scottish court would be the Court of Session.

55
In support of this, Section 103 of the Nationality, Immigration and Asylum Act 2002 places immigration appeals with the Court of Session. The amendment would ensure consistency and identify the Court of Session as the correct court in Scotland for an appeal.
On Question, amendment agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendments Nos. 98 to 100:
Page 19, line 34, at end insert—
"(za) when the Secretary of State makes his decision on the claim, if there is no right to appeal against the Secretary of State's decision on the claim;"
Page 19, line 36, after "if insert "there is such a right but"
Page 20, line 5, leave out subsections (9) to (11).
On Question, amendments agreed to.
[Amendment No. 101 not moved.]
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 102:
After Clause 39, insert the following new clause—
"CERTIFICATE IN RESPECT OF ASYLUM CLAIMANT

(1) Section 39(3) does not apply in relation to a person if the Secretary of State has certified that the conditions in subsection (2) or the conditions in subsection (3) are satisfied in relation to him.

(2) The conditions are that—

(a) the category 1 territory to which the person's extradition has been ordered has accepted that, under standing arrangements, it is the responsible State in relation to the person's asylum claim;

(b) in the opinion of the Secretary of State, the person is not a national or citizen of the territory.

(3) The conditions are that, in the opinion of the Secretary of State—

(a) the person is not a national or citizen of the category 1 territory to which his extradition has been ordered;

(b) the person's life and liberty would not be threatened in that territory by reason of his race, religion, nationality, political opinion or membership of a particular social group;

(c) the government of the territory would not send the person to another country otherwise than in accordance with the Refugee Convention.

(4) In this section—

"the Refugee Convention" has the meaning given by section 167(1) of the Immigration and Asylum Act 1999 (c. 33);

"standing arrangements" means arrangements in force between the United Kingdom and the category 1 territory for determining which State is responsible for considering applications for asylum."

On Question, amendment agreed to.
Clause 40 [Withdrawal of warrant before extradition]:
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 103:
Page 20, line 24, at beginning insert "Where this section applies"
The noble Baroness said: My Lords, in moving Amendment No. 103, I shall speak also to Amendment No. 110. I can be brief.
The amendments pick up on a suggestion made by my noble and learned friend Lord Mayhew when we were discussing in Grand Committee the means by which a defendant would be informed of the withdrawal of a warrant for his arrest under Clause 40. My noble and learned friend drew the Committee's attention to the fact that the drafting of Clause 40(3) is somewhat bald. Subsection (1) sets out the circumstances under which the clause applies—that is, when, at any time during the relevant period, the designated authority withdraws its Part 1 warrant— and subsection (2) goes on to define the relevant period. All that subsection (3) states is that,
"The judge must order the person's discharge".
My noble and learned friend suggested that,
"it would be more elegant and appropriate if those words were to be preceded by the words 'where this section applies'".—[Official Report, 1/7/03; col. GC 175.]
We seek to apply that rationale to Clause 43(4) as well. We hope that the Minister will accept our constructive criticism of the drafting. I beg to move.
Baroness Scotland of Asthal: My Lords, I thank the noble Baroness for outlining the genesis of the amendment. She is right to say that it has been inspired by the noble and learned Lord, Lord Mayhew of Twysden. It causes me displeasure to disagree with him because it has been my pleasure to agree with him on a number of other occasions.
The Bill as drafted is right. Clauses 40 and 43 both begin with the words, "This section applies". We do not consider that anyone could really believe that Clauses 40(3) and 43(4) could apply in circumstances other than those described in subsection (1) of each clause. More to the point, the "this section applies" formulation is used throughout the Bill. None of the clauses in which it appears go on in the substantive subsections to say "where this section applies". So the inclusion of those words in Clauses 40(3) and 43(4) would be inconsistent with the rest of the Bill and might give rise to confusion.
As I am sure the noble and learned Lord—who is not in his place—knows better than most, it is a cardinal principle of parliamentary drafting that unnecessary words should never be included in legislation, as some day a court will assume that they were there for a reason. I think it was one of his own injunctions, which he gave us on a number of occasions, that we should expunge unnecessary words whenever necessary, and we have taken that advice very much to heart.
I can assure the noble and learned Lord and the noble Baroness that we have considered the suggestion very carefully, but we are satisfied that there is no ambiguity or possibility of confusion. I hope that when he comes to read this, the noble and learned Lord will accept that, and I invite the noble Baroness to withdraw the amendment.
Baroness Anelay of St Johns: My Lords, I am grateful to the Minister for the care she has taken in giving that answer. She has certainly satisfied me in her

57
assurances; I only hope that I satisfied my noble and learned friend in bringing these amendments forward. He was unavoidably unable to attend today, so I was prepared to move the amendment on his behalf. We will be disappointed, but for the right reasons, because I accept the noble Baroness's assurances. Looking at the Marshalled List, I think I might be happier on the next group of amendments. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 104:
Page 20, line 26. at end insert "as soon as practicable"
The noble Lord said: My Lords, I can be very brief with these simple amendments. They should be familiar to the noble Baroness, Lady Anelay, as the first three are identical to amendments which she graciously tabled at Grand Committee. In responding, my noble friend Lord Filkin said we would be happy to bring forward amendments for the same purpose, and that is what we have done.
When an extradition request is withdrawn, the person must be discharged and, if he is not actually before the judge, he must be informed that this has happened. These amendments simply require him to be informed as soon as possible. If any of your Lordships can find a reason to object to that, I shall be both amazed and impressed. I beg to move.
Baroness Anelay of St Johns: My Lords, I rise only to put on the record my thanks to the Government for being prepared to listen to this practical and sensible suggestion.
On Question, amendment agreed to.
[Amendment No. 10.5 not moved.]
Clause 41 [Withdrawal of warrant while appeal to High Court pending]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 106:
Page 20, line 41, at end insert "as soon as practicable"
On Question, amendment agreed to.
[Amendment No. 107 not moved.]
Clause 42 [Withdrawal of warrant while appeal to House of Lords pending]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 108:
Page 21, line 19, at end insert "as soon as practicable"
On Question, amendment agreed to.
[Amendment No. 109 not moved.]
Clause 43 [Competing Part 1 warrants]:
[Amendments Nos. 110 and 111 not moved.]
Clause 44 [Consent to extradition]:
[Amendment No. 112 not moved.]
Clause 45 [Extradition order following consent]:
[Amendment No. 113 not moved.]
Clause 46 [Extradition to category 1 territory following consent]:
[Amendment No. 114 not moved.]
Clause 47 [Other warrant issued following consent]:
[Amendment No. 115 not moved.]
Clause 48 [Other warrant issued: extradition to category 1 territory]:
[Amendment No. 116 not moved.]
Clause 49 [Other warrant issued: proceedings deferred]:
[Amendment No. 117 not moved.]
Clause 50 [Extradition request following consent]:
[Amendment No. 118 not moved.]
Clause 51 [Undertaking in relation to person serving sentence ]:
[Amendment No. 119 not moved.]
Clause 52 [Extradition following deferral for competing claim]:
[Amendment No. 120 not moved.]
Clause 53 [Request for consent to other offence being dealt with]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 121:
Page 26, line 34, leave out "category 1"
The noble Lord said: My Lords, this group of amendments probably sets the record for the largest number of amendments in a single group, but I think it makes sense to treat them all together since they relate to a common subject. The subject is what is termed "post-extradition"—that is, what happens to a person after they have been extradited from the United Kingdom to another country.
By virtue of the rule of speciality, the country to which the person was extradited can try or punish the person only for the offence or offences for which he or she was extradited. If they want to try them for an additional offence, they need to seek our consent. Similarly, if the country concerned wants to re-extradite them to a third country, they also need to seek our consent. It is the clauses dealing with how we receive and handle such requests for consent to which these amendments relate.
It is worth pointing out that speciality waiver and re-extradition requests are extremely rare. Nevertheless, I am sure that your Lordships will agree that it is important that the Bill should set out clearly the procedure that should apply.
With that preamble, perhaps I could explain what these various amendments actually do. They serve a number of purposes. Amendments Nos. 121,122,126, 134, 136, 256, 257, 261, 262, 266 and 267 make it clear that the post-extradition regime to be applied is determined by the status of the territory at the time of extradition.
Amendments Nos. 123, 129, 137, 258, 263, 268 and 305 give effect to a commitment that we made in Committee by requiring the person concerned to be notified if any such request has been received. The

59
rules on notification are copied from rule 99 of the magistrates' court rules governing the service of summons. It was the official Opposition who first suggested that we should have a requirement of this kind, and I am glad that we have been able to find a way of achieving this.
Amendments Nos. 124 and 130 simplify the drafting of the Bill to make it clear that if a hearing for consent to speciality waiver or re-extradition has not begun by the due date, consent must be refused. This will make life easier for the person who will no longer in those circumstances have to show any reason why consent should be refused.
Amendments Nos. 127 and 132 make it clear that, in accordance with normal extradition practice, speciality protection and protection against re-extradition only apply for 45 days after the person is at liberty to leave the country. Otherwise we might have the ridiculous situation in which we extradite a person back to his home country and then 30 years later that country wants to re-extradite him and requires our permission. Once the person has had a reasonable opportunity to leave the country, our interest in him ceases.
Amendments Nos. 135 and 138 to 144 are concerned with the case where we have extradited a person to a Part 1 country which then wants to re-extradite him to a Part 2 country. The amendments bring the procedure into line with that which applies when a person is re-extradited to a Part 2 country which then wants to re-extradite him to another Part 2 country. This makes the Bill far more internally consistent.
Finally, Amendments Nos. 259, 260, 264 and 265 give effect to a commitment made in Committee by specifying more precisely the matters which the Secretary of State must take into account when considering any such request. Again, this follows a suggestion made by the Opposition at Grand Committee.
That is what these amendments do. I hope that I have been able to demonstrate that they improve the drafting of the Bill without being particularly contentious. I beg to move.
Baroness Anelay of St Johns: My Lords, I welcome these amendments, which give effect to the Government's commitment to consider the points that were made at Grand Committee. I have one question for further elaboration, if the Minister can answer it today. It is with reference to Amendment No. 123. I am not objecting to the amendment—far from it. It is merely to get some further explanation.
The Government have, quite rightly, put it on the face of the Bill that the judge has to serve notice on the person that he has received a request for consent unless he is satisfied that it would not be practicable to do so. Could the Minister give the House a flavour of the circumstances in which it might not be practicable to
60
do so? If it is too difficult a question to answer now, that worries me slightly, as this is the Government's drafting.
Lord Bassam of Brighton: My Lords, the circumstances in which the judge would be concerned might be rather special. That is why the clause has been drafted in such a way. Rather than mutter through this at the Dispatch Box, I would prefer to drop the noble Baroness, Lady Anelay, a line about it. As I am sure she will appreciate, the circumstances will be rather specific and special, which is why the question of practicality arises.
6 p.m.
Lord Donaldson of Lymington: My Lords, I am sure that this is an elementary point and that I have misread the amendment, but as I understand it, it removes the words "category 1" in line 34. I do not see what difference that makes. The clause will apply if,
"a person is extradited to a category 1 territory in respect of an offence",
and,
"the appropriate judge receives a request for consent to the person being dealt with in the category 1 territory for another offence".
What other country could it be other than a category 1 country? But I may be quite wrong.
Lord Bassam of Brighton: My Lords, I believe that it could be the case that it is a category 2 country, but I shall have to reread my notes carefully if the noble and learned Lord wants an answer today.
Lord Donaldson of Lymington: My Lords, I do not.
Lord Bassam of Brighton: My Lords, I shall happily afford the noble and learned Lord an explanation if I am wrong, but I believe it to be as I explained it.
On Question, amendment agreed to.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendments Nos. 122 to 124:
Page 26, line 38, leave out "category 1"
Page 26, line 42, at end insert—
"(3A) The judge must serve notice on the person that he has received the request for consent, unless he is satisfied that it would not be practicable to do so."
Page 27, line 9, leave out from beginning to "must" in line 10 and insert "the judge does not exercise the power in subsection (5) to extend the period, he"
On Question, amendments agreed to.
[Amendment No. 125 not moved.]
Clause 54 [Questions for decision at consent hearing]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendments Nos. 126 and 127:
Page 27, line 16, leave out "category 1"
Page 27, line 31, at end insert—
"(8) Consent is not required to the person being dealt with in the territory for the offence if the person has been given an opportunity to leave the territory and—

(a) he has not done so before the end of the permitted period, or

61

(b) if he did so before the end of the permitted period, he has returned there.

(9) The permitted period is 45 days starting with the day on which the person arrived in the territory following his extradition there in accordance with this Part.
(10) Subject to subsection (8), the judge must decide whether consent is required to the person being dealt with in the territory for the offence by reference to what appears to him to be the law of the territory or arrangements made between the territory and the United Kingdom."
On Question, amendments agreed to.
[Amendment No. 128 not moved.]
Clause 55 [Request for consent to further extradition to category 1 territory]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendments Nos. 129 and 130:
Page 28, line 4, at end insert—
"(3A) The judge must serve notice on the person that he has received the request for consent, unless he is satisfied that it would not be practicable to do so."
Page 28, line 13, leave out from beginning to "must" in line 14 and insert "the judge does not exercise the power in subsection (5) to extend the period, he"
On Question, amendments agreed to.
[Amendment No. 131 not moved.]
Clause 56 [Questions for decision at consent hearing]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 132:
Page 28, line 36, at end insert—
"(8) Consent is not required to the person's extradition to the other territory for the offence if the person has been given an opportunity to leave the requesting territory and—

(a) he has not done so before the end of the permitted period, or

(b) if he did so before the end of the permitted period, he has returned there.

(9) The permitted period is 45 days starting with the day on which the person arrived in the requesting territory following his extradition there in accordance with this Part.
(10) Subject to subsection (8), the judge must decide whether consent is required to the person's extradition to the other territory for the offence by reference to what appears to him to be the arrangements made between the requesting territory and the United Kingdom."
On Question, amendment agreed to.
[Amendment No. 133 not moved.]
Clause 57 [Consent to further extradition to category 2 territory]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendments Nos. 134 to 144:
Page 28, line 39, after "territory" insert "(the requesting territory)"
Page 29, line 1, leave out ''appropriate judge" and insert "Secretary of State"
Page 29, line 6, leave out "category 1" and insert "requesting" Page 29, line 10, at end insert—
"(3A) The Secretary of Slate must serve notice on the person that he has received the request for consent, unless he is satisfied that it would not be practicable to do so."
Page 29, line 11, leave out "judge" and insert "Secretary of State"
Page 29, line 13, leave out "judge" and insert "Secretary of State"
Page 29, line 14, at end insert—
"(5A) If the Secretary of State decides that question in the affirmative he must decide whether the appropriate judge would send the case to him (for his decision whether the person was to be extradited) under sections 80 to 92 if—

(a) the person were in the United Kingdom, and

(b)the judge were required to proceed under section 80 in respect of the offence for which the Secretary of State's consent is requested.

(5B) If the Secretary of State decides the question in subsection (5A) in the negative he must refuse his consent."
Page 29, line 15, leave out "judge" and insert "Secretary of State"
Page 29, line 15, leave out from "whether" to "if in line 26.
Page 29, line 30, leave out "must" and insert "may"
Page 29, line 33, leave out from beginning to "to" in line 34 and insert "This section applies in relation to any function which falls under this section to be exercised in relation to Scotland only as if the references in this section"
On Question, amendments agreed to.
[Amendment No. 145 not moved.]
Clause 58 [Return of person to serve remainder of sentence]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 146:
Page 30, line 3, at end insert—
"(5) But subsection (4) does not apply if—

(a) the person was extradited for the purpose of being prosecuted for an offence, and

(b) the person has not been convicted of the offence or of any other offence in respect of which he was permitted to be dealt with in the category 1 territory.

(6) In a case falling within subsection (5), time during which the person was not in the United Kingdom as a result of his extradition counts as time served by him as part of his sentence only if it was spent in custody in connection with the offence or any other offence in respect of which he was permitted to be dealt with in the territory."
On Question, amendment agreed to.
[Amendment No. 147 not moved.]
Clause 59 [Costs where extradition ordered]:
[Amendment No. 148 not moved.]
Clause 60 [Costs where discharge ordered]:
[Amendment No. 149 not moved.]
Clause 61 [Costs where discharge ordered: supplementary]:
[Amendment No. 150 not moved.]
Clause 62 [Documents sent by facsimile]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 151:
Page 31, line 37, leave out "Part" and insert "Act"
The noble Baroness said: My Lords, the amendments are technical and are based on existing precedents in relation to documentation. Unlike many of the government amendments that we are discussing today, the purpose of this group is not immediately apparent, so I shall endeavour to explain what they are for.
The amendments are all concerned with the receivability of evidence. The Bill provides in both Parts 1 and Part 2 that fax documents can be received

63
in evidence. It also specifies, in Part 2, that duly authenticated documents can be received in evidence. However, there is no corresponding general provision in Part 1, which is clearly an oversight. The main purpose of the amendments is to remedy that. They do that by inserting a new clause, based on the existing Clause 137, but applicable to the whole Bill. That is what Amendment No. 301 achieves. Accordingly, Clause 137 is no longer needed, which is why we are seeking to remove it. Since evidential matters are now going to be dealt with at the end of the Bill, we are taking the opportunity to move Clauses 62 and 63 there and to apply them to the whole of the Bill. That in turn allows us to repeal Clause 136.
All of the foregoing is concerned with evidence from abroad, but it is also possible that evidence obtained in this country could be needed. For example, when determining the question of identity, it is perfectly possible that fingerprints taken from the person at the time of his arrest in this country could be important evidence. So we need rules to govern receivability of domestic evidence and, to provide for that, we have drawn from domestic legislation.
Amendment No. 302 applies Sections 9 and 10 of the Criminal Justice Act 1967 to extradition proceedings, and its Northern Ireland equivalent for cases in the Province. Section 9 allows for written statements to be adduced where there is no objection from other parties, while Section 10 allows for formal admissions to be made.
I have sought to explain in simple terms what the amendments do. I reiterate that, in respect of evidence from overseas, they allow Part 1 warrants and duly authenticated documents issued in either category 1 or category 2 territories to be received in any proceedings under the Bill. In respect of domestic evidence, they apply the normal domestic rules. They also tidy up the drafting of the Bill by removing some of the duplication which is not strictly needed. I hope that your Lordships will see why this is a sensible way to proceed and will feel able to agree to these amendments as good housekeeping. I beg to move.
On Question, amendment agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 152:
Page 31, line 40, leave out subsection (3).
On Question, amendment agreed to.
[Amendment No. 153 not moved.]
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 154:
Transpose Clause 62 to after Clause 204.
On Question, amendment agreed to.
Clause 63 [Part 1 warrant: transmission by other electronic means]:
[Amendment No. 155 not moved.]
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 156:
Transpose Clause 63 to after Clause 204.
On Question, amendment agreed to.
Clause 64 [Persons serving sentences outside territory where convicted]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 157:
Page 32, line 38, leave out from "section" to "after" and insert "20(5) has effect as if
On Question, amendment agreed to.
[Amendment No. 158 not moved.]
Clause 65 [Extradition offences: person not sentenced for offence]:
Lord Goodhart Lord Goodhart moved Amendment No. 159:
Page 33, line 18, at end insert—
"( ) the category 1 territory is a party to the European framework decision;"
The noble Lord said: My Lords, in speaking to Amendment No. 159, I wish to speak also to Amendment No. 169. The amendment provides that the exclusion of dual criminality applies only to territories party to the European framework decision. Other states would then be able to get the benefits of the fast-track procedure described by Part 1, but would be subject to the dual criminality rule.
There are two reasons for proposing the amendment. First, other states will have no say in the amendments to the European framework decision, but will be bound by them—so they are not simply looking at it as it is now. Secondly, the abolition of the dual criminality requirement is, of course, controversial and, therefore, may act as a barrier rather than as an encouragement to other states wishing to move to category 1, which the United Kingdom would be willing to admit to category 1 if able to do so.
We would not object to a provision that would enable non-European-Union states to accept the abolition of the dual criminality list for all or some of the offences in the schedule. However, they should not be required to accept the entire list as a condition for admission to category 1 status. I beg to move.
Baroness Anelay of St Johns: My Lords, I rise to support these amendments to which I added my name. As the noble Lord, Lord Goodhart, made clear, we have considerable reservations about the appropriateness of designating new states as category 1 territories, and so relaxing the controversial issue of dual criminality—as he referred to it—for the European framework list, when those countries have not signed up to the framework decision. It is certainly controversial for these Benches.
In Committee, the Minister stated that she did not see why we felt that our Commonwealth countries, Australia, New Zealand and Canada, might not at some stage in the future be appropriate category 1 countries. We do not dispute the possibility that they may indeed be appropriately category 1 countries in the future; we are not at variance with the Government on that, particularly when the Government brought

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forward on the first day of Report amendments which made the designation of countries subject to the affirmative procedure and moved from the Orders in Council procedure to the Secretary of State procedure. We consider that is the appropriate parliamentary process. That is a significant step forward. However, here we are asking the Government to justify the advisability of allowing non-EU countries to be party to the relaxation of dual criminality which is part of a framework decision to which they are not themselves party. I argued this point when speaking to earlier amendments of mine which were grouped with the Government's when they made the change from negative to affirmative orders. Therefore, I shall not press the point further.
6.15 p.m.
Baroness Scotland of Asthal: My Lords, I thank the noble Lord, Lord Goodhart, and the noble Baroness for drafting the amendment in the way that they did as it clarifies the areas which need to be addressed.
We believe that those countries which are justified in expecting to move from category 2 to category 1 should have the advantage of all the benefits of category 1 status, or not be so moved. The advantage of category 1 status is a relaxation, a coming together and being in comity with one another on those principles. It would only be when those countries are in an alignment—similar to the alignment that we have with our EU partners—that we would be likely to say that they would be entitled to move to category 1. Thereafter, we would return to both Houses to relate the changes that had taken place and to explain the way in which those countries had aligned themselves with us. As a result, they would justify a movement from category 2 to category 1. Once they are in category 1, they should share the same benefits as all the other category 1 partners; otherwise, we would have category "1A". Having created a new premier division, I suppose that category 1 countries would be first division and category 2 countries would be second division. However, that is not how we view the position: either countries should join us and be in comity with us to such an extent that we think classification in category 1 is merited, or no.
That is the truncated answer to that question and I hope that noble Lords will be content with it. I know that the noble Lord, Lord Goodhart, would prefer the framework decision to be preserved so that only those who are signatories to the framework decision could participate in all those benefits, but that in effect would be tantamount to saying that no country which is outside the framework decision could or should ever be able to have the full benefit of category 1 categorisation. We do not think that is right. As I have said on a number of occasions, we do not anticipate that Australia, Canada or New Zealand will seek to be in alignment with us, but they may do so. If and when that occurs, we believe that if they justify category 1 status they should have the full benefits of that status or stay where they are currently, which is category 2.
Lord Goodhart: My Lords, I am grateful to the noble Baroness. I regret that the Government are not
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prepared to move on this matter. However, this is not currently a live issue and will not be unless and until a consideration arises about another country outside the EU transferring from category 2 to category 1, or wishing to do so.
I am somewhat concerned that there is not some degree of flexibility here—that the state will be required absolutely to sign up to everything in the schedule although it is not bound by the framework decision. However, although I regret that, it may or may not become material in the future. That said, it is not something that I wish to press this evening. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 160 not moved.]
Lord Goodhart Lord Goodhart moved Amendment No. 161:
Page 33, line 26, leave out "12 months" and insert "3 years"
The noble Lord said: My Lords, this is an amendment which I believe is of great importance. Article 2.1 of the framework decision allows extradition for offences punishable by a maximum sentence of 12 months or more. We accept that; it represents broadly the present law. Under Article 2.1, that applies where the dual criminality rule applies.
What is novel about the European framework decision in particular is Article 2.2 which removes the requirement of dual criminality for the more serious offences—those which carry a maximum sentence of three years or more in the requesting state. That is an essential part of the European framework decision. Although noble Lords on these Benches had concerns about whether the dual criminality rule ought to be preserved in full force, ultimately we accepted the arguments for some degree of relaxation of it. However, Article 31.2 of the framework decision provides that the threshold for applying Article 2.2, and thereby removing the dual criminality requirement, may be reduced by bilateral or multilateral agreements between some or all of the states which have signed up to the framework decision.
The Government have chosen to rely on Article 31.2 and to permit a reduction of the threshold at which Article 2.2 operates—with the dual criminality rule being removed—to include offences that carry a maximum sentence of 12 months or more. We believe that that is effectively gold plating the framework decision and that it is wrong. The proposal has been criticised by Justice, Liberty, and the Home Affairs Select Committee in the other place. The Home Affairs Select Committee stated at paragraph 51 of its first report of the Current Session on the Bill:
"We can see no justification for eroding the basic level of protection provided by the framework decision and we are dismayed that the Home Office is seeking to do so".
The dual criminality rule is, of course, not pointless. The original idea no doubt was that some countries imposed harsh and repressive laws prohibiting, say, freedom of speech or freedom of assembly, which would not have been recognised in this country. There

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is a second reason for the dual criminality rule; namely, that a stranger to a country may not realise that what is lawful at home is not lawful abroad.
We have accepted that the dual criminality rule should be modified for the European Union. That was not an easy decision; we felt that it came close to the borderline. However, we recognise that European Union member states are parties to the European Convention on Human Rights and broadly comply with it. Therefore, the idea of a dual criminality rule as a defence against harsh and repressive laws that breach human rights is not necessary in relation to other countries in the European Union.
Of course we accept and support the principle that visitors to other countries should obey the local laws. However, people should not be extradited for relatively minor offences in the absence of a dual criminality rule. Where penalties are minor—where the maximum sentence is less than 12 months—most offences will be on the borderline of criminality. Offences committed by serious criminals such as major frauds, large-scale drug dealing and so on are almost always crimes in both the requesting and requested countries.
In those circumstances, there is no sufficient justification for the removal of the dual criminality rule. The problem of people not understanding the local law is that the risk is clearly greater with relatively minor offences where practices may vary a great deal. Something recognised in one country as legitimate, or at most subject to an action for civil damages, may be a criminal offence leading to a short prison sentence in another. For more serious offences, it is much more likely to sensible people that the activities might be regarded as crimes in another country.
The fact that we are willing to accept the exclusion of dual criminality for serious crimes does not mean that we should exclude it for lesser crimes falling within the same category. Some offences on the list can cover a very wide spectrum. For example, the 12th offence is environmental crime, which could include offences that in this country at any rate would be regarded as quite minor. Something that might come within the definition of environmental crime might carry a maximum sentence of 12 months but would not be a crime in this country.
Therefore, we should not gold-plate the European arrest warrant, but should stick to the basic requirement that the dual criminality rule is only excluded if the maximum sentence is three years or more. Lesser crimes would of course still be subject to extradition if the dual criminality rule applied.
Amendment No. 170 deals with extradition not to face charges but to complete a sentence. Articles 2.2 and 31.2 of the framework decision do not differentiate between extradition to face charges and to serve a sentence that has already been imposed. In our view, the same principle applies. Where there is dual criminality in both countries, we accept that extradition is appropriate to serve or complete a sentence of at least four months. Where there is no
68
dual criminality, however, people should not return to serve sentences of four months. In such cases, we suggest that extradition should be imposed only when there is an actual sentence of at least 12 months.
The nature of cases where there is no dual criminality is that those matters are on the border of criminality. They are thought to be a crime in one country, but reasonably thought in other countries not to be a crime. That is not the kind of offence likely to be exploited widely by serious criminals, or to be particularly disturbing to individuals. I do not see any problem with that.
The amendment is of considerable importance. It does not involve anything inconsistent with the terms of the framework decision. We quite see that it is desirable to keep within them. The amendment would involve no breach of those terms whatever. The framework decision provides a substantial reduction of the effect of a long-standing rule applying to international extradition, and that is in itself enough.
If the removal of dual criminality for the more serious offences proves to have no problems, we could go forward to that in future. However, it is too early to take that step. At this point, we should confine ourselves only to the step provided for in Article 2.2 of the framework decision, and say that we have to be limited to that and cannot go below the maximum three-year sentence for an offence charged or a sentence of at least 12 months' imprisonment where there is a return in order to serve or complete a sentence. I beg to move.
Baroness Anelay of St Johns: My Lords, I added my name to the amendments and I strongly support them. I agree with the noble Lord, Lord Goodhart, that they are of crucial importance. They respond properly to the criticism made of the Government's proposals in this part of the Bill by the Home Affairs Committee in another place and organisations such as Liberty and Justice.
We find further disagreement about the whole issue of dual criminality but, if we are going down that route, the amendment offers the minimum requirement of protection. As the noble Lord pointed out, by accepting the amendment we would do nothing to contradict the framework decision itself. He brought forward a very strong and convincing argument, so I do not intend to repeat the excellent case made for the amendments.
Lord Clinton-Davis: My Lords, I worry about the attitude that my noble friend will take. The case argued by the noble Lord, Lord Goodhart, and emphasised by the briefing from Liberty and Justice—I have not seen that, but he referred to it—is very persuasive. Twelve months is much too short. It indicates that the Government do not really think that the issues are very serious, but they are.
The amendment suggests that we have a period of three years as a break-off point. The Government should contemplate that. I hope that my noble friend

69
will say that she and her officials will think again about the matter. It is not an issue of enormous importance, but it is of some.
A provision in the Bill states,
"for a term 12 months or a greater punishment".
My noble friend can refer to that. However, I am worried about a period of only 12 months. That gives the wrong signals. I would prefer to see the amendment accepted by my noble friend.
I am not sure about the second amendment; nor has the noble Lord made a strenuous case for it. While I remain to be persuaded about that, it is important to go back and see what Amendment No. 161 stands for. The noble Lord has made a potent case for it. The least that I would expect my noble friend to say, here and now, is that she is willing to think again about it.
6.30 p.m.
Viscount Bledisloe: My Lords, am I right in thinking that "gold-plating downwards"—if one can do that— is unilateral and that the territory in question can ask us to extradite a man for a non-dual-criminality offence because its maximum penalty is 15 months, but that if we ask that territory to extradite in similar, non-dual-criminality circumstances, it could say, "Oh, well, we only extradite in those circumstances for a three-years' offence"? If it is unilateral in that way—I see the noble Baroness nodding—why on earth are we being so unilaterally generous?
Baroness Carnegy of Lour: My Lords, the amendment of the noble Lord, Lord Goodhart, attempts, at least partially, to alleviate the fear of the public about Part 1 of the Bill. I regard that as one of our main aims on the Opposition Benches. The public—at least those who have thought about it— fear that people may be extradited for an offence that they did not know was an offence when they committed it. The noble Lord, Lord Goodhart, made the simple point that an offence which has a penalty of three years is less likely to give rise to that misapprehension than would one of 12 months. An offence that has a threshold of three years is serious. People are more likely to realise that they are committing a serious offence, even if they are not aware that it is an offence in this country or know that it is not.
It is an important and helpful amendment. I hope that the Government will accept it or say that they will draft a similar one. The House of Commons should certainly recognise that point as it represents members of the public who have those fears. I therefore hope that the Government will accept the amendment.
Lord Stoddart of Swindon: My Lords, the noble Baroness will understand that some of us at least are completely opposed to the European arrest warrant and to Part 1 of the Bill. I am amazed that the Minister, having recommended the framework directive, then "unrecommends" it by adopting something different.
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The noble Lord, Lord Goodhart, has made the case for his amendment extremely well and I do not wish to elaborate on it too much. As he said, Article 2.2 of the framework agreement applies to offences of three years or more. I simply do not know why the Minister and the Government should want to go beyond that. It puts the citizens of our country in a worse position than that of other countries. I would not have thought that that is what the Government wanted to do; nor would I have thought that the Government wanted to confirm everybody's suspicions about virtually every European directive; that is, that the Government and the Civil Service in this country take the opportunity to "gold-plate" it and make it far worse for our citizens than for those of other countries.
Therefore, I hope that if the noble Baroness does not accept the amendment, she will at least say that the strength of feeling for the amendment, and against what the Government are proposing, is such that, before Third Reading, she will look at it again and come back with her own amendment. If she does not, I hope that the noble Lord, Lord Goodhart, will press his amendment today and that the House will agree to it.
Baroness Scotland of Asthal: My Lords, I thank my noble friend for those helpful comments, because they give me an opportunity to respond. The noble Lord, Lord Goodhart, called it "gold-plating" and said that it was too early for us to move to a more generous accommodation. He was echoed by the noble Viscount, Lord Bledisloe, who also mentioned gold-plating. That theme echoed around the House.
I shall be clear about the framework document. That document sets minimum standards; that is, the least that we have agreed to do. It does not prevent us from going further if we in this country think that it inures to the benefit of our system and our individuals. It is our Bill; we set the standards which we deem to be appropriate for our country. Therefore, we must legislate for what we believe is in the best interests of the United Kingdom. If that involves exceeding our international obligations, then so be it.
Why should our approach in implementing European measures be that the UK should always do only the bare minimum that is required? We set our own standards. On occasions, we have led the pack. We lead the pack in our legislation on race. Our race relations legislation is probably the most robust in the EU. Noble Lords will know that many countries do not share our belief that incitement to racial hatred is a punishable offence. In discussing reciprocity, let us take the example of Portugal. I am not suggesting for a moment that a Portuguese individual would do it, but if someone were to come here from Portugal, were to incite racial hatred and were to create a great deal of difficulty and mayhem and then depart, if we sought total complimentarity as noble Lords suggest, others could say that it is not an offence in Portugal to incite others to racial hatred.

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We need to be a little careful about what we are saying here. We wish people to obey our laws when they come to this country. We will not accept, for example, that that they should be able to incite racial hatred with impunity in this country because they do not know that it is an offence so to do in this country. There is a very practical element to all of this. As we previously pointed out, in contrast to the United Kingdom, other countries have difficult and different regimes. I cite as an example the fact that not all EU countries have an offence of fraudulent trading. So we regard these matters as of real importance.
I remind your Lordships that the partial removal of the dual criminality requirement applies only in respect of EU countries—mature democracies with established and fair criminal justice systems. It is also worth mentioning that if any part of the conduct in question has occurred in the United Kingdom, we can extradite only if the dual criminality requirement is satisfied. So no one can be extradited for conduct that occurred here and is legal in this country. However, we have come to a position in the Bill where there is a clear difference of view.
Lord Clinton-Davis: My Lords, reference has been made to the briefings from Liberty and Justice. Was my noble friend aware of those? Has she had any meetings with them? Has everything, or nothing at all, been reduced to writing?
6.45 p.m.
Baroness Scotland of Asthal: My Lords, I am perfectly aware that Liberty and Justice have taken a different view. On this Bill, as on many others, we have engaged in conversations. I do not know whether the officials have met specifically with Liberty and Justice in relation to these matters. However, we know the difference. Indeed, we had a very interesting, thoughtful and comprehensive debate on these issues in Grand Committee where we explored that difference. There is a difference. I promised in the last sitting of the Grand Committee that we would continue to think about these issues, and we have. However, there is a clear difference between what we think is right to do and what others may press.
When we are talking about the dual criminality requirement in relation to extradition—specifically in Part 1—to other EU countries we are not talking about some vital fundamental protection. We are talking about whether or not we should protect criminals who go to other EU countries to break their laws. The Bill provides two thresholds for extradition. For accusation cases—that is, cases where the person has not yet been put on trial—the threshold is 12 months, as in our present legislation. In conviction cases—that is, cases where the person had been tried and convicted—the person must have been given a custodial sentence of at least four months. Those thresholds apply in all cases, even in those circumstances where the dual criminality requirement is not to be applied. These amendments would change
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the thresholds in non-dual criminality cases so that they would be three years in accusation cases and 12 months in conviction cases.
My immediate reaction to that is to ask, "Why?". Who are we seeking to protect and for what reason? Why should we give sanctuary to those who go to another EU country and break its law? Let us put this into practical terms. Imagine that someone commits an offence in another EU country which happens not to be an offence in this country. He receives a nine-month prison sentence. Before his sentence begins he manages to flee to this country. If these amendments were passed, we would be unable to extradite him. I am not sure whether any of your Lordships really believe that that is in the interests of justice or that that outcome would serve the interests of justice.
The justification for these amendments appears to be that Part 1 of the Bill goes beyond the terms of the framework decision on the European arrest warrant and these amendments seek to bring us back in line. I freely admit that we have gone beyond the strict requirements of the framework decision—but why is that necessarily a bad thing? We have chosen so to do. I appreciate that there are some, particularly some who sit on the Benches opposite, who are more comfortable with a more insular approach. However, I hear with a little surprise the same insularity coming from the Liberal Democrat Benches. It is certainly not an approach that the Government want to adopt in our dealings with our European partners.
To be fair, the noble Lord, Lord Goodhart, has said in the past said that he has another rationale for these amendments. His argument—I am sure that he will correct me if I am wrong—was that offences in the bracket of one to three years are by definition less serious, and therefore there is a greater chance that a person might be committing them inadvertently. I hear that. However, that was sufficient to justify the logical inconsistency that we would be applying dual criminality protection for lesser offences but not for more serious ones. I respect the noble Lord's point of view, but I would offer two observations. The first, as he is well aware, is that ignorance of the law has never been a defence, and to recognise it as a reason for not extraditing people to another EU country is a dangerous precedent.
Secondly, offences attracting a penalty in the bracket of one to three years may be less serious than offences which attract more than three years, but they are still serious. We are not dealing with minor or trivial matters here. For more than 100 years we have recognised that an offence with a sentence of 12 months or more is serious enough to warrant extradition. It is worth considering some of the UK offences which have maximum penalties falling in the category of one to three years. They include assault with intent to resist arrest, abduction of a girl under 16, aggravated vehicle taking and failure to surrender in accordance with bail conditions. Those are not trivial matters. They are certainly not trivial to the victims.
Let us also bear in mind that our sentence levels tend to be higher than those in other EU countries, and I would suggest that it is unlikely that we could excuse

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someone's conduct as inadvertent. There is a real risk that the introduction of a different threshold will cause confusion, not least for the person whose extradition has been requested. The universal application of a 12-month threshold in accusation cases will undoubtedly be much easier to follow.
I apologise for going over these matters at some length, but I think that they are important. We need to face this difference. Either we think that this is right or we do not. Of course, it is for the noble Lord and the noble Baroness to decide whether to press their amendments. However, there is one question that shines out above all others. Who would benefit from these amendments? Who would be protected if these amendments were made? It seems to me that the answer is clear: it is those who go to another EU country and break its laws, not by committing minor crimes or by doing so inadvertently, but by committing crimes that we have always thought serious enough to justify extradition.
The right to free movement within the EU is being abused by serious criminals. We cannot and will not let the fight against that abuse be hampered by diluting the ability to pursue these people and bring them to justice. That is the least that we owe to the victims of crime, in this country and throughout the EU. If noble Lords are asking whether we are deliberately going beyond that which others are minded to provide, then the answer is. "Yes, and we do not regret it".
Lord Lamont of Lerwick: My Lords, before the noble Baroness finishes, I should like to ask her one question. She did not seem to reply properly to the noble Viscount, Lord Bledisloe. She said that we have higher standards in certain laws such as race relations laws, and that we might wish to extradite to this country and would not regard it as satisfactory if those countries did not understand that such matters are offences in this country. I follow and accept that part of her argument. However, if those countries are going to maintain a three-year threshold as distinct from us, what good will this do us?
Baroness Scotland of Asthal: My Lords, I tried to make it absolutely clear that I was answering the noble Viscount, Lord Bledisloe, by saying, "Yes, it is unilateral". Secondly, it is for the British Parliament to decide the right threshold for extradition to this country. That is an objective decision unaffected by what other countries decide. It is for us to choose. We have chosen. Of course, if Parliament disagrees with the Government, that is a matter for Parliament. However, we are not ashamed of the difference that we clearly have with others.
Lord Goodhart: My Lords, before I respond to what the noble Baroness said, I want to say that I am very grateful for the support that the amendment has received. In response to the noble Lord, Lord Clinton-Davis, who said that I had not pressed Amendment No. 170 very strongly, I want to say, first, that I regard it as a less important amendment than Amendment No. 159; nevertheless, it is important.
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If Amendment No. 159 were accepted by your Lordships but not Amendment No. 170, we would find that people could be extradited to complete a sentence of the order of one-ninth of the maximum sentence, which would justify the removal of the dual criminality rule. As it is, under the Government's proposals, where the minimum sentence is 12 months, four months' sentence will represent one-third of the limit of the maximum sentence above which the dual criminality rule will be removed. We believe that that ratio should be preserved. If the offence is so minor that it receives only a four-month sentence when the law provides for a possible maximum sentence of not less than three years, we believe that it is inappropriate to include such an offence in extradition cases where there is no dual criminality.
I now turn to a more important point—that is, the defence for this clause set out by the Minister. The Government could have decided that they would allow the three-year limit to be reduced when a bilateral or multilateral agreement had been entered into with other countries, with that agreement then being approved by the affirmative resolution procedure. They have not done that. They have simply said, "Whatever the country provides, we shall ignore the dual criminality rule whenever the maximum sentence in the requesting state is 12 months, even if that state does not adopt the same principle". Quite apart from the fact that we consider the principle of going below three years to be wrong, we believe that it is wholly unjustifiable to do so on an entirely non-reciprocal basis.
Of course, we wish people to accept our rules. However, that depends not on what we say but on what other countries are prepared to agree to. We do not believe that it is necessary or justifiable to reduce the level for the removal of the dual criminality rule below that required by the framework decision. The noble Baroness talked about abuse by serious criminals. The types of crime carried out by serious criminals are not those such as aggravated vehicle-taking; they are offences that will almost certainly carry dual criminality and, in particular, they are almost certainly offences that will carry maximum sentences of at least three years.
Whatever view other people may take and whether or not they support the amendment, we do not support it on the grounds of insularity. We oppose what the Government propose. We have introduced the amendment because we believe that the dual criminality rule plays an important part and that it should be reduced only with great care. We are prepared to go along with the framework decision, but we are not prepared to go along with the Government's further reduction of it. On that, we take a view that is shared by many other bodies concerned with human rights which cannot be accused of insularity.
6.55 p.m.
On Question, Whether the said amendment (No. 161) shall be agreed to?
Their Lordships divided: Contents, 115; Not-Contents, 107.

Division No.3

CONTENTS

Addington, L.

MacGregor of Pulham Market,

Anelay of St Johns, B.

L.

Arran, E.

Mackie of Benshie, L.

Astor, V.

McNally, L.

Attlee, E.

Maddock, B.

Avebury, L.

Mancroft, L.

Blatch, B.

Mar and Kellie, E. [Teller]

Bledisloe, V.

Marlesford, L.

Bradshaw, L.

Mayhew of Twysden, L.

Bridgeman, V.

Michie of Gallanach, B.

Brooke of Sutton Mandeville, L.

Miller of Chilthorne Domer, B.

Brougham and Vaux, L.

Monro of Langholm, L.

Buscombe, B.

Monson, L.

Byford, B.

Montrose, D.

Cameron of Lochbroom, L.

Mowbray and Stourton, L.

Carnegy of Lour, B.

Moynihan, L.

Clement-Jones, L.

Newby, L.

Coe, L.

Noakes, B.

Colwyn, L.

Northbrook, L.

Craigavon, V.

Oakeshott of Seagrove Bay, L.

Denham, L.

O'Cathain, B.

Dholakia, L.

Onslow, E.

Dixon-Smith, L.

Park of Monmouth, B.

Donaldson of Lymington, L.

Pearson of Rannoch, L.

Eden of Winton, L.

Peel, E.

Elton, L.

Phillips of Sudbury, L.

Fearn, L.

Pilkington of Oxenford, L.

Feldman, L.

Plumb, L.

Fookes, B.

Razzall, L.

Gardner of Parkes, B.

Reay, L.

Glentoran, L.

Rennard, L.

Goodhart, L.

Roberts of Conwy, L.

Goschen, V.

Rodgers of Quarry Bank, L.

Hamwee, B.

Roper, L.

Hanham, B.

Rotherwick, L.

Harris of Peckham, L.

Russell-Johnston, L.

Harris of Richmond, B.

Saltoun of Abernethy, Ly.

Henley, L.

Seccombe, B. [Teller]

Hodgson of Astley Abbotts, L.

Selborne,E.

Hooson, L.

Sharp of Guildford, B.

Howe of Aberavon, L.

Sharples, B.

Howe of Idlicote, B.

Shaw of Northstead, L.

Shutt of Greetland, L.

Howell of Guildford, L.

Skelmeredale, L.

Hunt of Wirral, L.

Stewartby, L.

Jellicoe, E.

Stoddart of Swindon, L.

Jenkin of Roding, L.

Strathclyde, L.

Kilclooney, L.

Taverne, L.

Kingsland, L.

Thomas of Walliswood, B.

Laing of Dunphail, L.

Tope, L.

Lamont of Lerwick, L.

Ullswater, V.

Lester of Herne Hill, L.

Vivian, L.

Listowel, E.

Waddington, L.

Livsey of Talgarth, L.

Wallace of Saltaire, L.

Luke, L.

Weatherill, L.

Lyell, L.

Wigoder, L.

McColl of Dulwich, L.

Wilcox, B.

NOT-CONTENTS

Acton, L.

Ashton of Upholland, B.

Ahmed, L.

Bach, L.

Amos, B. (Lord President)

Bassam of Brighton, L.

Andrews, B.

Berkeley, L.

Archer of Sandwell, L.

Bernstein of Craigweil, L.

76

Billingham, B.

Janner of Braunstone, L.

Blackstone, B.

Jay of Paddington, B.

Brennan, L.

Jones, L.

Brett, L.

Jordan, L.

Brooke of Alverthorpe, L.

Judd, L.

Brookman, L.

King of West Bromwich, L.

Brooks of Tremorfa, L.

Kirkhill, L.

Burlison, L.

Layard, L.

Campbell-Savours, L.

Lea of Crondall, L.

Carter, L.

Lofthouse of Pontefract, L.

Chan, L.

Macdonald of Tradeston, L.

Clark of Windermere, L.

McIntosh of Haringey, L.

Clarke of Hampstead, L.

McIntosh of Hudnall, B.

Clinton-Davis, L.

MacKenzie of Culkein, L.

Corbett of Castle Vale, L.

Mackenzie of Framwellgate, L.

Craig of Radley, L.

Mallalieu, B.

Crawley, B.

Mason of Barnsley, L.

David, B.

Massey of Darwen, B.

Davies of Oldham, L. [Teller]

Merlyn-Rees, L.

Desai, L.

Mitchell, L.

Dixon, L.

Morgan, L.

Dormand of Easington, L.

Morris of Aberavon, L.

Dubs, L.

Morris of Manchester, L.

Elder, L.

Nicol, B.

Evans of Parkside, L.

Pendry, L.

Evans of Temple Guiting, L.

Pitkeathley, B.

Plant of Highfield, L.

Farrington of Ribbleton, B.

Prys-Davies, L.

Faulkner of Worcester, L.

Radice, L.

Filkin, L.

Ramsay of Cartvale, B.

Fitt, L.

Randall of St. Budeaux, L.

Gale, B.

Rea, L.

Gibson of Market Rasen, B.

Rendell of Babergh, B.

Goldsmith, L.

Richard, L.

Gordon of Strathblane, L.

Rooker, L.

Goudie, B.

Sawyer, L.

Gould of Potternewton, B.

Scotland of Asthal, B.

Graham of Edmonton, L.

Simon, V.

Grocott, L. [Teller]

Stone of Blackheath, L.

Haskel, L.

Symons of Vernham Dean, B.

Hayman, B.

Taylor of Blackburn, L.

Hilton of Eggardon, B.

Temple-Morris, L.

Hogg of Cumbernauld, L.

Tomlinson, L.

Hollis of Heigham, B.

Turner of Camden, B.

Howells of St. Davids, B.

Warner, L.

Howie of Troon, L.

Warwick of Undercliffe, B.

Hoyle, L.

Whitaker, B.

Hughes of Woodside, L.

Whitty, L.

Hunt of Chesterton, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
7.5 p.m.
[Amendments Nos. 162 to 168 not moved.]
Clause 66 [Extradition offences: person sentenced for offence]:
[Amendment No. 169 not moved.]
Lord Goodhart Lord Goodhart moved Amendment No. 170:
Page 35, line 7, leave out "4" and insert "12"
On Question, amendment agreed to.
[Amendments Nos. 171 to 174 not moved.]
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 175:
Page 35, line 43, leave out paragraph (b) and insert—
"(b) a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment has been imposed in the category 1 territory in respect of the conduct;"
The noble Lord said: My Lords, I can be brief. In Grand Committee we gave notice of our intention to table Amendments Nos. 175 and 273, which simply correct a couple of drafting errors in the Bill. I realise that the question of thresholds is somewhat contentious and that there are interesting debates to be had on the point. However, I should suggest that this is not the moment for such debate.
All the amendments do is to make the Bill internally consistent. I apologise to your Lordships' House that the errors crept in in the first place. These things happen even in the best run Bills. I hope that your Lordships will be characteristically forgiving and will agree to the amendments. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 176 to 178 not moved.]
Clause 67 [Extradition offences: supplementary]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendments Nos. 179 and 180:
Page 36, line 25, leave out second "an" and insert "a judicial"
Page 36, line 27, leave out paragraph (a).
On Question, amendments agreed to.
The Deputy Speaker (Viscount Simon): My Lords, before calling Amendment No. 181, I must inform the House that if that amendment is agreed to, I cannot call Amendment No. 182, which stands in the name of the noble Lord, Lord Goodhart.
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 181:
Page 36, line 29, leave out subsection (3).
The noble Baroness said: My Lords, Amendment No. 181 has the support of both the noble Lord, Lord Goodhart, and the Minister. In moving this amendment I shall speak also to Amendment No. 182, giving it qualified support, which will not surprise the House after having heard from the Deputy Speaker about the problem in calling it. I shall speak also in support of Amendment No. 183, tabled in my name and that of the noble Lord, Lord Goodhart, and to my Amendment No. 329, which is an amendment to government Amendment No. 328.
Noble Lords may think that this is a somewhat strange grouping. Perhaps I may explain to the Minister that I originally expected Amendment No. 183 to be separate from this grouping. I believe that that is what the Minister had expected, rightly, as that is what is on the list. However, at a quarter to two this afternoon an indication was given to me that the noble Lord, Lord Goodhart, would appreciate Amendment No. 183 being taken with this grouping. That is why I intend to speak to it. The noble Lord, Lord Goodhart, will explain the reason for that when he moves his own amendment. I agreed with him, on further reflection, that it would save the time of the House and make more sense for the whole subject to be aired at the same time.
I did not expect to move Amendment No. 181, which is in its correct place on the list, at this time or, indeed, at any time. It is an unusual amendment. It
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seeks to delete from the Bill the reference in Clause 67 to the intention to refer to the European framework decision without putting on the face of the Bill the list of offences. I have already spoken to this amendment, having tabled it in my attempt to knock out the whole of what I considered to be the obnoxious Part 1. Therefore, it was tabled and spoken to in a group led by an amendment on which I voted and lost.
In the normal run of things, I would expect to be totally and utterly barred from ever bringing forward this amendment. I tried not to have the amendment grouped with the other amendments because I did not want the Government and other noble Lords put into the position of being told that they could not have their amendments. I was trying to be kindness itself. However, I am assured that the House authorities accept that I will not damage anyone by tabling the amendment. The Minister has added her name to my amendment. So the Government can get their way, yet we seem to bend the normal rules of fate.
Although I have lost the amendment once, it seems to have a second chance of life. I shall naturally be content when the amendment is subsequently made. I just wish that I could be as successful with the rest of the group. But there we are; there is another day for that.
On Amendment No. 182, we find the general description of some offences in the framework list unacceptable. We have made that position clear throughout these debates. We do, however, think that if we must have the framework list, it is better to have it on the face of the Bill rather than in obscurity. To that extent only, I support Amendment No. 182.
I do not support the full framework list as it stands. We believe that it is vital that Amendment No. 183 of the noble Lord, Lord Goodhart, should be accepted by the Government. I leave the noble Lord to present the detail of his argument for that. Briefly, our position is as follows. We support his amendment because it allows the inclusion of racism and xenophobia on the list only when there has been a framework decision on racism and xenophobia between member states. We believe that that would ensure that we all have a harmonised view—I hate the word "harmonised"; I thought I would never say it, but I have—of the offences which we believe constitute racist or xenophobic acts—or, if not a definition, at least a unanimous view.
In addition, we believe that it is essential that the Government should accept my Amendment No. 329, which is an amendment to Amendment No. 328, standing in the names of the noble Lord, Lord Goodhart, and the noble Baroness, Lady Scotland. That would remove the word "xenophobia" from the list of 32 offences. Our hostility to including "xenophobia" is based purely on the fact that, as many other noble Lords demonstrated in Grand Committee, no one really knows what the term means. It is certainly not defined as an offence in our criminal law, and we believe that it is open to too wide an interpretation.
I repeat the undertaking I gave in Grand Committee that I would not want anyone to avoid extradition if he had racially abused, harassed or insulted someone. That is unacceptable. We would want him to face justice. All we say is that it would not be possible to relax the dual criminality rule for any offence of this kind. Dual criminality would have to be satisfied before an extradition could take place. We may come to the matter again at a later stage in the Bill in respect of that amendment.
I return to Amendment No. 181, with some hope for once that an amendment may be made. I beg to move.
7.15 p.m.
Lord Goodhart: My Lords, I wish to speak to the amendments standing in my name in the group; that is, Amendment Nos. 182, 184 and 328. As the noble Baroness, Lady Anelay, has already mentioned, I would like to treat Amendment No. 183 as part of the group because it raises very much the same issue, but in a somewhat different form, as Amendment No. 329, which stands in her name. I have not attached my name to it, nor did I to the equivalent amendment in Grand Committee.
On Amendments Nos. 182, 184 and 328 I can speak briefly. Amendments Nos. 182 and 184 have both been overtaken by government Amendment No. 308. Therefore, I shall not be moving them. The Minister has put her name to Amendment No. 328 in order to put the framework list on to the face of the Bill. We welcome that. I shall be moving that amendment when we reach it.
That leaves Amendment No. 183. It raises the question of xenophobia as part of the framework list. Xenophobia is a word that has a number of possible meanings. We felt that it was desirable to know what was intended by the word xenophobia before we actually approved a list. As I understand it, a framework decision on the subject of xenophobia and racism is currently being worked on. It will contain some kind of definition which can be relied upon by the United Kingdom courts as a guide to what xenophobia and racism mean in the schedule to the Bill.
Amendment No. 183 could, as we recognise, potentially lead to a temporary inconsistency between the framework decision list and the list as contained in the Bill. In those circumstances, we feel that we are placed in some difficulty. We have no indication of when the framework decision is likely to be made. Therefore, ultimately the real decision is whether xenophobia stays as part of the schedule or is permanently removed from it. That is not something to which Amendment No. 183 would provide an answer. It would remove temporarily both "xenophobia" and "racism", but it does not propose that, once the framework decision is out, any further decision in your Lordships' House should be taken on whether racism and xenophobia should remain as part of the list.
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In those circumstances, we do not feel that any very useful purpose would be gained by moving Amendment No. 183 when we reach it, and it is not my intention to do so. Your Lordships will be faced with the real issue in this case when we reach Amendment No. 329—no doubt not this evening.
Lord Pearson of Rannoch: My Lords, although one welcomes these amendments, they perhaps place on the record a number of other crimes in the framework decision list, the meanings of which are far from clear. In that category I mention environmental crime. What is "environmental crime"? We are told that it includes the illicit trafficking in endangered animal species and endangered plant species and varieties. Endangered where? A species of plant can be rare in one place and comparatively common in another. Anyway, we are left with environmental crime.
I understand that we do not really have a definition of "corruption", "swindling" or "racketeering"—all of which are included in the list—in this country. Finally, there is "counterfeiting" and "piracy of products". I am not asking the noble Baroness to prolong our proceedings by answering all those questions tonight, but one is left wondering what that really means. Does it mean when one fashion store copies an expensive original product from another? There are quite a few fashion stores in London doing that at present, with products that have originated elsewhere in Europe. Will that become a crime extraditable under the Bill?
I merely wanted to put those points on record. As usual, we are dealing in European Union doublespeak. We do not have the faintest idea how the provision will eventually be used. In the mean time, I support the amendment.
Baroness Scotland of Asthal: My Lords, I first pick up the point raised by the noble Lord, Lord Pearson of Rannoch, because he referred to the generic nature of the offences. One difficulty is that similar offences are described in different ways by different countries. Although we may each have a similar offence on our statute book, we may describe it differently. So the generic term encompasses a range of offences in the various countries.
I am grateful to the noble Lord, Lord Goodhart, and the noble Baroness, Lady Anelay, for making clear that although Amendment No. 183 is included in the group, they do not intend to press it separately. I shall therefore concentrate on the general comments made by the noble Lord in moving the amendment, which, as he and the noble Baroness rightly said, also bears my name.
Throughout the Bill's passage, your Lordships and Members of another place have spent a great deal of time discussing the list of generic offence categories. It is perhaps unnecessary for me to remind your Lordships that that is the list of offence categories in respect of which the dual criminality rule can be relaxed. It is fair to say that the existence of the list and its content have been the source of a certain amount of

81
controversy, so it is slightly strange that for the majority of this group of amendments, we appear to be in complete agreement. I rejoice in that fact.
The exception, of course, is Amendment No. 329, to which I cannot agree. It concerns the particular category of "racism and xenophobia" on the list, which we believe should not be adulterated or diluted. I shall return to that amendment shortly.
However, the purpose of most of the amendments is clear enough. They include the list in the wording of the Bill. I know that that was something that noble Lords very much wanted. The Government's original view was that the content of the list was clear by reference to the framework decision, but were happy to accept the strength of feeling that the list should be in the Bill itself. In Grand Committee, we made a commitment to do that. I am happy to be able to recommit us in that regard and the amendments in my name give effect to that commitment.
Let me say something about changes to the list. It is important to preface my remarks with the statement that we know of absolutely no plans to change the list and that any such change would require the unanimous agreement of all member states. The government amendments provide that changes to the list in the Bill can be made only to reflect changes agreed at European level and then be effected only by order subject to the affirmative resolution procedure. I know that that is what the Opposition parties were seeking and I am pleased that we have been able to oblige. Given that, as I said, we appear to be temporarily in complete agreement, I think I need say no more about the list being in the Bill.
As I promised a moment ago, I now turn to Amendment No. 329, which would completely remove the reference to "xenophobia" in the list—the list that we are now seeking to include in a schedule to the Bill. However, I should perhaps begin with an apology. I say that because I shall refer to a term at the sound of which many noble Lords who attended Grand Committee will groan. However, it is the issue that people have identified as being different: that of Holocaust denial.
As those of your Lordships who studied the report of the Home Affairs Select Committee on the Bill in another place will be aware, the Government took steps to establish what offences in other EU countries fell within the racism and xenophobia category. The results for several countries are contained in the annexe to the Home Affairs Committee's report. What is striking is how familiar all the conduct is: it is conduct that we in the United Kingdom would regard as criminal.
Suggestions that our EU partners have wild or peculiar racist or xenophobic offences on their statute book are clearly wide of the mark. I trust that your Lordships will bear that in mind during our further deliberations. Almost the only offence that we could identify that is a racist or xenophobic offence in another EU country but clearly has no counterpart in United Kingdom law is Holocaust denial, which is why we kept coming back to it—it was the only offence on which we could alight.
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As your Lordships will be aware, the generic list that includes racism and xenophobia is significant as it sets out the categories of offences—they are broad headings, not specific crimes—for which the dual criminality test is disapplied. That point is important. We are talking not about a precise offence of racism or xenophobia but of offences that fall into that category. In our earlier debates, we said that a number of offences under our race relations legislation, such as incitement to racial hatred, are not reflected in all EU countries but would fall within the category of offences that could be described as racist or xenophobic.
So although the United Kingdom has no offence of racism or xenophobia, plenty of examples fall within that category—all of our incitement to racial hatred legislation being an obvious one. The fact that the United Kingdom does not use the term "xenophobia" in its legislation does not mean that we do not have offences that correspond to other countries' xenophobia legislation. "Racism and xenophobia" is a term in common use at the European level to cover the kind of behaviour and conduct that we have been discussing. Hence the framework decision on racism and xenophobia. That is why that phrase is used in the list.
In previous debates, we have heard all sorts of inflammatory suggestions that tabloid editors or readers of Biggies will be extradited, which has fuelled concern over the phrase. I had hoped that we had been able to put all these nonsensical rumours to ground, but they continue to cause concern. We have said on innumerable occasions that no one will be extradited from the United Kingdom for doing something that is not illegal here. This is unequivocal and I hope that your Lordships will agree that we should waste no more time giving any legitimacy to such suggestions.
By the same token, our position remains constant that within the EU and the freedom of travel, commerce and employment that comes with it, a person should respect the laws of the place he is in. If he does not, he should face justice. I am sure that the noble Baroness, Lady Anelay, is not suggesting that such a person should not face trial—I see her indicating that she is not. We are really discussing the term. As I said, the term is a catch-all. We need it. If we did not have it, there are many offences described in other EU countries as "xenophobic" that we would not be able to include when requesting extradition.
With that, I hope that the noble Lord, Lord Goodhart, and the noble Baroness will feel a degree of comfort and certainty and, when reading the list, will recognise that, other than the dreaded example of Holocaust denial, we are in comity with our European partners.
7.30 p.m.
Lord Pearson of Rannoch: My Lords, surely the noble Baroness is aware that it is an offence to insult the French President. Would that not be covered by the term? Much more seriously, whatever the offence of xenophobia may be at the moment, is it not true that under the Bill it will be what the extraditing magistrate

83
chooses to say it is? We have not the faintest idea of what it will be in future. Surely that is the position, is it not?
Baroness Scotland of Asthal: My Lords, it is not. The Bill provides that if someone in an EU country has committed an offence contrary to that country's law and then seeks extradition, we will comply, if that is shown. Similarly, if the situation were reversed, we would be very upset if someone came here and incited racial hatred, which we all abhor, but then said "It is not an offence in my country to incite all these people to racial hatred; it is perfectly OK. Why should I be extradited just because I went to Britain and caused mayhem and incited people to hate each other on racist grounds?". I hear the noble Lord say that that is a different thing, but it is exactly the same. We do not expect others to come to this country and abuse our law with impunity. We expect our EU partners to assist us in the same way that we would expect our citizens, when in France, to obey the law there. It is mutual respect—something that inures to our joint advantage.
Lord Monson: My Lords, will the Minister explain why the European framework list includes racism and xenophobia, rather than racist behaviour and xenophobic behaviour? All the other 31 crimes on the list involve action or behaviour, whereas racism and xenophobia are both emotions. In a democracy one cannot legislate against an emotion; one can legislate only against acts or behaviour.
Baroness Scotland of Asthal: My Lords, I have tried to explain that this is a category within which there will be specific offences. I have indicated that our own offence of incitement to racial hatred would fall within the generic term. I understand what the noble Lord says about how the other crimes were framed. As with all the issues, this was negotiated between all the EU partners and there was agreement on the framework— the broad generic categories. We have tried to be very explicit about what the terms encompass. We can say, from looking at existing legislation, what the categories currently encompass; however, it is right that our own law and that of other countries may be amended, particularly in this sphere.
We have a very proud history in that our legislation is said to be the most far-reaching and comprehensive of any country in Europe. It may be the most far-reaching anywhere in the world. It is therefore unlikely that many of our partners will have such comprehensive provisions. I do not hesitate to say that we want them to be able to implement those provisions and extradite if anyone comes to our country and trespasses against our law, even if our law sets a higher standard than anyone else's.
Baroness Anelay of St Johns: My Lords, as the Minister said, we are in comity on many of the amendments. She has made much of the arguments about racism and xenophobia. She will recall that I
84
took care not to delete racism from the framework list. My amendment would delete xenophobia, because it is so generic as to be almost incapable of specific interpretation that would satisfy me for the purposes of relaxing dual criminality in that respect.
I could have done as my noble friend Lord Pearson of Rannoch did, and point to other generic offences that are objectionable for the purposes of the list, but on this occasion I was trying to narrow my fire. I shall consider further Amendment No. 329. On the first part of Amendment No. 329, I am intrigued by the fact that the framework list includes the word "and". In that case, if one is guilty solely of xenophobia does that mean that one does not fall within the list unless one has committed a racist offence also?
The framework list as currently drafted is not perfect. I will look at it again more carefully before Third Reading. I may not need to return to it, but I shall keep the matter open for the time being. As the Minister said, we are in comity on Amendment No. 181. In that respect alone, I commend the amendment to the House.
On Question, amendment agreed to.
[Amendments Nos. 183 and 184 not moved.]
Lord Bassam of Brighton: My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion I suggest that the Report stage begin again not before 8.36 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Health Inequalities
7.36 p.m.
Lord Chan Lord Chan rose to ask Her Majesty's Government what progress has been made in tackling health inequalities, in particular in the North-West region of England.
The noble Lord said: My Lords, I am grateful for the opportunity to focus on what progress has been made in the Government's public health priority— tackling health inequalities. I thank all noble Lords for participating in this short but important debate.
I declare an interest as a non-executive director of the Birkenhead and Wallasey NHS Primary Care Trust and as chairman of the Minority Ethnic Health Task Force of the public health directorate in the Government Office of the North West. I acknowledge the assistance of Professor John Ashton, regional director of public health in the North-West, who is present.
I congratulate Her Majesty's Government for choosing to give top priority to public health and demonstrating commitment by the Prime Minister's taking a personal lead to oversee the production of a detailed programme of action to tackle health inequalities. Five specific steps were to be taken: tackling inequalities in access to health services; putting public health and addressing health inequality

85
at the heart of the NHS; focusing on defeating our country's biggest killers, cancer and coronary heart disease; securing a better balance between prevention and treatment; and tackling smoking.
I may appear impatient in wanting to review progress of this long-term programme announced only last November, but I have looked in vain for any key publicity in the media on tackling health inequalities. That deplorable lack of interest is disappointing for the providers of innovative services and the hundreds and thousands of adults and children experiencing deprivation in England, particularly the north-west. Their plight is not clearly visible in the statistics for disease and death. They suffer disability, discomfort and despair. Their potential will not be fulfilled if local government and statutory agencies fail to help them to keep in good health.
Men and women in Manchester die seven to 10 years before people in south-west England. Residents in Liverpool and Blackpool are next among the worst off for life expectancy in England. The two primary care trusts in Wirral, where five wards are among the worst-off 5 per cent in England, identified six groups of people experiencing health inequalities in the public health annual report for 2003–04. The report states that those groups are: pregnant teenagers; mothers with young children in low-waged families; families affected by substance misuse; long-term unemployed men, usually fathers; the older husband and wife over 75 years; and the older person from a minority ethnic group. Health inequalities affect all age groups, from the babies of teenage mothers to older men and women, including ethnic minority people. Poverty is the common thread in all these vulnerable people groups. Poverty makes a normal life very difficult or impossible.
Our vulnerable people live in poor-quality housing. In Wirral, 30 per cent of housing stock does not comply with a decent homes standard and 6 per cent of housing fails the basic housing fitness standard. Poor people do not eat healthy food because it costs more than less healthy food such as fast food. Children whose parents have low incomes eat less fruit and vegetables than those whose parents have higher incomes. For example, in the Wirral, three in five children eat no leafy green vegetables, one in two do not drink fruit juice and one in five eat no fruit. Those children have poor dental health, are more prone to accidents and are more likely to die in house fires.
Females living in deprived areas are more likely to become pregnant at a young age than those living in less deprived areas. Therefore, four of the five highest wards for under-18 pregnancy in the Wirral are classified as neighbourhood renewal wards, receiving additional government funding because of their high levels of deprivation. Drinking excessive alcohol contributes to sexual risk taking, and that behaviour can lead to teenage pregnancy and sexually transmitted infection. Such infections are four times higher in the most rather than the least deprived areas according to the Public Health Laboratory Service report in 2000. However, there has been a national rise in sexually transmitted infection. Studies have also
86
shown higher rates of gonorrhoea in some inner-city black and ethnic minority groups than in those from a white UK origin.
Very few towns and cities in the North-West now have shared social space that is not alcohol-based, especially for younger people. If non-alcohol-based public space for young people in regeneration planning is not available, we will further erode social cohesion and confound our aspirations for a multicultural society. That concern has been raised by the Health Development Agency.
In Wirral, people living in deprived wards have twice the smoking levels of those in better-off areas. Young mothers living in deprived areas smoke more than other women. They are also less likely to breast-feed their babies. Misuse of drugs, especially heroin, takes place primarily in the poorer areas in the Wirral, with large numbers presenting for drug treatment.
Older people who depend totally on state pensions are more likely to live with a long-term illness, including depression. They tend to have a greater need for health and social care services than those who are younger. Older people from ethnic minority populations are increasing in number as most of them migrated to the United Kingdom in the 1960s and 1970s. They are more disadvantaged than their white counterparts because they are not fluent in the English language, having spent many years in catering work. In Wirral and Merseyside, those older people from ethnic minority backgrounds are Chinese. They suffer social exclusion, living alone with limited contact with their children and friends.
In conclusion, I hope that the Minister will agree that now is the opportune time for me to ask what progress has been made in tackling health inequalities, especially in the north-west of England. The NHS and social services departments are doing their best, but they cannot adequately tackle health inequalities. Other partners must work together with them to focus on this task. It would therefore be helpful if the Minister could identify strategic cross-cutting work that he believes is reversing health inequalities of people living in the north-west of England.
I hope that he will also give examples of good practice to address the six groups of vulnerable people that I highlighted. Further, will the Minister also state how more emphasis can be placed on the prevention of ill health to match the great publicity given to medical technology and the treatment of disease? Finally, will the Minister outline how primary care can be given greater prominence in the perception of users of the NHS?
7.45 p.m.
The Earl of Listowel: My Lords, I thank my noble friend Lord Chan for tabling this important debate this evening and for making it clear to me that he wished to expand the parameters beyond the North-West. I propose to concentrate on the mental health of looked-after children. Listening to my noble friend's comments, I was reminded that the pregnancy rates among this group are unfortunately far higher than in

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the rest of the population. Also, there is some suggestion of greater exposure to class A drugs in this group. Perhaps that is not surprising, because 50 per cent of these children have experienced abuse or neglect before being taken into care. I also want to concentrate on a possible intervention that might be more widely used to improve the mental health of these children.
According to the Office for National Statistics, 45 per cent of looked-after children have a mental disorder. It is four times more likely for them to have one for than for those in the general population. I will also concentrate on the 7,500 children in residential care. They have even higher rates of mental disorder. The context of this is a CAMHS service in which there is a 12 to 18-month wait to see a psychiatrist in many areas. The group are also challenged because of the lack of placement stability that they experience—they may be moved from one area to another, their education may be broken down because of that and therefore the achievement that they might experience in school is undermined. Such achievement is important in improving mental health.
Another issue for these children is staff stability. There is a vacancy rate of about 18 per cent in London and 10 per cent nationally for residential childcare staff. There is a turnover rate of 15 per cent, which is 2 per cent higher than for social workers. To put that figure into context, the vacancy rate for police or teachers is about 2.6 or 1.5 per cent, so there is a background of instability in carers.
The minimum standards introduced for residential childcare are very welcome. We recently debated those standards briefly. The introduction of clear parameters for the supervision of staff is especially welcome. However, even the commissioner responsible for implementing the standards admits that they are the basic minimum. As I have said to the Minister in the past, I regret that the more sophisticated proposals in the report of the committee of inquiry into the selection of staff in children's homes, Choosing With Care, chaired by the noble Lord, Lord Warner—sometimes called the Warner report—and its emphasis on consultancy to staff groups in children's homes seem not to have been given the emphasis that they deserved. The report thoroughly endorses the involvement of appropriate mental health professionals on an ongoing basis as an efficient way of making use of scant child and adolescent mental health provision.
Three or four years ago, when I visited one of Centrepoint's projects, I was most impressed by the results that can come about. I had talked to outreach workers who worked with young people on the streets in Soho, and they had particularly recommended the project, particularly because it held on to difficult to look after children. When I visited the project, I found some troubled children. There was one young girl with many cuts from a razor across her wrist. There was a young Irish man who had been in and out of various hostels many times. There appeared to be good work going on inside that home. The staff there were
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supported once a week, as they should be, by an experienced child psychotherapist who came from outside the organisation to support them.
The staff worked with the most difficult client group in the whole Centrepoint organisation, and yet, as the manager went to great pains to point out to me, they had the lowest sickness rate in the organisation. Well supported staff working on the front line can be better retained and more easily recruited and have less sick leave. Those are important indicators.
At another children's home, I witnessed a consultation in progress and saw some of the great difficulties that come up. There were concerns that a girl who had been bought presents by a boy—a stranger—from the home might be led into prostitution by that young man. There were concerns about another child who appeared to be stealing from other children in the home. There were concerns about the difficulties of working with another agency. A highly professional, skilled consultant coming from the outside could help staff reflect on their practice and, perhaps, shed some of the burden of responsibility that they bore.
There are some difficulties with the approach. The principal one was identified in the Warner report. Consultancy is part of the professional development of staff and should, rightly, be the responsibility of the managers of children's homes. They should fund it. However, it also benefits the mental health of the children, so, in that sense, it is the responsibility of the health side. Who should take responsibility for funding it? That is one important issue. Who are the consultants? Are they mental health professionals and, if so, of what kind? Do they concentrate on the clinical case of each child? Are they other professionals experienced in advising teams on how to work together? Team work is a crucial element of the effective provision of childcare in residential children's homes.
There is also the issue of evidence. There is much evidence out there, but it must be collated. New research must be undertaken to verify the importance of the approach. Those issues are there, too. On the basis of my experience—over three years—of working in institutions in which children are cared for away from home, I value a partnership approach and feel that it is not sufficiently appreciated. The skilled clinician who used to go to the children's home to which I referred was deeply valued by the manager, but she had to fight tooth and nail to be able to work in support of the staff in the home. Her work was not valued by the organisation.
I welcome the Green Paper, particularly the partnership working that it describes. I welcome the children's workforce unit. It will have an important part to play in developing best practice. I shall write to the Minister in more detail on that matter.
In the mean time, I thank my noble friend again for introducing such an important debate. I look forward to the Minister's response.
7.54 p.m.
Baroness Massey of Darwen: My Lords, I am grateful to the noble Lord, Lord Chan, for bringing attention to inequality in health. The problem has concerned politicians, administrators and health professionals for a long time. There has never been a better time to improve the situation. I say that because I am aware of a multitude of initiatives that should enable things to move on. In addition, there is a greater commitment to partnership working at a national and local level. Many doors are open, but more of that later.
I suppose that I should declare an interest as one who was born and brought up in the North West. The noble Lord, Lord Chan, gave us many facts and figures, none of which were surprising. The reasons behind the figures are less easy to pin down. It is encouraging that the director of public health in the North West, Professor John Ashton, and his colleagues have carried out wide consultation and are developing strategies to find the reasons and tackle them.
I have known Professor Ashton for a number of years and am constantly impressed by his tenacity and vision. I see that he is watching the debate avidly and appreciatively. In fact, we first met when I worked for the Health Development Agency, then the Health Education Council. That was in the mid-1980s. The report Inequalities in Health by Sir Douglas Black and his team had been published, the World Health Organisation had published its Global Strategy for Health for All by the Year 2000, and a report entitled The Health Divide had been written by Margaret Whitehead to update Inequalities in Health.
The World Health Organisation recognised that,
"the undertaking to reduce health inequalities will remain an empty gesture unless radical steps are taken by government to seek better information, undertake large scale experiments, introduce anti-poverty policies, give priority to healthier lifestyles and monitor the effects of those on the health of the population as a whole and on the poorest groups in particular".
The Health Divide received a mixed reception. One response from Ministers was to accept that health inequalities existed but to say that they were due to individual behaviour such as heavy smoking, drinking and poor diet, rather than to social factors. Twenty-six MPs put down a Commons Motion calling for a programme recognising the relationship between poverty and ill health. In a debate in your Lordships' House, in 1987, Lord Kilmarnock said that, just as the gap between the richest and the poorest had increased within an overall increased national income and the plight of the homeless had become worse within an overall pattern of increased home ownership, so health inequalities had increased. He said that it was all part of the same pattern. That was in 1987, almost 20 years ago.
I meander back into history because, although much has happened to improve the quality of life, which leads to improved health, much has not happened. We now have a recognition by policy makers that health is not simply an individual matter, but is dependent on the social and economic climate, which preventive
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health should encompass. Health promotion saves money for the NHS, and good practice in health has to start early. I will touch on that in a minute.
There is commitment at a national and local level to strategies and practice that put substance on that recognition. I must refer briefly to the action taken by the public health directorate in the North West and to some action being taken for children, as was mentioned by the noble Lord, Lord Chan. I mentioned the importance of partnerships. The coming together of many structures in the nine Government Offices will help. One of the vision statements of the regional health group in the North West is,
"to build upon the development of regional partnerships to improve the health of the population".
I am aware that consultation has taken place and that an action plan is due, I believe, by the end of November.
Consultation with and participation by the diverse groups in the community are vital, if people are to feel involved in solving problems in their community. Community involvement and action are important, as are leadership, advocacy and the building of workforce capacity. Underpinning all that, there must be research and analysis. I know that all of that is happening or is intended in the North West.
As I said, tackling health inequalities must start early. Sure Start exists to help families with young children. Schools must be involved, which, in turn, must include communities. The National Healthy Schools Standard, which I have been privileged to be involved in on several occasions, does just that. After discussions with parents and pupils, one primary school involved in the National Healthy Schools Standard completely redesigned the school meal system. The London primary school where I am a governor keeps a watching eye on health issues through its school council. Last year, it had a resolution about physical activity in the school.
As part of its outcome measures, the Green Paper, Every Child Matters, includes health and well-being, identified as important by young people themselves in a survey. There is the new NHS National Service Framework for Children, Young People and Maternity Services. Children's trusts are being developed. I hope that we shall see child and adolescent mental health services integral to all that. Importantly, we have a new Minister for Children to oversee the many initiatives aimed to foster children's health and well-being.
Some months ago, I visited Hounslow where a group of young people had explored health issues. They included youth peer research and a knowledge cafe event where the findings were presented to professionals in Hounslow, which encouraged interest, motivation and a sense of shared ownership. A key objective was not to simply identify health issues, but to gain insights into how young people understand and experience health in their every-day lives.

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I go back to the need for involvement, particularly involvement by specific groups; that is, not just young people, but women, men, black and minority ethnic groups. In his introduction to Investment in Health, Professor Ashton states:
"Most health is gained and lost outside of medical care".
Perhaps we have over-medicalised health and, in doing so, have disempowered individuals and communities. As I said earlier, given all that is going on to redress the balance, we must seize the moment and ensure that we make a difference. Can the Minister restate the Government's commitment to reducing inequalities in health? Can he reassure us that similar initiatives to Investment in Health are taking place in parts of the country other than the North West? Can he say how we will monitor all this and learn from good practice?
In conclusion, I refer to the WHO statement Health for All in the Year 2000. Yes, it was aspirational. The North West has shown that it has moved from aspiration to action. I look forward to following the progress of those important initiatives.
8.2 p.m.
Baroness Greengross: My Lords, I congratulate my noble friend Lord Chan and other speakers. At lunch-time I realised that I could be here for this important debate and I am very pleased to take part in the gap. I shall focus more generally on health inequalities, rather than specifically on the North West situation, which my noble friend and other speakers have already done so admirably. I declare an interest as chair of the advisory board to the English Longitudinal Study on Ageing at University College London, led by Professor Sir Michael Marmot.
The study is funded partly by the American Government through the National Institute on Aging and partly by the British Government through the Department of Health. It follows a large representative group of people of 50 years old and over. It is designed to monitor how inequalities play out across the years and affect morbidity and mortality. The Centre for Health and Society at UCL was heavily involved in the Acheson inquiry in 1997 and has been since in other developments.
I first became interested in health inequalities in the context of the demographic revolution that we are under-going, but it has wider societal implications. Only two weeks ago on 13th October, we debated another aspect of this issue in the excellent short debate on obesity, which should be considered as one manifestation of health inequality.
Noble Lords may be aware of UCL's Whitehall study, which studied civil servant mortality rates in men aged 40 to 64. For the top grade of civil servant, mortality was half the average rate. As a result, we are lucky enough to have some of them here in this House. For executive grades, mortality rates were 20 per cent lower; for clerical grades, it was 35 to 40 per cent higher; and for office support grades, mortality rates were twice the average—a four-fold difference between top and bottom grades.
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Those are startling figures, which we have also seen in other areas—for example, on smoking, obesity, and so forth. To a great extent, that justifies the Government's focus on groups at the bottom of the scale. However, the UCL research is finding that the key group to focus on to make the greatest impact on outcomes is not necessarily or exclusively those at the bottom, but often the people just "below the middle". At an International Longevity Centre lecture in June, Sir Michael Marmot said:
"the fact is that there is a social gradient… and these inequalities run right through from top to bottom".
However, that is not to say that we should not focus on those at the bottom of the scale at all. Sure Start is a very important initiative—which, in particular, looks at deprived neighbourhoods—that is open to all-comers. Getting the message about a gradient to policy-makers is sometimes difficult because, as we know, governments like to set targets. The target is the most socially excluded—those people right at the bottom—which is right, but these people should not be focused on exclusively.
The issue is very complicated: it is more complicated than just assuming that low income alone causes health inequality. For example, for black males in the USA, the median income is 26,500 dollars per year; in Costa Rica, it is 6,400 dollars per year. But life expectancy in Costa Rica is 75 years, compared to 66 years in the USA among the same group. What perhaps is more important is relative social exclusion—that is, how people feel within their own society about relative deprivation as well as actual deprivation; those things about which people are aware. Today, we are very aware of what is going on around us. It is not about genetic determinants alone; it is about things which we can see make a great difference—just like Seebohm Rowntree sought to do in the 19th century. To the credit of the Government, they are trying to do that.
It is crucial to take a life-course approach. I touched on that in the obesity debate; it is very important. The conclusion is that autonomy and control over one's life is another key factor in reducing inequality. Mortality rates must be reduced. It is very important to do so because not only are health inequalities unjust, but they are also grossly inefficient and something within our power to remedy.
8.8 p.m.
Lord Clement-Jones: My Lords, I congratulate the noble Lord, Lord Chan, on initiating this debate. While I do not have a particularly strong connection with the north-west region, when one looks at the figures it is clear that that region is uniquely deprived in terms of health inequalities. If anything, the noble Lord rather interestingly understated the problem. The North West still has the highest death rate of all the health regions in England. Breast cancer and male lung cancer rates continue to increase, in spite of falling national rates. Even the levels of lead found in drinking water are particularly high in the region.

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There is also a marked contrast between the health of those living in affluent, professional areas—there are quite a number of them—and that of those living in the areas of lowest income, concentrated in urban locations and other areas of social housing. Rates of long-term illness and infant mortality in those lowest income areas are almost double those of the more affluent, professional areas.
Children in the North West are more likely than on average nationally to grow up in lone-parent households or those with no one in full-time employment, which is reflected in their relatively poor health. Further, the infant mortality rate is 6.5 per 1,000 live births, compared with a rate of 5.8 per 1,000 for the rest of the United Kingdom. Those are very significant figures and it is in that context that we need to look not only at issues of how to tackle health inequalities in the region, but also more generally to see what effect current government policies have had.
Back in 1997–98, all welcomed the Acheson report and inquiry. The White Paper, Saving Lives: Our Healthier Nation, which followed, marked a major recognition that health inequalities are not caused only by health factors, they are influenced by a whole range of other factors. The key aims of the report, which received a wide welcome, were: first, to improve the health of the population as a whole by increasing the length of people's lives and the number of years spent free from illness and, secondly, to improve the health of the worst-off in society and to narrow the health gap. Those were laudable aims that sought to put public health at the forefront of public policy.
Even today, no one argues with the setting of the four priority areas. It is interesting that one of those key areas was mental health, so cogently discussed by the noble Earl, Lord Listowel.
Following the report, in January 1998, the Northwest Partnership established a regional action for health task group. More recently, the North West Public Health Team, based in the Government Office for the North West in Manchester and part of the Department of Health, has areas of responsibility which include working with regional and local agencies as well as the NHS to ensure that the wider determinants of health are recognised in policies and activities. Those are direct echoes of the lessons of Acheson. I found most interesting the comments of the noble Baroness, Lady Massey, when she spoke of the possible over-medicalisation of health policy: this is— to use a favourite Treasury expression—an area where cross-cutting must take place into other areas of policy.
The second limb of the effort being made by the North West Public Health Team is that of supporting the NHS by providing professional leadership development and intervention where appropriate. That, too, is extremely important. Further, as was mentioned by the noble Lord, Lord Chan, the Investment for Health plan is being carried forward.
All those efforts are important, but what is probably the more vital piece of work is a national one, because it looked at what kind of policies are needed across a
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broad front to tackle inequalities. I refer to the 2002 Cross Cutting Review from the Treasury, which identified that, despite increasing prosperity and a reduction in mortality over the past 20 years, there are still significant differences in health status between regions, between different social groups and so forth. Those differences between social groups are quite extraordinary. For example, life expectancy at birth between men in social class one and those in social class five widened from 5.5 years over the period 1972–76 to 7.4 years in 1997–99. Those figures can be replicated in different areas of the country. A similar comparison can be made of death rates in the North West and those in the leafier parts of London such as Kensington and Chelsea and Richmond.
One of the key lessons to be learnt from both Acheson and the Cross Cutting Review is that policies are needed to tackle inequalities not only in geographical terms, but also between different groups within the population. A further lesson was reflected in the point made by the noble Baroness, Lady Greengross, concerning the gradient of those inequalities which has been identified.
That means that, laudable though they may be, efforts such as the neighbourhood renewal strategies which target the worst-off areas are all very well, but they do not necessarily address the extent of the needs of particular groups such as older people living on lower incomes, children and other groups. Particular challenges are also presented by the needs of black and ethnic minority groups, disabled people and so forth. One needs a dual strategy that addresses both regional and local inequalities as well as inequalities within groups.
Some of the studies carried out by independent groups into the progress that has been made are very interesting. Particularly interesting is the UCL study undertaken by Mark Exworthy and colleagues, which was funded by the Joseph Rowntree Foundation and published in March this year. Although they say that some progress has been made, they identify three key gaps. First, a lack of mechanisms to promote and ensure progress in policies to tackle health inequalities; secondly, a need for an independent, regular evaluation of the progress of policies in terms of their impact on individuals, intermediate markers of progress and targets; and, thirdly, a need to conduct and collate research studies on effective interventions and outcomes.
They make some extremely practical suggestions. First, the role of the Inequalities and Public Health Task Force could be revised; secondly, the terms of reference of the ministerial sub-committee on social exclusion could be amended to include tackling health inequalities; thirdly, that sub-committee could be required to produce an annual progress report for Parliament; fourthly, a special, cross-departmental Select Committee could be formed, drawn from relevant departmental Select Committees. This may be a little mechanical, but I suspect that it is needed in order to get a genuine cross-cutting approach. The

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language now is "cross-cutting". It used to be "joined-up government", but we are trying to achieve the same outcome.
On the evaluation front, a mechanism could be created—possibly under the auspices of a new Select Committee or the Audit Commission—to scrutinise and independently evaluate progress, and mechanisms could be introduced to enable local authority scrutiny committees to include health inequalities within their remit. Those are very practical suggestions.
At the last general election the King's Fund produced an interesting briefing paper on inequalities in health. It questioned whether government policies had really made a difference. It states that many of the government targets have been limited to counting death rates for major illnesses; that the NHS still employs the majority of its energies on healthcare rather than on health improvement; and that much of the work taking place is small-scale, short-term in nature and not properly bolted into communities.
So there is a prescription. There are some extremely useful ideas out there. The Government's intentions have always been extremely good in this area but we still lack the mechanisms to get power behind the policy—and that is what is needed.
8.16 p.m.
Lord McColl of Dulwich: My Lords, I, too, thank the noble Lord, Lord Chan, for initiating the debate. I should like to explore the definitions of poverty and, more importantly, enlarge on the remarks of the noble Lord, Lord Chan, to illustrate how a simple behaviour change could result in those currently living in poverty having their health so much improved that they could be healthier than the rich.
The European Union definition of poverty is not particularly helpful—it is an income of less than half the European Union average. The World Bank has set the international poverty line at an expenditure level of one US dollar per person per day. As regards the present day interpretation of poverty, the general public hold ideas about the necessities of life which are rather more wide ranging than is ordinarily represented in expert assessments. People of all ages in all walks of life do not restrict their interpretation of the necessities to the basic material needs of a subsistence diet, shelter, clothing and fuel. There are social customs, obligations and activities that substantial majorities of the population also identify as among the top necessities of life.
People's perceptions of poverty tend to change as countries get richer. In this sense, the definition of poverty will always depend on what people in a particular society at a particular point in time perceive as "poor". A report by the Joseph Rowntree Foundation on poverty and social exclusion in Britain showed that the majority of people believe that it is more important to have heating in their home rather than to have a damp-free home. The majority nowadays also place more importance on a telephone than they do on a fridge freezer.
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The report concluded that since 1990 poverty appears to have become more widespread but not more severe. This would seem to indicate that it is a change of people's perception of poverty rather than the problem itself becoming more severe. A realistic definition of poverty is that in order to survive one needs adequate food, water and shelter. This will cost an individual, on average, in this country, £80 per week. This includes housing, council tax, food and fuel. A realistic present day situation is to take the example of an unemployed single person, aged 25 or over, who is in receipt of job seeker's allowance. He receives a total of £109.11 per week before housing costs. After rent and council tax, this leaves an individual with a total of £55 per week. This equates to the unemployed male, each week, being able to afford fuel and power for his house, the necessary requirement of food, a can of lager each evening, the luxury of a satellite television, any medicines and travel by bus. After all this, he still has £14 in his pocket. Nevertheless, it is quite clear from the noble Lord, Lord Chan, that the inequalities in the North West are very obvious, as the noble Lord, Lord Clement-Jones, has also mentioned.
Poverty is very closely associated with early death from heart disease, lung cancer and stroke in the North West. Our figures show that approximately 84 per cent of premature deaths in the North West from coronary heart disease can be attributed to poverty. Yet how do we know that poverty is the problem rather than a desperate need for a behaviour change?
Professor Sir Charles George, the British Heart Foundation medical director, said that the differences in the social class between rich and poor are the cause of thousands of deaths from coronary heart disease in the UK each year. He said:
"People from lower socio-economic groups are more likely to smoke and less likely to eat fruit and vegetables than people from wealthier backgrounds".
The noble Lord, Lord Chan, has already mentioned that. Professor Sir Charles George continued:
"They may also be less likely to report any warning signs of coronary heart disease such as angina… By helping people to change their lifestyles and increasing health education we can help turn the tide on these figures and reduce the devastating burden of coronary heart disease in the UK—for everyone".
With this in mind, I would like to point out six ways in which health could be dramatically improved without any increase in expenditure. The first way is food. In 1939, one third of the British people were underfed or fed on the wrong food. That figure obtained in the United States. The introduction of food rationing changed that overnight, as people ate the right food in the right quantities. The only obese people in those days were those on the black market. It was a high roughage diet and included the national loaf which was grey, not brown. Brown bread is brown only because it is dyed. Calcium was added to counteract the effects of phytic acid in the bran, which tends to prevent the absorption of calcium.
The first action, therefore, for better health, would be to eat the foods which are conducive to good health. A single man can buy such food in Sainsbury's in

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London for £25 a week—I have tried it. That includes wholemeal bread, five helpings of vegetables and fruit a day, eggs, fish, cheese, and so on. A single unemployed man seeking work has £55 a week. The first way to improve his health is to change his eating habits.
The second proven way of greatly improving health is to avoid all drugs which produce ill health. It is a cast-iron fact that smoking produces ill health and premature death. Stopping smoking not only improves health but leaves more money for a healthier lifestyle. An alcoholic binge in an evening can cost up to £100. Crack cocaine, for a buzz of a little over a few minutes, costs £100.
Then we come, thirdly, to safe sexual habits. In Uganda, President Museveni, one of the most outstanding leaders in Africa, was faced with a huge problem of AIDS and venereal disease in the 1980s. To the astonishment of the world, he achieved a remarkable reduction in new cases from 31 per cent to 7 per cent. How did he do this? His solution was to be honest and to encourage the people to change their behaviour by adopting the ABC policy. A is for abstinence, B is for be faithful in marriage and C is for condoms if you cannot do that. He was the first national leader to have the guts to say the obvious. Working with schools, churches and various groups, he got his message over—"Change your behaviour".
Fourthly, there is exercise, which is what the noble Lord, Lord Bassam of Brighton, frequently does. He goes for a run for miles around the streets of Westminster and appears as fresh as a daisy at the Dispatch Box, without a care in the world. I suppose that it is a relief to survive running around this place.
The fifth way in which to improve health is for those unemployed to offer their services free, particularly in charitable work. That happens on quite a large scale. Finally, housing can be improved by local charities, which may help the occupants of substandard accommodation to improve their premises by enhancing security, decoration and insulation.
Some noble Lords have mentioned improving NHS facilities but, apart from immunisation, the NHS has a very marginal effect on people's health. There are no easy solutions to tackling the health inequalities in the North West, which are extraordinarily complex. However, one solution is to increase the number of people who help those in poverty to improve their health by adopting more appropriate lifestyles. What is required are improvements in eating, housing, exercise, work and the avoidance of habits that maim and kill.
8.26 p.m.
The Parliamentary Under-Secretary of State, Department of Health (Lord Warner): My Lords, I am sure that we are all grateful to the noble Lord, Lord Chan, for putting the subject down for debate this evening. I assure him that the Government share his concerns, which he outlined so cogently. I shall try to outline what we are doing in the North West more generally and answer his questions along the way.
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We shall continue to publicise public health initiatives and developments and hope that a more balanced presentation can be provided in the media. I cannot always guarantee that we shall be able to compete with the latest medical technology in column inches, but we shall do our best. I reassure the noble Lord, Lord McColl, that I run regularly, although probably not as fast as my noble friend Lord Bassam.
Effective action to tackle health inequalities is particularly important in north-west England, given its relatively poor health, as several noble Lords have mentioned. The legacy of the Industrial Revolution is a region with a concentration of population in older, urban areas with high levels of poverty and deprivation—however one measures poverty—and a relatively poor environment, infrastructure, and housing stock. Given the constraints on time, I shall concentrate on the North West, but much of what I say has a wider application.
Male life expectancy at birth in Manchester is just under 70 years, the lowest of any local authority in England. Blackpool and Liverpool, with a life expectancy of 72, have the second lowest rates nationally. Unless substantial progress is made in tackling health inequalities in the North West, it will be difficult to meet national health inequality targets for the country as a whole.
Investment for Health, A Plan for North West England 2003, was launched in July 2003, and is the jointly owned strategy of the Northwest Development Agency, the North West Regional Assembly, the Government Office for the North West and the three strategic health authorities. I mention that because it is now common property across those different elements of government. The production of the strategy was co-ordinated by the regional director of public health for the North West, whose contribution has been recognised by several noble Lords.
The north west plan has its foundation in the Government's national strategy, Tackling Health Inequalities: A Programme for Action. The plan emphasises the need for more effective action across a range of sectors and agencies, to produce a positive impact on health outcomes by focusing on four priority areas.
First, there is tackling the wider determinants of health, such as housing, education and transport, and associated lifestyle and risk factors such as smoking, poor diet, and a lack of exercise. An example of that is the Food Development Network in North Cumbria, which was established to promote a healthy diet and local trade. The project connects farmers and communities and food is priced at a level that is attractive to both parties. The network supplies locally sourced fruit, vegetables, meat and fish through local food distribution networks. I hope that reassures the noble Lord, Lord McColl, that we are tackling dietary issues in some of these initiatives. The network is a partnership between the health action zone, Allerdale Borough Council, the Countryside Alliance, and local providers. It was established in February 2000. Outcomes to date include: 37 food co-operatives using

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local producers and reaching 6,000 people; fruit and sports initiatives in 42 schools and cooking on a budget courses reaching over 1,000 people. The network has improved access to affordable, healthy food in disadvantaged areas. I mention that as a concrete example of the kind of initiatives that are taking place.
To eliminate cold and damp housing conditions for people over 60, Merseyside health action zone has completed a project in Liverpool and St. Helens, Making People Feel Safe and Warm at Home. With elderly people it is not just a matter of feeling warm, but often of feeling safe as well. A package of home improvement measures was carried out on all properties to increase energy efficiency. Evaluation showed that residents felt warmer and more secure and had reduced heating costs. In addition, there were reduced demands on GP services from those involved in the project. The mainstreaming of the project is currently being reviewed.
The second priority area is ensuring that the NHS develops its role as a good corporate citizen by using its enormous social, economic, and environmental weight to support wider regeneration and sustainability objectives. I shall say a little more about that later.
The third priority area is mainstreaming measures to reduce inequalities in access to health and social care services and their quality and outcomes for underserved areas and groups. We have become very good at initiatives; what we need to do is to get those initiatives into the mainstream services.
The fourth priority is strengthening primary care services, and particularly staffing and infrastructure in deprived and underserved areas. Primary care trusts have a vital role not just in providing and commissioning services but in improving health and reducing inequalities within wider local partnerships. I hope that reassures the noble Lord, Lord Chan, on the priorities we are giving to primary care and the role of PCTs.
The key now is to take and integrate action in accordance with the north west plan, first, by making health improvement a cross-cutting theme in regional strategies such as the Regional Economic Strategy (RES) and, secondly, by ensuring that area-based policies address the need to reduce health inequalities. Primary care trusts are now required to produce local delivery plans to set out their programmes, and to agree health priorities with local authorities and other partners. Targeted area-based policies are particularly important in reducing health inequalities. For example, of the 88 local authorities in England eligible for neighbourhood renewal fund, 21 are in the north west region; that is virtually a quarter of the neighbourhood renewal fund initiatives.
An example of an initiative within a priority area is the Netherton Feelgood Factory in Liverpool. This uses a community development approach to enable people in a deprived area to improve their health. A shop in central Netherton acts as a base for a jobs and training service, a welfare rights service and a credit
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union. People are able to make appointments to see specialist advisers on the pensions service or lone parent issues.
A third form of integrated action comprises programmes for four specific priority groups: children and young people, older people, black and minority ethnic groups, and disabled people. The North West Regional Assembly has been running a major consultation exercise on disability and social inclusion over the past two years to take forward some of those issues.
A fourth area of integrated approach concerns tackling inequalities through programmes in everyday settings, particularly schools, workplaces and prisons. Schools provide a significant opportunity to deliver reductions in health inequalities. The National Healthy Schools Standard supports schools to invest in the education, health and well-being of the whole school community. Recent Ofsted research identifies schools in the Healthy Schools Programme, particularly those in disadvantaged areas, to be improving faster than similar schools not in the programme. I am cantering through as I know that noble Lords want to get on to the next business.
The noble Earl, Lord Listowel, raised the important issue of mental health and looked-after children. He knows my commitment in that area. He will be reassured to know that I have not resiled from anything I said in the Choosing with Care report. It is important, however, to know that we are making progress in reducing inequalities. There will be a review in an annual report to be published from 2004 showing what progress has been made. The noble Baroness, Lady Massey, rightly talked about the importance of partnerships. Evaluating partnerships locally is an important part of the new work.
I want to spend my last minute saying a few words about what the NHS itself is doing as a good corporate citizen. The Northwest Development Agency has taken action to improve health and reduce inequalities by making the NHS an investment for economic development, recruiting, employing and training more people from deprived areas to work in the NHS, using NHS purchasing and procurement to support the local economy, and ensuring that major capital schemes are assessed to identify opportunities for improving social, economic and environmental conditions in more deprived areas. Examples in North Huyton and Oldham show how those initiatives can be made to work.
In conclusion, well before my 12th minute, this has been a very thoughtful debate with some interesting perspectives. The Wanless report concluded that there should be more emphasis on prevention and public health measures, and on supporting the development of a population that was better informed and more able to manage its own health. I hope that I have shown that we are adopting that approach. Good work is going on in the North West to tackle such difficult issues, and it is very much a cross-cutting, joined-up government approach that works across the agencies and does not rely only on healthcare.

Extradition Bill
8.37 p.m.
Further consideration of amendments on Report resumed on Clause 67.
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 184A:
Page 36, line 35, at end insert—
"(7) Where an alleged offence is the subject of an arrest warrant but the offence was committed by a competitor in an international sporting event, that warrant must be referred to the Home Secretary who must make a decision separate to any decision of a United Kingdom court as to whether extradition to the requesting country would be proper in all the circumstances."
The noble Baroness said: My Lords, my noble friend Lord Moynihan has not managed to get back yet. We have progressed so rapidly—cantered is indeed the right word—that we have reached the amendment a little earlier than we thought we would. I make it clear from the beginning that I do not seek to press the amendment. It was tabled to invite the Government to give, in a sense, a progress report on their discussions since Grand Committee with the relevant organisations—those involved in international competitive motor sport, in putting together the Olympics bid for the future, and in preparing our athletes for competing in the Olympics in Greece.
The noble Lord, Lord Goodhart, has already mentioned that sometimes the judicial system in Greece appears to be a little wanting. There are concerns about the safety of our people who compete there and perhaps get into a position where an offence is allegedly committed that leads to a European arrest warrant being issued in their name.
In Grand Committee, I posed a series of questions for the Government and was trying to argue, particularly on behalf of international motor sport, that there ought to be some special procedure to give an extra safety valve if a person were accused of an extraditable offence and an arrest warrant were issued in their name. The safety valve in the amendment is to suggest that the person would not be extradited until and unless the case had been referred specifically to the Home Secretary, who would then consider whether extradition was right. In other words, the amendment introduces the back-stop of the Secretary of State through the back door for Part 1.
I am aware that those in both the Olympic sports and motor sports have particular anxiety about the issues, so I shall pose some questions. What discussions have been held with those representing international motor sport and the Olympics since Grand Committee? What assurances have been given to them about the operation of the European arrest warrant as it may affect competitors? I hope that it will not do so, but there may be circumstances in which it does. What advice in particular has been given to those assisting athletes and competitors to prepare for the next Olympics in Greece? I beg to move.
Lord Bassam of Brighton: My Lords, I do not think that we will make great progress with the amendment
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this evening and I am sorry that the noble Lord, Lord Moynihan, is not here to hear me say that. In a sense, I suspect that I owe him half an apology.
The amendment, graciously moved by the noble Baroness, Lady Anelay, is not one that we can support; nor, I suspect, does the noble Baroness think that we can support it. I am grateful to her for saying that it is probative of what discussions have taken place since Grand Committee. As I understand it, there have been no further discussions since then. I should be honest in saying that from the Dispatch Box.
The amendment does not take us very far. It is not half as useful as the noble Baroness would perhaps see it or as the noble Lord, Lord Moynihan, would see it. I should put on record why that is the case. In doing so, it is tempting simply to read the record and remind your Lordships of what was said by the noble Viscount, Lord Bledisloe. In his normal, forensic way, he destroyed both the drafting and the principle of the amendment.
On the drafting, he made a number of comments, the highlight of which was,
"it is not limited to offences committed in an international sporting event. If the fight Mr Tyson had in his hotel had been an international sporting event, it would have applied to him in relation to his rape".
That is perceptive stuff. The minor drafting change which has been made to the amendment since then does not overcome that problem.
It was on the principle that the noble Viscount's arguments were particularly devastating. It is worth quoting them:
"Why on earth should those who consciously go to a foreign country to take part in a sporting event have greater protection than casual visitors to that country?… What criteria is it suggested that the Home Secretary apply?"—[Official Report, 8/7/ 03; col. CWH 69.]
That is a very hard question to answer and it remains unanswered.
The other question which remains unanswered is: what is the mischief that the amendment would cure? In Grand Committee, the noble Lord, Lord Moynihan, made a long speech in which he alleged that all kinds of disasters would follow if the Bill went through unamended. All sports, it appeared, would suffer. Formula 1 would move wholesale out of the United Kingdom and the Government would have let down the whole of the sporting world. Those are serious allegations, but the noble Lord did not explain why those consequences would arise. Is it really the case that having an efficient extradition system will lead to the death of sport as we know it?
I should remind your Lordships that we already extradite to all other EU countries and would certainly have no cause to refuse an extradition case where it involved a matter as serious as death or grievous injury. The fact that we will now be able to do so more swiftly is a boon to justice which benefits those involved in sport every bit as much as it does the wider community. It is simply not sustainable to argue that efficient extradition procedures present a threat to sport.

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Leaving all that aside, perhaps I should demonstrate why the amendment is unnecessary. It provides that where death or serious injury has resulted from a sporting event, the case should come to the Secretary of State for him to decide whether extradition would be proper. What does "proper" mean for those purposes? I foresee all kinds of legal challenges turning on that point.
It would not be sensible to single out sport in that way. Tragically, sport can lead to serious injuries and deaths, as we all know, but it is not the only such activity. If we were to accept the amendment, we would presumably face pressure for an equivalent provision from every UK mining company that engages in work overseas or from every construction company that takes on a job abroad. United Kingdom airlines would doubtless be in the queue for special exemption, as would just about any British company that owned or ran a factory outside these shores.
Quite simply, that is not workable. Individuals whose specific actions lead to death or injury will continue to be liable to extradition as they are at present. The Bill provides that if any part of the conduct occurs for which extradition is sought to the United Kingdom, we can extradite only if the conduct would be seen as illegal here. On that basis, I do not believe that those who run the UK-based Formula 1 teams need have any concerns about the introduction of the European arrest warrant.
Those who have not been directly involved but have, perhaps, set the general company policy and direction from the UK will be able to establish that part of their action took place in this country and therefore they will be safe from extradition as long as their conduct was not criminal here. If their conduct would constitute an offence in the United Kingdom, there is no reason why they should be exempt from extradition. However, as long as UK law does not regard their actions as criminal, they are protected from the possibility of extradition.
I do not want to stray into the whole issue of corporate manslaughter, as it goes far beyond the scope of the Bill. I simply say that it is a matter for this Parliament to determine whether the United Kingdom should have such an offence on its statute book. If Parliament decides that we should, we should be prepared to extradite for it.
I repeat that it cannot be right to single out one sphere of human activity from all others. If a motor racing driver kills four spectators, it is just as serious a matter—certainly to the families of the victims—as if a normal motorist kills four pedestrians on a high street. Why should we apply different tests for extradition?
The noble Baroness, Lady Anelay, asked some questions which I shall try to answer. No discussions with the sport have taken place since. No sporting body has come forward to make known to us its concerns about the points raised by the noble Lord, Lord Moynihan. No assurances have been given, because we do not recognise the problem. No advice has been given to the Olympic team because, again, we
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do not see a problem. However, we remain more than happy to discuss the matter with any sporting body that wishes to come forward because it believes that there is a problem. As yet, however, no sporting body has identified that problem, and certainly not in the terms outlined by the noble Lord, Lord Moynihan. I repeat that we do not see why introduction of the European arrest warrant will represent a particular problem for sport.
I am sorry that I cannot be more helpful. However, we do not think that there is half the problem that the noble Baroness and the noble Lord have outlined in the amendment. Nevertheless, we stand ready, as ever, to discuss these matters constructively if they are brought forward to us.
8.45 p.m.
Baroness Anelay of St Johns: My Lords, of course, the Minister will be aware that I made it clear in Grand Committee that the Government have been made aware of these problems by the international sporting body, which approached his honourable friend in another place, the then Minister, with its concerns. At that stage the Government held meetings with the international motor sport organisation. It was as a result of the motor sport organisation's dissatisfaction with the assurances that it had been given by the Government that it approached us and we subsequently tabled the amendments for Grand Committee.
As we are on Report, I did not seek to intervene when the Minister responded in detail to the text of the amendment. I stated in moving the amendment that I was not going to press it, that I was not wedded to the text itself, and that it is merely a lever to ask what the Government have done since Grand Committee. The Minister, in his honest way, says, "Well, nothing". I shall talk to my noble friend Lord Moynihan. He will talk further with those who have approached us and ask whether there is anything that we need to do on Third Reading, or whether we can "short circuit" the matter. I am not being flippant.
Lord Bassam of Brighton: My Lords, I would not normally do this, but I wanted to make it plain that I was aware of the discussions that had taken place with Bob Ainsworth, the Minister in another place. I simply repeat the offer: we have not had any response or reaction from sporting bodies since then but, if there is a continued and perceived need for further discussions, of course we stand ready to have them.
Baroness Anelay of St Johns: My Lords, that is a very helpful intervention. I am sure my noble friend Lord Moynihan will bring that to the attention of the relevant bodies, in both motor sport and the Olympics. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 185 not moved.]
Lord Pearson of Rannoch Lord Pearson of Rannoch moved Amendment No. 186:
After Clause 67, insert the following new clause—
"CONDUCT CONTRARY TO VALUES OF EU
For the avoidance of doubt, it is hereby declared that nothing in this Act shall permit the extradition to or from the United Kingdom of any person accused of insulting or undermining the European Union or any symbols of the European Union."
The noble Lord said: My Lords, I moved a similar amendment to this in Grand Committee in the Moses Room on 3rd June—as reported at cols. GC 175 to 180 of the Official Report. It was generally supported by my noble friend Lady Anelay from our Front Bench and by the noble Lords, Lord Wedderburn and Lord Stoddart of Swindon, the latter of whom asks me to apologise for his absence tonight, as, indeed, does the noble Lord, Lord Monson, who has also put his name to the amendment.
The Minister, the noble Lord, Lord Filkin, said that the best answer he could give at the time was that the Government did not think it would be possible to designate the EU itself, or any EU institution, as a Part 1 or, indeed, Part 2 territory because the EU did not constitute a territory, as required by Clause 1 of the Bill. However, he was good enough to say that he would reflect on what had been said to see whether the amendment needed a fuller response at that stage. Not surprisingly, I have heard nothing from the noble Lord and so assume that that remains the Government's position.
But things have moved on in Brussels since 3rd June, and I submit that the final content of M Giscard d'Estaing's proposals for the future constitution of the European Union strengthens rather than diminishes the need for this amendment. For example, on 3rd June I predicted that the Giscard convention would propose that the EU flag would acquire the status of a national flag—or, rather, a status superior to national flags, as we shall see—and that Beethoven's "Ode to Joy" would suffer the ignominy of becoming the new EU megastate's national anthem. I reminded your Lordships that it is already an offence in France to insult the president and, I believe, to whistle or show disrespect during the French national anthem. Of course, we all know the formative influence which the French have on EU legislation.
Sure enough, at the convention's very last session, the Eurocrats managed to slip in a new Article IV–1 under Part IV—"General and Final Provisions". It states:
"The flag of the Union shall be a circle of twelve golden stars on a blue background. The anthem of the Union shall be based on the Ode to Joy from the Ninth Symphony by Ludwig van Beethoven. The motto of the Union shall be: United in diversity. The currency of the Union shall be the euro".
I do not know whether the Treasury has spotted that one but no doubt it will have a look at it. Finally, it states:
"9 May shall be celebrated throughout the Union as Europe day".
I am not pretending that I was particularly clever to forecast this development. Bitter experience has taught me over many years that the ratchet towards the
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creation of the corrupt, undemocratic EU megastate grinds only in one direction; indeed, the treaties say that it cannot be otherwise.
And so one learns that it is always wrong to think that surely the EU cannot be planning some ghastly new accretion of its powers. It always has been and always will be planning just such an accretion, and it will always get there, step by step, by unlocking doors in the various treaty renegotiations which may still appear shut to people unversed in its ways but through which the integrationists will later walk when the treaty has been ratified.
So I am reasonably sure that that is the process that we are looking at now. I fear that the noble Baroness, the Minister—or the noble Lord, the Minister; I do not know with whom we are to be honoured—will repeat that the EU is not a country and so one cannot be extradited to it for committing racism and xenophobia against it, for example (or whatever the crime may turn out to be), and therefore the amendment is unnecessary.
But we now know that other disturbing proposals from the Giscard convention have not only been confirmed in its final draft but have already been accepted by the Government and, as far as I can see, by most other European states, if not all. As far as I know—no doubt the Minister will correct me if I am wrong—they do not form part of the Government's famous red lines, which are not really red lines at all; they are just patsies set up to be heroically knocked down by the Government in the forthcoming IGC. These disturbing proposals include Article I–6 of the draft constitutional treaty, which states simply that the Union shall have legal personality. That is new and the Government appear to have accepted it. Hence the flag and the anthem, of course. One cannot imagine the United States of America without its flag and its anthem.
Article I-10 is delightfully clear in explaining the status of this new personality, as I mentioned in Committee. That states:
"The constitution, and law adopted by the Union's Institutions in exercising competencies conferred upon it, shall have primacy over the law of the Member States".
So this new European Union, with its new legal personality, now resplendent with its flag and anthem, not to mention its own Parliament, executive, Supreme Court, currency, foreign policy, police force, legal and tax systems, will have primacy over the law of member states. There is also Article I-12–2, which I also quoted in Committee. That states:
"The Union shall have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union, is necessary to enable it to exercise its internal competence, or affects an internal Union Act".
I confess that this article is couched in classical EU double-speak so it is very hard to know exactly what it means. But there are those better versed in EU verbiage than me who believe that it may be the back door which opens the whole of justice and home affairs to eventual control by Brussels. This evening perhaps the Minister can explain what it really does mean and what its limitations are, if any.
Whatever the answer to that, I should repeat a quote from the noble Baroness, Lady Symons of Vernham Dean, earlier this year, when the Government indicated that they might resist the EU's proposed new superior legal personality. The noble Baroness said:
"Conferring a single personality on the Union would give it the capacity to act within the legal system distinctly from the states that are its members.… In practice that would mean that the EU would have a capacity to make treaties, to sue and be sued and to become a member of international organisations".—[Official Report, 20/3/03; col. 377.]
To sue and be sued: that seems quite relevant to this amendment, does it not? Surely it does not take much imagination to see that the EU, with all these new powers, will eventually be able to add itself to the list of countries or legal personalities to which one can be extradited for committing the crime of xenophobia against it.
The amendment seeks to make that impossible, at least through this Bill, as far as the United Kingdom is concerned. I look forward to a somewhat fuller reply from the Minister than her colleague was able to give in Committee. I beg to move.
Baroness Anelay of St Johns: My Lords, I rise briefly to welcome the fact that my noble friend has given the Government a fuller opportunity to respond to the serious point of what the implications of the legal personality of the EU will be for extradition. I fully hope and expect that the Minister will say that the EU cannot now, nor at any stage in the future will be able to, act independently to become a member of Part 1 countries and then to exercise or issue European arrest warrants.
My noble friend goes to the heart of the problem as to what the EU comprises: whether it is the sum of its constituent parts or whether it takes on a character much greater than that.
9 p.m.
Baroness Scotland of Asthal: My Lords, I say straightaway that the noble Lord, Lord Pearson of Rannoch, never disappoints. Therefore, it was with a great deal of pleasure that I listened to the noble Lord's enunciation of his vision of Europe. I am afraid that I did not recognise it, but, none the less, I appreciated the vision.
It is very difficult to respond to the noble Lord at this stage as he conflates a number of issues. In due course we will have an opportunity—I anticipate an extensive opportunity—to discuss the final outcome of the intergovernmental conference which is now taking place at a series of meetings in Rome. We know not whether they will conclude in time to meet the end of the Italian presidency. The issues raised by the noble Lord are all matters currently under discussion. Nothing is settled and the noble Lord knows that well.
I wondered at one stage whether the noble Lord sought to make an illusion because he referred to patsies set up to be knocked down. I was one of those who represented our government at the convention and I am sure the noble Lord was not referring to me.
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I would like to thank the noble Lord seriously for the points he made. Perhaps I may direct my attention to the import of his amendment because there is a serious issue here. The noble Lord seemed to envisage a world where criminal law is harmonised throughout the EU and where Europol will come knocking on our doors to arrest and extradite people for anti-EU crimes.
I am afraid that that is not a world I recognise. The Government remain opposed to the idea of a European corpus juris, which is an entirely different concept from the European arrest warrant. Europol has no operational or coercive powers. That is the reality and we have no plans for that to change.
Apart from that, there has never been any suggestion that the European arrest warrant, or any other measure, should be used to arrest or extradite people for indicating any kind of opposition to the EU. That is a concept—invented and perpetrated by those who wish to oppose the European arrest warrant and the Bill—which has absolutely no foundation.
I am sure the noble Lord in tabling the amendment was merely seeking to protect the liberty of those who—like himself—take exception to the EU and what it does. Your Lordships will see that I am seeking to reply to the amendment as opposed to the way in which the noble Lord moved it. Clearly, the Government are completely at odds with those who would put the case differently.
It is quite clear that the noble Lord feels a certain degree of passion on the issue. The amendment states that no person should be extradited to or from the United Kingdom for insulting or opposing the European Union. I do not believe there has ever been a suggestion that any person should be extradited for such conduct, but that is what the amendment says.
Having listened to the noble Lord, I presume that he does not wish to press the amendment, but that he really wants to use it as a stalking horse to put his various concerns on record. Obviously, I have fully taken into account everything that he said.
The amendment does not address the issue of the EU's legal personality. However, the answer remains the same: the EU will never be designated as an extradition partner of the UK.
I hope that response helps the noble Lord. I could doubtless entertain your Lordships' House for some time, but I shall resist the temptation.
Lord Pearson of Rannoch: I am most grateful to my noble friend and to the Minister, if only for her words in confirmation that the EU will never be designated as an extradition partner of the United Kingdom. I really hope that not too far in the future the time does not arrive when we need to rely on those words.
I assure the Minister that of course I would never have described her as a patsy to be knocked down by the Prime Minister in negotiations in Brussels. I am sure that no one in your Lordships' House would make such a suggestion.

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To me, a patsy in this sense is merely a scare. That is the system that has been going since, in my experience, the Single European Act, Maastricht, Amsterdam and Nice. Those were bugbears set up by the Foreign Office of frightening prospects from forthcoming treaty negotiations, when the Prime Minister of the day was able to say that he had negotiated them away and that therefore the whole process had been to the advantage of the United Kingdom. "Game, set and match" comes to mind in that respect. But of course the European juggernaut has meanwhile ground quietly on in the background.
I shall not engage with the Minister now about whether what we are considering is a vision or a nightmare. I agree that that will come out in the wash of our discussions over the results of the intergovernmental conference. I am most grateful to the Minister and to my noble friend for their contributions and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 68 [Extradition to category 2 territories]:
[Amendment No. 187 not moved.]
Clause 69 [Extradition request and certificate]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 188:
Page 37, line 9, leave out subsection (2).
On Question, amendment agreed to.
[Amendment No. 189 not moved.]
Clause 70 [Arrest warrant following extradition request]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 190:
Page 37, line 17, leave out "Order in Council" and insert "order made by the Secretary of State"
On Question, amendment agreed to.
Clause 72 [Provisional warrant]:
[Amendment No. 191 not moved.]
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 192:
Page 38, line 36, leave out "Order in Council" and insert "order made by the Secretary of State"
On Question, amendment agreed to.
[Amendment No. 193 not moved.]
Clause 73 [Person arrested under provisional warrant]:
[Amendment No. 194 not. moved.]
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 195:
Page 39, line 15, leave out "and he asks to be shown the warrant"
On Question, amendment agreed to.
[Amendment No. 196 not moved.]
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 197:
Page 39, line 16, leave out "request" and insert "arrest"
On Question, amendment agreed to.
[Amendments Nos. 198 and 199 not moved.]
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 200:
Page 39, line 23. leave out from "with" to end of line 24 and insert "and the person applies to the judge to be discharged, the judge must order his discharge"
On Question, amendment agreed to.
[Amendment No. 201 not moved.]
Clause 74 [Date of extradition hearing: arrest under section 70]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 202:
Page 40, line 23, leave out "Order in Council" and insert "order made by the Secretary of State"
On Question, amendment agreed to.
[Amendment No. 203 not moved.]
Clause 75 [Date of extradition hearing: arrest under provisional warrant]:
[Amendment No. 204 not moved.]
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 205:
Page 41, line 8, leave out "and he asks to be shown the warrant"
On Question, amendment agreed to.
[Amendment No. 206 not moved.]
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 207:
Page 41, line 9, leave out "request" and insert "arrest"
On Question, amendment agreed to.
[Amendments Nos. 208 and 209 not moved.]
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 210:
Page 41, line 17, leave out from "with" to end of line 18 and insert "and the person applies to the judge to be discharged, the judge must order his discharge"
On Question, amendment agreed to.
[Amendment No. 211 not moved.]
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendments Nos. 212 and 213:
Page 41, line 38, leave out "Order in Council" and insert "order made by the Secretary of State"
Page 41, line 39, leave out "Order in Council" and insert "order"
On Question, amendments agreed to.
Clause 76 [Judge's powers at extradition hearing]:
[Amendments Nos. 214 and 215 not moved.]
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 216:
Page 42, line 14, 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"
On Question, amendment agreed to.
Clause 77 [Date of extradition hearing: arrest under provisional warrant]:
[Amendment No. 217 not moved.]
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 218:
Page 42, line 29, 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"
On Question, amendment agreed to.
Clause 79 [Initial stages of extradition hearing]:
[Amendments Nos. 219 and 220 not moved.]
Clause 80 [Bars to extradition]:
Lord Goodhart Lord Goodhart moved Amendment No. 221:
Page 44, line 3, after "affirmative" insert "or if it appears to the judge that the accusation against the person is not made in good faith in the interests of justice"
The noble Lord said: My Lords, Amendment No. 221 would bring back into Part 2 of the Bill a defence to extradition that is present in the Extradition Act 1989 and all earlier Extradition Acts. The issue was raised by Liberty. The defence to be brought back is that the extradition is unjust and oppressive. Amendments Nos. 221 and 222 are based on Section 11(3)(c) of the Extradition Act 1989, which provides for the extradition to be refused if the accusation that is the subject of the charge leading to the application for extradition was not made in good faith in the interests of justice, and if the extradition would cause injustice or oppression.
We are dealing with Part 2 of the Bill. Part 1 is based on the assumption that we can trust the legal systems of category 1 states. There is no such assumption in relation to category 2 states. In fact, in two recent cases involving states not included in category 1 the court refused extradition on the grounds that the accusation was not in good faith. One of those cases is from India and the other from Turkey. In one of the cases, there was a lot of evidence to suggest that the person whose extradition was sought had been framed by the people who committed the offence. In the other case, there was strong evidence that the person was being blackmailed over an offence that he had not committed.
If one could be certain that there would be a fair trial if the person were extradited, one could then also assume that the court would consider the evidence, that a fair trial would take place, and that, if things were as they appeared to be when extradition was sought, the person being extradited would be acquitted. However, that cannot necessarily be the case in relation to some category 2 countries, at any
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rate. In some such countries there is doubt about the quality of justice that will be delivered, even if those doubts are not sufficient to satisfy the courts in this country that the person would not get a fair trial. Secondly, there is hardship involved in sending someone back to face a trial, even if it is assumed that the trial will be fair, if it appears to the judge hearing the application that the accusation was not made in good faith.
There are significant advantages in allowing that defence to be raised. Without the amendment, the judge could not refuse extradition and the case would have to be decided by the Home Secretary. If the judge is satisfied, after hearing the evidence, that the accusation was not made in good faith, he or she should be allowed to refuse extradition.
In the other place, the Government said that the judge could reach such a conclusion on human rights grounds, relying on Clause 88. However, I am not satisfied that that is true. The European Convention on Human Rights would apply only if the court hearing the extradition application believed that the person whose extradition was sought would not get a fair trial. That is a different question. If the court believes that the accusation was not made in good faith, even if it believes that that person will get a fair trial, it should be able to discharge him or her without having to send that person back by making an extradition order subject to the final decision of the Home Secretary. We believe that significant advantages can be gained from keeping such a defence in Part 2 of the Bill, as it has stood for many years in existing extradition legislation. I beg to move.
9.15 p.m.
Baroness Anelay of St Johns: My Lords, I rise to support this amendment, to which I attached my name. I agree with the noble Lord, Lord Goodhart, that it provides a significant defence. It is an important matter and it has served well in the past. During the course of the explanation by the noble Lord, Lord Goodhart, it would become apparent to the casual reader that we have slipped almost imperceptibly at long last into Part 2, because this is the first group of amendments in Part 2 to which noble Lords have spoken. The noble Lord, Lord Goodhart, rightly made it clear that we are now dealing with extradition to countries that will not form part of the European arrest warrant framework decision or of that agreement, and we must exercise even more caution in determining whether or not a person should appropriately be extradited.
Like the noble Lord, Lord Goodhart, we have received a lot of briefing on this matter. I particularly wish to thank Liberty and Mr Clive Nicholls QC who is, of course, an expert practitioner in this field. Those who practise in this field have told us repeatedly over the past few months that the provision of a bar to extradition if the accusation is not made in good faith in the interests of justice has been an invaluable protection in several cases that would indeed be Part 2 cases in the future if the like arose again. In Committee, the Minister tried to argue that the

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provision had been dropped from the Bill because its inclusion in the 1989 Act was a remnant from the 1870 Act which, as he said,
"conveys the spirit of that time—revolution in many countries, suspicion and mistrust between neighbours, infrequency of international travel and so forth".—[Official Report, 10/7/03; col. GC 107.]
We are advised that there is nothing historic in the sense of the past about the need for this safeguard. It is just as relevant now as it has ever been. History has a purpose to serve when it shows a good example. The noble and learned Lord, Lord Goodhart—or "learned" in the normal sense of the word, but not yet learned within our rules—has made an invincible case.
Baroness Scotland of Asthal: My Lords, I only wish that I could agree. I do not think that I can, although it is right to say that, in Grand Committee and this evening, the noble Lord, Lord Goodhart, raised a number of good points;. My noble friend Lord Filkin said that he would take them away for consideration. We have taken them away and have given them in-depth consideration. I would normally wish to explore very fully the what and why of how we came to these conclusions, but I am conscious that it is now quarter-past nine o'clock and I hope that noble Lords will forgive me if I am a little shorter than I would have liked to be because, although many issues raised by the noble Lord were covered in Grand Committee, they are deserving of a more thorough response. I will give your Lordships a more telegraphic response, but if there are further and other issues that noble Lords feel may be assisted by further explanation, I shall be very happy to write to them with the full response that I have prepared.
Baroness Anelay of St Johns: My Lords, as this is Report, I can ask the Minister questions at this stage. If she were to write to us, would the letters automatically be placed in the Library of this House? Are they available to members of the public, because those additional answers need to be on the record?
Baroness Scotland of Asthal: My Lords, if I write to noble Lords, I am very happy to put letters in the Library of the House and make them publicly available. I had intended to go through some of the authorities that were raised in Grand Committee. For example, the noble Lord, Lord Goodhart, referred specifically to the cases of Saifi and Murat Callis. He also referred to various issues that had been brought to his attention, doubtless by the speech by Paul Garlick QC. There were some specific references and responses that I would have made. I may touch on some of them, but I am conscious that time is of the essence. In answering the noble Baroness and the noble Lord, I want to make it clear that we gave the matter in-depth consideration. Anything that I say now is a synopsis of the deliberations that the provisions engendered. We thought about the matter carefully and in some depth.
The amendments would create an additional bad faith bar to extradition in Part 2 cases. The second amendment is a drafting one that is consequential on the first. I think that the noble Lord, Lord Goodhart, moved similar amendments in Grand Committee.
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Clause 80 sets out, for the purposes of Part 2, the bars to extradition that the district judge must consider. As noble Lords will know, there are separate bars that the Secretary of State must consider. In such circumstances, the judge must decide whether extradition is barred for any of the reasons specified in the provisions. If any of the bars apply, the judge must discharge the fugitive.
If the bars do not apply, the judge must go on to consider, in accusation cases, whether there is prima facie evidence or, in conviction cases, whether the person was convicted in his absence. That is the scheme that we have. The amendments would impose an extra step in the process. After considering whether the bars applied, the judge would be obliged to consider whether the accusation against the person was made,
"in good faith in the interests of justice".
That is an extra layer. If the judge concluded that it had not, he would be obliged to discharge the person.
As the noble Lord indicated, the wording of the amendment is based on Section 11(3) of the Extradition Act 1989. It provides, in the context of statutory habeas corpus appeal, that extradition shall be barred, if it would be unjust or oppressive, for three reasons. One of those is the "good faith/interests of justice" test included in the amendment.
As consolidating legislation, the 1989 Act reflected the situation of 1870, when the original legislation was passed, including the diplomatic mistrust and infrequency of foreign travel that characterised the law on the subject at that time. I think that the noble Lord, Lord Filkin, made that point in Committee. The noble Baroness, Lady Anelay of St Johns, said that her view was that we had not moved on significantly since then. Respectfully, I disagree. We have moved on enormously since 1870. The sort of international travel that we have, the nature of international relations, the speed with which we communicate and our ability to work with our partners are light years away from where we were in 1870. Some of the difficulties remain, but in a different way. They can be addressed with greater efficacy and efficiency than could have been done many years ago. As consolidating legislation, the 1989 Act reflected the situation in 1870. The nature of international relations and access to foreign travel have changed significantly over the past 130 years.
The Bill contains specific human rights clauses that previous legislation did not and could not because the Human Rights Act was still nine years away in 1989 and the ECHR was drafted more than 80 years after the 1870 Act. It is not surprising that those differences exist. The Bill also contains bars against extradition for extraneous reasons—for example, prosecution, punishment or prejudice at trial on the basis of a person's race, religion, nationality or political opinions. Those, along with the other protections against unjust extradition—double jeopardy, in absentia, death penalty, speciality et cetera—provide significant and sufficient safeguards for the individual, without the need for a general discretion for the judge. It is clear what decisions are to be taken and on what grounds they are to be based.

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The danger of reintroducing that kind of provision is that delays, which we are seeking to minimise under the new system, would be perpetuated by lengthy and possibly opportunistic legal arguments about good faith and the interests of justice. If fugitives and their lawyers are given additional grounds on which to challenge extradition, experience of the current system demonstrates that they will take every opportunity to make use of them. They should have proper opportunity to do so. We think that the Bill allows proper opportunity on proper grounds for those issues to be properly explored.
In particular, there is a worry that people will seek to allege, not that a particular country has an unsatisfactory criminal justice system, but that a particular judge is corrupt or has made the request for improper reasons. That could lead to endless legal challenges and arguments. As drafted, the Bill contains sufficient safeguards to deal with the situation.
In Grand Committee, the noble Lord, Lord Goodhart, mentioned the speech made by Paul Garlick QC. Some interesting remarks were made, but I found the conclusion of Mr Garlick's speech particularly interesting. It is worth reminding your Lordships of what Paul Garlick said:
"Supposing the judge (i.e. the District Judge at the extradition hearing) is satisfied that the accusation made against the fugitive is not made in good faith against the interests of justice, but for some other ulterior motive held by a potential prosecution witness or scurrilous prosecutor (perhaps seeking re-election or favour from his superiors). In those circumstances, does the judge have no power to stop the proceedings? If that is the case then, under the new regime proposed by the extradition Bill, the High Court would have no power to correct the position as its jurisdiction on appeal is limited to reviewing whether the judge should have answered one of the questions posed to him in a different way. Can it seriously be said that the High Court has no power to discharge a fugitive where it is plain that the accusation has been made in bad faith? Of course not, such a result would bring the whole extradition process into disrepute".
In other words, Mr Garlick is confident that, even with the present drafting of the Bill, the courts would be able to act to prevent extradition in cases where the request had been made in bad faith. That goes to the very heart of the amendment. I therefore hope that your Lordships will be persuaded that these amendments are not necessary. Nevertheless, some of your Lordships might accept that, but still think that there would be no great harm in making them anyway.
However, the amendments would have very real disadvantages. A broad, apparently open-ended provision of this kind would invite fugitives to seek to invoke it in just about every case. We fear that there would be endless litigation on this point. I apologise for having spoken even now at such length, but we needed to encompass some of those issues. I shall be very happy to place an even fuller response in the Library if noble Lords think that that would be helpful.
Lord Goodhart: My Lords, I am most grateful to the Minister for her full reply. Even now, I am not sure that I am entirely persuaded by what she said, but this
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hour of the night is not a time for dividing the House. In any event, when deciding on what issues to divide, one must prioritise some at the expense of others: I do not think that this amendment is one which quite reaches that level of priority. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 222 not moved.]
Clause 82 [Extraneous considerations]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendments Nos. 223 and 224:
Page 44, line 23, after "nationality" insert ", gender, sexual orientation"
Page 44, line 26, after "nationality" insert ", gender, sexual orientation"
On Question, amendments agreed to.
Clause 85 [Case where person has not been convicted]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 225:
Page 45, line 45, leave out "Order in Council" and insert "order made by the Secretary of State"
On Question, amendment agreed to.
Lord Goodhart Lord Goodhart moved Amendment No. 226:
Page 46, line 1, at end insert—
"( ) A category 2 territory may not be designated under subsection (6) unless on the coming into force of the designation the legal conditions on which persons may be extradited from that territory to the United Kingdom are substantially similar to the legal conditions on which persons may be extradited from the United Kingdom to that territory."
The noble Lord said: My Lords, Amendment No. 226 is a matter which I raised in Grand Committee. It is something on which very strong feelings are held, not only by my noble friends but by many people across the country as a whole—well outside my own party.
The amendment is directed towards the issues raised by the agreement on extradition reached at the end of March between the USA and the United Kingdom. The agreement provides that there will continue, for the purposes of extradition to the United Kingdom from the USA, a requirement that a prima facie case should be shown. However, the agreement alters the position the other way round; that is, for extradition from the United Kingdom to the USA. It is no longer a requirement that the courts of this country be shown a prima facie case, but merely that various details of the kind which apply in extradition to category 1 countries should be shown. We believe this to be entirely wrong.
First, we think that reciprocity is a necessity here. Looking at the matter in purely financial terms, I suppose that one could say that there is a slight advantage to us in being able to get rid of people quickly instead of having to hold them over here while the court process goes through, but we do not see that as a justification for the difference. We recognise of course that the USA faces constitutional problems concerning not only its own citizens when seeking to extradite people to this country without a prima facie case having been shown against them. However, that

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seems to renounce any ability on our part to put pressure on the USA that might ultimately lead to a constitutional amendment if the problems became sufficiently severe. So we have to accept that as it is.
Secondly, it is generally known that standards of justice in the 51 different jurisdictions of the United States vary very widely indeed. Standards of criminal procedure in some stales, such as Massachusetts and New York—with which I have some acquaintance— may be regarded as perfectly satisfactory, and broadly the same is true of the federal jurisdiction. However, of some states, notably those of the deep South and Texas, one cannot say the same. There is serious concern about the quality of justice in those states and we do not think it appropriate for people to be sent back to face trial without the safeguards provided by insisting that a prima facie case be shown.
We should remember the recent case, heard over the past few months, of the Algerian pilot, Lofti Raissi, who was accused of being involved in the planning of the destruction of the World Trade Centre and the terrible events of 9/11. However, when it came to producing evidence against him, there was a notable failure on the part of the American authorities to do so. That is hardly an advertisement for saying that we ought to agree to send people back without a prima facie case.
I should make it clear that this is not an amendment which I propose to move to a vote. It may well be that we shall pray against the order which will be necessary to bring the agreement into force. That will be the time to vote rather than on this occasion. On that future occasion the vote will be specifically targeted on the particular agreement. But, as we have done before, we wish to make clear our very serious concerns about this agreement. I beg to move.
9.30 p.m.
Baroness Anelay of St Johns: My Lords, we support the amendment. The United States is a very close and enduring ally and the amendment is not targeted as a criticism of it. The noble Lord, Lord Goodhart, has rightly exposed the fact that there is no reciprocity in the agreement between the United States and ourselves in this matter. Indeed, on the previous occasion, the Minister pointed out to the Grand Committee that it was not possible for the United States to reciprocate because its constitutional arrangements are such that it is not allowed to relax the requirement for prima facie evidence to be presented.
In that, I envy the Americans. I do not envy them a written constitution, but I envy the fact that they have been able to hang on to that most vital of protections in a matter of reciprocity. The Minister has said in the past that Conservative governments had given up on prima facie evidence being a requirement in certain circumstances. Our riposte is always, "Ah but…". In this case, the Government are giving up far more at the same time.
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My support is given on the basis of the principle of reciprocity to which the noble Lord, Lord Goodhart, referred. It is extraordinary that we should give up our right at a time when we know that the other party cannot give up its right.
Baroness Scotland of Asthal: My Lords, I am grateful to the noble Lord for the way in which he introduced the amendment and for indicating that he does not intend to press the matter to a Division but will raise it in its proper place when the agreement comes to be heard.
I hear what the noble Baroness, Lady Anelay, says about the amendment not being targeted towards America, but it most specifically is. The noble Lord, Lord Goodhart, made it clear that it was directed towards America. The noble Baroness is right to say that America is our closest ally but, if I can put it colloquially, it does not wash to say that we do not mean America when quite specifically we do. It is right that the noble Lord, Lord Goodhart, should make that plain.
The noble Lord also made plain that the reason he is concerned is because of the disparity in approach that he has identified between various states in America, not all of which share exactly the same jurisprudence. I was therefore not surprised when he mentioned the more liberal, or Democrat, states and referred to other states—which some have described in other places as "Bush country"—as being of a different ilk. So there is nowhere for the noble Baroness to hide.
Plainly the response that I gave on the previous occasion demonstrated why there was a difference of view. The noble Baroness was right to highlight the comments I made then about the constitutional difference in America, but the new bilateral extradition treaty between the United Kingdom and the United States of America, which was signed by my right honourable friend the Home Secretary and the US Attorney-General, John Ashcroft, on 31st March was very necessary. Our present treaty was negotiated in 1972. I believe that even the noble Lord, Lord Goodhart, while critical of our current position, would agree that that treaty is very much out of date. For example, the treaty contains a list of offences for which extradition is possible. For obvious reasons, the list does not contain computer-related crimes—a significant omission. We have moved on and we have to update the position.
I should put on record that the treaty was negotiated in exactly the same way as all our other extradition treaties and, for that matter, all other bilateral international instruments. The text of the treaty was published as a Command Paper shortly after it was signed. Again, the normal procedures, including the Ponsonby rules, were followed. The only unusual occurrence was that the gap between signature and publication was shorter than is customary because we were aware of the considerable interest in the new treaty.

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I suspect that for the purposes of the amendment, the provision in the treaty that causes most interest is the one that removes the requirement for the United States to provide prima facie evidence to accompany the extradition requests. I make no apology for this. We do not require and have not for many years required the other countries in the European Convention on Extradition to provide prima facie evidence. This includes not just the countries of the EU but every country in the Council of Europe—countries which the noble Lord, Lord Goodhart, knows well, such as Albania, Turkey and Azerbaijan. I fail to see why we should impose a more stringent requirement on a mature, established democracy such as the United States than for the countries I have just mentioned.
Indeed, it was the noble Lord, Lord Lester of Herne Hill, who requested that we should obtain from the United States Government a statement of the protections available to those who might be extradited to the United States. We were happy to comply with this request and the reply from the United States Government was contained in our response to a report from European Union Sub-Committee E. Let me quote an extract from the report, which states:
"Every person who is extradited to stand trial in the criminal justice system within the United States is entitled to the fundamental right of due process under the United States constitution. All extraditees have the right to a fair trial, before an impartial jury, and enjoy the right to counsel, the right to confront adverse witnesses, and the right to compulsory process to call witnesses favorable to the defense. No extraditee can be convicted except on the basis of proof beyond a reasonable doubt. Every extraditee has the right to appeal a conviction".
These rights apply irrespective of the nationality of the person concerned and irrespective of the state or jurisdiction concerned. Avenues of redress exist if these rights are not upheld.
I am pleased that the noble Lord—and, I take it, the noble Baroness—will not press these amendments today or at any other time. I look forward to the discussions we will probably have on these issues when the matter comes back for deliberation in its proper place.
Lord Goodhart: My Lords, I am grateful to the noble Baroness, once again, for a full reply to this matter. I should perhaps have disclosed to your Lordships' House, when I was referring to New York as an example of a state that had a satisfactory system, that a cousin of mine is and has for many years past been the District Attorney of Manhattan.
This is a serious issue that has caused and continues to cause much concern. As I indicated, I will not move the amendment on this occasion, nor will I bring it back at Third Reading. However, the Government should recognise that there is likely to be an objection when the Order in Council which is necessary to give effect to the agreement comes back. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 86 [Case where person has been convicted]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 227:
Page 46, leave out lines 10 to 29 and insert "whether the person was convicted in his presence.

(2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 88.

(3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.

(4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 88.

(5) If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.

(6) If the judge decides the question in subsection (5) in the affirmative he must proceed under section 87.

(7) If the judge decides that question in the negative he must order the person's discharge."

The noble Baroness said: My Lords, I beg to move.
Baroness Anelay of St Johns Baroness Anelay of St Johns moved, as an amendment to Amendment No. 227, Amendment No. 228:
Line 15, at end insert—
"(8) For the purposes of subsection (5), the judge should not regard as a retrial or (on appeal) a review amounting to a retrial, any proceedings that do not in particular include provision for—

(a) the suspect to be present at the retrial;

(b) the suspect to have like rights to hear and examine witnesses as he would have done at the original trial;

(c) the suspect to have the same right to publicly funded legal services as any suspect or defendant."

The noble Baroness said: My Lords, we have already debated this amendment in a group in which we won the vote on the lead amendment. Therefore, I beg to move.
On Question, Amendment No. 228, as an amendment to Amendment No. 227, agreed to.
On Question, Amendment No. 227, as amended, agreed to.
[Amendment No. 229 not moved.]
Clause 87 [Conviction in person's absence]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 230:
Page 47, line 24, leave out "Order in Council" and insert "order made by the Secretary of State"
On Question, amendment agreed to.
Clause 93 [Case sent to Secretary of State]:
[Amendment No. 231 not moved.]
Clause 94 [Secretary of State's consideration of case]:
9.45 p.m.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 232:
Page 49, line 39, at end insert—
"(5) In deciding the questions in subsection (2), the Secretary of State is not required to consider any representations received by him after the end of the permitted period.
(6) The permitted period is the period of 6 weeks starting with the appropriate day."
The noble Lord said: My Lords, the proposals were trailed in Committee, and their purpose is simple to describe. The Bill provides that when the Secretary of State considers an extradition request, as he is required to under Part 2, he must reach his decision in two months. It will be the first time that there has been a statutory deadline governing the Secretary of State's decision, and I am sure that your Lordships will welcome that, although it is possible that future Secretaries of State will curse us for it.
All the experience of the present system shows that those who are the subject of extradition proceedings submit voluminous representation to the Secretary of State—and voluminous is certainly the correct term. We are talking about dozens and dozens of box files, all of which must be properly studied. Your Lordships will see why we need the amendment, which provides that all representations must be submitted to the Secretary of State within six weeks. That is designed to ensure that the Secretary of State has proper time to consider all representations.
The alternative would be that the person could submit their representations at the 59th minute of the 11th hour and then instantly challenge the Secretary of State's decisions on the ground that his representations had not been properly considered. That would not be a satisfactory way in which to proceed. By contrast, giving a clear deadline for representations to be made and clear deadlines for the Secretary of State to reach his decision provides both transparency and certainty. I invite your Lordships' House to take the same view. I beg to move.
On Question, amendment agreed to.
Clause 95 [Death penalty]:
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 233:
Page 50, line 6, after "assurance" insert "from the appropriate authority"
The noble Earl said: My Lords, the amendment was inspired, as usual, by the Law Society of Scotland. It deals with the issue of the death penalty and the need for assurance that the person to be extradited would not be subject to the death penalty—or, indeed, to confirm that he would be so subject.
The amendment confirms that only the "appropriate authority" should grant the required assurance. As drafted, the Bill gives the judge discretion to consider whether a written assurance is adequate. The amendment would confirm that the judge must have the written assurance from the appropriate authority in the country concerned. Simply and straightforwardly, that would clarify the position and create the necessary procedure and, in so doing, presumably prevent anyone being extradited from this country to another country to face the death penalty.
In those few words, I beg to move.
Lord Bassam of Brighton: My Lords, as ever, we are grateful to the noble Earl, Lord Mar and Kellie, for tabling amendments. This one gives us the opportunity to explore what is certainly one of the most important,
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if not the most important, of the safeguards in Part 2. Nevertheless, I shall explain as briefly as I can why we do not believe that it would be wise to make the amendment.
Clause 95 concerns the death penalty and is clear in its effect. In death penalty cases, the United Kingdom requires assurances that the death penalty will not be imposed or carried out. If no such satisfactory assurances are received, the person simply will not be extradited.
The clause sets out our position on the death penalty under current extradition arrangements. In updating the legislation, we decided that it would be sensible to set out clearly and precisely how that would work. We have effectively formalised in legislation what already happens in practice. We feel that it is important to do that, especially given the gravity of the subject, and the examination that it rightly attracts.
Before I turn my attention specifically to the amendment, I should explain that the system that we set out in the Bill has never caused us any great difficulties. Clearly such an assurance must come from a person who is competent to issue it and it must bind the bodies which impose and carry out the sentence. It is on that basis that the clause was drafted and the Secretary of State can accept assurances that he considers an "adequate" guarantee that the death penalty will not be imposed or carried out.
The noble Lord's amendment stipulates that the assurance must issue "from the appropriate authority". We appreciate this sentiment. As I say, we would expect the assurance to come from a person who is competent to issue it and that it must bind the bodies which impose and carry out the sentence. Indeed, that is our experience. However, the amendment mentions "the appropriate" authority without defining it. It would be difficult, clearly, to define such an authority in the Bill for each individual country where this could be an issue. I am not sure that it would be any easier to define such an authority by a generic description, or by any other means.
Let us look at the most obvious example, the United States. The USA is our only regular extradition partner which uses the death penalty. In some cases the assurance will come from the Governor of the state concerned, in some cases the Attorney General of the state concerned and in some cases it will be the prosecutor in the case. Different rules apply in different cases. However, a very important point to make is that there has never been a case where an assurance, once given, has not been fully honoured. We feel that the amendment would add a note of ambiguity to the drafting quite contrary to the clarity and strength that I believe was intended by it. That ambiguity could open the process up to additional and extended challenges as to whether or not the authority is "appropriate", as the term is not qualified in any way. For example, a fugitive may argue that an authority, which we know, by experience, to be absolutely appropriate, is entirely inappropriate. As I explained earlier, I am not sure there is any way of getting round the lack of definition.

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I respectfully suggest that what we have in the Bill now is correct. I repeat that before the Secretary of State accepts an assurance he will have to satisfy himself—as he does at present—that the person who has submitted it is in a position to do so and, more importantly, that it will have a binding effect. I also emphasise that we have had such a system for many years and it has never given rise to any problems or for that matter any attempts at abuse. I hope that the noble Earl, Lord Mar and Kellie, is reassured by these comments on the record and that he feels able to withdraw the amendment.
The Earl of Mar and Kellie: My Lords, I am grateful to the noble Lord for his answer. I am content at this point to take it that the Bill has described the process as adequately as it can be. This is a very serious subject. I also note that the noble Lord said that to date we have no axe to grind with any other country on this matter. I shall be interested to discuss this further with the Law Society of Scotland. At this point, 1 beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Goodhart Lord Goodhart moved Amendment No. 234:
Page 50, line 8, at end insert "or if conviction of the offence will result in a mandatory sentence of life imprisonment without possibility of release"
The noble Lord said: My Lords, the amendment contains a misprint. It should refer not to "Page 50, line 8", but to "Page 50, line 4".
The effect of Clause 95 is to exclude extradition to a territory where someone may be sentenced to death unless the Secretary of State receives a written assurance that sentence of death will not be imposed. In the amendment we assert that there should not be extradition,
"if conviction of the offence will result in a mandatory sentence of life imprisonment without possibility of release".
I understand that the Conservatives feel unwilling or unable to support the amendment, nevertheless I wish to address it.
In this country, we do not have a mandatory life sentence without possibility of release. There are of course cases where a whole-life tariff is imposed by the judge in the exercise of his discretion, and there are obviously some circumstances, although they are fortunately rare, where the crime is so horrible or the condition of the accused is such that there is really no possibility whatever of that person being released. However, that is a different matter. We are concerned with the fact that, in other countries, there are circumstances in which it is possible for someone to be sentenced for a crime that actually carries a penalty of life imprisonment without release.
Where that condemns someone and there is no discretion on the judge to say that the sentence does not apply in a case, it can be described as a sentence to a kind of living death. Although such a sentence may have to be imposed in the exercise of a discretion, it
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should never be mandatory without any person—the judge or an outside authority—ever having power to review the case.
Article 5 of the European framework decision states that the execution of the European arrest warrant may by law of the executing member state be subject to conditions. One of those, in paragraph 2, is that,
"if the offence on the basis of which the European arrest warrant has been issued is punishable by custodial life sentence or life-time detention order, the execution of the said arrest warrant may be subject to the condition that the issuing Member State has provisions in its legal system for a review of the penalty or measure imposed, on request or at the latest after 20 years, or for the application of measures of clemency".
That would represent the right approach. There should always be some discretion exercisable in such a case. We believe that the principle should apply in category 2 states, and that there should not be extradition that will result inevitably, if there is a conviction, in mandatory life imprisonment with no possibility whatever of release. I beg to move.
Lord Mayhew of Twysden: My Lords, I am not able to support the amendment, because two factors in respect of the condition that we have applied for a long time about death sentences are not present. The first is that the death sentence is something forbidden by the convention, to which we are now subscribers. The second is that, once the sentence is executed, it cannot be revoked; that is it—there is no possibility of rectifying an injustice.
That is not the case with someone sentenced to life imprisonment with, under the law, no possibility of release. There is an opportunity for a rehearing, for the exercise of mercy later, and for revision of the law. Those are important distinctions. It would go too far in inhibiting extradition if we were to support the amendment. I regret to have to say so, but that is my view.
Lord Clinton-Davis: My Lords, the provisions referred to by the noble Lord are too restrictive. Although the amendment is not suitably drafted, what has been said is all-important.
I hope that my noble friend will look at the matter again; or maybe the noble Lord will come back at a later stage with a more appropriate amendment. The point that was made the noble and learned Lord, Lord Mayhew, is important. His point should be borne in mind, although it is not the final word. In any event, the amendment does not deal with the subject matter appropriately.
10 p.m.
Baroness Scotland of Asthal: Although I empathise with the noble Lord's intent in moving the amendment, I agree with its succinct treatment by the noble and learned Lord, Lord Mayhew of Twysden. We should of course exhort others to mercy and we should be mindful of that ourselves, but the imposition of a different criminal justice system on another state, as the amendment would have us do, is a different issue.

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In essence, the amendment would insert into Clause 95 a provision that extradition would also be barred if conviction of the offence in question would result in the imposition of,
"a mandatory sentence of life imprisonment without possibility of release".
That extra bar would be removed if the requesting state were to provide assurances that the sentence would not be imposed or carried out.
We should recognise that even in the states about which I know that the noble Lord is most concerned in the United States, which have a policy where life means life, the policy tends to allow for further appeals and the exercise of clemency by the state governor. There is nothing in the Extradition Act 1989 which would bar extradition in those circumstances. If a person could be or has been convicted of an offence that attracts a sentence of life imprisonment, that would not prevent extradition and we see no reason to depart from that position. Refusing to extradite in those circumstances would also put us in potential breach of our international treaty obligations. If another country were to refuse extradition to us, we would not take entirely kindly to it, because it would be an assertion that our rules did not meet the needs of other countries. Our own internal needs must meet the rights and responsibilities we have in relation to our citizens.
However, as was pointed out by the noble and learned Lord, Lord Mayhew, and by my noble friend Lord Clinton-Davis, the death penalty is a different matter. There is no such matter of principle in the case of mandatory life sentences. As the noble Lord knows, we have life sentences in the United Kingdom, but "life" means a period of time which does not necessarily extend until the end of the convicted person's life.
I understand why the noble Lord wishes to see such a provision in the Bill, but I say with the greatest gentleness to him that the amendment really will not do.
Lord Goodhart: My Lords, I shall make two points in response to the noble and learned Lord, Lord Mayhew of Twysden. First, he referred to the possibility of the exercise of mercy. Where there is a possibility under the law of the country concerned that a release might occur as a result of the exercise of mercy, I would not regard extradition to that country as coming under the prohibition that is envisaged by my amendment.
Secondly, as the noble and learned Lord rightly pointed out, the death penalty inevitably excludes the possibility of review, whereas a mandatory life sentence includes it. But that was no part of my argument. My argument was not based on the fact that there would be no possibility of review. My argument
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was based entirely on the thesis that it would be improper to provide for extradition where, under existing law—although there is always, I suppose, the possibility of a change in the statute law—there is an extradition where conviction would result in a mandatory life sentence with no possibility whatever of release either by something equivalent to our parole board or by the exercise of mercy.
I appreciate that this amendment does not seem to appeal to the House, or such of the House as is present at this rather late stage of the evening. It is not one that in the circumstances I shall press either now or later. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.
House adjourned at six minutes past ten o'clock.

Transas Group Bill
The Examiner's certificate that no further standing order is applicable was ordered to lie on the Table.
It was reported by the Chairman of Committees, pursuant to Private Business Standing Order 91 (Special circumstances), that he had received the following report on the Bill from the Lord Sainsbury of Turville, Parliamentary Under-Secretary of State for Science and Innovation: "I believe that the promoters of the Transas Group Bill have undertaken a full assessment of the compatibility of their proposals with the European Convention on Human Rights, and I see no need to dispute their conclusions, subject to the points below. Their conclusions rely on assumptions on two matters that lie outside the Bill, and which I am therefore unable to verify. First, it is assumed that the extinction of the UK companies combined by acts of the boards of the companies and the company secretary of Transas Limited will effect the transfer of the business (including both assets and liabilities) to Transas Limited in Ireland. Second, it is assumed, on the basis of advice given by the companies' Irish lawyers, that all creditors' rights presently enforceable against the companies in the UK will be equally enforceable in Ireland. I note, therefore, that the Bill, while not itself infringing the rights of creditors of the companies, could result in the infringement of those rights if other conditions not controlled by the provisions of the Bill are not met. It may prove to be the case, therefore, that creditors' rights are less protected than they would be should the UK companies effect the transfer of assets through a more conventional route or through a winding-up procedure.".